Ms J Dickinson v V & A Enterprises Ltd: 2214947/2023
EMPLOYMENT TRIBUNALS
Case No 2214947/2023
Between
Ms J DickinsonClaimantV & A Enterprises LtdRespondent
Before
Employment Judge GoodmanAdam Ohringer (instructed by counsel) for claimantHannah SlarK (instructed by counsel) for respondentDate 24 March 2025
JUDGMENT
[1]The respondent unfairly dismissed the claimant.[2]The respondent dismissed the claimant because of something arising from disability and dismissal was not a proportionate means of achieving their legitimate aim.[3]The respondent dismissed the claimant without notice in breach of contract.[4]By a majority, the award for unfair dismissal is reduced by 25% because with fair process the claimant may have been dismissed.[5]By a majority, the award for discriminatory dismissal is reduced by 25% because of the chance that the claimant would have been dismissed in any event.[6]The wrongful dismissal claim succeeds: the claimant was entitled to notice of dismissal.[7]Remedy will be decided at a further hearing on 24 April 2025. Permission to the parties to apply for directions if required.
REASONS
[1]The claimant worked for the respondent as a museum technician. She suffered from depression and anxiety, which the respondent knew and admits was disabling. She also has an autistic spectrum disorder, which the respondent did not know, and says they could not have known. The claimant amended her claim in November 2024 to add autism, or a combination of autism and depression, as disability.[2]She was dismissed without notice on 14 April 2023 for gross misconduct on a complaint that she had bullied another employee, K. The relevant conduct was from the early weeks of 2022 onward.[3]The claims this tribunal has to decide are whether the dismissal was unfair, whether the dismissal was discriminatory, and whether she should have been given notice of dismissal. A list of the issues we need to consider in order to decide those claims has been agreed and is the appendix to these reasons. Conduct of the Hearing[4]It had been agreed that the tribunal would adjust the hearing in various ways to accommodate the claimant’s disability. When she gave evidence, the respondent’s witnesses observed remotely, so she was not distressed by their presence, and for the same reason, when they gave evidence, she could observe remotely, or not at all if she preferred. She was offered a 10 minute break every hour, had the use of a separate waiting room, access to a separate accessible toilet, and could make notes when being questioned to assist understanding. Questions and instructions were to be clear and avoid ambiguity. On the second day the hearing ended early as the claimant was too overwhelmed to continue and time was made up by sitting early and cutting back the lunch adjournment.[5]Originally the hearing was listed for 7 days. Lack of judicial resource meant that was cut back to 5 days and while it was possible to conclude the evidence and hear submissions in that time, the panel had to find another day for deliberation. It was already clear that remedy, if required, must be considered at a separate hearing.
Evidence
[6]The tribunal heard live evidence from: Joanna Dickinson, claimant Judy Roberts, Director of People and Change, who had little direct involvement in events. Most of her evidence was opinion or hearsay, much of it coming from Grace Nugent, the HR manager actively involved in the claimant’s case. Ms. Roberts gave an overview of the respondent’s usual practice, and was invited to comment on the documents of others from an HR perspective. Her direct involvement in events was to support Jane Ellis in the appeal against dismissal. We noted that Grace Nugent observed the tribunal hearing remotely. Dr Alexandra Getz, psychiatrist, had at the tribunal’s direction prepared an expert report on the effect of depression or ASD on the claimant’s behaviour, and a supplemental report answering respondent’s questions. She answered questions about this remotely. Daniel Slater, Director of Exhibitions, who investigated the allegations against the claimant David Osborne, Head of Procurement, who dismissed the claimant Jane Ellis, Director of Finance and Resources, heard an appeal against the outcome of the grievances, and also the claimant’s appeal against dismissal.[7]There was a main bundle of documents of 3,148 pages, a supplementary bundle of 585 pages, 3 short videos of access routes from the claimant’s workshop to various toilets, enlarged route plans, and some additional emails handed up during the hearing. There was a cast list, a chronology and an agreed timetable. The respondent provided an opening note. Both had listed essential reading for the tribunal.[8]At the conclusion of the evidence both parties handed in written submissions and each in turn spoke to points made by their opponent.
Findings of Fact
[9]The respondent is a charity and a non-departmental public body of the Department for Culture, Media and Sport. It runs the Victoria and Albert Museum of Art and Design, whose principal location is in South Kensington in London, with other sites in East London and in Dundee. There are around 1,200 employees.[10]The claimant was employed from 20 June 2016 as a technician in the Technical Workshop on the South Kensington site, providing a range of art and object handling activities, whether in store or on display, including gallery refurbishments, loans and setting up exhibitions. She specialised in making mounts.[11]In November 2021 work began on the Africa Fashion project, a special exhibition for the main museum and then on tour. The claimant had asked at the end of 2020 to be involved, and became lead museum technician on the project. The Claimant’s Health in early 2022[12]The claimant has suffered depression on and off for many years. On her own account it worsened from July 2021. By the winter of 2021-22 she was taking time off work for a variety of reasons. As her manager, Amel Earle, later commented, from November 2021 they could not rely on her to work a full week, and some of her reasons for not working were inconsistent. She wanted to explore the absence pattern to see if there was an underlying cause. Her mental health further worsened when her grandmother died at the end of January 2022, and she took more time off in February. Amel Earle met the claimant on 21 February 2022 to discuss frequent short term absence, and what was causing it. She had had time off with IBS, migraines, and currently a painful knee.[13]After the meeting, Amel Earle sent her a work stress risk assessment to complete, as it might help understand her migraines. The claimant filled in her part on 11 March, but challenged that her depression was being characterised as “stress”. This was the first time the claimant had mentioned depression, and is the date from which the respondent admits knowledge of depression as disability. Amel Earle explained to HR that day that there were: “issues with her attendance and some behavioral related issues although her work is of a high standard”.[14]In a later interview with Daniel Slater in July 2022, Ms Earle said there had been other patterns - delivering things aggressively, speaking out of line, attending one departmental meeting from the side of the road. The Claimant and K[15]The Africa Fashion project involved around 5 employees from textile conservation, and the senior conservator on the project was K. The respondent later took the view that the claimant had deliberately expressed an interest in the Africa project to bring her into contact with an employee in textile conservation, K. According to the claimant she did not know that K was going to be involved until much later. It is not clear that the respondent’s investigators made a finding on this point.[16]In 2017 the claimant and K had been involved in a romantic relationship, which ended around March 2018. Thereafter they had a very on-off friendship. The claimant has described this as “confusing”, saying sometimes K would be cordial, at other times distant. Relevantly, in November 2019 the claimant had attended a conference in Norwich at which K was present; the claimant was aware that K had found her behaviour intimidating, both at the conference and on a train journey. On 2nd January 2020 K sent the claimant a WhatsApp message: “please just stay well away from me in future”, just before a conference in Winchester where both would be present. The claimant later commented that K stood behind her in the lunch queue at this Winchester conference as an example of “inconsistent behaviour - I did not know what was unwanted or unwelcome generally”. On 15th January 2020 K emailed: “I cannot stop you from talking to anyone, but I can make clear that dominating my personal and professional space and friendships, when you know it makes me uncomfortable cannot go on any longer. My friends and several of my colleagues are aware of the situation so it makes it awkward for them too. We can exist in separate spheres within overlapping space. Going out of your way to make me anxious and upset when you could just leave me alone is only bullying, it's never going to lead to reconciliation or friendship so let's just leave it back in 2017 where it belongs and please just stay well away from me in future”.[17]The two were present at the first meeting on textile mounting for Africa Fashion, on the 24th of January 2022.[18]The claimant emailed K on the 8th of March 2022 about when the objects for mounting were going to arrive, explaining her deadline, as the mounts needed to be painted three weeks prior to the installation.[19]There was a further team meeting on the 24th March 2022 which both attended, where tension between the two was manifest. Afterwards K's friend Rachael Lee approached the claimant about the relationship with K. The claimant explained that she was anxious in K's presence, because she did not know where she stood, and the anxiety was heightening her reactions. Rachael Lee suggested that the clamant ask her to provide information she wanted. The claimant asked if she should e-mail K about what happened, and was dissuaded.[20]Next day, the 25th March 2022 the claimant met Amal Earl about her well-being at work. The claimant broke down. Amel Earle called it a “mental health crisis”. She agreed informally that for the month of April the claimant could work five days in four, taking Thursdays off. On the 4th April she asked HR to arrange an urgent occupational health assessment. Unfortunately, when the claimant was contacted by the occupational health advisor to make an appointment, she became upset at “a very uncomfortable cold call on my mobile from someone asking for excessive further personal details”, despite it having been explained that this was so they could adjust her working hours. After discussion the OH request was cancelled until the claimant felt able to agree.[21]Meanwhile K expressed unhappiness with the volume of e-mail she was getting from the claimant. On 7th April, replying to an e-mail from the claimant’s colleague Meg Hogg about mounting 3D textiles, she made brief comments in red, adding: “I feel there are a lot of emails flying around duplicating info that can be looked (up) ..on the object list, or has already been discussed. Please can we try and keep the emails to as low a volume as possible.” On the 13th of April, K emailed the claimant: “could you cut me out of this e-mail chain now, and for all adornment objects. I've commented where I need to on display requirements, so don't need to be kept in the loop on the progress of the mounts. Can you be mindful of unnecessary emails, and keep communication to a minimum, for personal as much as professional reasons”. This message was reinforced by Sarah Quantrill in textiles, saying the textile conservatives were very busy and should only be contacted once a month. This was challenged by the claimant, who says Sarah Quantrill agreed that the emails she had sent were necessary, so she considered that she could continue to send those that she “professionally considered were required to complete the project”. When the claimant emailed Amel Earl on the 14th April about the occupational health call, she mentioned this attempt to restrict what she sent, as it implied lack of professionalism on her part. She was “apprehensive about an impression otherwise fuelled by her (K’s) personal dislike and how this might impact on our access”. The tribunal was taken through several of the email chains. The claimant kept asking K when objects would be ready for mounting. She received replies on the particular requests for information, not overall timing. K’s first complaint[22]That same afternoon (7 April) K emailed HR asking for “advice regarding a work situation that is becoming untenable and is really affecting my mental health”. Over the five years since the end of the relationship the claimant's behaviour had, she said, been compulsive, obsessive and at times intimidating. At times she had blocked her on phone and social media accounts. Now they were both working full time at the museum: “she has begun to exhibit persistent unwelcome attention, which at times has felt like stalking”. She frequently came to her workspace, the textiles conservation studio, she often walked up and down the corridor to the studio or hung around outside, she went out of her way to use the restroom closest to the studio when there were closer toilets to her workspace. She would come in to see if she was at her desk. At a break in the canteen or garden she would position herself within a direct line of sight or in earshot. She might get up and move closer. She approached her friends when she was with them. She felt “harassed, constantly on edge at work”. She had spoken to the claimant about it. She tried to keep their work interactions as brief and professional as possible. She was now “struggling with the amount of contact that she is now demanding from me for work purposes”. She sent unnecessary emails, asked for meetings they did not need, and as others were copied into emails, she felt she should reply. She asked HR not to involve their managers at this stage, because only a few close personal friends knew that they had been in a relationship, or that K was queer. She hoped HR could speak to the claimant about it.[23]K spoke to Sophie Toyer of HR on 22nd April. She had been sent the Museum’s bullying and harassment policy, and she asked for an informal process:” what I would really like is a non-contact arrangement, and as soon as possible... I’m incredibly stressed by this and I worry that going through a formal process will be even more stressful”. She might also need a break from work. She was told it was best for the respective managers to speak to each other, to find ways to limit or avoid contact while working on the project together. K arranged to see her own manager on the 28th April.[24]The flow of emails did not abate. The tribunal was taken by way of example to a sequence from 26th April about display widths. K gave a prompt technical response. The claimant came back on other points. K responded extremely briefly. The claimant involved Meg Hogg, and K was copied into the ensuing dialogue up to 29th April. It was suggested that little of this was necessary. The claimant disagrees, and went further in cross examination, saying: “K was acting obstructively”. Most of the emails were necessary, she said, because she would not update her about deadlines.[25]On 13 May Amel Earle instructed technical services staff not to access any conservation studio without first contacting the relevant conservator; “in the unlikely event that no one is available to assist, could they e-mail the conservator to let them know that they have been in, and the reason of the visit. That afternoon the claimant said that her assistant Toby Webb had been scheduled to visit the studio, but as he was busy the claimant had “dropped by” in K’s absence, and then reported to K what items she had left, ending by wishing her a lovely weekend.[26]The claimant was away sick with stress on the 16th May. On the 17th May the new line manager, Claudia Calamita, told the technical services team, including the claimant, that from then on all e-mail communication on Africa Fashion should be routed through Elizabeth-Anne Haldane. This was an attempt to limit contact between the claimant and K, but no reason was given. K’s second complaint[27]On 18th May K complained again. Measures taken by HR had been inadequate. It was 5 weeks since she had got in touch with HR, “during which time Jo has had daily contact with me, either emailing me, or coming into the textiles conservation studio to find me”. She was trying to construct situations where they needed in person meetings. When colleagues emailed her to make arrangements, the claimant was always being copied in. She wanted the claimant to be told directly, and soon, that the measures to limit contact were because K wanted that, otherwise “she will keep finding ways to work around whatever new rules are put in place to try and limit her contact”. She mentioned the 13th May unexpected visit to her studio. HR instructions to the Claimant[28]Later that day, Genevieve Phillips of HR met the claimant, accompanied by a friend, to discuss the claimant's own health, in case the absence n 16 May was work related, and also because: “we have been contacted by an individual outside of your team who has raised some concerns that we need to discuss with you”. After this meeting, the claimant again went sick and did not return until 28th June. It is important to look at this meeting, as disobedience to the instruction given there was a basis for the later disciplinary action.[29]We do not have notes of what was discussed about contact with K, but on 23rd May the claimant was sent Genevieve Phillips’ summary if what was discussed. Miss Phillips recorded that the claimant had described a fluctuating friendship with K, she was confused and unsure whether she was welcome to be friends with her or not. They spoke about the occasions K had given about being uncomfortable in the textile studio, at nearby restrooms and the canteen. The claimant had expressed her reasons for her actions. They had agreed it was useful to have clear parameters and agreed ways of working. “We discussed the need for tact and personal discretion when using shared spaces such as the canteen, and that you are now aware of the level of upset the situation is causing you will be better able to decide how and when to interact with mutual friends”. The claimant agreed that she would no longer bring objects to textile studio, that she would send e-mail via Elizabeth-Ann Haldane, and would make appointments for visits to the studio. A follow up meeting was planned for the 25th May but did not take place because of the claimant's absence.[30]Questioned about this meeting by David Osborne in the disciplinary process, Genevieve Phillips said this e-mail was only a summary of a more detailed discussion, where “tact and consideration” had taken up a long time. “I felt often that Jo was literal, she was either completely one way or another way. She struggled with grey areas”. She confirmed she had been told she allowed to use shared spaces such as canteen, garden, staff toilets and corridors. There had been a detailed discussion about alternative toilets so that she need not use the conservation corridor. She was encouraged to think of alternatives. On canteen use, she was told that she could use it, but try to avoid K.[31]The tribunal was taken to several plans of the site to understand the routes from the Technical workshop and various toilets, and heard the claimant’s explanations: that because of IBS she wanted to use a multiple cubicle toilet in case one was already occupied, during lockdown only one was in use at the workshop (though more were in use there by 2022) so she took to using the multiple cubicle toilets near the canteen, and used the conservation corridor to get there because she thought it was a safer way to cross the service road; she did not want to explore new routes in May or June 2022 because her mental health was now so poor that she needed routine to” hold myself together”.[32]In the meantime there was a telephone conversation between the claimant and her new line manager on 20th May about suicidal thoughts, depression caused by working with K, and her father being diagnosed with cancer. A fresh occupational health assessment was commissioned, though this too was postponed because the claimant was absent. Events on 28-29 June 2022[33]The claimant returned to work on the 28th June 2022, asking for a phased return. Later that morning K emailed Genevieve Phillips and Sophie Toyer complaining it “would have been helpful” to be told the claimant was returning to work so she could prepare herself mentally, as “she has come to spaces that I'm in twice already”. The claimant had just stopped for a chat with a colleague in the corridor just by the textile conservation door, and “stopping to hang around and watch me is not acceptable”. In the canteen she had positioned herself facing her, in her direct line of sight. “Her making her presence known to me is part of what feels like stalking”. The studio was her only “safe-ish space”. It made her feel uncomfortable, anxious and frightened. Genevieve Philips replied that she would be seeing the claimant first thing the following morning.[34]Part way through the 28th June Rachael Lee tackled the claimant in the canteen toilets about why she kept using them when she knew K was worried about proximity.[35]The claimant also wrote to Genevieve Phillips at the end of the day about her line manager Claudia Calamita now telling her she was not to work in framing because her workshop was “busy and stressful”. The claimant objected that being in her own workshop was where she felt least stressed.[36]Next day, 29th June, K emailed Genevieve Phillips and Sophie Toyer again, asking if they had yet spoken to the claimant: “I've just seen her again in the canteen and rather than leave through the first door, nearest to where she collected her coffee, she stomped past me and sat near the back door with such force that all my colleagues looked up and asked what was wrong with her. This is what I mean about making her presence known to me. I need her to be more discreet about her proximity to me, and not try to attract my attention. It's clear that she doesn't like me, but I don't need to feel it expressed. I know these are nuanced things we need to work through, so if you could help mediate, that would be appreciated”.[37]Later that day the claimant had a formal return to work meeting with Genevieve Phillips and Sophie Toyer, the claimant being accompanied by her friend Keira Miller. They discussed whether it was safe for her to be working with heavy machinery in the workshop (this appears to have been the reason for directing her to framing). The claimant was to have an occupational health assessment the following week ,and was told there would be a full phased return plan once they had the OH report. They then discussed K's complaint, including whether she could be told the days the claimant was coming to work in a phased return, and which toilets the claimant was to use. It was suggested that she use different toilets, but the claimant said she had a right to be in these spaces, and was “currently fighting the feeling that she doesn't have a right to exist”. K needed to alter her behaviour too. K’s formal complaint[38]It was agreed the claimant would not return to work until there was an occupational health report about a phased return. However, on the 1st July, K raised a formal complaint of being bullied by the claimant. She said she had attempted informal action over nearly five years. She described some incidents during those years. She complained that the informal complaint, and informal action that followed, had not worked. On the two days the claimant was back at work in June there had been “multiple incidents of inappropriate behaviour”. She was afraid of bumping into her. The relationship overall: “was a toxic one based on her power and control over me”. She was “manipulative and cruel... aggressive and confrontational”. “She hates me”. The only route out of this she (the claimant) wanted was a friendship. She was afraid of being trapped in the toilets with her. K was just trying to arrange annual leave and work from home when the claimant was at work. She had done all that HR asked, but colleagues were asking why K did not make up with the claimant, and she did not want others to know about the past relationship, or be “forced to out myself in order to defend or explain”. She wanted action to ensure she could come to work without fear of harassment, intimidation or confrontation. The Respondent’s Bullying and Disciplinary Policies[39]The respondent’s bullying and harassment policy defines bullying as “unwanted behaviour that makes you feel uncomfortable”. It can be “offensive, intimidating, hostile, degrading or insulting behaviour that violates or dignity”. It might be a regular pattern of behaviour or a one off incident, by one person or a group. Whether it is bullying “does not depend on the intention of the perpetrator, rather the impact of that conduct or behaviour”. The policy emphasises that all staff have “a responsibility to discourage bullying by “ensuring our behaviour does not cause offence and considering the impact of our behaviour on others, making our colleagues aware that certain conduct is causing concern or offence, openly listening to, learning from and changing our behaviour if it is raised to us that our conduct is causing concern or offence, ensuring we respect other’s feelings”.[40]If a complaint of bullying is made, an option for managers is to speak to a person informally to try to resolve it, not revealing the complainant’s identity without their consent. This process should take “no longer than four weeks”, extended only in exceptional circumstances, for example if someone is on leave.[41]If not satisfied, the complainant could then explore mediation, or make a formal complaint. Mediation involves an impartial third party helping them find a resolution with both parties talking together, using a collaborative approach to problem solving to focus on the future and rebuild the relationship. It can be used before formal processes are in place, but can also be used during the formal process providing all parties agree.[42]The formal process is used when a formal complaint is made. At that stage, managers should consider whether precautionary measures need to be put in place such as non-contact arrangements, suspension, and temporary restrictions such as moving work location. This can be reviewed at regular intervals for the impact on those involved. Meanwhile the grievance must be investigated by a manager otherwise uninvolved. Both parties can bring a colleague or trade union representative with them to meetings. If not upheld, there will be no sanctions. If upheld, a disciplinary process may follow. The disciplinary process can be resolved informally, but if the conduct is significant, there should be an investigation to establish the facts, and if there is a case to answer a disciplinary hearing.[43]If misconduct is found, the outcomes range from no action through mediation, staged warnings, transfer to another role, amendment of duties, and dismissal with or without notice. There is an appeal process. There is list of levels of misconduct. Misconduct which can result in dismissal without notice (I.e. summary dismissal), includes “bullying, abusive or offensive behaviour”. Suspension and Investigation[44]The claimant was informed on 7 July that she was being suspended pending an investigation.[45]Daniel Slater was appointed to investigate. He interviewed the claimant on 28th July and again on 17th August. She was allowed, as an adjustment for depression, to bring her sister to the meetings as well as a union representative. She sent Daniel Slater 754 pages of her WhatsApp messages with K over the past five years, and an 84 page statement from the claimant, including many text messages between her and K . After interviewing K, Claudia Calamita, Amel Earle, Rachael Lee, Vanessa Baldwin, Kirsty Hassard, Toby Webb, Meg Hogg and Laura Flicker, Daniel Slater prepared an investigation report, dated 16th September 2022.[46]He examined the evidence about the relationship over the previous years outside work, and decided that was mostly outside his scope, while noting, in relation to conferences, that K had made it known to the claimant that her conduct was unwelcome. During early 2022, when the most intensive work on the Africa Fashion exhibition was taking place, the claimant must have realised therefore the need to make positive efforts to ensure that that “necessary interaction” was not a source of distress. On emails, he concluded that although the content was work-related, “the volume of correspondence was surprisingly high”, and she continued individual e-mail chains even when asked not to. “On balance I think that she was taking advantage of their respective roles in relation to Africa Fashion to engage in contact”. On contact in person, he thought that the frequency was “inconsistent with purely chance encounters”, more than he would expect if the claimant were making any reasonable effort to minimise contact. He concluded that under the V&A policy, this was bullying. The course of conduct as a whole was unwanted, and at least by 2022 the claimant knew it was unwanted. Whether she intended to bully was not relevant. The complaint was upheld and should proceed through a formal disciplinary.[47]In oral evidence he made it clear that as most of the textiles in the exhibition were from the last 20 years, the conservation needs would have been less complex than in many exhibitions, and although on the face of it emails were related to work, the claimant seemed to be using work-related queries as a pretext to come into contact with Ms K. Based on his own knowledge of the canteen, her explanation of that feature of her behaviour was not credible. The claimant seemed to have little concern for how her actions affected K, with more concern about her own state. He was particularly affected by his second meeting with K on 23rd August, when she had difficulty speaking without crying.[48]As for the effect of depression, he made the point that the claimant never argued that she behaved in this way because of her depression. She had said: “I have stopped changing the way I live my life based on someone who did nothing for me, it is detrimental to my mental health and sense of self-worth. Acting like her feelings of comfort were more important than me. I stopped prioritising that... I was having increasingly bad mental health. I do what I need to do and have the right to be in the workplace”. Occupational Health Report August 2022[49]The claimant was assessed by an occupational health nurse adviser on the 10th August. We do not have the letter of instruction she was sent, but we know from some undated drafts that the respondent at least intended to ask whether the claimant would benefit from a phased return, if so with what work pattern; would she benefit from a quiet workshop during the phased return. Did she need support on return because of her exposure to heavy machinery? Did she have any underlying health conditions which might be impacting her attendance, and if so what could management do to support her. She was also asked about “workplace stressors (workload was identified) which are impacting her well being” and how these could be adjusted.[50]In answer to these, the occupational health advisor identified past absences for migraines, which had become more frequent on recent stressful events work, heavy painful periods and on occasions symptoms so severe she could not leave the house. She had picked up several viral infections over the past year, which could be related to stress it at work reducing her general resilience, and she had an enduring depression for which she was under the care of her GP and receiving medication. Her recent absence was from the stress of: “the current situation with regards to interpersonal issues with a colleague and her perception that she has felt unsupported by management”. Investigation of the bullying complaint while she was suspended caused significant anxiety, but she was keen to work return to work when it concluded. She recommended that the claimant could return to work once “a mutually satisfactory conclusion to the current work situation had been settled on”. There should be speedy resolution. She added: “workplace conflict is always a managerial rather than a medical problem and, even though I only have Ms Dickinson’s view, it is important that this is treated seriously and arbitration, conflict resolution or mediation services are considered”. She also set out a timetable for a phased return. She thought she would do better in her familiar area, a quiet area was unlikely to help. Once the stressful situation at work was resolved, she would be able to render “good service, performance and attendance into the future”.[51]The HR adviser who had supported Daniel Slater’s investigation, Grace Nugent, decided on 21st September 2022 that the claimant would remain suspended, a decision that was to be reviewed by her during the disciplinary process. We were told that she advised Daniel Slater that mediation was unlikely to succeed because of the claimant’s attitude to K, and the same went for a behaviour agreement. David Osborne was appointed to chai the disciplinary process and Grace Nugent continued to provide HR support.[52]Before he could begin his interviews there were two relevant developments. DATS Conference September 2022[53]The first is that on 25th September 2022 the claimant notified Grace Nugent that she would be attending the Dress and Textile Specialist Conference (DATS) on the 20-21 October 2022. She did not know if K planned to attend but she did not intend to have any contact with her. “given the current situation it may be best that K is aware so that she can plan accordingly”. She proposed that they attend conference tours in a different order to avoid contact; the claimant did not plan to attend the conference dinner; she would be attending with a friend to help her avoid contact, and they would not be on the same train from London because she was staying the weekend in Bristol.[54]Grace Nugent replied, referencing the disciplinary investigation: “we do not consider it appropriate for you to attend the DATS conference and for that reason we advise you not to attend”. She should consider remote attendance. However, “as the event will take place outside of work, and the investigation process found there were legitimate reasons you to attend the conferences, it is ultimately for you to decide if you would like to go or not”. They would share information about her plans with K. According to the website, K was on the committee for the event.[55]Whatever the claimant planned to do was overtaken by events, because K told DATS about her bullying complaint, and the chair of DATS emailed the claimant on 6th October 2022 to say that her conference place would be cancelled. The claimant says that she had not yet decided what to do about Grace Nugent’s instruction, because she was too busy writing her grievances (see below).[56]The claimant complained of K breaching the confidentiality of the grievance and disciplinary process by telling DATS about it. After the claimant was dismissed, there was an investigation, and K was issued with an informal warning for breaching confidentiality. The Grievances[57]The other development was that on the 28th of September the claimant filed 3 formal complaints. One was against the HR team for lack of support, one was against her management team for lack of support, both alleging that she was being bullied, and the third concerned the fairness of the disciplinary investigation process. All three are long and very detailed. On 1st of November 2022 she added a brief complaint about Grace Nugent not considering her well-being or treating her fairly.[58]The Respondent decided to run the grievance and disciplinary processes concurrently, but delay the outcome of the disciplinary until the conclusion of the grievance into the disciplinary investigation.[59]The grievance investigation was carried out by Jo Ani. On the 15th December 2022 she concluded that Daniel Slater's investigation had been thorough, fair, and despite some factual errors, reliable. Ms Ani added that she had asked Daniel Slater about mitigating factors, and he replied that it was not within his remit to consider whether the claimant’s behaviour was subjectively mitigated by her personal characteristics, only whether the behaviour amounted to bullying according to the museum policy definition. One of Jo Ani’s conclusions was: “JD referenced difficulty picking up on social cues. The grievance hearing recommends that the disciplinary hearing explores this and asks JD (the claimant) if there were any further mitigating circumstances which should be taken into account when reviewing the outcome of the investigation”.[60]The claimant appealed Jo Ani’s findings on 13th of January. Jane Ellis was appointed to hear it. Her written decision was issued the 7th March 2023. After reviewing factual matters in detail, she concluded that the complaint on the disciplinary process was tightly not upheld, although the chronology of conferences attended by the claimant before 2022 required further investigation. The disciplinary hearing should go ahead, and should consider additional witness statements, “as well as considering any relevant mitigating circumstances” in the usual way.[61]Investigation of the claimant’s other two September grievances was taken over by Adam Lee-Pentelow. Subject to nine recommendations about poor communication impairing attempts to support the claimant's well-being, he did not uphold the grievances (report 24th March 2023). The claimant appealed that decision. Helen Charman rejected the appeal (report 28th July 2023). Adam Lee-Pentelow investigated and reported on the complaint about Grace Nugent on the 30th June 2023. The Disciplinary Process[62]David Osborne had been sent many statements from the claimant and others before he interviewed the claimant on 19 October. They discussed a number of the witness statements. David Osborne asked about a comment by another employee that in the past her nature had come across as pushiness - did she know what was meant by this? The claimant answered “I tend to be and don't always understand social cues. I tend to be to the point” and she may not have noticed social cues from K in the stress of having to be a really good friend and then ignored and blamed “for existing in my work space”. She went on: “my whole family is on the autistic spectrum. I've not been diagnosed, but find it hard to see social cues. Don't always notice someone else may not be as enthusiastic as I am about a topic. Acknowledge I may have a level of autism”.[63]David Osborne was asked what he did with this comment. He said it “really stood out for him.. I thought, oh, if she’s autistic she’d struggle with that”. He had discussed it with Grace Nugent and they had concluded it was a “throw away remark”. Having autistic traits did not mean she had autism. Ms Nugent had advised they wait to see if the claimant raised it when she was asked about mitigation.[64]Continuing the investigation, he interviewed K on 31st October. K had already said that she did not want to answer the 8 pages of questions the claimant had prepared for her - Grace Nugent reported that K felt the claimant was using the disciplinary process as a way to continue contact with her. David Osborne asked some of these questions himself. On DATS, K explained that it was a small niche event, and she saw the booking as a continuation of the stalking. He also heard her account of the effect the claimant had on her and concluded she was honest and credible, with “genuine fear of the claimant returning to work at the V&A”.[65]On 10 November he interviewed Genevieve Phillips about the instructions given to the claimant on the 18th May. Ms Phillips explained that the claimant was not given specific instructions about use of canteen and garden, and was not told not to use the textile conservation corridor, only not to loiter too long in it. She had asked the claimant to use “tact and discretion” in these areas, because it upset K, but it had not been reasonable to ban her from the canteen and garden. She was asked to consider alternative toilets, but not barred from using the toilets closest to textiles conservation. It had been a detailed conversation: “I felt often that Jo (the claimant) was literal, she was either completely one way or another way. She struggled with grey areas”, and “Jo had a very literal translation. It is impossible to cover every single shared area of the museum. Not unreasonable to ask someone to limit their presence if another person feels harassed and watched by them”. Commenting that the claimant had been upset by the complaint: “Jo is very literal in her responses. She asked a lot of questions and needed a lot of details. She found the whole process difficult to understand and had a tendency to sit in her own space and not see other versions of what had happened”.[66]One of David Osborne’s written statements came from Keira Miller, who had accompanied the claimant to the return to work meeting on the 29th of June. She had reported that there was confusion on what toilets she could and could not use, commenting “the confusion and Jo's drive for clarification seemed to me to override any cohesive outcome”.[67]David Osborne then waited for the outcome of the appeal against the grievance finding about Daniel Slater's investigation before resuming the process on 9th March 2023. The client was asked for: “further relevant mitigating evidence”. She sent 11 further documents. None of them reference her mental health, or difficulty with social cues.[68]David Osborne decided to dismiss the claimant without notice for bullying, which was gross misconduct, and wrote to the claimant to say so on the 14th April 2023, accompanied by his report and interview notes. The e-mail traffic had been excessive. It was reasonable to ask the claimant to use tact and discretion and adapt her behaviour. The claimant had followed the procedure for studio visits. However, on 28th and 29th June, while she had adjusted her behaviour, seeing K on about four occasions in the shared spaces, “her movements meant that she had increased the chances of coming into contact”, and she should have known by then that it was unwanted. On the DATS conference, the claimant should have known that her attendance would make K feel uncomfortable, regardless of the mitigation she planned to put in place, and she had been “advised by the People and Change (HR) team not to attend in an e-mail of the 29th of September or attend virtually, however my understanding is that she was still planning to attend and only agreed not to attend when DATS said that they would cancel her ticket”. On the claimant’s mental health, he noted that this was a difficult time, and that on her return to work on 28 and 29 June she had a heightened sense of stress and anxiety, but he had been reassured that occupational health confirmed in their reports that she was fit to work, with recommendations to be put in place.[69]On this last point, Mr Osborne says that he had asked to see the occupational health report, but been told by Grace Nugent that it was not appropriate, as the claimant was sensitive to disclosure, that she was fit to return to work, and the adjustments had been put in place. He understood from this conversation that the claimant was able to understand instructions by the time of the DATS conference, but he did not know that OH had recommended “arbitration, conflict resolution or mediation”.[70]He also asked to see Jane Ellis’s grievance appeal outcome. He did not have Jo Ani’s grievance decision, though Grace Nugent read some of it out to him at a meeting on 8 March. So he did not see what she had said about difficulty picking up social cues, and only heard a general comment about mitigation.[71]The V&A disciplinary policy lists bullying as gross misconduct. Mr Osborne was asked whether he had considered any alternative to dismissal, as there is no mention of alternatives in the letter or report. He said he had not considered mediation or a behaviour agreement at any stage following his appointment because of the advice from HR about the futility of these. He had discussed with Grace Nugent whether there were alternative posts within the V&A where the claimant need not come into contact with K. He had been told there were none. The tribunal was shown an undated memorandum prepared by Judy Roberts about job alternatives “prior to dismissal” - we wondered if this meant the list was prepared after dismissal. He explained in tribunal that his strong inclination was that the claimant merited a final written warning. Being relatively inexperienced in disciplinary decisions, he had found the “jury” part - was the conduct bullying - relatively straightforward, but he had really struggled with the “judge” part – the sentencing. However Grace Nugent had persuaded him that a final warning would not work. He did ask Grace Nugent to supply examples of cases where final warning was used as an alternative to dismissal, but was told HR could not disclose details of other cases because of confidentiality.[72]The claimant appealed the dismissal and Jane Ellis was appointed to hear it. (This duplication was because the respondent was running out of managers of sufficient seniority, though her grievance appeal role meant she was already familiar with the facts). She met the claimant, saw Grace Nugent, considered the many documents, and dismissed the appeal. She concluded it was right that David Osborne had focused on behaviour after the 18th May 2022 complaint. She agreed that the claimant had done little to change her established patterns of behaviour on 28th and 29th June to minimise contact with K, although there had been only three (rather than four) encounters in those two days. On DATS, the claimant had focussed on her right to attend, not the effect on K. On the claimant saying that her mental health made it more difficult to deal with requests by K, particularly in adjusting behaviour on her return 28th and 29th of June, saying she thought she had adjusted it, Jane Ellis relied on the OH report of August 2022 (which Judy Roberts, the HR support for this stage, had allowed her to see) that she was fit to work with a phased return, which must mean that she was also fit to be at work on the 28th of June, “and that the decisions she made around that time can be assessed on the basis of reasonable behaviour without any adjustment relating to her mental health”, and that also included the claimant’s DATS booking. Poor mental health was not sufficient mitigation to alter the outcome. Disability[73]Before discussing the merits of the Equality Act claim, the tribunal must make findings about disability.
Relevant Law
[74]Disability is defined in section 6 of the Equality Act 2010. A person is disabled if he has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on (his) ability to carry out normal day-to-day activities. Employment tribunals should assess the evidence to make findings on:(1) whether the claimant has an impairment(2) whether the impairment has an adverse effect on his ability to carry out normal day-to-day activities and(3) whether it is substantial ,meaning more than trivial - Aderemi v London and South Eastern Railway Ltd (2013) ICR 591. These questions are to be decided by the employment tribunal based on all the evidence – Adeh v British Telecommunications plc (2001) I IRLR 23, and “it is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant is a physical or mental impairment with the stated effects.” – McNicol v Balfour Beatty Rail Maintenance Ltd (2002) ICR 1498. In deciding what is minor, the tribunal can consider a comparison with someone not suffering the impairment and “if that difference is more than the kind of difference one might expect taking a cross section of the population, then the effects are substantial” - Patterson v Metropolitan Police Commissioner 2007 ICR 1522, where dyslexia impaired exam performance.[75]Statutory guidance on the meaning of disability says that the term mental or physical impairment must be given its ordinary meaning. The cause does not have to be established, nor must it be the result of an illness. “The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of the physical nature may stem from an underlying mental impairment, and vice versa”. The test of disability is a functional one – Ministry of Defence v Hay (2008) ICR 1247. It must be assessed as at the time of the discriminatory acts alleged.[76]If an illness is being treated, the tribunal must look at the deduced effect, without treatment. The tribunal should look at what a person cannot do, or do only with difficulty.[77]A claimant may use an “avoidance strategy” to prevent or reduce the effects of an impairment on normal day-to-day activities, and if successful the person would no longer meet the definition of disability - Statutory guidance paragraph B7.[78]A person's impairment can be said to impact on personality traits, such as “behaviour that may be interpreted by others as being argumentative, insistent and peculiar to her”, or insistence on strict routines, that may not necessarily give rise to any substantial adverse effect on ability to carry out normal day-to-day activities -Khorolichova Euro Rep Ltd UKEAT/0266/19. In that case the claimant had a “mixed personality disorder”, the pleaded difficulty was that this caused her to be “somewhat obsessive” or “perfectionist”. The tribunal declined to find that the evidence supported a finding that this had a substantial adverse effect on her ability to carry out normal day-to-day activities. Evidence and Discussion[79]The respondent admits depression as disability, that is, that it impaired her ability to carry out normal day to day activities in a more than trivial way, and that from February 2022 they knew that. Based on the symptoms reported by the claimant and her managers, the absence pattern, the occupational health report of “enduring depression”, and the notes of the psychologist Dr R O’Flaherty who was treating the claimant from August to November 2022, it is clear that she has suffered depression in varying degrees throughout the 2022 period when her conduct was held to be bullying. In May and June 2022 her doctor was prescribing Sertraline for depression and anxiety.[80]Autism is less clear. Dr O’Flaherty, treating the claimant for anxiety and depression during suspension and the start of the disciplinary process, makes no mention of autism, only that she “always felt socially awkward”.[81]Doctor Alexandra Getz, consultant psychiatrist, prepared an independent expert report in July 2024 after being instructed on the initiative of the judge at the case management hearing for this claim to report on whether the conduct for which the claimant was disciplined was “something arising” from depression. . Dr Getz was sent the particulars of claim, grounds of resistance, the claimant’s statements of 28th July 2022, 13th March 2023, the disciplinary outcome report and its attachments, the claimant’s appeals, and the occupational health report and some other records. She was asked for her expert view on whether, at the time, the claimants behaved in this way because of her depression, or because of some other reason. She was asked to comment specifically on the claimant's use of toilets near K and the route she took to access them, her route moving between parts of the building, her use of communal spaces, e-mail communications with Ms K, being fully aware of Ms K's wishes, expectations and boundaries in the workplace, behaving in ways which might be considered unwelcome by others and behaving in a manner which K considered amount to harassment or otherwise inappropriate. In each respect she should say whether this was because of depression.[82]She replied that she could not comment without evidence that the claimant was doing the things K had accused her of. She did conclude, on the balance of probabilities, that the claimant qualified for a diagnosis of autistic spectrum disorder (ASD) (6A02 ICD 11) based on pointers towards the diagnosis, though she had not done a full assessment. Autism could be difficult to pick up in females because they are more likely to mask or camouflage their autistic difficulties. She noted the comment about taking things literally, seeing things in black and white, and the claimant’s request for clarification about tact and discretion as indicative of an autistic individual struggling with nuance and figurative language. She added that depression, anxiety and ASD commonly cooccur, the mood disorder being partly understood as a reaction to the difficulties of coping day-to-day with ASD, and the strain of having to modify behaviour to get through the day. Such individuals also had low self-esteem because they are made to feel they do not fit in. Dr Getz commented on the claimant's account of the longer term relationship with K and the apparent oscillation between distance and social friendship, but not on the specific questions about her conduct and whether something arose from depression.[83]This deficiency is in part put right by the her addendum report, 3rd December 2024, in answer to joint questions. Commenting that individuals on the autistic spectrum can struggle to understand others’ emotional experiences, she said: “it is important not to use the autism condition to explain away all difficulties in interpreting the other’s intention or in understanding the other’s emotional experience, as some people are far easier to read than others” - the claimant had described difficulty with understanding what K wanted, but not difficulty with colleagues and friends. A feature of autism was taking rules seriously, as well as being literal-minded. The claimant could have visited the conservation studio because she saw it as necessary for work, while not appreciating how K felt about it. She would want to stick to routines, like toilet use, or a preferred place in the canteen. ASD symptoms would invariably worsen or be exacerbated by comorbid depression. It was very likely that one depressed the claimants selfawareness and awareness of other behaviours was undermined.[84]In December 2024, the claimant arranged a three day autism assessment, which included an interview with her parents and a structured clinical interview, as well as questionnaires. The resulting report of 13th of December 2024 was written by Andrew Stevens, psychologist, and Nisha Veerd, speech and language therapist. They concluded she met the diagnostic criteria for DSM-5-TR for 299.00, autistic spectrum disorder.[85]Given that diagnosis, the tribunal must consider whether the level of symptoms experienced by the claimant impaired her ability to carry out normal day-to-day activities. The tribunal was taken to performance reviews at work. In April 2017 she was rated as having exceeded expectation with her enthusiasm and engagement, and in April 2018 she again exceeded expectations, including flexibility on last minute changes with “problem solving and liaising with colleagues throughout. She also led the team really well through the project, getting the team to work particularly well together and using people's strengths”. There are similar comments in April 2019 on leading the team well. These suggest interpersonal relationships were not then substantially impaired. The reviews for 2020 and 2021 are bare of detail because of furlough, but there is no evidence before Covid of impaired social functioning or excessive rigidity. However, some of the comments by colleagues in the investigation process did indicate her behaviour could be literal-minded or unusual. It is not clear when or in what context this was observed, and such behaviour could well have dated from later 2021 or 2022. We concluded that the claimant had not been substantially impaired by ASD, unless or until she was experiencing a bout of depression, when the combination of conditions made her less able to manage social interaction, or work to understand what she was being told about social interaction, that is, from around July 2021.[86]Whether the respondent knew or ought to have known this when dismissing her is another question. Discrimination because of something arising from disability.[87]Section 15 of the Equality Act provides:(1) a person a discriminates against a disabled person (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(2) subsection (1) does not apply if A shows that A did not know and could not reasonably have been expected to know, that B had the disability”[88]What does the employer need to know? In A Ltd v Z, (2020) ICR 99, the EAT held that there need only be actual or constructive knowledge as to disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment - York City Council v Grosset 2018 ICR 1492. Nor need the employer know the diagnosis; the question is whether the employer knew or ought to have known the relevant facts - whether there was some impairment, more than trivial, and long-term - Gallup v Newort City Council (2013) EWCA Civ 1583. The employer need not have constructive knowledge of the diagnosis, but must show that it was unreasonable to be expected to know that the employee suffered an impediment to health, or that the impairment had a substantial or long term effect – Donelien v Liberata UK Limited 2018 EWCA Civ 129, where the employer had advice from occupational health consultants that she was not disabled and that the problems were managerial not medical, but “the employer was presented with a good deal of not very clear information, and getting a good understanding of it was not helped by the claimant’s rather “uncooperative and confrontational stance”, about her absence from work. The employer had to assess the evidence for itself, and not just rely on the occupational health report, but had in fact done this. They could not reasonably be expected to know that the claimant’s disability caused her persistent absences. Further, “the tribunal had to disentangle what the claimant could do from what she would not do”. What an employee told the employer as to the cause of conduct was relevant , because without knowledge of a likely cause, it was more difficult for employer to know whether the impairment might well last for more than 12 months if it had not already done so.[89]An employer might reasonably consider whether disability was a cause even if the employee did not say so: the statutory code at 5.14 provides that not all workers who meet the definition of disability think of themselves as a disabled person. There must nevertheless be some basis for making an inquiry, and what assessing what level of enquiry is reasonable must entail a balance between the strictures of making inquiries, the likelihood of such inquiries yielding results and the dignity and privacy of the employee – Ridout v TC Group (1998) IRLR 628 and Secretary of State for Work and Pensions v Alam (2010) ICR 665.[90]The employer has to have the actual constructive knowledge of disability at the date of the alleged discriminatory conduct - Stott v Ralli Limited 2022 IRLR 148. The EHRC Code on Discrimination, issued in 2011, states at paragraph 5.17:” If an employer’s agent or employee (such as an occupational health adviser or a HR officer) knows, in that capacity, of a worker’s or applicant’s or potential applicant’s disability, the employer will not usually be able to claim that they do not know of the disability”. In IPC Media Ltd v Millar (2013) IRLR 707, there is a distinction made: it was held that an decision maker on an appeal could not be expected to know facts available at dismissal – the case concerned a job opportunity that became available after dismissal but before appeal not being notified to the claimant, who had been made redundant and had disability related sickness absence. The appeal was a separate detriment to the dismissal complained of, with a separate decision maker, unlike in unfair dismissal claims, where appeal is one stage in the process whose fairness is being reviewed.[91]In deciding a section 15 claim the tribunal must look at two distinct causative issues, firstly, did the employer treat the employee unfavourably because of “something arising”, which means assessing the respondent’s state of mind at the time of the treatment, and secondly, did that something arise in consequence of disability, which is an objective matter on which the tribunal should make a finding- York City Council v Grosset. There can be a series of links between disability and the “something arising”, though the more links, the less likely it will satisfy the test- Connor v Chief Constable of South Yorkshire Police 2024 EAT 175.[92]If it is shown that the respondent treated the claimant unfavourably because of something arising from disability, the employer seeks to show that this was a proportionate means of achieving a legitimate aim, the tribunal must consider this objectively, balancing the discriminatory effect of the treatment and the reasonable needs of the employer. The employer does not need to show that there was no alternative, but that the treatment complained of was reasonably necessary- Hardy and Hansons plc v Lax 2005 ICR1565, and Grey v University of Portsmouth UKEAT/0242/ 20. Discrimination claim - Discussion[93]The conduct for which the claimant was dismissed consisted of: excessive email after K has asked her to restrict it, visiting the studio when told to make an appointment, then, on the two days in June, using the conservation corridor and her use of the canteen and canteen toilets despite the “tact and discretion” discussions with Genevieve Philipps, capped off by booking the DATS conference in September.[94]On excessive e-mail, the claimant’s view was that all e-mail was necessarily related to work, and so permitted by K. Tribunal concluded that the claimant may not have known what she was doing, but she was not limiting her emails to unnecessary queries which K had already answered, but pressing her on deadlines, and then copying her in on relevant discussions with others where K's input was not needed. We were concerned that there was an element of not wanting to heed what K said, as much as not understanding what she wanted. The same went for visits to the studio though there were few visits. The claimant’s absence from work after the meeting on the 18th May when she was told more clearly what K wanted meant e-mail and studio visits stopped.[95]Of her use of the corridor and canteen, which came to a head in June, the claimant did not alter her use of either, despite the discussion on 18th May, where, according to her companion Keira Miller, she had persisted in asking more and more questions about alternative routes and why they were unsuitable. She was pushing back and asking for reasons, rather than accepting that she was being asked to go a different way. Later on, she expressed her reluctance to alter her habits as not wanting K to control her. The tribunal concluded that at the end of June she behaved in this way because her mental health was still affected. Either she was too depressed to reason effectively and drive herself to make changes, or she did need routine and habit to keep going when mentally unwell. We concluded that at least some of this behaviour was because of depression, rather than not wanting to accept what K wanted.[96]Booking the DATS conference in September is more problematic. The claimant by now, in the light of the investigation report, understood that she must take K’s feelings into account, and so was writing with her proposed mitigations when she attended, so K would not be taken by surprise. The respondent (in this case HR) took this as continued stalking - it was a specialist conference, optional to her, where she knew K would be present, and despite the proposed mitigations, she failed to heed K’s feelings. Grace Nugent’s reply that she should not attend at all was undermined by going on to say that as it was off site she could of course attend if she wanted. Such conduct (booking, setting out her avoidance measures, not cancelling immediately when instructed) arose from depression (now severe, being treated by Dr Flaherty) exacerbating existing autistic traits – literal minded rule-keeping rather than empathy.[97]Should the respondent have known? Did they know enough to put them on enquiry?[98]Daniel Slater, investigating, understood the claimant’s difficulty with K as the usual and understandable difficulty of negotiating a relationship with a partner. He knew she was depressed, but did not attribute conduct to depression. His task was to investigate K’s complaints. It was then for the person conducting the disciplinary process to see if there were mitigating features. He was not told about difficulty with social cues, or trouble with grey areas, which might have suggested autism as underlying her conduct. He was of course told by the claimant not that she was depressed, or had difficulty understanding what K was saying that she did not see why K should “control” what she did at work.[99]David Osborne on the other hand, was told in October by the claimant that the family had autistic spectrum disorder and she had trouble understanding social cues. He understood that if so she would “really struggle” with understanding what K felt about her. Genevieve Philipps told him in November that the claimant saw everything in black and white, that she did not have the social understanding to understand tact and discretion other than in clear rules to follow. Jo Ani, in her January report, had picked up on social cues as something to be considered in mitigation, but he did not read it. He did see Jane Ellis’s, but she had not repeated Jo Ani’s specific conclusion on mitigation, only commenting on the claimant’ criticisms of the report. He also had Keira Miller’s statement about the claimant’s argument about routes on 29 June. All these should have made him consider whether autism, with or without depression, accounted for what was otherwise seen as deliberate disobedience and bullying. Relying on the claimant to raise it formally in mitigation was not enough – she had raised it, he had supporting evidence from others, and he himself had enough non-specialist knowledge of the condition to recognise its relevance to the conduct being considered.[100]Had he not left it to the claimant to raise formally as mitigation, what enquiry could he have made, and what would he have discovered? The claimant had never been assessed, (though informally ‘diagnosed’ by her father, a GP), so her medical records would not show it, though such an assessment would not normally be carried out without a purpose in mind. Had he asked occupational health for a view, with or without an assessment, very likely he would have concluded that her conduct arose at least in part from autism, in conjunction with the depression which affected her judgment and will power.[101]In any case, he was aware she had depression at the time of the conduct, but had been told that the OH report of August said she was fit for work, though without knowing that this conclusion was dependent on resolving the conflict between her and K. The tribunal did not understand why he could not see, and did not insist on seeing, the report. If the claimant had been asked whether a manager who was considering dismissing her could see it, she would probably have agreed. Nor did we understand why, even if he could not see the whole report, HR could not tell him that the conclusion that they did feel able to tell him about was itself conditional on conflict resolution or mediation services first.[102]The tribunal view is that the respondent’s error was not to focus on other ways of dealing with the behaviour K complained of. From the outset, in April, K had asked for mediation. When HR had asked the technical team as a whole for restraint in email and visits to the studio, K raised with them in May that the claimant did not understand her strength of feeling because she could not explain it to the claimant without at the same time outing her same sex relationship to her work colleagues. The HR conversation with the claimant that followed on 18 May foundered because the claimant wanted clarity which she did not get, and, suffering renewed depression, started to think it was K controlling her, which she should resist.[103]The panel, the non-legal members especially, take the view that a difficulty between two individuals at work, he other relationships are functioning, cries out for mediation, and if not successful because the relationship was too broken, then a behaviour agreement, which would prescribe what the claimant could and could not do at work. The respondent view was they could not micromanage her in this way, but it was preferable to dismissal. We had no evidence that K said things were too far gone to consider mediation. The claimant’s understanding of her conduct may well have changed when she could be alone with K and a mediator, and is very likely to have changed when presented with a set of rules – what corridor and toilets to use, to use the public not the staff canteen, to visit the garden at times when the two would not coincide, all measures suggested in evidence. The claimant had understood enough by September to propose her own measures to reduce contact at DATS, even if the respondent view was that this was disingenuous when there was no need for her to attend at all. Justification – section 15(1)(b)[104]The respondent pleads that dismissal, if because of something arising from disability, was a proportionate means of achieving the legitimate aim of making sure staff could work safely without being stalked or bullied. This is a legitimate aim. The tribunal does not agree that dismissal was a proportionate means of achieving it.[105]Quite apart from mediation, failing that a behaviour agreement, a final warning, especially if coupled with specific instructions on what conduct would trigger dismissal, would have been appropriate to an otherwise satisfactory employee, in a case where the behaviour involved one other employee, and where there was evidence that her judgment was impaired by depression, with or without an autistic spectrum disorder. The tribunal did not understand why David Osborne was not provided with comparisons as asked. It would not have been difficult to redact personal information. As with his initial view on autism explaining the claimant’s lack of understanding of K’s view of her, his first instinct on the right penalty was probably correct, and it is pity he did not follow it. Remedy for Discriminatory Dismissal[106]When assessing remedy for a discriminatory dismissal, a tribunal may make an assessment of the chance that the claimant would have remained employed had the employer not dismissed for the discriminatory reason – Abbey National v Chagger (2010) ICR 397. That chance is then factored in to the assessment of loss.[107]Listening to the claimant give evidence, the tribunal was concerned throughout whether this was a case where she did not understand what she was being told by K or by HR, or where she did not want to understand. To what extent was her conduct wilful? Depression and autism notwithstanding, the claimant is intelligent, articulate, and capable of writing structured and intelligible documents in vast detail. Moreover, during evidence when challenged that K had made her feelings quite clear in 2020 as well as 2022, she more than once declared that K often changed her mind about the level of contact she wanted over the course of the relationship, and would change her mind again. She might say she didn’t want contact, but she didn’t mean it. Going to HR and imposing conditions was K trying to control her, which she would not allow. This suggests that even if told what K wanted, or what to do or not do, or given a final warning, she would not have accepted it. At some point she would have disobeyed, and been dismissed.[108]The majority (the employment judge chairing and Mr Godecharle) put this at 25%. Ms Breslin, more critical of HR’s handling of the complaints as contributing to the claimant’s attitude, still set the risk at 20%. Unfair Dismissal Relevant Law[109]The test for unfair dismissal is set out in section 98 of the Employment Act 1996. The employer is to show that the reason (or, if more than one, the principal reason) for the dismissal, was potentially fair, either a reason falling within subsection (2), of which conduct is one, or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.[110]The reason for dismissal is ‘a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee-. Abernethy v Mott Hay and Anderson [1974] ICR 323, CA.[111]By s.98(4) “ the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.”[112]In conduct dismissals, tribunals have been given guidance by the EAT in British Home Stores v Burchell [1978] IRLR 379; [1980] ICR 303, EAT. There are three stages:(1) did the respondents genuinely believe the claimant was guilty of the alleged misconduct?(2) did they hold that belief on reasonable grounds?(3) did they carry out a proper and adequate investigation?[113]Tribunals must bear in mind that whereas the burden of proving the reason for dismissal lies on the respondents, the second and third stages of Burchell are neutral as to burden of proof and the onus is not on the respondents (Boys and Girls Welfare Society v McDonald [1996] IRLR 129, [1997] ICR 693).[114]Finally, tribunals must decide whether it was reasonable for the respondent to dismiss the claimant for that reason. The question is whether dismissal was within the band of reasonable responses open to a reasonable employer. It is not for a tribunal to substitute its own decision.[115]The range of reasonable responses test (the need to apply the objective standards of the reasonable employer) applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. The objective standards of the reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed. (Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23, CA)[116]Under s122(2) of the Employment Rights Act 1996, the tribunal shall reduce the basic award where it considers that any conduct of the claimant before dismissal was such that it would be just and equitable to do so.[117]Under s123(6), where the tribunal finds the dismissal was to any extent caused or contributed to by any action of the claimant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable.[118]Where the dismissal is unfair on procedural grounds, the tribunal must also consider whether, by virtue of Polkey v AE Dayton Services [1987] IRLR 503, HL, there should be any reduction in compensation to reflect the chance that the claimant would still have been dismissed had fair procedures been followed. Unfair Dismissal - Discussion and Conclusion[119]The reason for dismissal was conduct. The respondent’s belief in misconduct on the part of the claimant was founded on adequate investigation. They held that belief on reasonable grounds, even if they fail to factor in that disability played its part in the claimant's behaviour.[120]The tribunal concluded that no reasonable employer would have dismissed faced with this conduct. In reaching this conclusion we are only too conscious of the requirement not to substitute our own view for that of a reasonable employer. The tribunal could not conceive of a reasonable employer failing to attempt mitigation, a behaviour agreement, or failing that, a final warning, where otherwise consistent good conduct failed in one to one conflict with an ex-partner, and at a time when the claimant was already noted to be unwell with depression. The only alternative to dismissal the respondent seems to have considered was finding an alternative vacancy away from K; the facts on this were sketchy, and only recorded after the event. We do not suggest that these facts were wrong, but this was a token attempt. No real consideration was given to alternatives to dismissal. Dismissal was unfair.[121]For similar reasons to those discussed in the “something arising from disability” claim, and in the same proportions, we considered there was a real chance the alternatives to dismissal would not have worked, and the claimant would then have been dismissed in any event.[122]We decided not to reduce the basic award for conduct, or the compensatory award for contribution. At a time when the claimant was depressed it could not be said with conviction that her conduct was culpable. She was not capable of objectivity in April to June. She attempted measures as suggested when booking for DATs, even if, like the respondent, we have a degree of doubt whether wanting to go was really because she wanted to be close to K. Mediation was never offered, and it may well have worked. Wrongful Dismissal[123]Under the contract of employment, an employer is required to give notice of dismissal. The exception is where the conduct for which the employee is dismissed is itself a serious breach of a fundamental contract term, express or implied. Often such conduct is called “gross misconduct”. In such a case, the employee is not entitled to notice, because his conduct has broken the contract. It is for the employment tribunal to decide whether the conduct was gross misconduct, in contrast to unfair dismissal, where the tribunal must review the action of a reasonable employer.[124]We concluded the claimant’s conduct did not breach a term of the conduct so seriously as to repudiate the contract entirely. There was misconduct. It was not fundamental. The claimant was entitled to be dismissed with notice.
Remedy
[125]A hearing has been listed for 24 April. Permission was given to the parties to apply for further directions or postponement, especially if medical evidence is contemplated.