[1]The complaints of unfair dismissal and for breach of contract were not presented within the applicable time limit, but it was not reasonably practicable to do so. The complaints of unfair dismissal and for breach of contract were presented within a further reasonable period. They will therefore proceed.[2]The complaints of disability discrimination (s.15 and a failure to make reasonable adjustments) and of victimisation were not presented within the applicable time limit. Subject to paragraph 3, it is just and equitable to extend the time limit. The claims therefore proceed.[3]Some of the complaints of disability discrimination and victimisation relate to events which took place before the effective date of termination. The issue of time limits was considered today on the basis that there was a prima facie case that such complaints were conduct extending over a period of time continuing until the effective date of termination. However, the respondent may contend at the final hearing that there was no conduct extending over a period of time and, if the Tribunal finds in the respondent’s favour in relation to this issue, the question will arise whether time should be extended on a just and equitable basis in respect of such complaints. Page 1 of 2 Case No: 2300230/2023[1]The complaints of unfair dismissal and for breach of contract were not presented within the applicable time limit, but it was not reasonably practicable to do so. The complaints of unfair dismissal and for breach of contract were presented within a further reasonable period. They will therefore proceed.[2]The complaints of disability discrimination (s.15 and a failure to make reasonable adjustments) and of victimisation were not presented within the applicable time limit. Subject to paragraph 3, it is just and equitable to extend the time limit. The claims therefore proceed.[3]Some of the complaints of disability discrimination and victimisation relate to events which took place before the effective date of termination. The issue of time limits was considered today on the basis that there was a prima facie case that such complaints were conduct extending over a period of time continuing until the effective date of termination. However, the respondent Page 1 of 9 may contend at the final hearing that there was no conduct extending over a period of time and, if the Tribunal finds in the respondent’s favour in relation to this issue, the question will arise whether time should be extended on a just and equitable basis in respect of such complaints.
REASONS
[1]These are the Tribunal’s reasons for its decision given orally at the end of the Hearing in relation to the following issues: 1.1. Whether the claimant’s complaint of unfair dismissal was out of time; 1.2. Whether the claimant’s complaint of wrongful dismissal (i.e. breach of contract) was out of time; 1.3. Whether the claimant’s complaint of disability discrimination (discrimination arising from disability and a failure to make reasonable adjustments ) was out of time; 1.4. Whether the claimant’s complaint of victimisation was out of time.[2]The above issues and others came before the Tribunal on 22 May 2024. I have also made case management orders in relation to this claim which are contained in a separate document.[3]The parties had agreed a bundle of 68 pages prior to the Hearing. All references to page numbers are to the pagination of the bundle. I also had before me written submissions from both parties.[4]The claimant had produced a witness statement as had her son. So too had Ms Dove of the respondent. The claimant and her son were both cross-examined. A witness statement was also provided on behalf of Ms Margetts, the claimant’s previous representative, but she did not attend to give evidence and so I have given only very limited weight to it.[5]The claimant gave her evidence in Twi. The hearing was adjourned to the afternoon because the Twi interpreter was not available in the morning. Originally the claimant had requested a Ga interpreter but the Tribunal had been unable to find one. The claimant indicated that she was able and happy to give evidence in Twi rather than Ga. I was satisfied that when the claimant gave evidence there was no difficult with the interpreting.[6]At the beginning of her witness evidence the claimant was unable to confirm that it contents were correct or, really, that she either understood it or that its contents had been translated for her into a language that she understands. The statement Page 2 of 9 was therefore translated line by line for her and she confirmed its contents were correct.
The issues
[7]A first round of Acas early conciliation began on 24 August 2022 and ended on 5 October 2022. A second round of Acas early conciliation began on 2 November 2022 and ended on 14 December 2022. The claim form was presented on 13 January 2023. The claimant says that the second round of Acas early conciliation and the date on which the claim form was presented resulted from the claimant’s adviser being unaware of the fact of the first round of Acas early conciliation.[8]It was agreed in light of these dates that: 8.1. The complaints of disability discrimination and victimisation were out of time subject to time being extended under the just and equitable provisions. 8.2. The complaints of unfair and wrongful dismissal were out of time unless I found that it was not reasonably practicable for them to be presented within the primary time limit and that they were presented within a reasonable further period.[9]The dates of the alleged discriminatory acts in the discrimination/victimisation claims are various but in each case the claimant says that the treatment complained of continued until her employment ended (and so was conduct extending over a period) and/or that dismissal was the last discriminatory act.[10]We discussed how I should approach the question of time limits in relation to the disability discrimination/victimisation claims. It was agreed that I would not decide whether there had been conduct extending over a period. We agreed that I should reach a decision in relation to the question of whether it was just and equitable to extend time on the assumption that there was conduct extending over a period which continued until the date on which the claimant’s employment terminated (on the basis that the claimant had shown a prima facie case to this effect).[11]The result of this is that, if I decide that it would be just and equitable to extend time, it will still be open to the respondent to argue where relevant that there was not conduct extending over a period and consequently those parts of the claimant’s discrimination and victimisation claims which did not arise on the termination of her employment were presented outside the primary time limits (subject of course to an argument that it would be just and equitable to extend time from whenever the primary three month time limit in respect of each such claim expired).[12]It was also agreed that in light of the dates set out above, and in light of this approach, I should deal with the question of limitation on the basis that the last date the claims could have been presented in time was 19 December 2022. (Limitation would ordinarily have expired on 7 November 2022 but is extended by the 42 days taken up by Early Conciliation.) Page 3 of 9[13]It was therefore agreed that I should approach the question of limitation on the basis that the claims had been presented 3 weeks and 4 days out of time. The Law Time limits under the Equality Act 2010
The Law
[14]Section 123 of the Equality Act 2010 provides where relevant as follows. (1) Subject to sections 140B, proceedings on a complaint within section 120 may not be brought after the end of – (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable… … (3) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[15]The Court of Appeal’s decision in Aziz v FDA [2010] EWCA Civ 304 dealt with the procedural point of how the Employment Tribunal should approach the question of whether there is a continuing act at a preliminary hearing. The Court approved The Court approved the approach laid down in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548 that the test to be applied at the pre-hearing was whether the claimant had established a prima facie case, or, to put it another way, ‘the claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs’. If the claimant fails to show this, their claim will be struck out (unless the Tribunal finds it would be just and equitable to extend time). If, on the other hand, the claimant does show that it is reasonably arguable that there was a continuing act, the question of time is not determined but is left to the full merits hearing. Page 4 of 9[16]Turning to the “just and equitable” extension, it is for the claimant to show that it would be just and equitable to extend time. However, the discretion given to the Tribunal to extend time is a wide discretion to do what it thinks is just and equitable in the circumstances. The Tribunal should assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time. These will usually include: 16.1. the length of and reasons for the delay; 16.2. whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigation the claims while matters were fresh);[17]Other factors which may be relevant include: 17.1. the extent to which the cogency of the evidence is likely to be affected by the delay; 17.2. the extent to which the party sued had co-operated with any requests for information; 17.3. the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; 17.4. the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action;[18]In Bexley Community Centre (t/a Leisure Link) v Robertson [2003] EWCA Civ 576 the Court of Appeal noted that the Tribunal when considering the exercise of its discretion has a “wide ambit” within which to reach a decision. However, although the discretion is wide, there is no presumption that it should be exercised so as to extend time. Indeed, the exercise of discretion is the exception rather than the rule. Further, the burden, which is one of persuasion, is on the claimant to persuade the Tribunal it is just and equitable to extend time. Time limits under the Employment Rights Act and the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994[19]Section 111(2) of the Employment Rights Act 1996 (“the ERA”) and Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 provide that a complaint for unfair dismissal/ breach of contract should be presented within three months of the effective date of termination. If it is not, the Tribunal will only have jurisdiction to consider it if it was not reasonably practicable for the complaint to have been presented within that three-month period and it was presented within such further period as the Tribunal considers reasonable.[20]The Tribunal must therefore consider two things if a claim is presented outside the three-month time limit. First, whether it was not reasonably practicable for the claim to be presented within the three month time limit (the burden of proof is on Page 5 of 9 the Claimant). Secondly, if it was not, the Tribunal must be satisfied that the further period within which the claim was presented was reasonable.[21]The Tribunal must determine as a matter of fact the substantial cause of the Claimant’s failure to comply with the primary time limit. The whole of the limitation period should be considered but “attention will in the ordinary way focus upon the closing rather than the early stages” (Schultz v Esso Petroleum Ltd [1999] IRLR 488.)[22]The leading case in relation to reasonable practicability remains Palmer and Saunders v. Southend-on-Sea Borough Council [1984] IRLR 119. In this case, May LJ stated that the test was one of reasonable feasibility: We think that one can say that to construe the words "reasonably practicable" as the equivalent of "reasonable" is to take a view that is too favourable to the employee. On the other hand, "reasonably practicable" means more than merely what is reasonably capable physically of being done - different, for instance, from its construction in the context of the legislation relating to factories: compare Marshall v Gotham Co Ltd [1954] AC 360, HL. In the context in which the words are used in the 1978 Consolidation Act, however ineptly as we think, they mean something between these two. Perhaps to read the word "practicable" as the equivalent of "feasible" as Sir John Brightman did in [Singh v Post Office [1973] ICR 437, NIRC] and to ask colloquially and untrammelled by too much legal logic - "was it reasonably feasible to present the complaint to the [employment] tribunal within the relevant three months?" - is the best approach to the correct application of the relevant subsection.[23]The question of what is or is not reasonably practicable is essentially one of fact for the Tribunal to decide.[24]If a claimant seeks and receives advice from a skilled adviser prior to the time limit, the “escape route” provided by the “not reasonably practicable” wording will generally not be available to them. This is “the Dedman principle” arising from Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379. However, in order for the Dedman principle to apply: 24.1. The advisers must be a professional or skilled adviser; 24.2. The adviser must themselves have been at fault or negligent in the advice they gave; 24.3. The wrong advice must have been the substantial cause of the missed deadline.[25]Lord Denning repeated and considered the Dedman principle in Wall’s Meat Co Ltd v Khan [1979] ICR 52 stating: I would venture to take the simple test given by the majority in [Dedman]. It is simply to ask this question: had the man just cause or excuse for not presenting his claim within the prescribed time? Ignorance of his rights — or Page 6 of 9 ignorance of the time limits — is not just cause or excuse, unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences.[26]If an adviser was not at fault or negligent, then the Dedman principle will not apply. Consequently, reasonable reliance by a claimant on a reasonable mistake by an adviser will not engage the Dedman principle and it may be held that it was not reasonably practicable to lodge the claim in time.
Findings of fact
[27]The length of the delay: It was agreed that the question of time would be approached on the basis that the claims were around 3 weeks and 4 days out of time. This is a fairly short period of time.[28]The adviser/representative: The claimant was represented by Ms Margetts from around 16 September 2022 until her claim was presented. Whilst Ms Margetts was a volunteer adviser at the claimant’s union, she was nevertheless legally qualified and at the time employed elsewhere as a paralegal. She has since been called to the bar. She was therefore a skilled adviser and so this was a case to which the Dedman principle might have applied.[29]The reasons for the delay: I find that the reason for the delay was that Ms Margetts was not aware of the issuing of the first Acas certificate until after the claim had been issued. I so find because: 29.1. Given that she did present the claim the day before limitation would have expired if there had been no first Acas certificate, she was clearly paying attention to time limits. Consequently, I find that it is highly likely that if she had been aware of the first Acas certificate she would have presented a claim at an earlier date. She was instructed on a date when this would have been possible. 29.2. Ms Margetts was not involved in any way in the first Acas certificate. The claimant with the assistance of her minor son applied for it before Ms Margetts became involved. It was the claimant’s minor son who made contact with Acas on her behalf. Ms Margetts would only have known about the first Acas certificate if someone had told her about it. 29.3. In light of the claimant’s evidence I find that she did not tell Ms Margetts about it because she was only aware in the most general terms that her son had approached Acas on her behalf, did not realise that an Acas certificate had been issued, and was unaware of the significance of such a certificate. I find that the claimant’s lack of understanding of these matters was contributed to by her limited English language ability. 29.4. In light of the claimant’s son’s evidence, I find that he did not tell Ms Margetts about it because he was only 16 at the time, was suffering from some mental ill-health, did not have any real understanding of the Acas Page 7 of 9 process, and did not have any understanding of the significance of the Acas certificate. 29.5. In making these findings I have taken account of Ms Dove’s evidence that the Acas conciliator told her that he had told the claimant’s representative about the first round of early conciliation. Just as I have given very little weight to the evidence contained in Ms Margett’s witness statement in light of her not attending today, I give little weight to what it is said that the Acas conciliator said to Ms Dove. In reality it is Ms Dove’s recollection of what the Acas conciliator told her about a conversation he had had some time previously with a third party (Ms Margetts) and there is no documentary evidence to support this. Relevant in particular to the discrimination claims[30]Prejudice to the respondent: the respondent has not advanced an argument of forensic prejudice – for example, that a particular witness is no longer available because of the delay or that documents have been lost with the passage of time.[31]Effect of delay on cogency of evidence: The delay is short and I find will not have had any effect on the cogency of the evidence.[32]Steps taken to obtain professional advice: the claimant did take steps to obtain advice. She contacted a law centre shortly after her dismissal and then joined the Cleaners and Allied Independent Workers Union on 7 September 2022. The delay in presenting her claim was not in any way due to a failure to seek advice at an appropriate time. She involved her son. The steps she took to pursue her rights cannot reasonably be criticised. Relevant in particular to the unfair dismissal claim[33]As noted above, the substantial cause of the delay in presenting the claim was Ms Margetts being unaware that the claimant had previously commenced Acas early conciliation.[34]I find that in all the circumstances set out above the ignorance of Ms Margetts of the first Acas certificate did not result from fault or negligence on her part. She became involved within just over a month of the claimant’s dismissal and the claimant speaks only limited English. In these circumstances it is reasonable for her to have been unaware of the previous notification to Acas. I do not find that Ms Margetts ignorance was a result of fault or negligence on her behalf simply because she might have dispelled it if she had questioned the claimant and her son closely about whether they had previously contacted Acas. There was no good reason for her to imagine that they might have done this.[35]I further find that in the particular circumstances of this case the claimant not being aware that her son had begun early conciliation on her behalf (and so not telling Ms Margetts about this) was reasonable. I so find because the claimant’s son was under the age of 18 at the time and, I find, suffering from some mental ill-health. This combined with the claimant’s limited English (and so inability to Page 8 of 9 fully understand any written information in relation to Early Conciliation) made it reasonable for her not to be aware that her son had begun Early Conciliation on her behalf and, also, of the significance of Early Conciliation. Conclusions Discrimination and victimisation claims[36]Bringing the various matters considered above together, I conclude that it is just and equitable to extend time by under four weeks so that the claimant can pursue her victimisation and discrimination claims (subject to the question of whether there was a continuing act in relation to those parts of the discrimination and victimisation claims which pre-date her dismissal).[37]There is no real prejudice to the respondent caused by the delay and the reality is that it has arisen as a result of the claimant’s representative being reasonably unaware of the fact of the first Acas EC certificate. Unfair dismissal and breach of contract[38]In light of my findings above, I find that it was not reasonably practicable for the claimant to present the complaint to the Tribunal within the relevant three months. This is because her representative was not negligent or at fault in failing to establish that the first Acas certificate had been issued and because it was also reasonable for the claimant to be unaware that her son had commenced Early Conciliation on her behalf.[39]The question then becomes whether it was presented within a reasonable further period. I conclude that it was: the delay was less than four weeks and the claim was presented before the date that Ms Margetts reasonably considered to be the actual limitation date in light of the second Acas EC.[40]Consequently all of the claimant’s claims may proceed. JUDGMENT having been delivered orally on 11 April 2025 sent to the parties on 16 April 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:
Findings of fact
[41]On 11 May 2021 the Claimant messaged Ms. Stanford and said she had been given a hospital appointment for the next day and wouldn’t be able to attend work.[42]There is no evidence of the Claimant raising any concerns about washroom/toilet duties until 24 July 2021.[43]On 24 July 2021 the Claimant emailed Ms. Stanford and said: “I was informed yesterday by Melissa that I will be doing the toilets. Just to remind you regarding my knee, back and shoulder pains. My knee clicks when I am bending down, as also with my back pain and shoulder due to this I may benfi…”[44]Ms. Stanford replied on 26 July 2021 and said: “You are employed as a cleaner and all the task you carry out including bending, you have been cleaning toilets plus kitchens presently. We are reverting back to the way we worked before Covid19, which you did. Unless you have developed a condition and not inform us you will be carrying out the task Melissa has explained to you. If you have a medical condition please bring medical evidence to support this.”[45]Ms. Stanford’s oral evidence, supported by evidence of Mr. Hookway and Mr. Herbst, is that employees often tell her they are unable to do certain tasks and the Respondent’s approach is to ask employees to provide a GP note setting out what they can and cannot do so that the Respondent can consider any possible and appropriate adjustments.[46]On 4 August 2021 the Claimant sent Ms. Stanford an email. The email says “I have received this letter from the GP”. Attached to the email is a document that appears to list a number of conditions. The copy in the bundle is not readable. It is not in dispute that the document refers to osteoarthritis and a document dated 18 June 2024 refers to osteoarthritis in knee in October 2014 and osteoarthritis lumbar spine September 2016. Ms. Stanford replied the same day and said: “We will need to have a meeting to discuss this matter. I will arrange one as soon as I can.”[47]A formal meeting did not take place.[48]However, following this email chain Ms. Stanford discussed the situation with the Claimant and explained that she needed more information from her GP about how any conditions and treatment affect her role. Ms. Stanford relayed the position to Head Office who told Ms. Stanford more information from the Claimant’s GP was needed to move forward. Ms. Stanford spoke with the Claimant several times about the need for further information. We do not consider the Claimant fully understood what else she should provide and that Ms. Stanford did not explain in a way that was understandable to the Claimant what documentation she was seeking.[49]The Claimant did not provide any further documentation from her GP.[50]The Respondent has access to Occupational Health, but did not refer the Claimant at any time.[51]The Claimant was absent from work due to stress between 24 November 2021 and 23 January 2022. The Respondent understood the absence to be due to difficulties relating to her son. On returning to work the Claimant undertook her usual duties.[52]On 12 May 2022 Ms. Stanford explained her approach to bank holiday cover with the Claimant. She followed up the conversation in an email. The Claimant had been concerned about working bank holidays due to not being able to leave her son. Ms. Stanford reminded the Claimant of the grievance procedure and explained that if the Claimant had a grievance about her she could email the payroll email address.[53]On 10 June 2022 the Claimant had a conversation with Jane Viner in the toilets. Jane Viner is a senior member of staff of News UK. The Claimant knew who Jane Viner was as she had cleaned for that client for many years.[54]The Claimant’s evidence, as set out in her witness statement, was that on 14 June 2022 she was in the toilets at work and Jane Viner came in and saw the Claimant was upset. The accounts of the conversation as described by the Claimant vary in the contemporary documents and the Claimant’s witness statements.[55]The Tribunal finds that the Claimant told Jane Viner that she had difficulties cleaning the toilets due to her health and that she would be raising concerns with Head Office. The Claimant says Jane Viner said she would speak to Daren Shinnick about the situation, but she asked her not to. It is noted that, as set out below, in her disciplinary meeting the Claimant said the conversation in the toilet with Ms. Viner was on 10 June 2022. The Tribunal find that a conversation took place with Ms. Viner, and given the account set out in the disciplinary notes are more detailed in relation to timing and closer to the events, it found the conversation was likely to have taken place on 10 June 2022.[56]On 13, 14 and 15 June 2022 the Claimant attempted to find Ms. Viner at her desk. Ms. Viner worked at a floor location that the Claimant was not supposed to access.[57]On 14 June 2022 the Claimant emailed Ian Hookway, the Respondent’s Managing Director, with a grievance about Ms. Stanford and Michelle Stanford. She said she felt she was being unfairly treated and bullied due to her health problems and referred to her work being changed from kitchen to toilet duties and being refused holiday requests.[58]Mr. Hookway forwarded the email to Wendy Dove, Manager. The email from the Claimant was not in the Bundle but Mr. Hookway forwarded it to Ms. Dove at 10:03am. The Claimant does not start work until 14:00. Accordingly, based on the timing of the emails in the Bundle, the Tribunal consider the Claimant submitted her grievance before going to work on 14 June 2022.[59]Ms. Dove contacted the Claimant, by email, the same day. She said she would arrange a grievance meeting but also explained the company would need information from her GP, in the form of a fit note/Med 3 on what duties she was unable to undertake so the Respondent could consider what adjustments were appropriate.[60]On 15 June 2022 the Claimant tried to located Jane Viner. She could not find her and asked another member of News UK staff where Jane Viner sat. She did not speak to Jane Viner on 15 June 2022.[61]On 16 June 2022 Ms. Stanford was contacted by Sarah Duncan, Facilities Manager for News UK, by email, in which Ms. Duncan said that a cleaner named Sylvia or Cynthia had been looking for Jane Viner and asked Ms. Stanford if she knew who this was and why they wanted to speak to Ms. Viner.[62]Also on 16 June 2022 Daren Shinnick, Senior Property & Facilities Manager for the client News UK, contacted Ms. Stanford and about the Claimant’s health issues and whether she had raised any concerns with the Respondent’s HR team. Ms. Stanford emailed head office enquiring about the matter.[63]Mr. Ian Hookway attended Ms. Stanford’s office on 16 June 2022. Mr. Ian Hookway told Ms. Stanford that the Claimant had lodged a grievance against her and her daughter.[64]Ms. Stanford suspended the Claimant on 16 June 2022. The Claimant was suspended for allegedly attempting to contact News UK staff. The Claimant was sent an email at 14:38. The email explained that she was suspended on full pay and that a disciplinary meeting would be arranged.[65]Ms. Stanford submitted an incident report, and within the report she sets out that she considered the reason the Claimant was contacting Jane Vinder was because the Claimant had raised concerns about herself and Michelle Stanford. The incident report notes Ms. Stanford spoke with HR before speaking with Ms. Duncan and Mr. Shinnick and that she spoke with the Claimant who confirmed she had tried to contact Ms. Vinder.[66]On 16 June 2022, after being notified of suspension, the Claimant telephoned Jane Viner. The Claimant’s witness statement sets out that she phoned Jane Viner when she got home to tell her she had been suspended. Paragraph 30 of her witness statement states: “I believe that if Jane explained to Michelle that I had not asked her to intervene on my behalf, it would make a difference.” At paragraph 31 the Claimant states: “Jane picked up the phone. She was concerned about my health and asked for updates on my grievance claim. She offered to take further action on my behalf to sort the grievance claim, but I thought that would make things worse with Michelle. I thanked her for offering to help in this way but I told her that it would be best to sort it out myself.”[67]Paragraph 66 of Ms. Stanford’s witness statement states: “I subsequently found out verbally from the Facilities Manager that the Claimant had contacted Claudette Curtis [Director of Property & Facilities News UK] and had allegedly spoken to her on the phone for around an hour. I believe that the Claimant obtained Ms Curtis’ number from searching online. It was also brought to my attention that the Claimant called Jane Viner in her personal time outside of work following her suspension”.[68]In response to a Tribunal question Ms. Stanford said she had got mixed up and that the Claimant only contacted Ms. Curtis and not Ms. Viner by phone and that she was told the Claimant had called Ms. Curtis by Mr. Shinnick on 17 June 2022. This does not accord with the Claimant’s evidence, in which she accepts she telephoned Ms. Viner.[69]The Claimant, at paragraph 17 of her witness statement, says she made multiple verbal requests to be removed from cleaning the toilets. No clear evidence was given on when any such requests were made of Ms.[70]The Respondent’s client did not participate or provide any documentation as part of the disciplinary process.[71]On 17 June 2022 the Claimant was invited to a grievance meeting.[72]The Claimant attended a grievance meeting on 22 June 2022. The meeting was chaired by Jason Edwards, General Manager and Diana Garzon, Site Manager from a different location.[73]The Claimant’s grievance was not upheld. The Claimant was notified of the grievance outcome in an email dated 5 July 2022. The email set out information on how the Claimant could appeal the decision. Attached to the email was an outcome document. The grievance chairs did not consider the Claimant had been pushed out or bullied by Ms. Stanford or Melissa Stanford. They determined that the Claimant had wished to and agreed to work the afternoon/evening shift which involved cleaning toilets. They noted that the Claimant had been asked to provide a GP note in relation to what she could/could not do and considered there was an established holiday booking process within the site.[74]The Claimant did not appeal the grievance outcome, and in an email dated 12 July 2022 emailed the Respondent to say she would not be appealing and looked forward to meeting with Ms. Stanford to discuss operational matters. Attached to this email was a fit note dated 8 July 2022. The fit note referenced low back pain and knee osteoarthritis. It said the Claimant may be fit for work and commented: “Finds it difficult to bend over due to knee and back pain. Toilet cleaning is difficult for her has a result. To be given other duties such as kitchen cleaning.” This is the first fit note which referred to the Claimant’s osteoarthritis.[75]The Claimant was invited to a disciplinary meeting, scheduled to take place on 19 July 2022, by an email on 14 July 2022. The letter explained that the allegation was that on 15 June 2022, after submitting her grievance, “it is alleged that you attempted to make contact with Jane Viner, Global Head of Facilities and Real Estate Transformation at News UK, and Daran Shinnick, Senior Properties and Facilities Manager at News UK, to discuss issue on site.”[76]The email says approaching and discussing matters with employees of the client is against company policy and is deemed as Gross Misconduct. The email explained that she was entitled to be accompanied by a trade union representative or a colleague. The email also stated: “I do hope the meeting will allow us to discuss the situation fully, and would advise you that, should you not be able to provide us with a satisfactory explanation, for the above, your employment may be at risk.”[77]The Claimant was not able to attend the disciplinary meeting scheduled for 19 July 2022 due to swelling and pain in her feet. The Claimant requested that her niece accompany her as her representative.[78]The Respondent informed the Claimant that could not be accompanied by her niece.[79]The meeting was rescheduled, initially for 27 July 2022 but this was postponed on receipt of a fit note stating the Claimant was not fit to work between 18 to 31 July 2022.[80]The Disciplinary Meeting was conducted by Ms. Stanford and James Hookaway, Head of Business Support. The Claimant was accompanied by Charmaine Ranger-Plumber. During the meeting the Claimant raised a number of matters that were not related to the disciplinary allegation but were grievance related matters.[81]The Claimant had been provided with Ms. Stanford’s incident report and the email from Ms. Duncan prior to the disciplinary meeting. During the meeting the Claimant said that she had looked for Jane Viner and asked someone where Jane Viner sat. The Claimant said that an assumption had been made about why she was looking for Ms. Viner, the assumption being it was about her grievance. The Claimant said the previous week, 10 June, Jane Viner had seen the Claimant in the toilets and that she was not feeling well and Jane Viner asked her if she was ok. During the meeting the Claimant was asked if she contacted Ms. Viner by telephone. The Claimant said she phoned Jane because she had been suspended for looking for Jane. She said she had known Jane Viner for a long time.[82]There is no reference to the Claimant contacting Claudette Curtis anywhere in the disciplinary meeting notes. The Tribunal understand that at the time of the disciplinary meeting the decision makers were only aware of attempts to contact Ms. Viner.[83]The meeting closed and Ms. Stanford and Mr. Hookway spoke with HR and considered their decision. They made a joint decision. On 8 August 2022 the Claimant was emailed with the outcome of the disciplinary hearing. The email explained that it had been decided the Claimant had acted as alleged and this was considered gross misconduct. The email explains that the Respondent considered that the Claimant’s actions could have brought the Respondent into disrepute and could have caused a breakdown in client relations and affected the contract on site. The email explained the termination was effective immediately and set out the right to appeal. The email attached a document which set out conclusions. This referenced the Claimant seeking out Jane Viner on two occasions, once before and once after suspension. At the end it reads: “Conclusion – Termination of Employment Based upon the evidence and confirmation by CP that she did actively try and seek out JV, and subsequently contact her via telephone following her suspension, my decision is that CP has broken Company Procedure and her actions are deemed as gross misconduct, therefore I am terminating her employment…”[84]The Claimant appealed the decision to dismiss her on 15 August 2022. Within the appeal email she refers to her osteoarthritis and says it impacts her ability to do complete certain tasks. She says she “first made Michelle Stanford aware of these issues in Augus 2021.” In the email the Claimant sets out that she had a conversation with Jane Viner in the toilets about her health and told her she was going through the proper channels to resolve things. She says she looked for Jane Viner the next day to thank her. The Claimant said she had tried to call Jane Viner after being suspended to clear up a misunderstanding. The Claimant set out that she considered Ms. Stanford to be a biased chair, in view of the recent grievance the Claimant had raised against her, and that her explanations were not listened to. The appeal had four points:a. Ms. Stanford was biasedb. The Claimant was subjected to detrimental treatment having raised concerns about her health and impact on workc. That the sanction was unreasonabled. That no other sanctions were considered.[85]An appeal hearing took place on 16 September 2022, following three postponements. The hearing was conducted by Mr. Bruce Herbst, Executive Operations Director.[86]The Claimant attended the appeal hearing with her trade union representative, Elena Margetts and her son. During the appeal hearing the Claimant raised a number of matters not related to the disciplinary appeal.[87]After the appeal hearing Mr. Herbst considered the matter, and considered management of similar cases previously. He attempted to obtain statements from News UK staff but they are were not forthcoming. Mr. Herbst considered a dismissal in July 2021 in which an employee was dismissed. In that case, there were concerns about poor performance, but it was found that the employee had committed gross misconduct by contacting clients and discussing employment issues which was considered to bring the Respondent into disrepute.[88]Mr. Herbst did not consider Ms. Stanford to be conflicted in view of the fact the Claimant had not appealed her grievance outcome and referred to moving forward positively with Ms. Stanford. He did not consider the Claimant had been subjected to detrimental treatment having raised concerns about her health. He considered the sanction to be appropriate due to the Claimant’s actions in contacting a senior employee of the client bringing the Respondent into disrepute as he considered the Claimant’s actions amounted to gross misconduct.[89]The Claimant was sent the disciplinary appeal outcome on 3 October 2022. It explained the decision to dismiss the Claimant was being upheld. Attached to the email was a document which contained details on discussion points and the outcome. Within the attachment Mr. Herbst sets out his decision in relation to the grounds of appeal and that he considered Ms. Standford’s involvement was appropriate and there was no bias, that there was no evidence to suggest discrimination and the sanction was considered in view of the respondent’s policy. It concludes by stating: “We are satisfied that the sanction imposed is appropriate in this case, in that you were dismissed for bringing the Company into disrepute by actively engaging a senior client in internal Company matters. Furthermore, you have confirmed you actively sought to obtain contact details for said client to engage further after the initial conversation and being instructed not to do so by management.” Law Unfair dismissal
Law
[90]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that she was dismissed by the Respondent under section 95, but in this case the Respondent admits that it dismissed the Claimant. 94.— The right.(1) An employee has the right not to be unfairly dismissed by his employer.(2) Subsection (1) has effect subject to the following provisions of this Part (in particular sections 108 to 110) and to the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 (in particular sections 237 to 239).[91]Section 98 of the Employment Rights Act 1996 deals with the fairness of dismissal. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the Respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the Respondent acted fairly or unfairly in dismissing for that reason.[92]Section 98(4) then deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend 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 the substantial merits of the case. 98.— General.(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.(3) In subsection (2)(a)— (a) “capability” , in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b) “qualifications” , in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.(4) [Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) 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 (b) shall be determined in accordance with equity and the substantial merits of the case. (6) [Subsection (4)]4[is]5 subject to— (a) [sections 98A to 107]6 of this Act, and (b) [sections 152, 153, 238 and 238A of the Trade Union and Labour Relations (Consolidation) Act 1992]7 (dismissal on ground of trade union membership or activities or in connection with industrial action).[93]In misconduct dismissal there is well-established guidance for Tribunals on fairness within section 98(4) in the decisions of Burchell v British Home Stores Lrd IRLR 379 and Post Office v Foley 200 IRLR 827. The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, in deciding whether the employer acted reasonably or unreasonably within section 98(4), the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances. It is immaterial how the Tribunal would have handled the events or what decision it would have made, and the Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones 1982 IRLR 439, Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23, and London Ambulance Service NHS Trust v Small 2009 IRLR 563).[94]In relation to the reason for dismissal, in Abernethy v Mott, Hay & Anderson [1974] ICR 323 it was held: "A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee".[95]Where a decision is made for more than one reasons, the Tribunal is obliged to identify the principal reason. The Tribunal is not restricted to finding the reason is that relied upon by the employer, or that argued for the employee, the Tribunal can make its own determination on the reason for dismissal. Polkey[96]The Employment Judge agreed with the parties at the start of the hearing that if it concluded that the Claimant had been unfairly dismissed it should consider whether any adjustment should be made to the compensation on the grounds that if a fair process had been followed by the Respondent in dealing with the Claimant’s case, the Claimant might have been fairly dismissed.[97]Where a 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.[98]The law in this respect is set down in the cases of Polkey v AE Dayton Services Ltd [1987] UKHL 8, Software 2000 Ltd v Andrews [2007] ICR 825; W Devis & Sons Ltd v Atkins [1977] 3 All ER 40; and Crédit Agricole Corporate and Investment Bank v Wardle [2011] IRLR 604. Contributory Fault[99]It was agreed with the parties that if the Claimant had been unfairly dismissed, the Tribunal would address the issue of contributory fault, which inevitably arises on the facts of this case.[100]The Tribunal may reduce the basic or compensatory awards for culpable conduct in the slightly different circumstances set out in sections 122(2) and 123(6) of the Employment Rights Act 1996. Section 122(2) provides as follows: “Where the Tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the Tribunal shall reduce or further reduce that amount accordingly.”[101]Section 123(6) then provides that: “Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.” Notice pay/wrongful dismissal[102]An employer is entitled to terminate an employee’s employment without notice if the employee is in fundamental breach of contract. This will be the case if the employee commits an act of gross misconduct. If the employee was not in fundamental breach of contract, the contract can only lawfully be terminated by the giving of notice in accordance with the contract or, if the contract so provided, by a payment in lieu of notice.[103]A claim of breach of contract must be presented within 3 months beginning with the effective date of termination (subject to any extension because of the effect of early conciliation) unless it was not reasonably practicable to do so, in which case it must be submitted within what the Tribunal considers to be a reasonable period thereafter. Discrimination arising from disability[104]The legislation regarding complaints of discrimination arising from disability is set out at section 15 of the Equality Act 2010, set out below. 15 Discrimination arising from disability(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.[105]The approach to determining Section 15 claims was summarised by the Employment Appeal Tribunal in Pnaiser v NHS England and Another [2016] IRLR 170. This includes:• In determining what caused the treatment complained about or what was the reason for it, the focus is on the reason in the mind of A. This is likely to require an examination of the conscious or unconscious thought process of A;• The “something” that causes the unfavorable treatment need not be the main or sole reason, but must at least have a significant (or more than trivial) influence on the unfavorable treatment, and so amount to an effective reason for or cause of it;• Motives are not relevant;• The tribunal must determine whether the reason or the cause is “something arising in consequence of B’s disability”;• The expression “arising in consequence of” can describe a range of causal links. The causal link between the something that causes unfavorable treatment and the disability may include more than one link;• Knowledge is only required of the disability. Knowledge is not required that the “something” leading to the unfavorable treatment is a consequence of the disability.[106]The respondent will successfully defend the claim if it can prove that the unfavorable treatment was a proportionate means of achieving a legitimate aim. Legitimate aims are not limited to what was in the mind of the employer at the time it carried out the unfavorable treatment. Considering the justification defence requires an objective assessment which the tribunal must make for itself following a critical evaluation of the position. It is not simply a question of asking whether the employer’s actions fell within the band of reasonable responses.[107]The Equality and Human Rights Commission Code of Practice suggests the question should be approached in two stages: - Is the aim legal and non-discriminatory and one that represents a real, objective consideration? - If so, is the means of achieving it proportionate – that is appropriate and necessary in all the circumstances?[108]The Code goes on to say that this involves a balancing exercise between the discriminatory effect of the decision as against the reasons for applying it, taking into account all relevant facts. “Necessary” here does not mean that the treatment is the only possible way of achieving a legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means (see Hampson v Department of Education and Science [1989 ICR 179 and Hardys & Hansons plc v Lax [2005] ICR 1565.)[109]Justification therefore requires there to be an objective balance between the discriminatory effect and the reasonable needs of the employer (Hensman v Ministry of Defence UKEAT/0067/14). The Tribunal has to take into account the reasonable needs of the employer, but it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the treatment is reasonably necessary.[110]The Equality and Human Rights Commission Code of Practice in paragraph 5.2.1 suggests that if a respondent has failed to make a reasonable adjustment it will be very difficult for it to show that its unfavourable treatment of a claimant is justified.[111]A section 15 claim will not succeed if the respondent shows that it did not know, and could not reasonably have been expected to know, that the claimant had the disability. This is also part of the knowledge defence applicable to complaints of failure to make reasonable adjustments.[112]The Code, at paragraph 5.14, suggests that “Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a “disabled person”2. At paragraph 6.19, the Code goes on the say: “The employer must, however, do all they can reasonably be expected to do to find out whether this is the case. What is reasonable will depend upon the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”[113]Gallop v Newport City Council [2014] IRLR 211 established that when considering the extent of an employer’s enquiries into whether an employee is disabled, an unquestioning reliance on Occupational Health advice may not be sufficient to enable an employer to rely on the knowledge defence.[114]Knowledge on the part of a person employed by the respondent is likely to be imputed to the respondent. It will either be actual knowledge, or knowledge which ought reasonably to have been transmitted to the appropriate person.[115]The Claimant specifically directed us to consider City of York Council v Grosset [2018] EWCA Civ 1105. Duty to make reasonable adjustments[116]The legislation regarding complaints of a failure to make reasonable adjustments is contained within sections 20 and 21 of the Equality Act 2010.[117]Section 20 of the Equality Act 2010 states: 20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2)The duty comprises the following three requirements. (3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. (6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format. (7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty. (8)A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section. (9) In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to— (a) removing the physical feature in question, (b) altering it, or (c) providing a reasonable means of avoiding it. (10) A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to— (a) a feature arising from the design or construction of a building, (b) a feature of an approach to, exit from or access to a building, (c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or (d) any other physical element or quality. (11) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service. (12) A reference in this section or an applicable Schedule to chattels is to be read, in relation to Scotland, as a reference to moveable property. (13) The applicable Schedule is, in relation to the Part of this Act specified in the first column of the Table, the Schedule specified in the second column. 21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.[118]The duty to make reasonable adjustments appears in section 20 as having three requirements. In this case we are concerned with the first requirement in Section 20(3) – “(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled to take such steps as it is reasonable to have to take to avoid the disadvantage.”[119]Under section 21 a failure to comply with that requirement is a failure to comply with a duty to make reasonable adjustments and will amount to discrimination. Under Schedule 8 to the Equality Act an employer is not subject to the duty to make reasonable adjustments if the employer does not know and could not reasonably be expected to know that the claimant has a disability or that the claimant is likely to be placed at a substantial disadvantage.[120]In Environment Agency v Rowan [2008] ICR 218 it was emphasised that an employment tribunal must first identify the “provision, criterion or practice” applied by the respondent, any non-disabled comparators (where appropriate), and the nature and extent of the substantial disadvantage suffered by the claimant. Only then is the tribunal in a position to know if any proposed adjustment would be reasonable.[121]The words “provision, criterion or practice” (“PCP”) are said to be ordinary English words which are broad and overlapping. They are not to be narrowly construed or unjustifiably limited in application. However, case law has indicated that there are some limits as to what can constitute a PCP. Not all one-off acts will necessarily qualify as a PCP. In particular, there has to be an element of repetition, whether actual or potential. In Ishola v Transport for London [2020] EWCA Civ 112 it was said: “all three words carry the commutation of a state of affairs… indicating how similar cases are generally treated or how a similar case would be treated if it occurred again.” It was also said that the word “practice” connotes some form of continuum in the sense that it is the way in which things are generally or will be done.[122]The purpose of considering how a non-disabled comparator may be treated is to assess whether the disadvantage is linked to the disability.[123]Substantial disadvantage is such disadvantage as is more than minor or trivial.[124]In County Durham and Darlington NHS Trust v Dr E Jackson and Health Education England EAT/0068/17/DA the Employment Appeal Tribunal summarised the following additional propositions: - It is for the disabled person to identify the “provision, criterion or practice” of the respondent on which s/he relies and to demonstrate the substantial disadvantage to which s/he was put by it; - It is also for the disabled person to identify at least in broad terms the nature of the adjustment that would have avoided the disadvantage; s/he need not necessarily in every case identify the step(s) in detail, but the respondent must be able to understand the broad nature of the adjustment proposed to enable it to engage with the question whether it was reasonable; - The disabled person does not have to show the proposed step(s) would necessarily have succeeded but the step(s) must have had some prospect of avoiding the disadvantage; - Once a potential reasonable adjustment is identified the onus is cast on the respondent to show that it would not been reasonable in the circumstances to have to take the step(s); - The question whether it was reasonable for the respondent to have to take the step(s) depends on all relevant circumstances, which will include: The extent to which taking the step would prevent the effect in relation to which the duty is imposed; The extent to which it is practicable to take the step; The financial and other costs which would be incurred in taking the step and the extent to which taking it would disrupt any of its activities; -The extent of its financial and other resources; The availability to it of financial or other assistance with respect to taking the step; -The nature of its activities and size of its undertaking; - If the tribunal finds that there has been a breach of the duty; it should identify clearly the “provision, criterion, or practice” the disadvantage suffered as a consequence of the “provision, criterion or practice” and the step(s) the respondent should have taken.[125]Consulting an employee or arranging for an occupational health or other assessment of his or her needs is not normally in itself a reasonable adjustment. This is because such steps alone do not normally remove any disadvantage; Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 663; Project Management Institute v Latif [2007] IRLR 579.[126]What adjustments are reasonable will depend on the individual facts of a particular case. The Tribunal is obliged to take into account, where relevant, the statutory Code of Practice on Employment published by the Equality and Human Rights Commission. Paragraphs 6.23 to 6.29 give guidance on what is meant by reasonable steps. Paragraph 6.28 identifies some of the factors which might be taken into account when deciding whether a step is reasonable. They include the size of the employer; the practicality of the proposed step; the cost of making the adjustment; the extent of the employer’s resources; and whether the steps would be effective in preventing the substantial disadvantage.[127]An important consideration is the extent to which the step will prevent the disadvantage. Although the Equality Act 2010 uses the term “avoid”, this is not an absolute test. (The position is different in auxiliary aid cases where the employer has to take such steps as it is reasonable to take to have to provide the auxiliary aid).[128]A failure to consider whether a particular adjustment would or could have removed the disadvantage amounts to an error of law: Romec Ltd v Rudham [2007] All ER(D) (206) (Jul), EAT. The Court of Appeal put the matter this way in Griffiths v Secretary of State for Work and Pensions [2017] ICR 160: “So far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness.”[129]Broadly speaking, and all other things being equal, the more effective the adjustment is likely to be the more likely it is to be a reasonable adjustment; the less effective it is likely to be, the less likely it is to be reasonable. Effectiveness must be assessed in the light of information available at the time, not subsequently: Brightman v TIAA Ltd UKEAT/0318/192 July 2021 (paragraph 42). Victimisation[130]Section 27 Equality Act 2010 states: Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.(4) This section applies only where the person subjected to a detriment is an individual.(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.[131]The law on victimisation is designed to make sure that employees can raise concerns about discrimination without fear of repercussions. Victimisation has a specific legal meaning.[132]A claimant is protected when he or she complains about discrimination even if they are wrong and there has been no discrimination. However, a claimant is not protected if they made an allegation in bad faith, namely they did not really believe it was discrimination.[133]In considering the link between the protected act and the detriment a Tribunal needs to consider how to interpret the word ‘because’ in section 27. The law requires more than a ‘but for’ link: it is not enough to say that, if the Claimant had not made the complaints, then the bad treatment would not have happened.[134]The Tribunal must consider what was in the mind of the decision maker, consciously or subconsciously. Chief Constable of West Yorkshire v Khan [2001] ICR 1065 HL suggests must find the ‘core reason’ or the ‘real reason’ for the act or omission. The Equality and Human Rights Commission Code at paragraph 9.10 also makes it clear that the protected act need not be the only reason for the decision.[135]The person who subjects a claimant to a detriment needs to have known that the claimant did the protected act.[136]The EHRC Employment Code, drawing on the case law under the previous discrimination legislation, contains a useful summary of treatment that may amount to a ‘detriment’: ‘Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage. This could include being rejected for promotion, denied an opportunity to represent the organisation at external events, excluded from opportunities to train, or overlooked in the allocation of discretionary bonuses or performance-related awards… A detriment might also include a threat made to the complainant which they take seriously and it is reasonable for them to take it seriously. There is no need to demonstrate physical or economic consequences. However, an unjustified sense of grievance alone would not be enough to establish detriment’.
Conclusions
[137]The Tribunal has set out its conclusions, which are unanimous, in the order of the list of issues. The conclusions were reached by applying the established legal principles to the facts. The Tribunal considered the submissions made by the parties in full, and the case law to which it was directed. Unfair Dismissal[138]The context and background to the dismissal is important, and therefore findings of fact have been made as required. However, the issues for determination are clearly set out under the section headed Issues above. Reason for dismissal[139]The first issue for determination was: what was the reason for dismissal?[140]The Claimant suggests that there was a long standing plan to dismiss her and remove her from the Respondent’s employ. The Tribunal do not consider there to be any evidence that this was the case.[141]The findings of fact demonstrate that the Claimant has raised a number of grievances historically. The Respondent ensured that her grievance on 14 June 2022 was considered by an independent person promptly, and before moving to any disciplinary meeting.[142]The Claimant’s witness statement, and Mr. Yakub’s witness statement, seek to create a picture that Ms. Stanford wished to remove the Claimant and sought to change her hours and duties against her wishes. The facts do not demonstrate this to be the case, and indeed set out that the Respondent has sought to engage and accommodate working preferences.[143]The evidence given by Ms. Stanford and Mr. Hookway was clear, the reason for the Claimant’s dismissal was her conduct, namely seeking to find Ms. Viner and then calling her.[144]The Tribunal do not consider her dismissal to be for any other reason.[145]The Tribunal concluded that the Claimant’s conduct was the reason for dismissal, and this was a potentially fair reason under section 98(2)(b) of the Employment Rights Act 1996.[146]As the Respondent has shown a potentially fair reason for dismissing the Claimant, the next legal issue for consideration is that set out in section 98(4) of the Employment Rights Act 1996. This provision always bears repeating: “(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depended on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and(b) shall be determined in accordance with the equity and the substantial merits of the case.”[147]The test of fairness is tied into the reason for dismissal, which was found to be conduct. It also considers the size and resources of the Respondent, in this case the Respondent is a relatively large employer providing cleaning services for large clients. A further key point is that the test looks at whether the employer acted reasonably or unreasonably. This effectively imports a “band of reasonable responses” test. The question is whether this employer acted reasonably given the reason for dismissal. It is not for the Tribunal to substitute its view on what the Respondent should or should not have done.[148]When considering fairness in conduct dismissals the correct approach is set out in British Homes Stores v Burchell [1980] ICR 3030 and Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23. The Tribunal must also have regard to the ACAS Code of Practice on Discipline and Grievance Procedures 2015 (the Code). Did the Respondent have a genuine belief the Claimant had committed misconduct and were there reasonable grounds for that belief?[149]The next issue for determination is: did the Respondent have a genuine belief that the Claimant had committed misconduct and were there reasonable grounds for that belief?[150]The Tribunal concluded that the Respondent did have a genuine belief based on reasonable grounds. Ms. Stanford and Mr. Hookway were joint decision makers. They considered the evidence available, namely the reports from the client and heard directly from the Claimant, including the Claimant’s account of what had happened in relation to contacting Ms. Viner.[151]The decision makers took into account the context of the situation in that previously the Claimant, indeed all staff, had been informed they must not discuss business or personal matters with the client.[152]The contemporaneous documentation and the Respondent’s oral evidence was clear on why the Claimant was dismissed, as explained in the outcome email and attachment. It was the Claimant’s conduct in relation to seeking out Ms. Viner in the office and phoning her to discuss work matters. The Claimant was not dismissed for the discussion in the toilet.[153]Mr. Herbst evidence on why the appeal was not upheld and why he considered there had been gross misconduct was also clear.[154]The decision makers formed a belief that the Claimant had attempted to contact Jane Viner in the office, on a floor she was not authorised to access, and that she had telephoned her and that this constituted gross misconduct. This belief was reasonably formed as in essence, it came from the Claimant, who admitted this conduct.[155]The Tribunal concluded that there was a genuine belief that the Claimant had committed misconduct and there were reasonable grounds for the belief. Did the Respondent carry out a reasonable investigation?[156]Again, this issue, being whether at the time the belief of misconduct was formed had the Respondent had carried out a reasonable investigation is a question of the band of reasonable responses.[157]The Claimant contends that a reasonable investigation was not undertaken.[158]As set out in the findings of fact above, there was no separate formal investigation meeting with the Claimant. However, prior to suspending the Claimant Ms. Stanford asked the Claimant if she had sought out Ms. Viner and she confirmed she had. Further discussion about the alleged conduct took place during the disciplinary meeting and the Claimant clearly admitted that she had been looking for Ms. Viner and that she had called her after she was suspended.[159]The Respondent’s Disciplinary Procedure, as per the findings of fact above, is non-contractual, and we conclude it sets out a sensible guide for managing disciplinary matters.[160]The ACAS Code of Practice on Disciplinary and Grievance Procedures, at paragraph 5, under the heading “Establish the facts of each case” states: “5. It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.”[161]The Code itself gives an employer flexibility in how to approach an investigation. The extent and form of an investigation will vary depending on the facts of a case. The holding of an investigation meeting is not a mandatory requirement, but in many cases will be required. In other cases, the investigation will only involve an employer collating relevant evidence.[162]The Tribunal also note that at paragraph 6 the Code states: “In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.”[163]This provision is to ensure impartiality. In many cases a line manager may undertake the investigation. In the circumstances of this particular case, the investigation was essentially the information reported to Ms. Stanford by the client and the Claimant’s own admissions. The client did not wish to provide any statements or be involved in the process beyond the initial reporting. Taking into account the events and allegations against the Claimant, we conclude the Respondent did carry out a reasonable investigation.[164]However, even if the Tribunal are wrong in this respect, it concluded that the fact that the Claimant was able to put forward her explanation for her actions during the disciplinary hearing, and further at the appeal stage, meant that the Claimant had the opportunity to give an explanation and therefore this cured any potential unfairness in relation to her not being interviewed during a separate investigation stage.[165]The legal test is that an employer must hold such investigation as “is reasonable in the circumstances”. The Tribunal concluded, in view of the admission of the alleged misconduct by the Claimant, that the investigation in this case was reasonable. Did Respondent otherwise act in a procedurally fair manner?[166]Again, both the ACAS Code and the Respondent’s own Disciplinary Policy are relevant in considering this issue. The key points include: - That an employer acting fairly will give sufficient details of the allegations and the evidence being considered in enough time before the disciplinary hearing; - The employee is permitted to be accompanied by a fellow worker or trade union representative; - The employer must consider whether or not disciplinary or any other action is justified and inform the employee in writing; - The employee has a fair chance to set out their case at a disciplinary hearing; and - That the employee is offered the right of appeal.[167]The Tribunal concluded that on balance, the Respondent did act in a procedurally fair manner.[168]The Respondent investigated in a proportionate way. The Claimant was notified of the allegations against her. The Claimant had a full chance at the disciplinary hearing to put forward any comments and representations she wished, indeed the Claimant admitted to seeking out Ms. Viner and the calling her.[169]The invitation to the disciplinary hearing gave clear information about potential consequences and informed the Claimant of her right to be accompanied, indeed she was accompanied by a colleague.[170]A disciplinary hearing was held with two managers. Ms. Stanford and Mr. Hookway. At the hearing the Claimant had a full opportunity to present her position.[171]No decision was made until after the hearing had been concluded and the decision makers sought guidance from HR.[172]Prior to the disciplinary hearing the Claimant had not raised any concern about Ms. Stanford potentially being biased. Indeed, she chose, after careful thought, not appeal the grievance outcome and appeared to be willing to move forward with Ms. Stanford.[173]The evidence indicates that the decision was reached on the allegations alone. Further, Mr. Hookway, an independent manager, was also a joint decision maker, and this would have prevented any potential bias, although the Tribunal did not consider there to be any.[174]The Claimant submits that the outcome was predetermined, however as set out above, the reason for dismissal clear, and a full and detailed disciplinary hearing was held to ensure the Claimant had a full opportunity to present her case.[175]The Claimant was informed of the outcome in writing. The outcome documentation was clear and set out the decision.[176]The Claimant was offered the right to appeal, and did appeal. A full appeal process was undertaken. A full and detailed consideration took place at the appeal stage. Mr. Herbst went back to client but also looked at whether there had been other cases which had involved disciplinary action for similar conduct, as noted in the findings of fact.[177]The Claimant submitted that the Respondent did not take into account her long service or record. The witness evidence was candid, they did not, as they considered the gross misconduct alone was sufficient to warrant dismissal. It does not appear that any alternative sanctions were considered, and it was noted the Respondent was concerned about reputational risk. The Tribunal does consider these elements could have been better considered at the time and addressed.[178]However, on balance, considering the procedure as whole the Tribunal considered the Respondent acted in a procedurally fair manner. Range of reasonable responses[179]Finally, considering section 98(4) in totality, if all the above tests have been met, the Tribunal must consider whether dismissal within the range of reasonable responses. It is important to restate that the Tribunal must not substitute its own view, it must consider if dismissal was one of the options open to the Respondent. It does not matter whether the Tribunal would have decided differently.[180]Given the reasonable finding that the Claimant had committed an act of gross misconduct, in view of the Claimant’s conduct and the information known to the Claimant that discussing personal and work matters with clients was not permitted and could be considered an act of gross misconduct for bringing the Respondent into disrepute, and noting the process in totality the Tribunal concluded the Respondent’s decision to dismiss the Claimant fell within a range of reasonable responses.[181]The Claimant’s complaint of unfair dismissal fails.[182]As it was found dismissal was fair, substantively and procedurally, the Tribunal did not go on to consider Polkey or Contributory Fault. Wrongful dismissal/notice pay[183]The Claimant was dismissed without notice and brings a claim in respect of her entitlement to 12 weeks’ notice.[184]Dealing with the Breach of Contract claim, the Tribunal must consider whether the Claimant fundamentally breached the contract of employment by an act of gross misconduct which entitled the Respondent to dismiss without notice.[185]In distinction to the claim of unfair dismissal, where the focus is on the reasonableness of managements decisions, and immaterial to what decision the Tribunal would have reached it must decide whether the Claimant was guilty of conduct serious enough to entitle the Respondent to terminate the employment without notice.[186]The Tribunal consider the Claimant made a conscious decision to try and find Ms. Viner on 13, 14 and 15 June 2022 and to call her on 16 June 2022. The Claimant took such seps in full knowledge she was not permitted to discuss personal or business matters with client.[187]The Tribunal understand the Respondent was concerned about potential reputational risk.[188]In view of the fact the Claimant knew that it was not permitted to discuss personal or business matters with client the Tribunal concluded that, on an objective assessment, on the balance of probabilities, the Claimant's actions were sufficiently serious to amount to a fundamental breach entitling the Respondent to dismiss the Claimant without notice.[189]In reaching its conclusion on this point the Tribunal considered it significant that after suspension and being told the allegation of misconduct was in relation to seeking out Ms. Viner the Claimant then chose to telephone Ms. Viner and discussed her health and grievance with Ms. Viner. The Tribunal consider this conscious decision and action on the Claimant’s part amounted to gross misconduct.[190]The Tribunal conclude that the Claimant did commit an act of gross misconduct entitling the Respondent to dismiss without notice.[191]The Claimant's claim of breach of contract in relation to notice pay fails and is dismissed. Knowledge of disability[192]As set out above, on 4 August 2021 the Claimant sent Ms. Stanford a copy of her medical history. This set out she had osteoarthritis. Accordingly, the Tribunal consider the Respondent had actual knowledge of the Claimant’s disability at this time.[193]The Tribunal understand Ms. Stanford is not a medical expert and was not aware how this condition impacts the Claimant specifcally, but as noted above, no formal meeting was arranged, no referral to Occupational Health was made and it does not seem that the Claimant was clear on what else she needed to provide. It is noted she sent a fit note after Ms. Dove set out in an email what was required.[194]The Tribunal went on to consider if the Respondent had constructive knowledge at any time prior to August 2021.[195]As set out above, it was found the Claimant showed Ms. Stanford a letter regarding PIP in August 2016. The Tribunal consider that this should have resulted in further enquiries being made, particularly in view of the fact this was in close proximity to knee surgery, notwithstanding the fact she had a fit note saying she was fit to work. The Tribunal consider further enquiries could have included a more detailed discussion with the Claimant or a referral to Occupational Health.[196]The Tribunal consider that if such enquiries were made the result of would have been that the Respondent would understand the Claimant was restricted due to osteoarthritis.[197]On balance, it was determined that the Respondent had constructive knowledge of the Claimant’s disability from August 2016. Discrimination arising from disability – section 15 Equality Act 2010[198]The Tribunal then moved to considering the discrimination arising from disability complaint.[199]As set out above, it concluded that the Respondent should have had knowledge of the Claimant’s disability from August 2016.[200]The first issue for consideration is whether the Respondent treated the Claimant unfavourably. The Claimant alleges the following unfavourable treatment.194. 6.1.3 The claimant was required to use annual leave to attend medical appointments concerning her disability, and was required to miss or reschedule some of these appointments when her annual leave requests were turned down by Ms. Stanford or her daughter, Melissa Stanford, with insufficient explanation; and195. 6.1.4 The claimant was ultimately dismissed for raising issues about her disability with the respondent and making requests for reasonable adjustments. The respondent has used the claimant’s interaction with Ms. Viner as an excuse to dismiss the claimant because of her disability.[201]The Tribunal has set out conclusions in relation to each allegation of unfavourable treatment below. In reaching the decision it kept in mind that “unfavourably” is not defined in the Equality Act 2010 but the Code assists and states: “must have been put at a disadvantage. The Code notes that “Even in an employer thinks that they are acting in the best interests of a disabled person, they may still treat that person unfavourably.” The Code gives examples of unfavourable treatment, including, refusal of a job; dismissal; a shift to night working; a team move to an open-plan office. 6.1.3 The claimant was required to use annual leave to attend medical appointments concerning her disability, and was required to miss or reschedule some of these appointments when her annual leave requests were turned down by Ms. Stanford or her daughter, Melissa Stanford, with insufficient explanation[202]The Claimant has not set out any detail of any occasions where she says she was required to use her annual leave to attend medical appointments. We were not directed to any documentary evidence to support this assertion.[203]The Claimant has not set out any detail of when she was required to miss or reschedule appointments when her annual leave requests were turned down. We were not directed to any documentary evidence to support this assertion.[204]Accordingly, the Tribunal do not consider the facts on which this allegation of unfavourable treatment have been made out.[205]This allegation fails. 6.1.4 The claimant was ultimately dismissed for raising issues about her disability with the respondent and making requests for reasonable adjustments. The respondent has used the claimant’s interaction with Ms. Viner as an excuse to dismiss the claimant because of her disability.[206]The Tribunal do consider being dismissed amounts to unfavourable treatment. However, it does not consider the Claimant was dismissed for raising issues about her disability with the Respondent and making requests for reasonable adjustments. The Tribunal does not consider the Respondent has used the Claimant’s interaction with Ms. Viner as an excuse to dismiss the Claimant because of her disability.[207]Only part of the allegation is made out as unfavourable treatment, the dismissal, but accordingly the next issue for us to consider was if the following arose in consequence of the Claimant’s disability: the claimant’s inability to carry out all aspects of her substantive role.[208]In view of the later fit note, the Tribunal consider that by virtue of the Claimant’s osteoarthritis she was not able to carry out all aspects of her substantive role, noting she was employed as a cleaning operative. The role of cleaning involves a range of tasks, but as noted above, at the point of dismissal she was servicing the toilets, not undertaking a full clean.[209]As set out in the summary of the law above, there must be “something arising” in consequence of the Claimant’s disability; and the unfavourable treatment must be because of that “something arising.”[210]In reaching our conclusion we considered the guidance in Pnaiser v NHS England and anor [2016] IRLR 170 EAT which summarised the proper approach to determining section 15 claims.[211]The Tribunal considered whether the claimant’s inability to carry out all aspects of her substantive role had a significant influence on, and so was an effective cause of the, unfavourable treatment, namely the decision to dismiss the Claimant.[212]As set out above, the Tribunal determined that the Claimant’s conduct in seeking to find Ms. Viner and then telephoning her were the reasons why she was dismissed in the context of the Claimant knowing she should not discuss personal or business matters with the client.[213]The dismissal was not directly because of the “something arising”. However, as noted in Pnaiser, the causal link between the “something” that causes unfavourable treatment and the disability may include more than one link. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.[214]The Tribunal followed the Pnaiser guidance and considered, as per paragraph 31b of Psnaier, why the Respondent dismissed the Claimant. As set out in the conclusions relating to the unfair dismissal complaint above, the Tribunal consider that the reason why she was dismissed was the Claimant searching out and contacting Ms. Viner. The decision makers were clear that this was the reason and they were concerned about potential reputational damage to the Respondent. The Tribunal do not consider the Claimant’s inability to do all aspects of her job to have had any influence on the decision makers decision to dismiss.[215]The Claimant submits that she was crying in pain in the toilets which led to a discussion with Ms. Viner which led to her seeking out Ms. Vinder and then her dismissal.[216]The Tribunal kept in mind there may be more than one causal link.[217]The Tribunal accept the conversation with Ms. Viner in the toilet resulted from the Claimant being upset and struggling in the toilet. However, the Claimant was not dismissed because of that, or something that naturally or causatively flowed from that. The Claimant made a conscious decision to seek out Ms. Viner, on a floor that she was not supposed to access, on three occasions, and then telephoned the Ms. Viner. The Claimant took these steps. It was these actions that she was dismissed for. She did not need to contact Ms. Viner, to say thank you or otherwise, and she did not need to call her. Indeed, she knew that she should not.[218]The Tribunal do not consider the misconduct was caused by disability or the something arising in consequence. It was due to a decision made by the Claimant.[219]The Tribunal do not consider her inability to carry out all aspects of her role as being an operative cause in the unfavourable treatment, the dismissal. It concluded that, on an objective assessment, in this case, the “something” did not have a significant influence on the unfavourable treatment.[220]Accordingly, it was not necessary to consider if the unfavourable treatment was a proportionate means of achieving a legitimate aim.[221]The allegation fails. Reasonable adjustments[222]The importance of a methodical approach to reasonable adjustments complaints has been emphasised in case law.[223]As set out above, the general conclusion was that from August 2016 the Respondent had constructive knowledge of the Claimant’s disability. However, in dealing with a reasonable adjustment complaint it is important to remember to consider and address the requirement for knowledge of the substantial disadvantage as well.[224]The Claimant asserts that the Respondent had the following PCP: Designating employees duties without taking into account their health condition, length of service or any other relevant factors.[225]The Respondent denies applying such a practice.[226]A PCP must be construed widely and with regard to the purpose of legislation to eliminate discrimination against those who suffer disadvantage from a disability. There must be an element of repetition, actual or potential. A one-off decision which was not the application of a policy is unlikely to be a practice.[227]In this case the Tribunal do not consider there to be sufficient evidence to support a conclusion that this was a practice operated by the Respondent. The documents and evidence we were directed to relate to this case only. Further, as set out above, the findings of fact demonstrate that the Respondent was seeking to support the Claimant and willing to discuss, agree and vary her working hours and the tasks she undertook at several times during her employment. Indeed, in 2020, the change in duties moving from cup collection was discussed and there is no evidence that the Claimant raised any concern about her ability to perform any tasks.[228]There was no evidence that the Respondent had practice of designating employees duties without taking into account their health condition, length of service or any other relevant factors.[229]It was noted that the Respondent has adopted an approach that requires staff with health conditions to obtain a fit note/med3 setting out restrictions, and although that was not understood by the Claimant, the Respondent’s evidence was clear that adjustments are considered on receipt of such medical information.[230]The Tribunal concluded that alleged PCP was not a practice, criterion or provision.[231]Accordingly, the complaint for failing to make reasonable adjustments fails. The Tribunal did not go on to consider any other elements of the complaint as the first stage has not been made out. Victimisation[232]The first matter for consideration was whether the Claimant did a protected act. The Claimant says they did three protected acts, and we considered each separately.[233]The first alleged protected act is set out as: 8.1.1 On 14 June 2022, the claimant raised a formal grievance against Michele Stanford and Melissa Stanford for bullying and trying to force the claimant out of work by refusing and/or ignoring her requests for reasonable adjustments. The claimant asked to return to kitchen duties because her disability made cleaning toilets especially difficult as it involved bending down. Although the claimant did not use the express language of ‘reasonable adjustments’ or ‘disability’, her requests were for reasonable adjustments as a result of her disability.[234]The 14 June 2022 email is short and the main paragraph reads: “I am really sorry to bother you, but I send this to you as I have been having continuous problems with Michelle Stratford and Melissa. After working with Michell for over 30 years, I cannot believe how they are making me feel at work. I feel that I have been treated unfairly by them, and feel pushed out, and bullied due to my health problems (For example: when my working position was changed from working in the kitchen to toilets). I am also facing problems in regards to my holiday, as they have been refusing my requests.”[235]Therefore, the grievance does not read the same as the alleged protected act. However, on a plain reading, the Tribunal consider that the grievance email on 14 June 2022 was an allegation that the Respondent’s staff had contravened the Equality Act 2010 for treating the Claimant badly due to her health.[236]The Tribunal consider this was a protected act, and refer to it as Protected Act 1.[237]The second alleged protected act is: 8.1.2 On 14 June 2022, the claimant had a brief conversation with Ms. Viner in which she explained that she had osteoarthritis which made cleaning the toilets difficult, but that she was using the proper channels to resolve the issue;[238]The findings of fact set out it was determine the Claimant said to Ms. Viner in the conversation in the toilets. As noted above, the Tribunal do not consider this was precisely what was said.[239]Further, and in any event, on this alleged protected , as specifically framed, the Tribunal consider the Claimant was explaining she had osteoarthritis which made cleaning the toilets difficult, but that she was using the proper channels to resolve the issue, does not constitute an allegation (express or not) that the Respondent, or its staff, had contravened the Equality Act 2010. We do not consider the alleged statement can be sensibly read as an allegation.[240]This is not a protected act.[241]The third alleged protected act is: 8.1.3 On 22 June 2022, the claimant attended a grievance meeting in Holborn at which she explained that Michele Stanford and Melissa Stanford had become increasingly hostile towards her since she discussed her health condition and had refused and/or ignored her requests to return to kitchen duties because of her disability.[242]The Tribunal do find that at the grievance meeting the Claimant made this allegation and that this constitutes a protected act. We refer to this as Protected Act 3.[243]The Claimant alleges that she was subjected to five separate detriments, and again we have dealt with each in turn. 8.2.1 On 16 June 2022, the claimant was suspended by Michele Stanford two days after the claimant had brought a grievance against her and Melissa[244]The Tribunal consider that a reasonable view of suspension is that it amounts to detriment.[245]However, it considered whether the suspension was because the Claimant did any or all of the Protected Acts.[246]The Tribunal do not consider the suspension was because of, in any way, the Protected Acts, indeed, suspension took place before Protected Act 3 and therefore cannot be because or related to Protected Act 3.[247]The Tribunal concluded that Ms. Stanford suspended the Claimant because she had sought out, and admitted to seeking out, Ms. Viner and the Respondent was concerned about potential reputational risk. There is no evidence to suggest that the fact the Claimant raised a grievance two days prior had any bearing on the decision to suspend. The consideration of suspension was triggered the client reports to Ms. Stanford and the Claimant’s admission of seeking out Ms. Viner.[248]It was noted that the Claimant has raised a number of grievances historically, and there is nothing to suggest any attempt to retaliate.[249]The allegation fails. 8.2.2 On 4 August 2022, Michele Stanford chaired the claimant’s disciplinary hearing and did not conduct the hearing in a manner that gave the claimant a reasonable opportunity to present her case.[250]The Claimant, as evidenced by the notes of the disciplinary meeting, had an opportunity to make any comments that she wished and present her case at the disciplinary hearing.[251]Accordingly, as this was not found to have happened as a matter of fact, the alleged detriment in this allegation is not made out.[252]The allegation fails. The respondent failed: 8.2.2.1 To properly investigate by not obtaining a statement from Ms. Viner; and/or sought from client[253]As set out in the findings of fact, the client did not wish to participate in the Respondent’ disciplinary process.[254]In these circumstances, noting the Tribunal consider a reasonable investigation took place in view of the circumstances, namely the Claimant’s admission, the Tribunal do not consider the alleged detriment happened.[255]The alleged detriment in this allegation is not made out.[256]The allegation fails. The respondent failed: 8.2.2.2 To provide evidence where it states that approaching and discussing matters with clients is against company policy and deemed gross misconduct, or evidence that the claimant had been made aware of this policy.[257]As set out in the findings of fact, the Claimant was clearly instructed, first in 2012, that it was not permitted to discuss personal and work matters with the client and that it was considered action that could bring the Respondent into disrepute and could lead to disciplinary action. The Respondent’s Disciplinary Policy states: “Generally, gross misconduct includes any serious breach of conduct or duty that brings the Company into disrepute, or actions that are inconsistent with the relationship of trust and confidence required between the company and its employees”.[258]The alleged detriment in this allegation is not made out.[259]The allegation fails. 8.2.3 On 8 August 2022, the claimant was dismissed for gross misconduct. The respondent did not consider an alternative sanction despite the claimant’s length of service and clean disciplinary record.[260]The Tribunal consider that a reasonable view of dismissal is that it amounts to detriment.[261]However, it went on to considered whether the dismissal was because the Claimant did any or all of the Protected Acts.[262]The Tribunal do not consider the dismissal was because of, in any way related to, the Protected Acts.[263]The Tribunal conclude that the Claimant was dismissed because she had sought out, and admitted to seeking out, and telephoned Ms. Viner and this was deemed to be gross misconduct.[264]As per our conclusions in relation to the allegation of suspension, there is no evidence to suggest that the fact the Claimant raised a grievance on 14 June 2022 had any bearing on the decision to dismiss her.[265]It was noted that the Claimant has raised a number of grievances historically, and there is nothing to suggest any attempt to retaliate. The decision to dismiss was made jointly by Ms. Stanford and Mr. Hookway.[266]The allegation fails. Time limits[267]As the Claimant was not successful in any of her complaints the Tribunal did not go on to consider time limits as it was not necessary to do so. Approved by:
Conclusions
[1]The complaint of unfair dismissal is not well-founded and is dismissed.[2]The complaint of wrongful dismissal in relation to notice pay is not wellfounded and is dismissed.[3]The complaints of unfavourable treatment because of something arising in consequence of disability as set out at issues 6.1.3 and 6.1.4 are not wellfounded and is dismissed.[4]The complaints of unfavourable treatment because of something arising in consequence of disability as set out at issues6.1.1 and6.1.2 are dismissed following a withdrawal by the Claimant.[5]The complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed.[6]The complaint of victimisation is not well-founded and is dismissed.