Miss L Saunders v Chrysalis Care Ltd and Ms S Eghan: 2300850/2016

EMPLOYMENT TRIBUNALS

Case No 2300850/2016

Venue Ashford

Hearing 16, 17 and, in Chambers, 18 April 2018 Representation Claimant: In Person Respondent: Mr T McArdle, Solicitor

Between

In PersonClaimant

Mr T McArdle, SolicitorRespondent

Before

Employment Judge Kurrein

Members

Mr P Adkins Mrs J Jerram

Date 18 April 2018

JUDGMENT

The Claimant’s claims alleging disability and/or age discrimination are not well founded and are dismissed.

REASONS

[1]On 6 April 2016 the Claimant presented a claim to the Tribunal alleging disability discrimination and age discrimination. On 6 June 2016 the Respondents presented responses contesting those claims.

[2]Following a preliminary hearing on 4 July 2016 the Respondents accepted that the Claimant was a disabled person for the purposes of the Equality Act 2010.

[3]At a further preliminary hearing on 9 September 2016, the issues were defined by the Claimant’s then solicitors as follows:- Discrimination arising from Disability (s.15 Equality Act 2010) Was C unfavourably treated by being dismissed?

[2]Was the unfavourable treatment because of something arising in consequence of C’s disability? C relies on disorganisation in her work and a poor relationship with her foster carers as being conditions arising in consequence of her disability

[3]If so, has R shown that the treatment was a proportionate means of achieving a legitimate aim?

[4]Did R not know, or could R not reasonably be expected to know, that C had that disability? Failure to make Reasonable Adjustments (ss.20 & 21 Equality Act 2010)

[5]Did R apply the following provision, criteria and/or practice (‘the provisions’) generally, namely:5.1 To produce reports for the local safeguarding board

5.2 To write reviews and supervision notes

5.3 To complete risk assessments and case notes

[6]Did the application of any such provisions put C at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled in that:6.1 C is unable to proof read documents accurately within a short period of time to identify errors due to acute anxiety arising from dyspraxia;

6.2 C is unable to organise content and layout of reports due to acute anxiety arising from dyspraxia unless more time is provided and proof reading has been done in a timely fashion;

6.3 C is unable to locate completed documents on her computer as she had many versions due to disorganisation due to dyslexia dyspraxia;

6.4 C misplaces paragraphs in documents leaving them in entirely the wrong place. This would have been aided by feedback after proof reading.

6.5 C is subject to panic and information overload when several deadlines arise at the same time. She was unable to locate files on her computer as inordinate lengths of time were taken to request answers to reviews she had submitted early. She was unable to locate the files due to her conditions and no training was given to help organise her computer filing system. In addition the database was frequently not working properly or at all on these occasions being prevented from working from home heightened her conditions and anxiety causing her to be and to present as stressed. She would then be chastised for appearing to be stressed.

6.6 C had difficulty with organising the content and sequence of her language in both written and verbal language leading to being misunderstood most especially when stressed in the workplace rather than with clients/foster carers

6.7 C is over-sensitive to light. The lights were bright as she was seated between two windows with a florescent light overhead over brightness detracted from her ability to read her computer screen.

6.8 C has a difficulty with concentration in a noisy environment and is easily distracted.

[7]What are the adjustments asserted as reasonably required by C to remove the disadvantage she was put at:7.1 Providing reports to C on coloured paper (dyslexia and dyspraxia)

7.2 Providing a coloured background on C’s computer screen (dyslexia and dyspraxia)

7.3 Providing C with a hand-held recording device to complete work.

7.4 Proof-reading C’s reports and returning them to her in time to make adjustments to them

7.5 Allowing C to work at home (in a stress free environment) (dyspraxia)

7.6 Allowing C to work at home (in a quiet environment) (dyspraxia)

7.7 Allowing C to work from home due to lighting in the office and her seating position in the office. (dyspraxia)

7.8 Allocating C a private work space in the office

7.9 Allowing C additional time to work on reports to ensure accuracy before submission to relevant safeguarding committee

7.10 Returning documents to C in time for her to make adjustments

7.11 Allowing C to complete tasks on her caseload prior to being asked to do additional thing such as training without notice

7.12 Providing coloured folders in C’s computer to enable her to identify different cases and pieces of work.

7.13 Providing C with an ergonomic keyboard (dyspraxia)

7.14 Putting instructions besides the printer to save time and stress (dyspraxia)

7.15 Erecting a partition around C to help with the light and informing staff C is easily distracted

7.16 Providing an anti-glare screen for C’s computer to help with glare (dyspraxia)

7.17 Getting someone else to take minutes (dyslexia)

7.18 When interrupting C, give her an opportunity to make notes of what she had been doing before continuing with interruption (dyslexia)

[8]Did R take such steps as were reasonable to avoid the disadvantage?

[9]Did R not know, or could R not be reasonably expected to know, that C had a disability or was likely to be placed at the disadvantage set out above? Direct Age Discrimination (s.13 EA 2010)

[10]By terminating C’s employment, did R treat her less favourably than it would have treated an actual or hypothetical comparator who was not of C’s age?

[11]If so, has C proved facts from which the Tribunal could properly conclude, in the absence of any explanation from R, that her dismissal was because of age?

[12]Can R show a non-discriminatory reason for the act of potential discrimination identified? Harassment on grounds of age (s. 26 EA 2010)

[13]Did R2 harass C by engaging in unwanted conduct relating to C’s age which had the purpose or effect of(i) violating C’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for C by making [various / the following] age specific comments to her:

13.1 details to be supplied by C

13.2 Was the conduct “unwanted”?

13.3 Was the conduct ‘related to age’?

[14]Was it reasonable, having regard to C’s perceptions, for her to feel that her dignity was violated, or that an intimidating, hostile etc environment had been created as a result of that conduct? Jurisdiction

[15]In respect of the Claimant’s claims of discrimination and harassment, have they been presented in time?

[16]If any of the acts about which the Claimant complains have not been brought in time, and do not form part of a continuous act, would it be just and equitable in the circumstances to extend time?

Remedy

[17]Is C entitled to a declaration in her favour?

[18]What level of compensation is just and equitable, including consideration of injury to feelings? 4 On 16 September 2016 the Claimant provided details of her claims of age discrimination in a Schedule setting out 9 events starting with an occasion in April 2015 when the second Respondent said she thought someone else should manage the Claimant, continuing with a number of alleged events up to January 2016 when the second Respondent is alleged to have commented in adverse terms on the Claimant’s age. Procedural Matters 5 Comprehensive directions for the further conduct of the case were also given at that preliminary hearing, including guidance as to the content and format of witness statements and the trial bundle. 6 The case was originally listed to be heard for three days starting on 27 March 2017. Unfortunately the fee was not paid and that date was lost. The Claimant’s then solicitors explanation that the various notices to pay had not been received was accepted and the case was reinstated on 1 June 2017. The Evidence 7 We heard the evidence of the Claimant on her own behalf. We heard the evidence of the second Respondent, a former Practice Manager and now Registered Manager; Mrs Alle Pflaumer, Director; Mrs Sue Griffin, a former Supervising Social Worker; and Mrs Joanna Oliver, former Strategic Development Executive, on behalf of the Respondents. It is appropriate to note that the former employees were all “good” leavers. 8 We ruled that the evidence the Claimant sought to adduce from her son, Mr Lauriston Saunders, and from a former colleague, Mr Miguel Forde, was inadmissible because it was not relevant to the issues in the case. We thought the content, which was critical of the standards of care applied by the Respondent, were scurrilous. 9 The Claimant dispensed with the services of her solicitor in about February 2018. That was prior to the exchange of witness statements taking place. The Claimant’s statement extended to 194 paragraphs over 51 pages. She dealt with issues in a random order, repeating herself on many occasions and wholly failing to condescend to particulars regarding the defined issues. The majority of her allegations were unsupported by any contemporary or documentary evidence. Many of them were bare assertions. 10 The Claimant also appeared to have difficulty answering the straightforward questions put to her in cross-examination. She frequently did not answer the question, but went off on a tangent. 11 We accepted that the somewhat haphazard nature of her evidence was probably a result of her disabilities, but could not overlook her failure to address the issues. Whilst we were mindful of our obligation under the overriding objective to ensure so far as possible that the parties were on an equal footing, we took the view that it was not appropriate for us to try and adduce evidence in chief from the Claimant regarding each of the issues she had failed to deal with. 12 The evidence on behalf of the Respondents, by contrast, was clear, concise and to the point. The Respondent’s witnesses clearly endeavoured to answer what were, on many occasions, somewhat convoluted questions put by the Claimant. The Employment Judge, and, indeed, the Respondent’s solicitor, sought to assist the Claimant on several occasions, for which the Claimant expressed her gratitude. 13 There were relatively few major disputes as to the facts of the events with which we were concerned. Where such a dispute did arise we preferred the evidence given on behalf of the Respondents, particularly where that evidence was supported by contemporary documentation and/or was corroborated. 14 We considered the documents we were referred to and the submissions of the parties. We make the following findings of fact. Findings of Fact 15 The Claimant was born on 23 December 1956 and has considerable experience as a social worker. She took a 10 year break from that career until she applied for a position with the first Respondent as a Supervising Social Worker for which she was interviewed on 1 April 2014. 16 The first Respondent is a fostering care agency. Its directors are Mrs Pflaumer and her sister. They are the daughters of the business’s founders. At the time of the events with which we are concerned, they were responsible for over 80 foster carers who were caring for approximately 90 children. The principal staff consisted of a Registered Manager, two Practice Managers, two Supervising Social Workers and eight Social Workers. 17 The Respondent’s business is highly regulated. Its staff are required to have frequent contact with foster carers and the children in their care, to carry out detailed assessments and keep comprehensive notes. They may also be responsible for compiling lengthy reports, such as “Form F”, an assessment of the suitability of prospective foster carers to take up that role, which can take up to 6 months to complete. 18 The Claimant’s interview was conducted by the second Respondent and Mrs Pflaumer’s sister, Mrs Sarah Boden-De Mel. The Claimant had not completed an application form for the position but had been put forward by an agency which had provided her CV. That interview was clearly conducted in accordance with good practice: the panel had prepared a series of appropriate questions and made notes of the answers given by the Claimant. They also completed interview rating forms, giving comments and marks in respect of each question and in respect of appearance/disposition, education/qualifications/training, skills/knowledge, experience, personality and special circumstances.

Findings of Fact

[19]We did not accept the Claimant’s evidence that in the course of that interview she made specific reference to her impairments of dyslexia and dyspraxia. We preferred the evidence of the Respondents on this issue. It is clear from the preparation that went into this interview, and the detailed notes and comments set out in the interview documentation, that the interview panel were meticulous in their record-keeping. We think it highly unlikely that the Respondents would not have made a note of those impairments if the Claimant had mentioned them.

[20]We also note, in passing, that if, as the Claimant alleges, she did mention these impairments the Respondent had no concern regarding them: it employed her. It also allowed her to work two half days a week, less than full time, so that she could complete some outstanding commitments.

[21]The Claimant started her employment on 6 May 2014. She was given a comprehensive induction programme and provided with a copy of the Respondent’s staff handbook, which contained detailed policies in respect of grievances and discipline. She was issued with an appropriate statement of terms and conditions of employment under which she was to be paid a salary of £32,000 plus a car user’s allowance. The first six months of her employment was probationary.

[22]The Claimant took part in regular supervision meetings with the second Respondent. The first of these took place on 16 May 2014 and recorded that the Claimant was feeling settled and happy and was busy with her current caseload. A further meeting on 28 May 2014 also recorded that the Claimant was feeling “quite busy” and had outstanding reviews and other paperwork. This was attributed to the Claimant not at that time working full-time because of her outside commitments, and was anticipated to be resolved when these ceased in mid June. The Claimant had been undertaking training, and it was agreed that the Claimant would work for a couple of days in the next week in the upstairs training room to catch up on paperwork.

[23]Further supervision in mid July recorded the Claimant as feeling settled in the team, liking her work and feeling supported. She was managing her caseload efficiently and getting to know the carers she was responsible for. Once again, it was noted that she had been undertaking training. Similar remarks to those in mid-July were made during supervision on 24 September 2014.

[24]A further supervision meeting took place on 29 October 2014. The second Respondent raised some concerns with the Claimant about her timekeeping. This seems to have occurred because of the Claimant’s responsibilities for her horse. It was resolved amicably with the Claimant saying she would endeavour to improve. The Claimant also stated that she would like to have Dragon dictation software to enable her to work efficiently and manage her dyslexia. In the course of the hearing, however, the Claimant informed us that she had wanted that software to assist with her arthritis, an impairment she did not rely on as a disability.

[25]We accepted the evidence of the second Respondent that this was the first time that she had been made aware that the Claimant had dyslexia. She accepted the Claimant’s request and passed it on to the office to be processed. The Respondent accepted that there was some delay, it appears the office manager failed to process the request promptly, and the software was provided to the Claimant in April 2015.

[26]It is clear that at the time of this supervision meeting the Claimant and the second Respondent had a very good relationship. On 30 October 2014, a day on which the Claimant had emailed in the early morning to say she would be late into work because she had had to work late, she later emailed the Claimant in the following terms, “Your [sic] such a joy to know, and a great example of how to be a good kind decent upright good Christian woman in every way."

[27]The Claimant’s probationary review took place on 25 November 2014. By that time the Claimant had been supervising up to 10 foster carers from about mid June 2014. The review recorded that the Claimant had completed a number of long-term matching reports and other outstanding pieces of work left over by her predecessors. She had demonstrated strong confidence in producing good quality reports, was consistently up-to-date with her paperwork and met all targets and timescales. The Claimant was seen as conscientious, hardworking and thorough in her approach to work. The fostering panel had commented favourably on the quality of her reports.

[28]However, there were concerns: in particular, she had missed meetings and appointments with carers and children and a number of foster carers had made complaints concerning her conduct toward them. It was for these reasons that the second Respondent recorded that the Claimant had not satisfactorily completed her probationary period. She recommended that it be extended for a period of three months. She advocated on the Claimant’s behalf with the directors that this course was preferable to termination.

[29]The Claimant received a copy of that report. She does not appear to have been upset at the second Respondent’s position. She emailed the second Respondent on 8 December 2014 to thank her for all the positive things she had said in the report, commented that they were appreciated and she had made the changes that had been discussed with her.

[30]On 29 December 2014 there was a further supervision meeting when the issues concerning the Claimant’s relationship with foster carers, and to an extent colleagues, were discussed. The second Respondent agreed to speak to the directors to ensure appropriate training was arranged.

[31]In early January 2015 Miss Pflaumer sent an email to all social workers and the supervising social workers to inform them that there were two tablet computers available for their use. She made specific reference to the Claimant and the fact that one of those tablets had built-in dictation software that might assist her. We did not accept the Claimant’s denials of receipt of that email: in a later conversation, when she was reminded of it and of the availability of the tablets, she did not deny that she was aware of them, but simply commented that they did not have good access to the Internet.

[32]A further review meeting took place on 30 January 2015. The Claimant was recorded as being on top of her caseload and up to date with paperwork. She was working well with her colleagues and current foster carers and a midway review of her probation extension was positive. Further training was also being arranged.

[33]On 25 February 2015 a supervision session recorded that the Claimant had successfully passed her probation so that her job was now permanent. She was managing her caseload effectively and was on top of her paperwork. The concerns of one foster carer was discussed and it was noted that the Claimant had recently attended a training course.

[34]In March 2015 the first Respondent was anticipating that it might be subject to an audit. In preparation for that process it was discovered that the Claimant had never completed an application form and she was asked to do so for the purpose of the Respondent’s records, which she did, backdating it for the benefit of the Respondent. That application did record the Claimant’s impairments of dyslexia and dyspraxia, and indicated that she had arthritis in her neck and hands. It further stated that she would benefit from a phone headset and Dragon software without specifying which impairment/s it would assist. We note, in passing, that there is no complaint in this case regarding the provision of Dragon software.

[35]A supervision meeting took place on 26 March 2015, in which it was recorded that the Claimant was coping well with her caseload and was up to date with paperwork. It was noted that the Claimant, in common with other staff, had been having difficulties with a new database system installed by the first Respondent, which was a source of frustration for everyone, but had been fixed. It was also recorded that the Claimant had attended a number of external training courses which she had found to be informative and useful.

[36]In April 2015 the second Respondent had cause to speak to the Claimant concerning unauthorised absence. There was no documentary evidence concerning this issue before us. The second Respondent found the Claimant’s conduct in the course of that meeting unacceptable and took the view that she could no longer manage her. She made a request to that effect to the directors.

[37]On about the same date (there is no supporting documentation other than an undated letter) the Claimant wrote to the directors to complain about the conduct of the second Respondent in supervising her.. The Claimant made no complaint of any discrimination whatsoever in the course of that lengthy letter.

[38]On receipt of that letter the directors asked the Claimant to see them. They talked about the complaint and understood it to centre on the Claimant’s perception that the second Respondent was micromanaging her. The directors then met the second Respondent; told the nature of the Claimant’s complaint and asked her to be more circumspect in her management of the Claimant. They also suggested to the Claimant and the second Respondent that they should try and resolve their differences over a good meal, which the Respondent would pay for. In the event that meal did not take place, but it is not in dispute that the relationship between the Claimant and the second Respondent improved thereafter.

[39]Shortly after those events the Claimant was provided with Dragon software for her PC and a headset for her telephone.

[40]On 7 April 2015 the Claimant emailed the second Respondent to say that a foster carer had cancelled an appointment and to request the rest of the day as leave. The second Respondent replied the same day to tell the Claimant that she could not grant the request because other people were absent that day and, “I need bodies in the office.”

[41]On 24 April at 10:21 the Claimant emailed the second Respondent to say a meeting had been cancelled and to ask if she could work from home that afternoon as “it would be helpful”. The second Respondent replied very shortly afterwards, to say, “there are a few of us about, so I will say yes for today. You need to show evidence of what you achieve whilst working from home. I am mindful that you have asked to work from home a few times more so than everyone I supervise.”

[42]The Claimant attended supervision on 28 April 2015 and was reported as feeling settled at work and coping well with her workload. She was working well with her colleagues and felt generally satisfied with the level of support offered to her. It was also recorded that she had again taken part in a number of external courses.

[43]In supervision on 20 May 2015 it was again recorded that the Claimant was coping well with her caseload and was up to date with her notes and foster carer annual reviews. She had again attended external courses and indicated that she would like to participate in an external course on sexual exploitation.

[44]On 29 June 2015 supervision recorded that the Claimant was coping well with her caseload and her paperwork was “pretty much” up to date. She was awaiting surgery on her foot and would be off for several weeks for recuperation. By this date she had attended the sexual exploitation and other training.

[45]A number of issues arose in the course of a supervision meeting on the 21 August 2015. The Claimant had had a very busy month managing a complex caseload whilst also preparing for an Ofsted inspection. That had been exacerbated by computer problems, which had been resolved, and it was hoped they would not recur.

[46]The second Respondent raised with the Claimant the perception of some staff and carers that the Claimant could be “snappy” when she was stressed or tired. The second Respondent suggested the Claimant should be mindful of this in the future. The Claimant took the view that other people were also “snappy” when under pressure. The Claimant told the second Respondent that she was anticipating surgery on her foot and, because of the limited provision for sick pay by the Respondent (which was limited to 10 days), she asked to save up her TOIL for the period of recuperation because she could not afford to take such a period unpaid.

[47]It was in the course of this supervision that the Claimant and the second Respondent discussed retirement and pensions. It was common ground that the following matters were raised:-47.1 The Claimant was of an age where she had to consider her retirement.

47.2 The Claimant was poorly provided for by way of pension.

47.3 The Respondent’s pension contributions were far lower than those offered by local authority employment.

47.4 The second Respondent intended to return to local authority employment when her youngest child started secondary school.

47.5 The second Respondent was registered with agencies that regularly offered positions with local authorities.

47.6 The second Respondent offered to provide the Claimant with the details of such an agency for her benefit.

[48]It was the Claimant’s case that this conversation had been initiated inappropriately by the second Respondent. It was unwelcome and discriminatory. Despite our repeated requests, however, the Claimant was quite unable to put to the second Respondent the gist of the words allegedly used by the second Respondent to initiate that conversation.

[49]It was the second Respondent’s evidence that this conversation arose naturally from discussions with the Claimant concerning her need to have an operation on her foot, which would require an extended absence from work, which would put her in a financially difficult position.

[50]We preferred the evidence of the second Respondent on this issue. We concluded that this conversation was entirely consensual and arose naturally from the Claimant expressing concern regarding her financial position in requiring extended time off. Those issues are expressly referred to in the note of supervision signed by the Claimant and the second Respondent on 21 August 2015.

[51]We thought that conversation to be illustrative of the improved relations between the Claimant and the second Respondent. This was further evidenced by the second Respondent, shortly after that meeting, advocating on behalf of the Claimant with the directors to assist her with the financial problem arising from her need for extended leave. In an email of 26 August 2015 the Claimant thanked the second Respondent for her intervention in the following terms, “Thank you for speaking to the directors about using their discretion to offer me additional sick leave this year due to the necessity of me having surgery on my right foot. It was very kind of you to make the request.” We thought it highly unlikely the Claimant would have addressed the second Respondent so cordially if, as she alleges, she believed the Claimant had discriminated against her.

[52]It was shortly after this that the second Respondent received a circular from one of the agencies she had signed up with to inform her of a vacancy for a senior social worker in south London. She passed that email on to the Claimant, because it contained contact details for the agency, as a consequence of that earlier conversation. We accepted her evidence that the Claimant thanked her for doing so.

[53]The Claimant confirmed that she would be having the operation on foot on 30 September 2015 in supervision on the 21 September 2015. The directors had acted as a consequence of the second Respondents representations, so that the six-week period of recuperation would be on full pay, by giving the Claimant two weeks sick leave, two weeks holiday, one week of TOIL and being allowed to work from home for a further week.

[54]In mid-November there was an exchange of emails between the Claimant and the second Respondent concerning the assignment given to the Claimant to complete a Form F. It was the Respondent’s usual practice to assign these to external consultants. At this time, however, the Claimant was only assigned eight foster carers, approximately two thirds of a normal full caseload, and the second Respondent took the view that she had sufficient time available to complete this task.

[55]We accepted the second Respondent’s evidence that form F was a document that was prepared over an extended period of time as a result of numerous meetings, visits, interviews and appraisals that were recorded as they took place. Regulations provide that the form should be completed within eight months. The Respondent normally expected them to be completed within six months as a matter of good practice.

[56]The Claimant took the view that it was inappropriate for her to be required to carry out that work in the office environment. The second Respondent took the view that the Claimant did not have to work in the usual office where she was located, but could relocate to the training room upstairs, using a laptop computer, which would be a quiet environment.

[57]We also accepted the second Respondent’s evidence, supported by our above findings, that she was only in a position to allow staff to work from home when there were sufficient staff in the office to deal with the inevitable crises and events that would arise in the course of a normal day’s work.

[58]The Claimant took part in her annual review on about 9 December 2015. She set out her views of her performance during the preceding year, and recorded that she liked a flexible environment and appreciated the assistance that Dragon and her headset gave her. She suggested it would be of assistance to her to have a small laptop computer with Dragon to use when she was on visits. She thought her reports had been adversely affected by her dyslexia. She also reiterated her concern at the difficulties that might arise if she was off sick and unpaid.

[59]The second Respondent was largely positive concerning the manner in which the Claimant had performed her duties. However, there were concerns about the number of complaints being raised against her by foster carers and a deterioration in the quality of the Claimant’s reports, which had been commented on by the fostering panel. There was also been a concern that the Claimant had not prepared for questions from the Panel so was not familiar with the report she had prepared some time before.

[60]An action plan was drawn up by the second Respondent to recommend that the Claimant proof read her reports to ensure they were consistently of a good standard and to adequately prepare for appearances before the panel. We did not accept the Claimant’s case that the deterioration in the quality of her reports arose from her dyslexia or dyspraxia. It was clear from the evidence we heard that there was no problem with the quality of her reports at any time prior to about mid-2015, following her using Dragon software.

[61]We accepted the evidence of the second Respondent that the quality of the reports was affected by the fact that Dragon misheard or misinterpreted the dictation so as to insert incorrect words or phrases and/or additional punctuation (something that any user of Dragon software will be familiar with) so as to render parts of what was written unintelligible.

[62]In this circumstance, we took the view that the second Respondent’s recommendation that the Claimant should take greater care in proofreading her reports, which the second Respondent intended to then review before they were submitted, to be entirely reasonable.

[63]The second Respondent’s comments included the following passage, “Linda’s emotional response to unmet requests and expectations for example on matters pertaining to working from home, leaving early, or taking toil is an area that could improve as this often creates a negative atmosphere, which can be draining for both parties. Whilst the feeling of frustration is a natural response in such situation, this could be minimised if Linda would maintain a personal awareness of the agencies [sic] policies and procedures on these matters.”

[64]The Claimant took exception to that comment. She enjoyed working in a positive environment, and did all she could to prevent a negative atmosphere. She thought that she and the second Respondent had worked hard to break down a less than positive period in their working relationship and was positive that things would continue to improve.

[65]On 10 December 2015 the Claimant did not attend the office and could not be contacted by telephone. Mr Putnam, the then registered manager, was concerned at this. When the Claimant attended the office on the following day he asked her about her whereabouts on the previous day and thought the Claimant’s reaction to be extremely defensive. He reported this to the directors.

[66]A supervision meeting took place on 29 January 2016 in which it was recorded that the Claimant was coping well with her workload and her reviews and supervision reports were up to date. The Claimant was informed of a complaint against her by one of her foster carers as a consequence of which the second Respondent and the registered manager had visited the foster carer and were in the process of deciding what the best way forward was. Again, it was recorded that the Claimant had attended training.

[67]At this time both the Claimant and a colleague, “R”, were working with a particular foster carer and child. It appears the Claimant took exception to a decision that R had taken. On 5 January 2016 the Claimant was in the kitchen of the Respondent’s premises with an apprentice and another member of staff when she had an outburst in which she referred to R as “a bald headed bastard”. Shortly afterwards the Claimant confessed to Mrs Oliver that she had had an outburst, but did not particularise it. Slightly later, another member of staff informed Mrs Oliver of precisely what had been said by the Claimant and Mrs Oliver reported it to the directors.

[68]The Claimant had been employed by the Respondent for nearly 2 years by now, but the directors were concerned at the number of complaints that had been made against her by foster carers. The Claimant had been involved with some 15 different foster carers, seven of whom had raised complaints concerning her. This had resulted in five of those foster carers being assigned to other employees. Two of those foster carers had ceased their involvement with the Respondent entirely. In the directors’ experience with the business, which extended over 18 years, this level of dissatisfaction by foster carers (some of whom had been known to them for many years) was unprecedented. They had never had a social worker receive such a volume of complaints over any period of employment, let alone the relatively short period for which the Claimant had been employed.

[69]The directors were also concerned about the Claimant’s conduct on 5 January 2016, which they thought wholly inappropriate, and her defensiveness when questioned about her whereabouts in December 2015. They sought legal advice.

[70]They invited the Claimant to attend a meeting on 3 February 2016, at which they informed the Claimant that she was being dismissed. The Claimant asked for the reasons for her dismissal and was informed by the directors that as she had less than two years service they were under no obligation to provide her with reasons. The Claimant persisted, and the directors relented to inform her that the reasons for her dismissal were the level of complaints, her unacceptable conduct in the kitchen and concerns with her whereabouts. The directors handed the Claimant a letter of that date, notifying the Claimant of the termination of her employment, which would end on 3 March 2016, and of payment in respect of holiday entitlement and a request she return any property.

[71]The Claimant then left the room, but returned shortly afterwards to allege that the second Respondent was treated her unequally, wanted to get rid of her and had given her job adverts for other social work positions. The directors commented that they had no knowledge of those matters and that the Claimant could have raised them as an issue before that date if she wished to.

[72]By letter of 19 February 2016 the Claimant appealed against the decision to dismiss her. She was invited to an appeal meeting on 24 February 2016 with the directors. That meeting took place as planned. The directors made it plain that the Claimant’s dyslexia and dyspraxia had formed no part of their decision to dismiss her. The directors took the view that there was no new evidence to consider and dismissed her appeal. Submissions

[73]We heard submissions on behalf of each of the parties. It is neither necessary nor proportionate to set them out here.

The Law

[74]We have had regard to sections 5, 6, 13, 15, 21, 26, 123 and 136 Equality Act 2010. Further Findings and Conclusions

[75]Our primary findings of fact are set out above. We do not repeat them. We deal with each of the Claimant’s claims, as defined by her former solicitors, in turn. Discrimination arising from Disability (s.15 Equality Act 2010) 1 Was C unfavourably treated by being dismissed? 2 Was the unfavourable treatment because of something arising in consequence of C’s disability? C relies on disorganisation in her work and a poor relationship with her foster carers as being conditions arising in consequence of her disability 3 If so, has R shown that the treatment was a proportionate means of achieving a legitimate aim? 4 Did R not know, or could R not reasonably be expected to know, that C had that disability?

[76]The Claimant was treated unfavourably by being dismissed.

[77]The Claimant failed to adduce any evidence at all that her poor relationship with her foster carers arose from her disability.

[78]The Claimant did not produce any evidence to suggest that her dismissal might have been causally connected with any disorganisation in her work, or that such arose from her disability..

[79]We accepted the first Respondent’s evidence that the reasons for the Claimant’s dismissal were those given to the Claimant orally on 3 February 2016. They involved no discrimination whatsoever.

[80]We add, for the sake of completeness, that even if the Claimant had established a causal connection between her disabilities and her dismissal we though it highly likely that the Respondent’s evidence would have justified the dismissal because maintaining the relationship between the Claimant and a foster carer she was supervising lay at the heart of her duties.

[81]In light of all our above findings. This aspect of the Claimant’s claim is not well founded. Failure to make Reasonable Adjustments (ss.20 & 21 Equality Act 2010) 5 Did R apply the following provision, criteria and/or practice (‘the provisions’) generally, namely:5.1 To produce reports for the local safeguarding board

5.2 To write reviews and supervision notes

5.3 To complete risk assessments and case notes 6 Did the application of any such provisions put C at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled in that:

6.1 C is unable to proof read documents accurately within a short period of time to identify errors due to acute anxiety arising from dyspraxia;

6.2 C is unable to organise content and layout of reports due to acute anxiety arising from dyspraxia unless more time is provided and proof reading has been done in a timely fashion;

6.3 C is unable to locate completed documents on her computer as she had many versions due to disorganisation due to dyslexia dyspraxia;

6.4 C misplaces paragraphs in documents leaving them in entirely the wrong place. This would have been aided by feedback after proof reading.

6.7 C is over-sensitive to light. The lights were bright as she was seated between two windows with a florescent light overhead over brightness detracted from her ability to read her computer screen.

6.8 C has a difficulty with concentration in a noisy environment and is easily distracted. 7 What are the adjustments asserted as reasonably required by C to remove the disadvantage she was put at:

7.1 Providing reports to C on coloured paper (dyslexia and dyspraxia)

7.2 Providing a coloured background on C’s computer screen (dyslexia and dyspraxia)

7.3 Providing C with a hand-held recording device to complete work.

7.4 Proof-reading C’s reports and returning them to her in time to make adjustments to them

7.5 Allowing C to work at home (in a stress free environment) (dyspraxia)

7.6 Allowing C to work at home (in a quiet environment) (dyspraxia)

7.7 Allowing C to work from home due to lighting in the office and her seating position in the office. (dyspraxia)

7.8 Allocating C a private work space in the office

7.9 Allowing C additional time to work on reports to ensure accuracy before submission to relevant safeguarding committee

7.10 Returning documents to C in time for her to make adjustments

7.11 Allowing C to complete tasks on her caseload prior to being asked to do additional thing such as training without notice

7.12 Providing coloured folders in C’s computer to enable her to identify different cases and pieces of work.

7.13 Providing C with an ergonomic keyboard (dyspraxia)

7.14 Putting instructions besides the printer to save time and stress (dyspraxia)

7.15 Erecting a partition around C to help with the light and informing staff C is easily distracted

7.16 Providing an anti-glare screen for C’s computer to help with glare (dyspraxia)

7.17 Getting someone else to take minutes (dyslexia)

7.18 When interrupting C, give her an opportunity to make notes of what she had been doing before continuing with interruption (dyslexia) 8 Did R take such steps as were reasonable to avoid the disadvantage? 9 Did R not know, or could R not be reasonably expected to know, that C had a disability or was likely to be placed at the disadvantage set out above?

[82]The Respondents knew, from about October 2014, that the Claimant was disabled by dyslexia and/or dyspraxia.

[83]However, their knowledge of the effects of these conditions on her ability to perform normal day-to-day activities was limited to the following: –83.1 She would be assisting by the provision of a headset and Dragon software.

83.2 She found it easier to concentrate in a quiet, gently lit environment, such as her home.

[84]We make an express finding that the Respondent had no knowledge of the following:-84.1 The Claimant wanted reports on coloured paper.

84.2 The Claimant wanted a coloured background to her computer screen.

84.3 The Claimant would be assisted by a hand-held recording device.

84.4 The Claimant would benefit from having a private workspace.

84.5 The Claimant would be assisted with coloured folders.

84.6 An ergonomic keyboard would help the Claimant.

84.7 Placing instructions besides the printer would assist the Claimant.

84.8 The Claimant would be assisted by being partitioned off.

84.9 The Claimant needed an anti-glare screen.

84.10 The Claimant needed someone to take minutes.

84.11 The Claimant needed the opportunity to make notes before any discussion continued. The Claimant adduced no evidence at all in respect of any of these matters.

[85]The PCPs relied on by the Claimant, formulated by her former solicitors, were not appropriately defined. They should have been defined so as to have regard to the alleged substantial disadvantages they imposed on the Claimant.

[86]Although the Claimant only dispensed with the services of her solicitors shortly before the hearing started we have taken the view it is in the interests of justice for us to deal with the three PCPs relied on in light of the disadvantages they are alleged to give rise to. We set them out in their summary form, but deal with them on that basis. To produce reports for the local safeguarding board To write reviews and supervision notes To complete risk assessments and case notes

[87]The Claimant was required to produce numerous reports for internal use and for the Fostering Panel. As far as we are aware there is no “local safeguarding board”.

[88]As is apparent from our above findings, the Claimant had no difficulty in producing very well received reports, on which she was complemented by the second Respondent and the Fostering Panel, from the start of her employment until a date some months after she started using Dragon software.

[89]There has been no criticism of the time the Claimant took to produce reports. It is regularly recorded that the Claimant was “on top of” or “up to date” with her paperwork.

[90]We conclude from all our findings in respect of the Claimant’s performance in compiling and producing reports that her dyslexia and/or dyspraxia did not have any adverse effect on their quality. She was clearly able to use her coping mechanisms and strategies to comply with the Respondents PCPs, and was not placed at a substantial disadvantage in comparison to non disabled people by them.

[91]The only criticism levelled at the Claimant’s reports arose from the deterioration in their quality following the Claimant’s use of the Dragon software to produce them. As noted above, the Claimant’s evidence in the hearing was to the effect that she had requested this software to assist her arthritis, a non--disabling impairment, and not her dyslexia or dyspraxia. On balance, we think that is correct.

[92]The deterioration in the quality of those reports was a consequence of the Claimant’s use of the software she had requested, and did not arise from her disability.

[93]It is also apparent that the Claimant was given permission to work from home on many occasions. That is not in dispute. There was no evidence that the Claimant had difficulty in producing reports of an appropriate quality, whether working in the office or at home.

[94]In light of all our above findings. This aspect of the Claimant’s claim is not well founded. Direct Age Discrimination (s.13 EA 2010) 10 By terminating C’s employment, did R treat her less favourably than it would have treated an actual or hypothetical comparator who was not of C’s age? 11 If so, has C proved facts from which the Tribunal could properly conclude, in the absence of any explanation from R, that her dismissal was because of age? 12 Can R show a non-discriminatory reason for the act of potential discrimination identified?

[95]The Claimant failed to adduce any evidence to establish on the balance of probabilities that she was treated differently from an appropriate comparator.

[96]There was no evidence at all from which we could conclude, in the absence of an explanation from the Respondent, that the dismissal could have been because of the Claimant’s age.

[97]As noted above, we accepted the Respondent’s evidence as to the reasons for the Claimant’s dismissal, which involved no discrimination whatsoever. Harassment on grounds of age (s. 26 EA 2010) 13 Did R2 harass C by engaging in unwanted conduct relating to C’s age which had the purpose or effect of(i) violating C’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for C by making [various / the following] age specific comments to her:

13.1 details supplied by C, as set out above

13.2 Was the conduct “unwanted”?

13.3 Was the conduct ‘related to age’? 14 Was it reasonable, having regard to C’s perceptions, for her to feel that her dignity was violated, or that an intimidating, hostile etc environment had been created as a result of that conduct?

[98]Our principal findings of fact in respect of the conversations between the Claimant and the second Respondent, on 21 and about 25 August 2015, are set out above and there is no need to repeat them.

[99]We concluded that those were the only conversation between those people of this or any similar nature.

[100]It is clear from our findings that this conversation was not “unwanted”: it was of mutual interest and entirely consensual.

[101]This aspect of the Claimant’s claim is not well founded and must be dismissed.