Ms Y Rose v London Borough of Richmond upon Thames and London Borough of Wandsworth: 2301847/2022 and Others
JUDGMENT
[1]The claimant’s claim for direct sex discrimination is without merit and is dismissed.[2]The claimant’s claim for direct race discrimination is without merit and is dismissed.[3]The claimant’s claim for harassment on grounds of race and/or sex is without merit and is dismissed.[4]The claimant’s claim for failure to make reasonable adjustments is without merit and is dismissed.[5]The claimant’s claim of unfair dismissal is upheld.[6]The claimant’s claimant of breach of contract is without merit and is dismissed.REASONS
[7]This matter was heard via Cloud Video Platform on 8-11 October 2024. The panel met again on 15 November 2024 to deliberate on the question of liability.Background
[8]The Claimant was employed jointly by the Respondent Councils as a contact supervisor from 7 June 2010 until 5 October 2022. The Claimant resigned on 5 September 2022 and claims to have been constructively dismissed.[9]The Claimant brought a claim for unfair constructive dismissal, which was in time.[10]The Claimant also brought claims for discrimination during her employment including matters relied on as alleged breaches of contract leading to the claimant’s resignation/dismissal. In respect of the claim forms relating to matters other than dismissal, early conciliation started on 9 March 2022 and ended on 19 April 2022. The claimant’s first claim form was presented on 10 August 2022. The Claimant’s second claim form is in effect simply a copy of the first claim[11]Following Case Management, it was established that the Claimant made the following complaints:a. Unfair constructive dismissal.b. Direct race and sex discrimination.c. Harassment related to race and sex; andd. Breach of contract.[12]The issues were agreed as below:a. Time Limits i. Given the date the first claim form was presented and the dates of early conciliation, any complaint about something that happened before 18 January 2022 may not have been brought in time. ii. Were the discrimination claims made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 2. If not was there conduct extending over a period? 3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 4. If not, were the claims made within a further period that the Tribunal; thinks is just and equitable? The Tribunal will decide: a. Why were the complaints not made to the Tribunal in time?b. In any event, is it just and equitable in all the circumstances to extend time. b. Unfair dismissal i. Was the claimant dismissed? 1. Did the respondents do the following things: a. Mr M Conteh not assisting the Claimant on 24 December 2021. b. The outcome of the Claimant’s grievance against Mr M Conteh being that the Claimant’s manager supported Mr M Conteh and did not require him to apologise to the Claimant.c. Mr M Conteh not being required to attend a mediation on 12 May 2022.d. The Respondents providing roughly half the number of supervisions indicated.e. Proposals to increase the number of hours the Claimant was to work to include weekend working; andf. Failure to provide time of lieu. 2. 2.1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide: a. whether the respondents behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and b. whether it had reasonable and proper cause for doing so. 3. Did the proposed change in hours and failure to pay TOIL breach the express terms of the Claimant’s contract of employment? 4. Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end. 5. Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation. 6. Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach. ii. If the claimant was dismissed, what was the reason or principal reason for dismissal i.e. what was the reason for the breach of contract? iii. Was it a potentially fair reason? iv. Did the respondents act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant? c. Disability i. Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide: 1. Did she have a physical or mental impairment? 2. Did it have a substantial adverse effect on her ability to carry out day-to-day activities? 3. If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? 4. Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures? 5. Were the effects of the impairment long-term? The Tribunal will decide: a. did they last at least 12 months, or were they likely to last at least 12 months? b. if not, were they likely to recur? d. Reasonable Adjustments i. Did the respondents know, or could it reasonably have been expected to know that the claimant had the disability? From what date? ii. A “PCP” is a provision, criterion or practice. Did the respondents have the following PCPs: 1. The requirement for the Claimant to do typing? iii. Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that she suffered from substantial pain and stiffness? iv. Did the lack of an auxiliary aid, namely an adjusted mouse, desk and chair, put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that she suffered from substantial pain and stiffness when typing? v. Did the respondents know, or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage? vi. What steps could have been taken to avoid the disadvantage? The claimant suggests: 1. In respect of the PCP: a. Reducing the Claimant’s case load. b. Reducing the Claimant’s requirement to type. c. Conducting a workstation assessment. 2. Providing the auxiliary aids required. vii. Was it reasonable for the respondents to have to take those steps and when? viii. Did the respondents fail to take those steps? e. Direct race discrimination i. The claimant described her race as black of Jamaican heritage. ii. Did the respondents do the following things: 1. Mr M Conteh not assisting the Claimant on 24 December 2022. 2. Ms S Stewart’s outcome of the Claimant’s grievance against Mr M Conteh being that the Claimant’s manager supported Mr M Conteh and did not require him to apologise to the Claimant or attend the mediation on 12 May 2022; and 3. Dismissing the Claimant. iii. Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated. The claimant says in respect of 5.2.1 that she was treated worse than Caroline Anyaru who was black but of African heritage. In respect of all three allegations, the Claimant also relies on a hypothetical comparator. iv. If so, was it because of race? f. Direct sex discrimination i. Did the respondents do the following things: 1. Mr M Conteh not assisting the Claimant on 24 December 2022. 2. Ms S Stewart’s outcome of the Claimant’s grievance against Mr M Conteh being that the Claimant’s manager supported Mr M Conteh and did not require him to apologise to the Claimant or attend the mediation on 12 May 2022; and 3. Dismissing the Claimant. ii. Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated. In respect of all three allegations, the Claimant relies on a hypothetical comparator. iii. If so, was it because of sex?g. Harassment related to race or sex. i. Did the respondents do the following things: 1. Mr M Conteh not assisting the Claimant on 24 December 2022? ii. If so, was that unwanted conduct? iii. Did it relate to race or sex? iv. Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? v. If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.h. Breach of Contract.i. Did this claim arise or was it outstanding when the claimant’s employment ended? ii. Did the respondents do the following: 1. Fail to pay the Claimant correctly for time off in lieu. 2. Was that a breach of contract? 3. How much should the claimant be awarded as damages? DISCUSSION AND FINDINGS Direct Race and Sex Discrimination[13]We decided to deal with these two heads together as they largely turn on the same facts. Mr Conteh[14]The first complaint is that Mr Conteh did not assist the Claimant on 24 December 2022. In more detail, the Claimant says that on this day a contact supervisor was running late for a supervision. The Claimant noticed that Mr Conteh was available to cover the supervision because the one he had been booked in for had been cancelled.[15]The Claimant’s evidence was that she asked Mr Conteh to cover the supervision, but he ignored her. She accepts that he did eventually make himself available to cover the supervision.[16]Mr Conteh’s evidence was that when the Claimant asked him to cover the supervision at approximately 1016, he told her that he would cover it but that he needed to send an email first. His evidence was that this email related to correcting his timesheets, the deadline for submitting these to be included in the next payroll was that day.[17]We find that the documentary evidence supports Mr Conteh’s claim that he was sorting his time sheets at the relevant time. We find that he sent the email at 1024. It is accepted that within a minute or so of him sending this email Ms Anyaru had arrived and a conversation was held as to whether he had refused to carry out the contact. He then went and carried out the supervision, although the Claimant says that this was only because Ms Anyaru had asked him rather than her asking him.[18]We find that Mr Conteh had not refused to carry out the contact in principle, but he did prioritise his timesheets. We find on balance that he was preoccupied with his timesheets rather than responding to the Claimant’s request, but that this was not due to her race or sex.[19]The question is whether Mr Conteh’s decision to prioritise his timesheets rather than accede to the Claimant’s request was due to race or sex.[20]It is apparent from the evidence of both the Claimant and Mr Conteh that they had a fractious relationship. Both had complained about the other party with bad blood stemming back to 2015. The Claimant was initially reluctant in evidence to accept that the working relationship was strained but did eventually agree this point.[21]The appellant says that the reason Mr Conteh did not cover the supervision straight away was because he did not want to listen to her due to her gender and/or race.[22]With respect to the sex point, the Claimant has provided no evidence to suggest that Mr Conteh’s actions were due to her gender. In fact, it is common ground that after speaking to Ms Anyaru, also a woman, he went to cover the supervision. Therefore, we dismiss this complaint on the grounds of sex.[23]As to the race discrimination point, the Claimant has suggested that Mr Conteh discriminated against her because she is a black person of Jamaican heritage, and he is a black person of African heritage. She argued that is it well known that black African people do not like black Jamaican people.[24]She also argued that the reason he did eventually cover the shift at Ms Anyaru’s request is that she is a black woman of African heritage, and they speak the same language. In evidence Mr Conteh denied that they speak the same language, coming from different countries, and that they speak to each other in English. We find that Mr Conteh spoke to Ms Anyaru in English.[25]Other than the alleged stereotype the Claimant has offered no real evidence whatsoever that Mr Conteh’s actions were due to her race. We find that the burden has not been shifted on this point and dismiss this element of the race discrimination point. Grievance Outcome[26]As set out below, the Respondents failed to follow a reasonable grievance procedure. HR were clear in their evidence that the grievance should have followed a formal process. Everyone else in the case gave evidence that the Respondent was treating this as an informal complaint outside of the grievance process.[27]Because of the haphazard approach taken to the grievance it is unclear exactly what the outcome was. The Claimant says that there has been no outcome, with the Respondent saying that there was an outcome. In any event, it is common ground that the Respondent did not request Mr Conteh to apologise to the Claimant.[28]However, we find that the outcome, and the manner in which it was reached, was not due to the Claimant’s race or sex. It was due to management adopting a process that was not fit for purpose.[29]As such, this element of the race and sex discrimination claim is dismissed. Dismissal[30]We deal with the details of the dismissal further below under “Unfair Dismissal”. However, we find that the Claimant has failed to provide any evidence to shift the burden for the same reasons as above. Therefore, this element of the race and sex discrimination point is dismissed. Harassment[31]Whilst Mr Conteh’s refusal to assist the claimant could well have been unwanted conduct, we find that it was not motivated by the claimant’s race or sex. Therefore, this claim is dismissed. Failure to Make Reasonable Adjustments[32]The Respondents accept that the Claimant was disabled at the relevant time within the meaning of the Equality Act. It is also admitted that the Respondents had a requirement for the Claimant to do typing.[33]We find, and to some degree it was accepted, that the Respondent was slow to get started on workplace assessment and providing aids, but not so slow as to be discrimination.[34]The Respondent made the following adjustments for the Claimant:a. They provided physiotherapy sessions and gave advice on exercises.b. They provided dictation software.c. They conducted a DSE assessment.d. The provided a different mouse.e. They slightly reduced her workload.f. They provided a gel pad.g. They provided an adjustable chair.[35]We find that there was a workplace assessment as evidenced by the report dated 14 February. It may not have been a physical assessment, but we find that it was sufficient.[36]There was a delay in provided the gel pad, but it was eventually provided. We also take into account the evidence of the Occupational Health nurse who said that she would not generally recommend the use of a gel pad for people suffering from carpel tunnel.[37]Again, there was a delay providing the mouse, but we do note that the Claimant did not provide the Respondents with information as to what type of mouse would be beneficial for quite some time. The Respondent could have pressed more for this information, but the delay rests on both. We note that the Claimant had a mouse at home and so could have told the Respondents that that model would help. There was some criticism of the Claimant for not bringing in her own mouse, but we find there is no legal obligation on her to provide her own equipment as a reasonable adjustment.[38]The Claimant asked for a standing desk. The Respondent did not provide this but gave an explanation as the setup of the Claimant’s office at that point would not support one, and they were planning a full reorganisation of offices and workspaces. We find therefore that it was reasonable to hold off providing a standing desk.[39]There was a delay in providing the adjustable chair, but we find that in the DSE assessment the Claimant gave no reason as to why an adjustable chair was required and she failed to set out what was wrong with her current chair. Therefore, we find no fault on the Respondent for this delay. In evidence before us the Claimant said she should have been provided with a chair with a neck rest/high back, but this was not put to the Respondent prior to the hearing so it would not be reasonable to criticise them for not providing one.[40]There were attempts to explore alternative to typing notes, however it was accepted that dictation was not a reasonable alternative to note taking during the contact sessions as the Claimant’s should be able to make notes without the families hearing her.[41]Our attention was further drawn to the physiotherapy notes which showed no pain in her hand or wrist by May 2022. Notwithstanding this, the Respondent continued to try and source an appropriate mouse.[42]When we look at the overall package of adjustments, we find that the Respondents acted reasonably. The claim of failure to make reasonable adjustments is therefore dismissed. Breach of contract[43]We find that there was no formal policy for TOIL at this setting, it appears that TOIL was dealt with on an informal basis relying heavily on honesty. Towards the end of the Claimant’s employment the Respondents were trying to formalise this process and create a more structured approach, to avoid the issues which had arisen in this case.[44]It appears that the system for TOIL was open to abuse, with people adding up five minutes or so here and there in order to amass high levels of TOIL. The Respondents say that this was not the intention, and that TOIL was for longer periods of time rather than every extra minute. It was expected that the occasional few minutes would not attract TOIL as it would be part of the give and take of everyday work life.[45]The claimant claims that she had accrued a large number of hours TOIL which she wanted to take and/or be paid for. The difficulty she had was that she had no documentary evidence to show her employers in support of this. Her previous manager had considered the time claimed and although he initially indicated he would approve it, he then raised questions about it as he would not have expected anyone to accrue this many hours, going back over a number of years.[46]We have no doubt that the claimant worked some extra hours, but it is impossible to say how many she worked and whether these should have attracted TOIL.[47]We accept that there was a custom and practice in principle that allowed TOIL, but even in the absence of a formal policy, the Claimant has a responsibility to evidence her claims, both to her employer and to the Tribunal. She has failed to do so.[48]We find that the Respondents did not know that she was accruing the time off until she presented them with the large number of accrued hours. Unfair Dismissal[49]This was clearly a dysfunctional workplace, with managers and HR failing to get a grip on it for several years. It does appear that attempts are now being made to try and professionalise, in particular by formalising the shift patterns and TOIL policy. Mr Conteh’s refusal to help.[50]We find that there was a clear clash of needs between the supervision and the timesheets. Whilst as a panel we may have all decided to do the supervision first, Mr Conteh’s decision was within the range of reasonable actions and not sufficient to break the implied term of trust and confidence with the mutual employer. Change in hours.[51]The Respondent instituted a new rota which involved going back to the norm of weekend working. Averaged over five-week cycle employees would work their contracted hours. On one week people would be expected to work fewer hours, and on one week they would be expected to work more.[52]We find that the move to weekend working was not unreasonable. This had been the norm for most of the claimant’s time working for the respondents, other than approximately nine months prior to this change.[53]As to the change in rota, requiring excess hours to be worked one week in five, we find that the contract sets out hours per week and does not refer to the hours being averaged over a five-week period.[54]The respondent took us to a clause that said she could be expected to work additional hours when required. We find that this is intended for exceptional circumstances rather than an ongoing situation.[55]We note that there had previously been changes to the shift patterns, albeit not necessarily moving to an average number of hours over a period of time and the Claimant was therefore, in principle, aware that shift patterns may change.[56]We find that this change was disappointing to the Claimant and upset her. However, on its own it was not sufficient to breach the implied term. Even if it were, we find that there was a reasonable and proper cause for the change in terms in that the Respondents wanted to sort out a dysfunctional shift system. Supervision[57]The Claimant claims that she was not provided with sufficient supervision.[58]The Respondent’s policy, we find, was to aim for monthly supervisions but that a three-month gap was acceptable. We find that supervisions took place on 18 January 2022, 26 January 2022, 24 March 2022, 16 June 2022 and 14 July 2022. The Claimant does not accept all of these took place, but the supervision notes are in the bundle, and we find they did occur.[59]Whilst there were some gaps (e.g. February and April and May) they did not go beyond the three-month mark laid out in the policy, and as such we find that this did not amount to a breach of the implied term. TOIL[60]For the reasons set out above in the breach of contract section we dismiss this claim. Grievance outcome and mediation[61]The claimant rightly felt aggrieved by the grievance procedure. Whether or not the grievance would ultimately have been upheld, we find that she was told repeatedly that this was not being treated as a grievance and was instead being dealt with as an informal complaint. She was not given a formal outcome or informed of the right to appeal. This is supported by the evidence from the witnesses who were actually involved in the process who said that this was not following the grievance process.[62]The claimant rightly had an expectation that her grievance would be taken seriously and that it would follow the published process. The decision that was taken by management, whether or not that was due to misunderstanding unclear HR instructions, to take the grievance out of the process was unreasonable.[63]The failure to follow the correct process, we find, directly impacted on the final outcome. The final outcome, if there was one, did not require Mr Conteh to apologise. She was sent an email setting out the outcome of the three-way discussion and inviting her to respond if she felt it was not accurate.[64]The Claimant did not respond but says that she was disheartened and felt that this was not the conclusion of the process as she was wanting a formal grievance to be considered and not for it to be treated as an informal complaint.[65]We find that the Claimant did not request an apology in the grievance form, but we find on balance that she did request one in discussions.[66]We remind ourselves that the complaint on this head related to the outcome of the grievance process, but in evidence the complaint was more focussed on the process itself. The Respondent says that they would be prejudiced if we consider the process. However, we find that in order to consider the outcome, it is perfectly reasonable to consider the process by which that outcome was reached.[67]We find that the outcome, which did not require an apology, was reached by an unfair and flawed process.[68]We find that this was a breach of the implied term of trust and confidence. The Respondent has not shown any reasonable and proper reason for the decision to make it an informal complaint, in fact the HR evidence was that it should not have been done in this manner.[69]The claimant also says that she expected Mr Conteh would come to the mediation. It was never explicitly explained to her that he would be, and she did not explicitly request his attendance. Whilst we find that a clear the air meeting with Mr Conteh present would have been helpful, the failure to arrange one did not breach the implied term.[70]We find that there was a significant failure in the grievance process which led to the Claimant losing trust in her employers.[71]The Claimant received the email from Clare Manning with what the Respondent says was the outcome of the grievance on 12 May 2022. She resigned in September 2022, effective October 5, 2022. As such, there was a four-month gap between this breach and her resignation but during this time she continued to complain about the process. We also note that she was signed off work with stress in August 2022 and resigned shortly after her return in September.[72]The Claimant’s evidence was that all the alleged breaches were responsible for her resignation. Whilst we have found that most of these alleged breaches did not amount to breaches of the implied term, we find that the grievance was a breach of that term. We find that this alone would have been sufficient in principle for the Claimant to resign on the basis she was constructively dismissed. Therefore, we find that she did not affirm the contract during this period as her actions were signs that she was not accepting the situation.[73]The Respondent argues that the Claimant resigned because she found other work. They point to reference requests and job applications. The Claimant, in evidence, was very evasive on whether she had applied for the jobs before leaving the Respondent or not. We find that she was applying for jobs before leaving her employment.[74]However, we also accept her evidence that she enjoyed her job, and the job she eventually moved to was at a lower rate of pay. This supports the Claimant’s account that she left because the trust and confidence between her and the Respondents had been broken, rather than because she had found a new job. Looking for a new job was a symptom of the situation rather than the cause of her leaving.[75]Overall, we find that the majority of the unfair dismissal claim fails. We do allow the claim on the basis of the grievance policy.