Miss S Fisher v Brighton and Hove City Council: 2302910/2016
EMPLOYMENT TRIBUNALS
Case No 2302910/2016
Between
Stuart Markless - CaseworkerClaimantCarol Haynes - SolicitorRespondent
Before
Employment Judge BaronStuart Markless - Caseworker for claimantCarol Haynes - Solicitor for respondentDate 27 March 2018
JUDGMENT
It is the judgment of the Tribunal that the Tribunal has the jurisdiction to consider the claims made by the Claimant.
REASONS
[1]I first of all sincerely apologise for the substantial delay in issuing the judgment and reasons. This is solely due to pressure of other judicial business.[2]The Claimant presented a claim to the Tribunal on 21 December 2016 making various claims under the Equality Act 2010 based upon the protected characteristic of disability. The Respondent accepts that the Claimant has certain disabilities. The details are not relevant for present purposes.[3]This was a preliminary hearing to consider whether the Tribunal has the jurisdiction to consider the claims being made, taking into account the statutory time limit in section 123 of the 2010 Act, as extended by reason of the ACAS early conciliation procedure. Day A for the purposes of that procedure was 12 October 2016, and Day B was 26 November 2016. Therefore any act or omission which occurred on or before 12 July 2016 is prima facie out of time.[4]The parties had agreed a list of issues which the Tribunal would have to determine if the matter proceeded to a hearing, and Ms Haynes had helpfully created a table with the factual allegations set out in chronological order as far as possible. The list of issues is set out below, and I will refer to the paragraph numbers in it as appropriate. Discrimination arising from disability S15 EqA[1]With reference to the matters for which the Claimant was criticised on 15 April 2016 as described in paragraph 11 of the Grounds of Complaint (GoC)-a. Did the criticisms relate to something arising from disability (carpal tunnel syndrome/anxiety & depression)?b. If so were the criticisms unfavourable treatment i. in themselves and/or ii. the manner they were delivered?c. If so was the treatment a proportional means of achieving a legitimate aim?[2]Was the requirement for the Claimant to undergo additional observations (paras 12,13 GoC) made because of something arising from disability (carpal tunnel syndrome/anxiety & depression)? If so was it unfavourable treatment? If so was the treatment a proportional means of achieving a legitimate aim?[3]With reference to the matters for which the Claimant was criticised following the observation on 24 June as described in paragraph 16 of the Grounds of Complaint (GoC)-a. Did the criticisms relate to something arising from disability (carpal tunnel syndrome/anxiety & depression)?b. If so were the criticisms unfavourable treatment?c. If so was the treatment a proportional means of achieving a legitimate aim? Direct Discrimination s13 EqA[4]With reference to the observation on 15 April 2016 was, because of disability, the Claimant treated less favourably than Briony Nash bya. Receiving the criticisms as described in para 11 GoC and/orb. Being subjected to additional observations, when Briony Nash was not? Failure to make reasonable adjustments ss20 & 21 EqA.[5]On 19 January 2016 did the Claimant agree to stop formal support meetings? Did the Respondent apply (as a PCP) an expectation that staff be resilient to change? If so did this substantially disadvantage the Claimant compared with non disabled staff? If so would it have been a reasonable adjustment to continue support meetings?[6]Was the Claimant expected to take lead responsibility in the job share arrangement (para 6 GoC)? If so was it a PCP made because she was full time? If so did this substantially disadvantage the Claimant compared with non disabled staff? If so would it have been a reasonable adjustment not to have imposed the expectation?[7]Was the requirement for the Claimant to take school wide responsibility for clubs because she was recruited as a UPS2 teacher (para 8 Grounds of Resistance) a PCP? If so did this substantially disadvantage the Claimant compared with other UPS2 non disabled staff? If so would it have been a reasonable adjustment not to have imposed the requirement?[8]Was fixing an observation to take place on 15 April 2016 a PCP (para[10]GoC)? If so did this substantially disadvantage the Claimant compared with non disabled staff? If so would it have been a reasonable adjustment to have arranged the observation for a later date? 9. Were criticisms made by Ms Collis to the Claimant on 15 April 2016 excessively hostile? If so was this a PCP applied to reinforce the importance of her words that substantially disadvantaged the Claimant compared with other non disabled staff? If so would it have been a reasonable adjustment for Ms Collis to have beena. More sympathetic and supportive and/orb. Allowed the Claimant to have someone with her for support? 5 I find the following facts as material to this preliminary hearing. 6 The Claimant has been employed by Brighton & Hove City Council as a Teacher responsible for the Reception class at West Blatchington Primary School in Hove since 1998. The Claimant became unfit for work in October 2014, and returned on a phased basis in October 2015 and full time in January 2016. 7 The Claimant had been the subject of the Respondent’s capability procedure and on 23 April 2015 had raised a formal grievance alleging failures of the Respondent to comply with the procedure. It appears that in connection with the return to work the Respondent ceased to pursue the capability procedure, and the Claimant ceased to pursue a grievance appeal. 8 The Claimant was advised by her GP on 27 June 2016 that she was unfit for work. The form Med3 described the conditions as being ‘Exacerbation of depression; Severe stress’. The Claimant has remained away from work since then. She says that her GP advised her not to engage with school matters at all to 22 July 2016 and to have a complete break from work to 31 August 2016. 9 On 2 September 2016 the Claimant raised a further grievance. In that document she mentioned the support meetings referred to in paragraph 5 of the list of issues, the responsibility for clubs referred to in paragraph 7, and also issues relating to observations. Other matters were also raised. A letter was sent on 20 September 2016 in response to the grievance. I do not find either the grievance letter or the response to it particularly focussed, and it suffices to say that the Claimant was not satisfied. She appealed against the outcome on 11 October 2016. 10 The Claimant stated in her witness statement, and I accept, that during this period she was concentrating on seeking to resolve the continuing difficulties by the internal process, rather than seeking to claim to the Tribunal. That was on the basis that the grievance procedure in 2015 had been at least partly successful. Indeed, on the day of this hearing there was to be an appeal in the grievance process which the Claimant was not intending to attend.[11]The Claimant instructed her solicitors during the period from at least April until November 2015. During this period the Claimant was made fully aware of her rights under the Equality Act 2010. It is not necessary to record all the documents, but my attention was drawn particularly to the Claimant’s grievance of 23 April 2015 prepared by her solicitors in which there are several references to disability discrimination.[12]Mr Markless submitted that the allegations in paragraphs 2, 4b, 5, 6 and 7 relate in each case to conduct extending over a period. In the alternative, time should be extended on the just and equitable basis. Further, he said that there were material disputes of fact which could only be resolved by the obtaining of evidence at a hearing.[13]Miss Haynes submitted that the complaints are of single acts, and that there had been significant delays by the Claimant in the presentation of the claim. She had had legal advice and was aware of the provisions of the 2010 Act. Her solicitors could have presented the claim in time.[14]I now consider the position. A distinction must of course be drawn between an act extending over a period, and a single act with continuing consequences. That may be straightforward in theory, but less so in practice. I consider each of the allegations in turn.14.1 Allegations 1 and 4a clearly relate to a single incident on 15 April 2016. Mr Markless did not seek to argue to the contrary.14.2 Allegations 2 and 4b are of additional observations being undertaken. As I understand it (without at present making a definitive finding) such additional observations are alleged to have been ongoing, with the last one being on 24 June 2017.14.3 Allegation 3 relates to a one-off incident following the observation on 24 June 2017. Again, it was not argued on the Claimant’s behalf that the criticisms on that occasion constituted anything other than a single incident.14.4 Allegation 5 appears to be a one-off decision with continuing consequences.14.5 Allegation 6 is said to be a continuing requirement which had evolved over time rather than as a result of a specific decision.14.6 Allegation 7 is said to be a provision, criterion or practice and accordingly questions arise as to whether an adjustment should have been made, and if so, by when.14.7 Allegations 8 and 9 are clearly one-off acts.[15]I was referred to what I might describe as the usual authorities. They were Bexley Community Centre v. Robertson, British Coal Corporation v. Keeble, Chohan v. Derby Law Centre, DPP v. Marshall and Kingstonupon-Hull City Council v. Matuszowicz.[16]If an allegation is in time, then that is an end of the matter. If it is out of time, then it could be found to be part of an act extending over a period. Otherwise the Tribunal has the power to extend the time period. The Tribunal has a wide discretion to do that which it considers just and equitable in the circumstances. It is a matter of balancing the prejudice to each party. Reference is often made to what I might describe as the Keeble factors in these circumstances. They are not definitive and their relevance depends upon the particular circumstances. In this case I have noted in particular that the Claimant had been advised of the provisions of the 2010 Act in 2015.[17]I have concluded that the allegations should proceed to a hearing. I am with Mr Markless that there are material disputes of fact which can only be resolved by the hearing of evidence, but that of course applies in many claims. It is not determinative as to whether any discretion should be exercised in favour of the Claimant, but it does indicate the difficulty of coming to a conclusion of the issue of time limits at a preliminary hearing.[18]I see the factual allegations as being largely variations on a theme, or two themes, although for the purposes of clarification of the claims, and the making of decisions on them, they have had to be broken down. Several of the allegations relate to additional responsibilities being placed on the Claimant and/or not being removed. The other theme is the number of observations undergone by the Claimant, and the outcome of those observations. It may well be that on the hearing of the evidence the Tribunal will come to a conclusion that what occurred was, at least to some extent, an act extending over a period. I am not in a position to decide to the contrary on the information before me. That alone is sufficient in my judgment for me to allow the claim to proceed to a hearing, but that would only defer the issue as to jurisdiction.[19]I have therefore considered whether it would be just and equitable to extend time in respect of allegations that would otherwise be out of time. In my judgment it is appropriate for time to be extended where it is necessary to do so to give the Tribunal jurisdiction.[20]If there has been any fault on the part of the Claimant’s solicitors (as to which I am not making any finding) then that should not necessarily be held against the Claimant where there is a discrimination claim. I have also taken into account the point made that the Claimant was seeking to resolve matters through the grievance process, which had achieved an apparently satisfactory result in 2015.[21]I take into account as an important factor that the Claimant remains employed by the Respondent, although on sick leave at present. I do not know the outcome of the grievance appeal, but I am assuming that the difficulties between the parties have not been resolved because otherwise the claim would no doubt have been withdrawn.[22]I have of course noted that the Respondent will have to defend claims which are outside of the statutory time limit, and that is a prejudice to it. However, to be balanced against that is the fact that there will be a definitive ruling from the Tribunal on the merits of the claims. It appears to me that having a definitive outcome will be of benefit to both parties so that they will know where they stand. That benefit in my judgment outweighs any prejudice to the Respondent.[23]The matter will therefore be listed for a hearing on the merits of the claims.
FINDINGS OF FACT
[24]In mid-February the claimant had her 7th buddy meeting with Ms Tuck and informed her that she felt these meetings were no longer necessary. Ms Tuck made it clear to the claimant that she was still willing and available to meet with her, if she thought this would be beneficial.[25]In February, Ms Collis met the claimant for her appraisal at which stage an Upper Pay Scale 2 target was discussed. The claimant had been employed as a UPS2 teacher and ordinarily such a teacher is expected to make a significant contribution to both learning and teaching and the wider life of the School. The claimant agreed to take on responsibility for a project around reporting children’s progress in extracurricular opportunities, initially for the summer term [298]. There was a dispute about how much work this entailed. The Tribunal was satisfied that a number of the responsibilities had been carried out and that the claimant would also have administrative support. As the claimant’s own message on [299] observed, there was “already a wealth of promotional materials for existing clubs with links to their web sites etc…”, and Ms O’Connor was happy to take responsibility for other aspects of this work. The Tribunal considered the work not onerous for the claimant. The documentary evidence of the claimant’s work in relation to this target appears in [299 – 300] and amounts to a message addressed to the organisers of school clubs, asking them to provide a brief list of their aims and objectives.[26]Ms Nash’s teaching was formally observed on three occasions on 8, 9 and 15 March 2016; various strengths, as well as some areas for improvement (e.g. in respect of the environment planner), were identified [316 – 320].[27]There was a meeting to provide joint feedback from the week commencing 1 March 2016 [280 – 281]. This feedback specifically recognised, at the outset, that it was “Good to see everyone’s roles clearly identified throughout the day.” On 16 March 2016, there was a meeting between the claimant, Ms Collis and Ms Nash to discuss the difficulties they were having with the environment planner. Whilst Ms Collis was supportive and professional she was asking questions around the teaching provision. The claimant became distressed and suffered a panic attack, and Ms Nash left the meeting. The claimant explained to Ms Collis that she had been suffering from a cold and was worried about her upcoming carpal tunnel surgery, which she feared might be cancelled because of it. Ms Collis insisted on booking the claimant a taxi home and texted her that evening to check on her wellbeing. The claimant thanked Ms Collis for her “understanding yesterday”, and (at 15:55 on 17 March 2016) stating that she had “Slept all day and feels lot more like my usual self. Xx [122]”[28]Following the claimant’s absence from work on 17 March 2016, it was mutually agreed between the claimant and Ms Collis that her first formal teaching observation (which had originally been scheduled for 17 March 2016) would be rescheduled for 15 April 2016.[29]The claimant underwent carpal tunnel surgery on both wrists on 21 March 2016. That evening, the claimant’s partner texted Ms Collis to inform her that “Susie’s op was a success and she is home now. Xx” [132c]. Ms Collis responded: “Thanks for letting us know – send her our love from school – hope she recovers quickly. X”. During the Easter holiday, the claimant messaged Ms Collis, stating that she was “Pleased to report I’m now in much less pain than before…”, to which Ms Collis replied “That’s good news – see you next week.”[30]The claimant returned to work on 11 April 2016 and had a return to work meeting / discussion with Ms Collis and signed a return to work interview form [302 – 303]. The claimant did not say that she required any additional support, various adjustments having been put in place to support the claimant with her hands including a gel wrist support, a scribe when necessary and support staff to move and set up furniture.[31]On the morning of 12 April 2016, the claimant sent Ms Collis another text message, stating “Do you need me to stay in class this morning? I’m happy to stay to see the chd in at least but happy to stay longer / all am if needed” [132c]. The claimant said nothing about her ability to carry out her work.[32]On 13 April 2016, the claimant’s agreed UPS 2 target was confirmed in writing [298].[33]On 15 April 2016, Ms Simmonds and Ms Collis conducted a formal observation of the claimant’s teaching. The claimant had not had formal observation for a year and ten months. This observation resulted in a rating of “requiring improvement” with some features of inadequate provision. On 16 April 2016, Ms Collis texted the claimant to say “Sorry we didn’t get to feedback on Friday – we had a string of parents and then it all got very late. Could we meet you after school on Monday for feedback?” The claimant replied “No problem. Monday after school is fine. Have a good weekend. X” [132c][34]Ms Collis and Ms Simmonds duly provided their feedback to the claimant after school on 18 April 2016. The triangulation sheet is at [304 – 308], and in the course of her oral evidence the claimant accepted that this written feedback reflected the honest views of Ms Simmonds and Ms Collis and reflected what was communicated to her orally on 18 April 2016. The claimant alleges that she received no positive feedback; however, from the triangulation sheet there was some.[35]The claimant did not raise any complaint about the 15 April 2016 observation at the time, whether in respect of the content of the feedback or the manner in which that feedback was communicated to her. The claimant was bound to be upset by the contents of the feedback as it concerned her teaching skills which had not been questioned previously.[36]As a number of matters had been identified as requiring improvement, in terms of the claimant’s teaching provision, a Personal Development Plan was constructed and agreed between Ms Collis and the claimant [309 – 312]. On 22 April 2016 there was a Personal Development Plan meeting between the claimant and Ms Collis. The claimant’s PDP was agreed and recorded in writing [309 – 312].[37]On 15 May 2016, the claimant sent Ms Simmonds a letter, notifying her of a change to her medication and that she had suffered a slight relapse with her depression and anxiety symptoms [313]. In response, Ms Simmonds scheduled a face to face meeting with the claimant on the first available date, which was 27 May 2016.[38]On 26 May 2016, Ms Collis conducted an informal observation of the claimant’s teaching. The feedback for this session is at [314 – 315].[39]On 27 May 2016 the claimant met with Ms Simmonds, with Ms Regan also present to discuss her letter of 15 May [323 – 326]. The claimant said her new antidepressant medication made her feel better. Ms Simmonds asked how things were in the classroom and if any other support was needed. The claimant confirmed that her colleagues had been supportive, stating “Briony (Ms Nash) and Becky (Ms Hatton) have been very supportive. They know I take medication and get tired. We have tried to organise it so that I don’t do things like moving the tables.” Towards the end of the meeting, the claimant was asked by Ms Simmonds whether there was anything else she would like to raise and confirmed that there was not.[40]The claimant continued to carry out her work as usual, without raising any concerns or suggesting that she needed any additional support (in addition to that which was already in place for her benefit).[41]On 21 June 2016, a formal teaching observation of Ms Nash was conducted by Ms Collis [327 – 331].[42]On 24 June 2016, a formal teaching observation of the claimant was conducted by Ms Collis and Ms Miller. The latter was concerned with quality assurance of the School’s monitoring and judgments. The latter was not told that the claimant had disabilities or that she had been off work. The lesson was graded as “requires improvement”, the main areas of concern were related to health and safety matters. The claimant was provided with feedback in respect of this observation on 24 June 2016. The triangulation sheet [332 – 338], reflected the honest views of those observing her, and reflected the feedback that was given to her orally;[43]On 27 June 2016, the claimant commenced a further period of sickness absence. On 2 September 2016, the claimant submitted a formal grievance under the School’s grievance policy [743 – 750]. The claimant’s complaints were considered and investigated, in accordance with the School’s grievance policy. By a letter dated 20 September 2016, Marian Gerrett, a School Governor, confirmed that the claimant’s grievance had been rejected [751 – 754]. Ms Gerrett rejected the claimant’s call for disciplinary action to be taken against Ms Simmonds, finding that the claimant had been properly supported by management in her return to work. The claimant lodged an appeal against the grievance outcome on 11 October 2016 [755 – 767]. On 14 December 2016, the claimant was notified that her appeal had been unsuccessful [863 – 866]. Mr Worsfold, the Chair of Governors, concluded inter alia that the claimant had “been treated with respect and provided the support and reasonable adjustments at all times to which you are entitled in order to make a successful return to work.” SUBMISSIONS[44]The Tribunal heard detailed, well researched and well-presented submissions from both parties. Without intending any disrespect whatsoever to Counsel, these submissions are not repeated here.
LAW
[45]The law was said not to be in dispute between the parties. The burden of proof[46]The burden of proof provisions in relation to discrimination claims are found in section 136 of the Equality Act 2010 (“EqA”).[47]The Court of Appeal, in Igen Ltd v. Wong [2005] ICR 931 CA, has authoritatively set out the position with regard to the drawing of inferences in discrimination cases in the light of the amendments implementing the EU Burden of Proof Directive.[48]In Laing v. Manchester City Council [2006] ICR 1519 EAT, the Employment Appeal Tribunal held that the drawing of the inference of prima facie discrimination should be drawn by consideration of all the evidence, i.e. looking at the primary facts without regard to whether they emanate from the claimant’s or respondent’s evidence page 1531 para 65. The question is a fundamentally simple one of asking why the employer acted as he did: Laing para 63.[49]That interpretation was approved by the Court of Appeal in Madarassy v Nomura International plc [2007] ICR 867 CA at paragraph 69. The Court also found at paragraphs 56-58 that ‘could conclude’ must mean ‘a reasonable tribunal could properly conclude’ from all the evidence before it. That means that the claimant has to ‘set up a prima facie case’. That done, the burden of proof shifts to the respondent (employer) who has to show that he did not commit (or is not to be treated as having committed) the unlawful act, at page 878.[50]Tribunals should be careful not to approach the Igen guidelines in too mechanistic a fashion (Hewage v. Grampian Health Board [2012] ICR 1054 SC para 32, London Borough of Ealing v. Rihal [2004] EWCA Civ 623 para 26).[51]The Court of Appeal has confirmed the foregoing approach under the EqA in Ayodele v. Citylink [2018] IRLR 114 CA.[52]In the context of reasonable adjustment claims, the burden is on the claimant to establish both the fact of the alleged PCP(s) and the substantial disadvantage said to arise in consequence thereof: see for example Bethnal Green & Shoreditch Educational Trust v. Dippenaar [2015] UKEAT/0064/15, at paras. 40 – 42. Direct discrimination[55]Section 13 provides:(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.(3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.(4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner.(5) If the protected characteristic is race, less favourable treatment includes segregating B from others.(6) If the protected characteristic is sex— (a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding; (b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.(7) Subsection (6)(a) does not apply for the purposes of Part 5 (work).(8) This section is subject to sections 17(6) and 18(7). 53. Direct discrimination assumes a comparison as between the treatment of different individuals. To make that comparison, however, the cases of complainant and comparator must be such that there must be no material difference between the circumstances relating to each case, section 23 of the Equality Act 2010. In either case, because direct discrimination occurs if the complainant is treated less favourably than the employer treats or ‘would treat’ another person, the comparator may be real or hypothetical. Discrimination arising from disability 54. Section 15 EqA provides as follows: “(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.” 55. With regard to the meaning of “unfavourable treatment”, “Unfavourably” must be interpreted and applied in its normal meaning; and a claimant cannot succeed by arguing that treatment that is in fact favourable might have been even more favourable: Williams v. Trustees of Swansea University Pension and Assurance Society [2018] ICR 233 CA para 50 which approved the approach of the Employment Appeal Tribunal which considered that the use of the word “unfavourably” was a deliberate choice in the legislation, and it should not be equated with the concept of detriment or less favourable treatment. The Employment Appeal Tribunal held that the meaning of unfavourably could be derived from the manner in which it is applied in section 18 of the EqAct, in which it means “placing a hurdle in front of, or creating a particular difficulty for, or disadvantaging a person.”[56]It is for a claimant to identify, with sufficient precision, what the “something arising in consequence” of their disability / disabilities is said to be; and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of a disability: see Pnaiser v. NHS England [2016] IRLR 170, at para. 31 (d): “The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of section 15 of the Act (described comprehensively by Elisabeth Laing J in Hall v. Chief Constable of West Yorkshire Police [2015] IRLR 893), the statutory purpose which appears from the wording of section 15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.”[57]The EHRC Code explains, at paragraph 5.9: “The consequences of a disability include anything which is the result, effect or outcome of a disabled person’s disability. The consequences will be varied and will depend on the individual effect upon a disabled person of their disability. Some consequences may be obvious, such as an inability to walk unaided or inability to use certain work equipment. Others may not be obvious, for example having to follow a restricted diet.” [Emphasis added][58]The foregoing may be illustrated by reference to the original draft version of the EHRC Code which provided the following inexhaustive list of examples of the sort of things commonly arising in consequence of disabled persons’ disabilities, namely: An inability to work unaided; a need for regular rest breaks or toilet breaks; restricted diet; slower typing speeds; regular hospital appointments; difficulties in using public transport; a need for specialist computer equipment and a need for private and/or quiet working environment. The example given in paragraph 5.9 of the EHRC Code illustrates the point: A woman is disciplined for losing her temper at work. However, this behaviour was out of character and is a result of severe pain caused by cancer, of which her employer is aware. The disciplinary action is unfavourable treatment. This treatment is because of something which arises in consequence of the worker’s disability, namely her loss of temper. There is a connection between the “something” (that is, the loss of temper) that led to the treatment and her disability.[59]In the event that the Tribunal finds that there has been unfavourable treatment of the clamant, it must consider what caused that treatment – more specifically, was the treatment “because of something arising in consequence of disability” (i.e. applying the ‘reason why’ analysis, as is familiar in the context of direct discrimination claims)?[60]The correct approach to the ‘first stage’ of a section 15 EqA claim was outlined by the EAT in Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305, in which Langstaff P held (at paras. 26 – 27): “26 The current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The tribunal has first to focus on the words “because of something”, and therefore has to identify “something”—and second on the fact that that “something” must be “something arising in consequence of B’s disability”, which constitutes a second causative (consequential) link. These are two separate stages. In addition, the statute requires the tribunal to conclude that it is A’s treatment of B that is because of something arising, and that it is unfavourable to B. I shall return to that part of the test for completeness, though it does not directly arise before me. 27 In my view, it does not matter precisely in which order the tribunal takes the relevant steps. It might ask first what the consequence, result or outcome of the disability is, in order to answer the question posed by “in consequence of”, and thus find out what the “something” is, and then proceed to ask if it is “because of” that that A treated B unfavourably. It might equally ask why it was that A treated B unfavourably, and having identified that, ask whether that was something that arose in consequence of B’s disability.” The Justification Defence Was reliance on observation a proportionate means of achieving a legitimate aim?[61]The EqA provides that the employer can rely on the justification defence under three sections; section 19(2) (indirect discrimination); 13(2) (direct age discrimination) and section 15(1) – as is the case here. The test is common across all jurisdictions to which it applies.[62]The Tribunal must balance any discriminatory effect (as it has identified) against the legitimate aims being pursued by the employer. The relevant principles are discussed in Seldon v. Clarkson Wright and Jakes [2012] IRLR 590; Homer v. Chief Constable of West Yorkshire Police [2012] IRLR 601; and Harrod v. Chief Constable of West Midlands Police [2017] IRLR 539.[63]In Seldon v. Clarkson Wright and Jakes [2009] IRLR 267 EAT which was affirmed by the Court of Appeal and Supreme Court although this point does not appear to have been argued before them, it was said at paragraph 73: “73. We do not accept the submissions of the appellant, and indeed repeated by the Commission, that a tribunal must always have concrete evidence, neatly weighed, to support each assertion made by the employer. Tribunals have an important role in applying their common sense and their knowledge of human nature. So, to take an example from this case, it seems to us plain that it will assist retention of associates, at least to some degree, that they know that partners are going to have to retire at a particular age. It is also self-evident, we think, that it will assist forward planning, particularly in relation to the operation of particular departments, to have the predictability of knowing when a partner will leave. It does not need a business planner to give evidence about that. Tribunals must, no doubt, be astute to differentiate between the exercise of their knowledge of how humans behave and stereotyped assumptions about behaviour. But the fact that they may sometimes fall into that trap does not mean that the tribunals must leave their understanding of human nature behind them when they sit in judgment.”[64]In addressing the justification defence, the ET requires to address two questions, serially: (i)Can the respondent establish that it was pursuing a legitimate aim? (ii)Can the respondent establish that the measures taken to achieve that aim were appropriate and proportionate? The Legitimate Aim Relied on by the Respondent[65]These were narrated at the commencement of the hearing as:a. seeking to monitor and assess levels of performance / teaching standards;b. seeking to improve standards of performance / teaching provision;c. seeking to promote best practice;d. seeking to identify strengths and areas in respect of which improvements could be attained, and communicating them to the teacher concerned;e. seeking to identify areas in respect of which further support or assistance may be beneficial to the teacher concerned;f. seeking to improve or maintain standards of education and learning for the children. Reasonable adjustments (sections 20 and 21 of the Equality Act 2010)[66]Section 20 (3) EqA imposes the following obligation on employers: “…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.”[67]Schedule 8, part 3, para. 20 (1) EqA provides as follows: “A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question; (b) in any other case referred to in this Part of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.”[68]The recommended ‘structured approach’ to resolving claims of this nature was set out by the EAT in Secretary of State for Work and Pensions (Job Centre Plus) v. Higgins [2014] ICR 341, as follows: “29 In a case where, as here, the employer is alleged to be in breach of the duty to make reasonable adjustments imposed by section 20(3) of the 2010 Act, the tribunal should identify(1) the employer’s provision, criterion or practice (“PCP”) at issue,(2) the persons who are not disabled in comparison with whom comparison is made, and(3) the nature and extent of the substantial disadvantage suffered by the employee. Without these findings the tribunal is in no position to find what (if any) step it is reasonable for the employer to have to take to avoid the disadvantage. 30 These requirements flow from the statutory wording. This wording has changed slightly from the wording in the preceding Disability Discrimination Act 1995, in respect of which the Employment Appeal Tribunal emphasised the importance of such an approach: see Environment Agency v Rowan [2008] ICR 218, paras 26–27 (Judge Serota QC). The guidance in Rowan remains apposite: tribunals should give careful consideration to, and make findings concerning, each element of the statutory provision which is engaged in the case before it. Eliding different elements within the statutory definition, or failing to make clear findings concerning each element, leads to difficulty. Elements may differ in their importance from case to case, but it is good discipline to state conclusions on them even if the conclusions appear obvious. 31 We would add one further point. The duty to make an adjustment is a duty to take a “step” or “steps” to avoid the disadvantage. Just as the tribunal should expect to identify the PCP, the comparators and the nature and extent of the substantial disadvantage, so it should expect to identify the step or steps which it was reasonable for the employer to have to take to avoid the disadvantage.”[69]With regard to the issue of knowledge, in Wilcox v. Birmingham CAB Services Limited [2011] UKEAT/0293/10/DM, the EAT confirmed (see para. 37, per Underhill P) that an employer is only under a duty to make reasonable adjustments if:a. the employee is disabled;b. the employee is placed at a substantial disadvantage (in comparison with non-disabled employees) as a result of the application of the PCP under consideration; andc. the employer knows, or ought reasonably to have known, both of the above matters.[70]Finally, in RBS v. Ashton [2011] ICR 632, the EAT (per Langstaff J) held at paras. 14 – 15: “14. A close focus upon the wording of 3A(2), 4A and 18B1 shows that an Employment Tribunal - in order to uphold a claim that there has been a breach of the duty to make reasonable adjustments and, thus, discrimination - must be satisfied that there is a provision, criterion or practice which has placed the disabled person concerned not simply at some disadvantage viewed generally, but at a disadvantage which is substantial and which is not to be viewed generally but to be viewed in comparison with persons who are not disabled. 15. The duty, given that disadvantage and the fact that it is substantial are both identified, is to take such steps as are reasonable to prevent the provision, criterion or practice (which will, of course, have been identified for this purpose) having the proscribed effect - that is the effect of creating that disadvantage when compared to those who are not disabled. It is not, therefore, a section which obliges an employer to take reasonable steps to assist a disabled person or to help the disabled person overcome the effects of their disability, except insofar as the terms to which we have referred permit it.”[71]The Court of Appeal in Newham Sixth Form College v. Sanders [2014] EWCA Civ 734 at para 9 endorsed what was said in Royal Bank of Scotland v. Ashton that when considering the question of reasonable adjustment, it is critical to identify the relevant PCP concerned and the precise nature of the disadvantage which it creates by comparison with its effect on the non-disabled. The importance of this is that until the disadvantage is properly identified, it is not possible to determine what steps might eliminate it. The PCPs relied on[72]It is only when the ‘provision, criterion or practice’ has been identified that it is possible to define the ‘pool’ of comparators for the purpose of seeing whether there has been the requisite substantial disadvantage of the disabled person in comparison to the non-disabled. Comparators[73]Whereas in indirect disability discrimination claims, claimants need to show that people with their disability are (or would be) disadvantaged as a group compared with those who do not have that disability, which will usually require a statistical analysis of ‘advantaged’ and disadvantaged’ groups; in contrast, the concept of group disadvantage has no place in a reasonable adjustments claim. The analysis is simply whether the PCP puts the disabled claimant at a substantial disadvantage compared to people without that disability.[74]In the present case, the Tribunal considered that the cpmparator group is teachers of the respondent who are not disabled and thus would be able to fulfil their teaching obligations. Substantial disadvantage[75]The tribunal must identify clearly the nature and extent of the disadvantage suffered, because in the absence of such findings, it will be unable to determine properly what adjustments would have been reasonable. Stated shortly, reasonable adjustments must help the employee return to work; the Employment Appeal Tribunal made the point in Salford NHS Primary Care Trust v. Smith UKEAT/0507/10 at paragraph 47 that: “Reasonable adjustments are limited to those that prevent the PCP or feature placing the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled. Reasonable adjustments are primarily concerned with enabling the disabled person to remain in or return to work with the employer.”
DISCUSSION
[76]The Tribunal considered the evidence and correspondence in mid-2015 in relation to the application of the capability procedure and the call to a stage 3 meeting and the ultimate resolution of the issue. This was not because there was a specific issue relating to that part of the case but because the claimant submitted that therein lay the seeds of her subsequent treatment by the School. The School had tried to “get her out” then and the course of conduct after her phased return to work was also intended to “get her out” of the School. The respondent submitted that the use of the procedure was a paradigm example of good practice. The Tribunal did not view the use of the procedure in the same way as the respondent. The Council did come to the appropriate position eventually, but it did seem to involve a lot more difficulty and a lot more serious attention from the claimant’s solicitor than one might have expected. As Ms Regan was involved on behalf of the School at this stage, the Tribunal kept her involvement in mind when considering her evidence in the later stages of the case where it was relevant.[77]The Tribunal considered all of the issues against this background and addressed issues 5, 6 and 7 and then the issues concerned with teaching observations separately and together. Issue 5: the allegation that C was expected to be “resilient to change”[78]The Tribunal pondered what the claimant meant when she said that she was expected by the respondent to be “resilient to change”, or “as resilient to change as other staff”. There was general evidence that the staffing of the Reception class had changed. The managers clearly understood that the claimant had a fear of the unexpected and that this involved her interaction with parents but the description of resilient to change or a variant of it does not fit the facts at all. The claimant was protected from any change throughout the entirety of her phased return to work during 2015, so the Tribunal took it that if there was a PCP, it applied from January onwards. By this stage, the claimant was still being given considerable support by managers who knew and understood her difficulties. The Tribunal determined that no such PCP was applied.[79]Even if the PCP was applied, the Tribunal could not determine what substantial disadvantage the claimant was put at, as a consequence of this alleged PCP. She points to the respondent’s referral to Occupational Health in December 2015, in which the following question was posed by Ms Simmonds: “Susie’s anxiety and depression was detailed in the last OH report and in recent meetings with Susie she is still experiencing difficulties in this area, particularly when dealing with the unknown. The school has so far protected Susie from change and the unknown, but this will not be able to be managed when she has fully returned as it is part of the responsibilities of the role holder. Please can you advise the current prognosis, including any impact on her ability to perform her role?” [422] (emphasis added by the claimant)[80]Ms Simmonds was questioned about what she meant by this and seemed to say that the issue would have to be addressed. The Tribunal did not take this as meaning that the claimant could not be retained in employment, rather the School managers would have to see how matters turned out at that stage.[81]The claimant’s specific complaint is that she was deprived of formal ‘link’ review meetings from 19 January 2016 onwards, against her will. The Tribunal has found as a fact that this did not happen. It can also be seen that they might have outlived their usefulness by January. The “buddy” meetings stopped. Ms Collis saw the claimant every day in the Reception class and enquired either generally or in particular how she was. If the claimant had not been able to confide in Ms Collis then she could have arranged another time for a meeting. The Tribunal found that the claimant did not suffer any disadvantage from the application of the PCP, if there was one. Issue 6: the allegation that the claimant was expected to take “lead responsibility in the job share arrangement”[82]In the Preliminary Hearing Judgment, at paragraph 14.5 [54], Employment Judge Baron recorded that this allegation “is said to be a continuing requirement which had evolved over time rather than as a result of a specific decision.” In her oral evidence, the claimant confirmed that no one had ever actually said to her, whether orally or in writing, that she was expected to take lead responsibility for the job share arrangement.[83]The claimant accepted that she was not ‘above’ Ms Nash in terms of the school hierarchy. The claimant did not suggest or complain to the School’s management that she felt that Ms Nash was not pulling her weight, in terms of sharing the load in the job share arrangement. Nor did the claimant ever suggest or complain that she felt unable to cope with the way in which the teaching responsibilities were being distributed or shared between her and Ms Nash. Indeed, on several occasions, the claimant expressed her contentment with the job share arrangement and how things were working in practice.[84]The claimant founds on the absence of a written job share arrangement as noted by Ms Regan as a very significant factor in the emergence of the expectation that the claimant would take lead responsibility. The claimant and Ms Nash seemed to get ahead and make their own arrangements which worked satisfactorily thus obviating the need for a written agreement.[85]The respondent was aware that the claimant did not feel able to undertake a leadership role and had stated that she would prefer to concentrate on developing her teaching and classroom organisation skills rather than jeopardising her health through having a managerial workload. The School had permitted her to relinquish her leadership role.[86]The Tribunal find that the alleged PCP was not applied to the claimant, at any time following her return to work in October 2015. Accordingly, the claim must fail. Issue 7: The claimant’s UPS 2 responsibility for school clubs[87]The claimant was paid as a UPS 2 level teacher. The claimant’s UPS 2 target was agreed in consultation with her. At no time did she express any objections or reservations in respect of this target. The target which was agreed with her was much more straightforward and less onerous than what would ordinarily be expected of, and assigned to, UPS 2 level teachers.[88]As a responsibility of the pay grade, the additional duty does constitute a PCP however, the Tribunal could not determine what specific disadvantage the claimant suffered, she either carried out the fairly limited tasks or did not, nothing arose in consequence either way. Issues 1, 4 (a), 8 and 9: the 15 April 2016 observation[89]The Tribunal carefully considered the evidence surrounding the panic attack on 16 March in order to determine whether the scheduling of a planned observation the next day caused or contributed to the attack and whether the respondent should have responded differently to the way it did. The respondent is criticised for taking no measures to investigate the cause of the panic attack or determine what steps might be taken to support the claimant other than a standard return to work meeting.[90]The 15 April 2016 observation was a rescheduled observation, following the cancellation of the claimant’s observation that had originally been scheduled for 17 March 2016. By this time, the claimant had been back at work for a period of six months. The claimant was aware of the date of the rescheduled observation for approximately one month and had ample time to prepare for it.[91]The claimant did not request that this observation be postponed or rescheduled again or suggest that she felt disadvantaged in any way by the observation being conducted on that date or at that time.[92]The Tribunal determined that it was a PCP for the School to carry out its rota of observations to include the claimant, however the claimant does not complain about the manner in which the observation itself was conducted.[93]The Tribunal finds that both Ms Simmonds and Ms Collis provided constructive feedback, both positive and negative, in a courteous, supportive and professional manner. The Tribunal could not identify what the substantial disadvantage was. The Tribunal does not find this to be a punitive measure and there was no sanction as a result of this observation. It is difficult to see what else the respondent should have done in relation to the normal arrangements for observing teachers in class, absent any link being made between the projected observation and the panic attack by the claimant.[94]With regard to the claimant’s section 15 claim, the Tribunal could not identify which specific criticisms / pieces of feedback in respect of her teaching on 15 April 2016 were being relied upon, nor on what basis such criticisms are said to have been caused by something arising from her disabilities. An examination of the triangulation sheets demonstrates that the concerns arose from issues which were unaffected by her disabilities.[95]This equally applies to the feedback in respect of the claimant’s 24 June 2016 observation, or the manner in which that feedback was provided.[96]Even if the section 15 claim had been established thus far, the provision of feedback to the claimant in respect of her 15 April 2016 observation was objectively justified. Even without the claimant’s concession under cross-examination that:a. the feedback that was provided to the claimant reflected the honest views of Ms Simmonds and Ms Collis; andb. where areas for improvement were identified by the observers, they were duty bound to share that feedback with her. the respondent’s conduct was a proportionate and lawful means of achieving these legitimate aims.[97]It is alleged that the claimant was treated less favourably than Ms Nash in that she was criticised in an unduly harsh manner on 15 April 2016 and she was subjected to further observation which constituted direct disability discrimination.[98]The Tribunal considered that Ms Nash is not an appropriate comparator notwithstanding she was a teacher in the same job as the claimant, working the same classroom and bearing the same level of responsibility for the success of the class. The fact that Ms Nash was part time is not material but her observation had been better and different to that of the claimant and it cannot be said that Ms Nash was treated more favourably by the respondent because she was not suffering from the claimant’s disabilities.[99]In the period March to June 2016, Ms Nash was observed on four separate occasions, whereas the claimant was observed on three occasions. The reason why Ms Nash was not put on a PDP was because, based on her performance, her teaching was found to be ‘good’ and therefore not in need of a PDP whereas the claimant’s teaching was found to be requiring improvement. These different assessments had nothing whatsoever to do with the fact that the claimant is a disabled person. Issues 2 and 4b: requirement to undergo additional observations[100]The reason why Ms Collis informally observed the claimant’s teaching on 26 May 2016 was to check how she was getting on, having regard to the areas for development that had been identified in the PDP, in consultation with her, following on from the 15 April 2016 observation. This was a supportive measure for the claimant and not unfavourable treatment.[101]The reason for conducting the 24 June 2016 observation was that it formed part of the School’s general and school-wide cycle of ‘scrutinised’ management assessments. The Tribunal considered that the School was correct not to give Ms Miller any detail as to the Claimant’s disabilities or reasonable adjustments.[102]In issue 4 (b), The Tribunal does not consider Ms Nash to be a suitable comparator for the reasons given for Issue 4(a). Issue 3: the 24 June 2016 observation[103]The claim of discrimination related to disability applies to the content of the feedback following the observation. The Tribunal does not accept the criticism made by the claimant of the content of the feedback. The content, based on the triangulation sheet, concerned the claimant’s teaching and was not unfavourable treatment nor did it arise in consequence of her disabilities. In any event, the School was pursuing a legitimate aim in a proportionate way.
CONCLUSION
[104]The Tribunal did not accept that the senior management of the School was seeking to manage the claimant out of her employment because it did not wish to bear the burden of supporting her disabilities or to risk the potential threat to the school’s grading which they presented. The management of the School did everything it could do in assisting the claimant in her phased return to work as is acknowledged by the claimant who was appreciative of the efforts made by her work colleagues as can be seen from contemporaneous text messages. This approach did not change in the period after January. The Tribunal was particularly impressed by the evidence of Ms Collis and find her evidence to be thoroughly reliable and further find she acted in support of the claimant with empathy, kindness and understanding throughout the period being examined. This is not to suggest that Ms Simmonds and Ms Regan behaved otherwise.[105]The claimant’s claims of disability discrimination are dismissed.