Ms T Chapman v First Option Healthcare Ltd: 2305098/2021
EMPLOYMENT TRIBUNALS
Case No 2305098/2021
Between
Ms T ChapmanClaimantFirst Option Healthcare LtdRespondent
Before
Employment Judge MortonIn person for claimantMs C Jennings (instructed by Counsel) for respondentDate 16 April 2024
JUDGMENT
[1]The complaint of harassment on grounds of disability is dismissed on the ground that those responsible for the acts in question were not aware of the claimant’s disability and because those acts were too minor to amount to unlawful conduct.[2]The complaint of discrimination arising from disability is also dismissed on the ground that the respondent was not aware of the claimant’s disability and also because the claimant’s dismissal and other acts were not done because of something arising in consequence of her disability.[3]The complaint of failure to make reasonable adjustments, which concerned being accompanied at a hearing, is also dismissed on the basis that the respondent was not aware of the claimant’s disability. Page 1 of 15
REASONS
[1]These written reasons are provided at the request of the respondent following oral reason given at the close of the hearing last Friday.[2]Mrs Chapman is a nurse. She worked for the company on an freelance basis, and one of her assignments in 2021 was to carry out a number of night shifts with a child, S, who has some serious health problems. It involved her spending the night in his bedroom, taking occasional observations, and making sure he did not remove a line attached to his chest. The child’s main carer was his grandmother, who reported that Mrs Chapman had been asleep for several hours one night. She was then suspended. There was an investigation meeting and then she was given a dismissal letter, dated 20 May 2021.[3]She was not an employee of the company so she cannot bring a claim of unfair dismissal but she has brought claims of disability discrimination, relying on her dyspraxia. She says that this specific learning disorder makes her more tired and so more prone to fall asleep. Consequently she says that her dismissal was an act of discrimination arising from her disability, that there was a failure to make reasonable adjustments and that some aspects of the dismissal process amounted to harassment. The company denies all this, and says that they were completely unaware of her condition. They also dispute any such connection between dyspraxia and fatigue.[4]The issues to be decided were set out in the case management orders made following the hearing on 15 December 2022 and so need not be repeated at the outset. We will return to them shortly. That hearing also decided that Mrs Chapman’s condition amounted to a disability. Procedure and evidence[5]We heard evidence from Mrs Chapman, and on behalf of the company from:(a) Mrs Becky Dobson (Clinical Director, now Chief Nursing Officer), who was involved in the decision to dismiss Mrs Chapman, and(b) Ms Sarah Dennis (Head of Clinical Mobilisation, now Group Clinical Director), who was also involved in that decision.[6]There was also a witness statement from Ms Hayley Josiah, the relevant HR manager, who was unable to attend for documented medical reasons. Her statement was mainly to document the process followed. Its significance is limited and we have only referred to it in connection with the arrangements for the relevant Page 2 of 15 fact-finding meeting and we felt able to place some weight on it since it was largely in accordance with the other documents we have.[7]Mrs Chapman was represented when her claim form was submitted, and had legal assistance for much of the case. Hence, her witness statement was professionally prepared and the case was in a good state of organisation. Strike out application[8]However, at the outset of the hearing Mrs Chapman supplied some further documents which she wanted the tribunal to consider in support of her case. They proved to be significant. These were two emails in which she mentioned to someone at the company that she had dyspraxia. Knowledge of her condition is of course a key issue in this case.[9]The first of these emails was from 7 January 2021. At that time she was in contact with a Ms Heather Wellington, Payroll Supervisor, who had sent her a remittance advice recording the payments she would be getting for shifts she had just worked. At 1314 Mrs Chapman wrote: hi heather this is not correct? what is the breakdown of the sum? Maybe ots right but my dyspraxia brain is never wrong with sums! I should have been paid for new years eve and sun 3rd!![10]The second is an email she sent on 26 April 2021 to Rachel Fender, Mobilisation Recruiter. The message in question is at 1018 when Mrs Chapman wrote: Oh yes sorry. I will update it tomorrow Really suffering with dyspraxia being away from home i am sure shonagh gets that alot, not an excuse and I will rectify the clerical error tomorrow x[11]Mr Hignett objected to the admission of this late evidence since the deadline for disclosure was in 2022 and there was no explanation for the delay. It also gave them no opportunity to check the authenticity of these documents. Mrs Chapman said in response that he had been looking for them for months and only now found them. Both emails come from her personal Hotmail account so it was not clear to us why a search on the word dyspraxia would not have revealed them, but we took the view that it would not be in the interests of justice to refuse to consider them, even at this late stage. We took into account that neither of the recipients of these emails was a decision-maker in the case and the respondent’s witnesses would be in a position to explain what if anything they knew about this information.[12]During the course of the hearing further enquiries were made with the respondent’s IT manager. Mr Hignett, for the respondent, informed us that these emails had been located on the respondent’s servers and that in both cases the wording Page 3 of 15 relating to dyspraxia was not on the original. He said that it must have been added subsequently.[13]Given the late disclosure of these documents we agreed to hear evidence from the person who had made these enquiries, Mr Danny Griffiths, Group IT Director and Data Protection Officer. He attended the hearing on the third day after the conclusion of other evidence. His evidence was that he had access to the inboxes of all present and former employees via Office 365 and had located the emails in question. They did not contain the references to dyspraxia. In each case the relevant wording was simply: hi heather this is not correct? what is the breakdown of the sum? I should have been paid for new years eve and sun 3rd and Oh yes sorry. I will update it tomorrow[14]He had then contacted the company’s IT service provider, IT Vet, and ask them to download the relevant files and send them to him. Having done so, he confirmed that these files matched the wording he had seen via Office 365. The server files were, he said, EML files, which cannot be edited as the data is protected by Microsoft encryption. He stated this as a fact, something which was physically impossible, and of which he was 100% certain.[15]Although it was suggested to him that he or the company could have removed the relevant words, we preferred his account. Not only was it specific and clear but the late disclosure of these emails, and the lack of any clear explanation for the delay, told against them. The references to dyspraxia also seem to be unusual and unnecessary inclusions in emails of this sort. In short, we saw no reason to doubt what Mr Griffiths told us. Inevitably therefore we have had to conclude that Mrs Chapman or someone on her behalf has fabricated evidence to put before the tribunal.[16]As a result, Mr Hignett made an application to strike out the claim. He provided written submissions and referred us to a number of authorities, in particular, Bolch v Chipman 2004 IRLR 140, In Arrow Nominees Inc & Anr v Blackledge & Ors [2000] EWCA Civ 200, and, most recently Kaur v Sun Mark Ltd & others, [2024] EAT 41. We gave our reasons at the time, and without repeating them at length we decided that a strike out order was not appropriate.[17]Rule 37 provides that (1) At any stage of the proceedings, either on its own initiative or on the application of party, a Tribunal may strike out all or part of a claim or response on any of the following grounds – … Page 4 of 15 (b) that the manner in which the proceedings have been conducted … has been scandalous, unreasonable or vexatious[18]This test is certainly met, but we concluded that a fair trial was still possible, particularly as all of the evidence had been heard and it only remained to hear submissions on either side. We noted in particular the words of Simler P (as she then was) in Arriva London North Ltd v Maseya UKEAT/0096/16 (12 July 2016, unreported), quoted in Kaur at para. 47: “27. … There is nothing automatic about a decision to strike out. Rather, a tribunal is required to exercise a judicial discretion by reference to the appropriate principles. Even in a case where the impugned conduct consists of deliberate failures in relation, for example, to disclosure, the fundamental question for any tribunal considering the sanction of a strike out is whether the party's conduct has rendered a fair trial impossible: see Bolch, where Burton P cited De Keyser Ltd v Wilson [2001] IRLR 324 EAT and Arrow Nominees Inc & Anr v Blackledge & Ors[2000] EWCA Civ 200. Those cases make clear that even where conduct is held to be scandalous, unreasonable or vexatious in relation to the conduct of proceedings, before making a strike out order a tribunal must consider whether a fair trial is possible. If a fair trial remains possible, the case should generally be permitted to proceed because the sanction of strike out is not regarded as simply punitive.”[19]We therefore proceeded to hear submissions. Having done so, and considered the evidence from each side, we make the following findings of fact.
Findings of Fact
[20]The tribunal at the last hearing accepted that Mrs Chapman has dyspraxia and that it amounted to a disability at the relevant times. By way of introduction to the condition we were shown an NHS Document, Dyspraxia in Adults [240]. This states: If you have dyspraxia it may affect:• your coordination, balance and movement• how you learn new skills, think, and remember information at work and home• your daily living skills, such as dressing or preparing meals• your ability to write, type, drawer and grasp small objects• how to function in social situations• how you deal with your emotions• time management, planning and personal organisation skills Page 5 of 15[21]It is regarded as a developmental co-ordination disorder [239] and affects a person’s ability to retain and process information quickly. Mrs Chapman was diagnosed in 2012 when she was studying for her nursing degree. A report was prepared by an educational psychologist [278]. The main difficulties noted in her case were with work organisation and time management, including losing her train of thought in conversation or when making an oral contribution to lectures.[22]Mrs Chapman says that her dyspraxia causes fatigue, and hence in turn caused or contributed to her falling asleep on the night in question. We found little evidence to connect her dyspraxia with fatigue although we accept that concentrating for long periods either when studying or in hearings of this sort may cause additional tiredness. There was a passing reference to fatigue in the NHS document just quoted which states It may also help if you:• keep fit…. You may find regular exercise helps with co-ordination, reduces feelings of fatigue and prevents you gaining weight.[23]There was a further document in the preliminary hearing bundle, which appears to be an online article written by a doctor, and it does list dyspraxia symptoms in adults [90] as including fatigue. Fatigue is of course not the same as drowsiness, though one can lead to another, and her impact statement says that it often results in difficulty sleeping or getting her sleep.[24]Mrs Chapman is also prescribed co-codamol for pain in her knees and this also helps with headaches & migraines that she has suffered as a result of her dyspraxia. We had another NHS document - Co-codamol for adults [241] according to which common side effects include:• Constipation• feeling being sick (nausea or vomiting)• feeling sleepy• headaches[25]Hence, feeling sleepy is a common side effect of taking such medication. Recruitment[26]In late 2020 Mrs Chapman applied for a job as a senior nurse with the respondent, First Option, and as part of that process filled in an Occupational Health medical questionnaire [48]. In this she ticked ‘no’ to all the questions about her health, confirming that she did not have any illness or disability which might affect her work, had never had any, was not awaiting any treatment and did not need any Page 6 of 15 adjustments to help her do the job. No further information was provided. Her evidence was that she did not like to disclose this information as part of an application, even a confidential Occupational Health form, but instead she would explain things in person at an interview.[27]The respondent is a nursing agency, and she was not taken on as an employee. She signed up to a contract for services, as part of which she had to set up her own limited company, provide invoices and receive payments into her business bank account. Hence, there was no interview as such, and no record of interview; she was just taken on by the company on the strength of the form, and some telephone discussions with a member of staff called Sadi or Sati. Mrs Chapman says that she told Sati about her dyspraxia in February 2021 but again, there is however no record of her doing so. In fact, there is no documentary record of her telling anyone at the company about dyspraxia, apart from the emails to Heather Wellington and Rachel Fender which we have found to have been falsified.[28]A further point casting doubt on those emails is that Mrs Chapman’s witness statement makes no mention of them. The points relied on in the statement are that she told Rachel Fender about it on 1 March 2021 and that she told Ms Shoenagh Mackay about it on 11 May 2021, which was after she had found asleep during the night shift in question. However, Rachel Fender is involved in administration of the contract and dealt with Mrs Chapman to assign her duties. She accepted in evidence, when asked about the disputed emails, that she would not have expected Ms Fender to have passed on the fact that she mentioned dyspraxia.[29]In her oral evidence she said that she also told Ms Mackay about it at meeting on 13 April 2021, as part of an interview for the mental health team [82]. There is a brief record of that meeting. The document is headed Nurse interview Form, Learning Disabilities and Mental health, but the purpose of the discussion was to record Mrs Chapman’s experience of dealing with such conditions rather than to explain her own difficulties. There is nothing to indicate that she told Ms Mackay about her dyspraxia, and that suggestion is undermined by the fact that this was not a point made in her claim form or her witness statement.[30]Ms Dennis and Mrs Dobson for the respondent both firmly denied any knowledge of dyspraxia and said that they only learned about it in the course of these proceedings. Reviewing this evidence, and given our conclusions about the falsified emails, there is no satisfactory basis to accept that any mention was ever made of it, to any member of staff at the company. For the avoidance of doubt, if we are wrong about the disputed emails for any reason, we do not accept that any information provided to Ms Wellington or Ms Fender was passed to those responsible for the incident on 1 May 2021, or the subsequent investigation. Page 7 of 15[31]That finding on knowledge is significant since it effectively concludes matters. Knowledge of disability is an essential component of each of the claims put forward. The claim of discrimination arising from disability, under section 15 Equality Act 2010, expressly provides at section 15(2) that the respondent cannot be liable if it did not know and could not reasonably have been expected to know that Mrs Chapman had the disability. Similarly, Schedule 8 (para. 20) provides that a person is not subject to the duty to make reasonable adjustments if he or she does not know, and could not reasonably be expected to know of the disability. Lastly, an act of harassment has to be related to the disability, which in turn requires some knowledge that there is a disability, or at least some feature or consequence of the condition.[32]We will therefore deal with the remaining factual issues more briefly than usual and not every point can be covered. Working arrangements[33]It seems that Mrs Chapman then began working for the respondent, through a limited company, on a series of assignments over a wide geographical area. She lives in Ipswich but we heard that the assignments she was given included work in Swindon and also in Bedford where Child S lives. In each case the journey would be a number of hours.[34]Child S was 10 at the time and his main carer was his grandmother. We were not given her name so we will simply refer to her as grandmother. We heard that he needed constant supervision and had complex needs, particularly with his digestion. He also had developmental issues affecting many things such as his hearing and vision. He was from time to time attached to a drip which provided nutrition, through what is known as a Hickman line, and he had to be checked on a regular basis to make sure that he had not pulled it out, or it had become blocked. His temperature had to be taken hourly and blood sugar monitored while he was attached to the Hickman line.[35]All this was of course very demanding for grandmother and additional nursing care was arranged through social services to give her a respite. All this involved a thorough risk assessment and the development of a care package for which Ms Dennis was responsible. A special screen was put up around the bed with a drip stand at the side of the bed, between two screen doors. When the line was attached there was a need for someone to be in the room with him but at other times grandmother was able to monitor him via CCTV.[36]Over the next few months Mrs Chapman did a number of shifts there and formed a strong relationship with Child S and grandmother. In the last week of April she was working in Swindon. That involved four 10 hour shifts from 27 to 30 April inclusive i.e. the Tuesday to Friday of that week. Naturally this also involved Page 8 of 15 lengthy car journeys. She therefore returned home late on the Friday evening and was then booked in to attend to child S for a night shift the following night, Saturday 1 May 2021.[37]That was a bank holiday weekend and the following Tuesday morning, the first day of normal working hours, grandmother telephoned the respondent to raise a concern about Mrs Chapman. It was recorded by one of the staff there, Ms Lauren Dennis [137]. According to those notes, grandmother: .. had concerns over Nurse Tracy Chapman, and that she is a difficult situation as she adores her, as does S and she is a great nurse. K explained that on the shift (Saturday 1st May, 5.30pm-7.30am) she returned home at around 11pm ish and found Tracy awake, on the sofa in S bedroom with a blanket over her. The term used was ‘sprawled out’. She was slightly anxious and checked in on the monitor that evening, I believe she said between 1am-4am and believed Tracy to be sound asleep. She then checked the Obs information that morning as she could tell that part of S machinery hadn’t been moved in the evening. She said that the temperature observations didn’t match up with the machine read outs, and only the first couple and final obs matched S true temp readings. She asked me to not refer and to talk to Tracy and give her a warning, as S was well and no incidents occurred. K feels extremely protective over Tracy and she really wanted to keep her on the package but ultimately we needed to address from a safeguarding perspective. Tracy was not due to back on shift at S until the 15th May and was due to part take in a day shift from Thursday 6th May for another package (adult). I escalated the allegation to Sarah Dennis immediately and we have consulted to our HR lead on the afternoon of the 4th May. Although K wouldn’t like us to refer, the decision has been made to suspend Tracy pending further investigation.[38]After this discussion, and on request, grandmother then provided further information in an email the next day [93]. In it, she referred to a similar incident which had occurred on 18 April but which had not been reported at the time. With this report she provided some still photographs of Child S asleep, timed between 0143 to 0251. They do not show Mrs Chapman but they show that the drip stand appears to be in the same position throughout.[39]Mrs Chapman was contacted and told that she was suspended. No doubt this was very upsetting for her and she responded almost immediately by email [92] that day, 6 May, stating: “Evening of 1st May during night shift I fell asleep for a short while This is unexcusable and unacceptable. In my defence I had a very busy and tiring week in calne. And 5.5 hours travel home do to motorway hold ups on Friday evening. Page 9 of 15 Saturday lunch time I had an awful headache which I had taken co-codamol for. I had debated ringing in sick, but felt I would be letting the company down and at such short notice. During the shift my headache worsened and I had to take more co-codamol. This made me drowsy. I was immensely tired and my body found it impossible to recover. I am extremely sorry. I believe it is best that I no longer do nights as I can honestly say that I don't know if it would happen again.”[40]So, there was no dispute that she did fall asleep for a while. In the meantime of course, not being an employee, she was not being paid during her period of suspension and was facing the sudden loss of her livelihood. Understandably she began emailing to find out more information about the allegations and in one of those emails referred to having a panic attack. Her main point of contact was the head of HR, Ms Maria Aitken. Ms Aitken informed her that she had to report the incident to the Local Area Designated Officer or LADO, i.e. the senior officer at the local authority responsible for such safeguarding matters [97].[41]Also that day Ms Dennis made a referral to the Nursing and Midwifery Council, NMC. We have some concerns about that step. The referral form records that Mrs Chapman was aware that the referral was being made, although that was not the case. The facts reported were quite basic. She was said to have been asleep on night shift for a child with complex needs, and to have falsified documents. The statement from grandmother was attached. So was the email from Mrs Chapman stating that she had taken co-codomol. The form also contains the following: Are you aware of anything making them particularly tired at the time of the incident(s)? No Do you consider their level of workload at the time of the incident(s) reasonable? Yes[42]So there was nothing to suggest that the long hours played any part in her falling asleep, nor the fact that she was monitoring a child in a dark room on her own after a succession of day shifts. The fact is that Mrs Chapman’s workload was very high at the time. During her previous visit to Child S in mid-April she had done 3 back to back night shifts, 2 of 14 hours and one of 12 hours, in breach of the Working Time Regulations 1998, which provide for a minimum of 11 hours between shifts.[43]There was also a report to the LADO in similar terms but with less detail. We accept that such a report was obligatory in the circumstances and is standard Page 10 of 15 practice for the respondent and in the sector generally, particularly given the potential serious consequences for the child.[44]Mrs Chapman was increasingly distressed over the weekend of 8 and 9 May. She wrote to Ms Aitken and others for more information about the reasons for her suspension and in those emails she raised the number of hours she had been working and the pressure to do the shifts. Ms Aitken replied on Monday morning to say that she would be invited to fact-finding meeting shortly, adding: “At the meeting your statements and all other relevant information can be discussed from yourself, together with the evidence that has been provided to us as part of this investigation. All other questions that you have emailed to various individuals of this company over the weekend and this morning can also be discussed at the meeting.”[45]Mrs Chapman felt this was very dismissive of her concerns, and indeed amounted to an act of harassment.[46]The fact-finding meeting took place the following day, 11 May. It was held by MS Teams. There was little notice of the meeting and Mrs Chapman wanted clarification of the allegations and time to prepare [117]. Her email raising these points said that she found it all extremely stressful, which we accept, although we should also note that in none of these emails did she make any mention of dyspraxia being a factor.[47]We can find no written request on her part to be accompanied but she says that she asked for her mother to be able to attend with her. It is not clear who she raised this with or when. Ms Josiah, from HR, records in her statement that Mrs Chapman simply told her that a friend, Marie Szewczyk would be joining and asked for her to be sent an invite. That seems to us the more likely recollection.[48]The meeting was with Ms Mackay, Ms Josiah as a notetaker and also Ms Dennis. There are two sets of minutes, although they are so close that they must be two versions of the same document. It seems that Ms Josiah was also accompanied by a new colleague, Davea Jones, who was there to practice note-taking.[49]So, the first set of notes at page 118 says that they were taken by Ms Josiah, although in fact this was, we conclude, a first draft by Ms Jones. It contains some gaps, highlighted in red, where she seems unsure of the exact point. There is then another set of notes [124] where these points have been amended, perhaps on the basis of Ms Josiah’s recollection or explanation, since she knew the context of the discussion. Confusingly perhaps, this second version listed them both as notetakers.[50]The notes show that the meeting lasted about two hours, during which Mrs Chapman was upset at times, and said that she had only been asleep for a short time that night, perhaps 30 minutes. At one point Ms Mackay put to her that they Page 11 of 15 had pictures of her with a blanket over her, although in fact they did not. There are no such pictures.[51]At the end of the meeting, Mrs Chapman is recorded in both versions of the minutes as being told by Ms Mackay that she could not have completed the observations properly if she was asleep and responding “I’m aware of all this”. In one version, those words are in capitals, indicating that she was raising her voice. That seems to us perfectly understandable in the circumstances, but Mrs Chapman raises it as one of the allegations of harassment, by portraying her in a bad light. We do not think it does particularly portray her badly. Nor do we accept that the version without the capitals [124] was added to defeat the allegation of harassment. This is the final version, but Ms Josiah may simply have felt that capital letters were unnecessary. Mrs Chapman was sent the earlier version for her comments, and noted at the top that her companion Maria was present, also that there was a lot missing, that it was an awful interview and that she felt intimidated and unprepared.[52](During the course of this hearing, Mrs Chapman made an application to strike out the response on the basis that these documents had been falsified, in the same way that the respondent had made such an application over the disputed emails, but we do not find that they had been falsified, and so that application is dismissed.)[53]We should note that Mrs Chapman also says in her witness statement that she had a discussion with Ms Mackay before the meeting and told her about her dyspraxia. Given that there was six people on the Teams call it seems unlikely that there would have been scope for any private, preliminary discussion of that sort, and there is no record in the minutes of it being mentioned. If the alleged conversation was in a separate discussion, it was not recorded and in either case we are not satisfied that any such discussion took place.[54]An investigation report was prepared by Ms Mackay following that meeting and it was considered by Ms Dennis (who had of course been there) and Mrs Dobson. It is not clear when they met to discuss it, but the result was a letter dated 20 May 2021 [210] signed by Maria Aitkin. The key paragraph stated: The investigation has now concluded and I confirm that the investigation managers found that there was evidence that you had slept whilst on a night shift which you admitted to doing so. However, it was felt that there was intent to sleep whilst on the shift. In relation to the documentation there was some evidence that the entries within the documentation did not marry up with the thermometer readings.[55]Those findings are somewhat unclear but the outcome was the termination of the contract. There was no right of appeal and that brought Mrs Chapman’s work for the company to a close. Page 12 of 15 Law and Conclusions[56]Given our finding that no one at the company knew about Mrs Chapman’s condition, there is little more that needs to be said about the applicable law. For the claim of harassment, the relevant test is at section 26 Equality Act as follows: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.[57]Hence, it needs to be some act which is sufficiently upsetting to violate Mrs Chapman’s dignity etc., which is a strong form of words. Here, the two acts are the use of capitals in the minutes of the fact-finding meeting and the tone of the email from Ms Aitken on 10 May, neither of which in our view approach the required standard.[58]For the claim of discrimination arising from disability, the test is at section 15 Equality Act, 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.”[59]Apart from the knowledge requirement at subsection (2) it is also necessary to establish that the dismissal or other action was for “something arising” from the dyspraxia, in this case the resulting fatigue. That is the way the case has been put but in fact Mrs Chapman was not dismissed because she was suffering from fatigue, she was dismissed mainly because she fell asleep during this nightshift (and, it seems, also to an extent, making up the observation sheet afterwards). There is really no background medical information or other medical evidence to suggest that her falling asleep was something arising from her dyspraxia. The fact is that the cause of her falling asleep is overwhelmingly likely to have been the Page 13 of 15 long hours that she was working, coupled with the travel obligations, and the large amounts of Co-Codamol she was taking.[60]It is not therefore necessary for us to go to consider whether dismissal was a proportionate means of achieving a legitimate aim, but given the risk to Child S we have no difficulty accepting the respondent’s case on that point.[61]The other allegations under this heading concern the decisions to suspend Mrs Chapman and to report her to the LADO. Again, we see no link between those steps and her fatigue. Even if it was shown that her falling asleep on the nightshift was something arising from her disability, these steps are clearly justifiable, i.e. a proportionate means of achieving a legitimate aim, since they are simply the normal and expected steps in handling the safeguarding concern of this sort.[62]As to the alleged failure to make reasonable adjustments, the alleged provision, criterion or practice which the respondent is said to have applied is not altogether clear from the list of issues. It seems to be suggested that employees generally are able to attend a disciplinary hearing with a work colleague or trade union representative and so this should have been applied to Mrs Chapman too. Mrs Chapman was not of course an employee and so this is not a comparison simply with persons who are not disabled it is a comparison with employees, but the fact of the matter is that she was accompanied by a friend or colleague at the meeting, or at least she was allowed to do so. Once again we do not conclude that she made a specific request for her mother to attend, let alone any refusal of that request, and so that cannot amount to a failure to make reasonable adjustments. Nor is it clear to us how her mother attending would have been an adjustment for her dyspraxia.[63]Once again, all that consideration may be beside the point. As already emphasised, in the absence of any company being aware of her disability was no basis for a finding of disability discrimination. It follows that none of the claims are made out and so the claim as a whole must be dismissed.