Miss D Wright v Arriva London South Ltd: 2305614/2019

EMPLOYMENT TRIBUNALS

Case No 2305614/2019

Between

Miss D WrightClaimant

Arriva London South LtdRespondent

Before

Employment Judge Matthews

Date 21 April 2021

JUDGMENT

[1]Miss Wright’s claim of unfair dismissal by reference to sections 94 and 98 of the Employment Rights Act 1996 was not presented to an employment tribunal before the end of the period specified in section 111 of the Employment Rights Act 1996. The employment tribunals have no jurisdiction to hear that claim, which is, therefore, dismissed.

[2]Miss Wright’s claims that she was discriminated against because of the protected characteristic of a disability of hers by reference to the Equality Act 2010 were presented to an employment tribunal before the end of the period specified in section 123 of the Equality Act 2010. The employment tribunals have jurisdiction to hear those claims.

[3]Miss Wright has or had a disability being Type 1 Diabetes. Any dispute over the period of time during which Miss Wright had this disability remains to be decided.

[4]Neither party seeks costs in relation to this preliminary hearing. Case No: 2305614/2019(V-CVP)

[5]As of the last day of this hearing, no further case management was necessary in preparation for the full matters hearing set down for 19-21 April 2021. Notes:

[1]The Hearing was a remote hearing using the Common Video Platform consented to by the parties. A face-to-face hearing was not held because of the constraints placed on such hearings by precautions against the spread of Covid-19. The Tribunal is satisfied that, in this case, the overriding objective of dealing with cases fairly and justly could be met in this way.

[2]On behalf of the Claimant, Mr Sekar wrote to the London South office of the employment tribunals on 29 August 2020. A reconsideration was sought of decisions made by Employment Judge Tsamados in a preliminary hearing on 18 June 2020. For the avoidance of doubt, this Judgment supersedes that request for reconsideration.

[1]The Claimant’s claim for direct disability discrimination is dismissed on withdrawal.

[2]The Claimant’s claims for discrimination arising from disability, indirect disability discrimination, failure to make reasonable adjustments, harassment related to disability and victimisation fail and are dismissed. ............................................................

REASONS

[1]The tribunal’s judgment and reasons were given orally on 21 April 2021 at the end of the liability hearing in this case. Written judgment was then sent to the parties on 24 May 2021. The Claimant’s counsel having requested written reasons, by email sent on 24 May 2021, the following are those written reasons. Claims and issues

[2]The tribunal heard this case over three days from 19 to 21 April 2021 inclusive. The tribunal became aware after the end of the first day of the hearing that the Claimant had presented a second claim against the Respondent (Case No. 2308158/2020) on 9 December 2020. The tribunal saw a copy of the second ET1, which appears in large part to cover the same ground as this claim. However, the ET1 had not yet been served on the Respondent and this hearing was not listed to deal with that second case. The tribunal therefore restricted its findings to this first case and, if the Claimant chooses to pursue it, her second case will have to run its course separately.

[3]The claims in this case as originally presented were for unfair dismissal and disability discrimination.

[4]The tribunal found at a Preliminary Hearing (‘PH’) in January 2021 that the unfair dismissal claim was presented out of time and that it had no jurisdiction to hear it; it was therefore dismissed. The tribunal also found at the same PH that it did have jurisdiction to hear all of the disability claims on the basis of the just and equitable extension. Those disability claims were therefore the live claims to be dealt with at this hearing, although the Claimant’s counsel indicated in closing submissions that the direct disability discrimination claim was withdrawn.

[5]The tribunal was provided with an agreed list of issues and further clarification was given during the course of the hearing. The agreed claims and issues were as follows:5.1 Disability The disability relied on is an impairment arising from Type 1 diabetes. Two other conditions were mentioned in the list of issues but no longer relied on.

5.2 The Respondent accepts that the Claimant was disabled as a result of Type 1 diabetes at all times material to the claim; this was from 8 May 2019 at the latest.

5.3 The Respondent also accepts that it had relevant knowledge of the Claimant’s disability at all material times.

5.4 There was therefore, by the time the hearing reached closing submissions, no live issue concerning disability or knowledge.

5.5 Section 15 – discrimination arising from disability The ‘something arising’ is said to be the suspension of the Claimant’s PCV licence, which she required to drive buses for the Respondent.

5.6 The unfavourable treatment relied on is:5.6.1 Dismissal; and/or

5.6.2 Failing to wait to see if the Claimant’s condition could be controlled by medication so that she could have her PCV licence back.

5.7 The Respondent accepts that those elements of the test under section 15 of the Equality Act 2010 (‘EqA’) are satisfied, but relies on objective justification:

5.8 The legitimate aims relied on are: From the list of issues, which was said to give ‘non-exhaustive examples’5.8.1 The health and safety of the Claimant, passengers and other road users; and/or

5.8.2 The need to ensure sufficient drivers to deliver services without undue impact on the wellbeing and safety of those other drivers; From the Respondent’s evidence and closing submissions

5.8.3 The need to fulfil the Respondent’s contractual obligations and the need to manage the costs of covering the Claimant’s absence, including the cost of overtime and late mileage penalties paid to Transport for London (‘TfL’) if services did not run due to lack of staff available to deliver the required services.

5.9 Indirect discrimination The PCP was said to be dismissing the Claimant after a set amount of absence rather than waiting for 3 months’ monitoring as required by the DVLA to see if the Claimant would get her PCV licence back.

5.10 If necessary, the Respondent would rely on the same defence of objective justification as outlined above.

5.11 Reasonable adjustments The PCP relied on was not clear from the list of issues, but was clarified during the hearing as being:5.11.1 Not extending the procedure ‘so it could be known what the objective medical evidence meant’; and

5.11.2 Not extending the procedure so it could be known whether the DVLA would give the Claimant her licence back.

5.12 The adjustments contended for were:5.12.1 Waiting for the Claimant to complete and send 3 months’ medical data;

5.12.2 Waiting for the DVLA to reinstate the Claimant’s PCV licence.

5.13 Harassment The conduct relied on was as follows: By Dave Monk:5.13.1 Ordering the Claimant to attend fortnightly meetings from around 4 June 2019;

5.13.2 Repeatedly asking the Claimant for a return to work date in a hostile tone;

5.13.3 Saying he did not believe the date of return proposed by the Claimant without explaining why;

5.13.4 Arranging a meeting between the Claimant and Bob Pettitt with a view to dismissing her whilst failing to inform her of the purpose of the meeting or of her right to be accompanied; By Bob Pettit

5.13.5 Saying he did not believe the date of return proposed by the Claimant without explaining why.

5.14 Victimisation The Claimant confirmed at the start of the hearing and again in closing submissions that she no longer relies on a 2014 complaint (which is mentioned in the list of issues) as a protected act. The sole alleged protected act now relied on is a complaint ‘on or around 15 July’ (in fact the complaint was identified as an email on 16 July 2019 to Nick Bland).

5.15 The detriments relied on were confirmed as:5.15.1 Dismissal;

5.15.2 Not waiting for 3 months’ medical data;

5.15.3 Failing correctly to follow the procedure laid down for a capability dismissal; Evidence and findings of fact

[6]The tribunal was provided with an agreed bundle of documents.

[7]The Claimant gave evidence on her own behalf by reference to a written witness statement. She also relied on a statement from her daughter which the tribunal took into evidence but in respect of which, in respect of liability issues, the Respondent had no questions.

[8]The Respondent called three witnesses:8.1 Dave Monk, Deputy Operating Manager at Thornton Heath Garage;

8.2 Bob Pettitt, Operating Manager at Brixton Garage (and dismissing officer);

8.3 Nick Bland, Area Manager (and chair of the appeal panel).

[9]The tribunal also notes that the Claimant raised in closing submissions a number of matters which were said to be supported by the transcript of a meeting on 17 July 2019 which the Claimant had recorded covertly. The tribunal was not told who had transcribed the recording but the transcript was not significantly challenged by the Respondent in cross-examination. The tribunal indicated during the parties’ closing submissions that it had not read the transcript in its entirety as it had not been asked to do so, but in light of the Claimant’s submissions the tribunal has read and taken into account the entire transcript as part of its deliberations.

[10]In light of all the evidence read and heard by the tribunal, it made the following unanimous findings of fact:10.1 The Respondent is a company which operates bus services in the London area. It has a contract to do so with TfL. Under that contract, if the contracted level of service is not provided, eg because a particular bus does not run on any day when it is scheduled to run, then financial penalties are imposed by TfL on the Respondent. The Respondent’s unchallenged evidence was that the level of fines is around £400-500 per duty missed.

10.2 The Claimant was employed by the Respondent as a bus driver based at its Thornton Heath garage from 7 February 2008 to the effective date of termination of her employment on 17 July 2019.

10.3 The tribunal has seen no evidence of any previous disciplinary or capability issues concerning the Claimant.

10.4 The tribunal notes here that the Claimant refers in her statement to a complaint about Mr Monk in 2013 or 2014 although no detail is given, Mr Monk was not asked about it in cross-examination, and there is nothing in the documents about it. Mr Monk does refer to this alleged complaint in his statement but says that he does not recall any such complaint. In the circumstances, and since the Claimant no longer relies on any pre-2019 complaint as part of her case, the tribunal makes no finding as to any complaint made by the Claimant about Mr Monk in 2013 or 2014.

10.5 The tribunal has seen evidence of a complaint raised by the Claimant against a former manager, Gordon Elliott, concerning an incident whilst on duty where it was said that she had not answered her radio. It seems that this was raised with her by Mr Elliott and her complaint was that she felt targeted and upset about his ‘countenance, stance, tone and demeanour’. The outcome she sought was that she did not want to have to deal with Mr Elliott about work matters. Her grievance was considered by Annette Ryland, Operating Manager, but was not upheld.

10.6 The Claimant had had two periods of sick absence, totalling around 3 weeks, during 2018 and prior to her final absence.

10.7 The Claimant’s final period of sick absence commenced on 30 October 2018 following heart palpitations. She then remained off sick for that reason until late April 2019, ie for nearly 6 months.

10.8 The Respondent’s systems generated electronic absence reports on a regular basis which were emailed to managers. By 19 November 2018 it was being reported to managers that she had had continuous absence of more than 3 weeks which was classed as long term and should be reviewed by management with a possible referral to Occupational Health (‘OH’).

10.9 The Claimant saw an OH doctor on 18 December 2018. It was reported that she had palpitations and shortness of breath, was unable to drive buses as a result, and that this required investigation.

10.10 The Claimant met with Ms Ryland on the same day, after the OH appointment. The tribunal has seen a standard form which was completed by Ms Ryland. The tribunal heard evidence that this form was designed by a manager for his own use and that some other managers found it helpful and also started to use it, but it was not a requirement or part of the Respondent’s policy that managers should use this form to record sickness review meetings. The tribunal accepts that evidence, which was effectively unchallenged.

10.11 The typed content that had been added to the standard form reflects (in more narrative form) handwritten notes which the tribunal was told were taken by Ms Ryland at the meeting. However, in so far as it was suggested by the Claimant that either set of notes was a full transcript of everything said between the Claimant and Mr Ryland, the tribunal does not accept that. Both sets of notes record the salient points of the meeting and no more.

10.12 There were then further regular review meetings in early 2019, including with Mr Elliot (Deputy Operating Manager) on 17 January 2019. He also completed the same standard form as Ms Ryland had. There are no handwritten notes of this meeting in the bundle. Again the form records the salient points in summary form, and on this occasion the Claimant signed the form.

10.13 Another review meeting was held a fortnight later, on 31 January 2019, again with Mr Elliot and again there are no handwritten notes in the bundle. The same standard form was used.

10.14 In each of the notes of the review meetings referred to above, it was recorded that under the Respondent’s policy for long term sick absence, where there is prolonged absence it may be appropriate to consider terminating employment on medical grounds, and that this would apply if no confirmed return to work date could be given in the foreseeable future and no alternative work was available.

10.15 The Claimant’s heart condition was investigated and she agreed a return to work date in late April 2019. However, on 29 April 2019 the Claimant emailed Ms Ryland to say that she was suffering from new symptoms which her doctor had said may be the result of untreated diabetes. As a result, she would not be able to return to work as agreed, but she said that she was confident she could return very soon.

10.16 In reply, the next day, Ms Ryland said that she would need to review the Claimant’s sick absence again since she had been off for so long, and, as previously discussed, she could not keep her job open indefinitely. She said that she had made another OH appointment for the Claimant.

10.17 On 8 May 2019 the Claimant was signed off by her GP until 6 August 2019 with ‘newly diagnosed diabetes’.

10.18 The Claimant saw an OH doctor, also on 8 May 2019, who confirmed that she had newly diagnosed diabetes, that she was currently on insulin and that she would be unable to drive buses until DVLA standards had been met, which included 3 months of glucose readings, a specialist report and a DVLA investigation. He also said that in his view he felt that she was disabled within the meaning of the EqA.

10.19 Around this time, the Claimant notified the DVLA of her diagnosis and her PCV licence, required to drive buses, was suspended. She was provided with information which indicated, in brief, that the DVLA process involved 3 stages:

(a) at least 3 months’ stable blood glucose readings,

(b) the matter would then be referred to her GP to complete a specialist questionnaire having examined the Claimant, and

(c) it would then be referred back to the DVLA who would refer it to an independent specialist to complete a specialist questionnaire having also examined the Claimant. The DVLA would then make a decision as to whether the Claimant should be given her licence back.

10.20 The Claimant remained off sick, and on 18 May 2019 she emailed Ms Ryland to ask about replacing a supervisor in the garage office who had retired or, if there was no available role, whether she could come in for voluntary work experience to learn new skills.

10.21 Ms Ryland replied the same day saying that the Respondent could not create a new role for someone who was unable to work in their usual job, that she was about to be away from the office for a while, that she had asked Mr Monk (who was the new Deputy Operating Manager having replaced Mr Elliot in April) to make an appointment to discuss available alternative employment and that all options now needed to be considered, including consideration of terminating her services on medical grounds.

10.22 On 21 May 2019 Mr Monk wrote to the Claimant inviting her to a meeting on 28 May 2019. They duly met on 28 May 2019. The Claimant was accompanied by a union representative. This was the only meeting the Claimant had with Mr Monk.

10.23 Mr Monk said in evidence that it is his practice to take brief handwritten notes in meetings which he then uses as a prompt to type up the key points discussed immediately afterwards. His record of the meeting on 28 May 2019 is in the form of a two page letter of the same date. He noted the reasons for the Claimant’s absence and that she felt OK and was frustrated that she was unable to return to work because of the DVLA process. He noted that they discussed alternative work, that she was not interested in anything outside London and he set out a list of all vacancies in London, although noted that the Claimant had said she did not feel that any was compatible.

10.24 He also noted that they had discussed the retired supervisor but he had said that they were not replacing him. He reminded her that if a reasonable return to work date could not be provided then termination would have to be considered. He invited her to a further meeting on 18 June 2019.

10.25 It is right that the letter of 28 May 2019 did not say specifically that the Claimant’s employment may be terminated at the next meeting or that she could be accompanied at that meeting.

10.26 The tribunal notes at this point that it was shown a pro forma headed ‘Long Term Sick – Case Summary’. This was completed initially by Ms Ryland on 16 May 2019. It sets out the sums that would be payable to the Claimant if she were to be dismissed on medical grounds. The tribunal accepts the Respondent’s evidence that termination payments on medical dismissal may be enhanced, in that the normal 12 week cap on pay in lieu of notice is disapplied and replaced with a 21 week cap. In fact, as the Claimant had only been employed for 11 full years, ultimately there would be no enhancement to her termination payment.

10.27 The signature box on the pro forma which was signed by Ms Ryland is headed ‘Recommended for Medical Termination by manager’. It was then counter-signed by a director on 10 June under the heading ‘Approval for Medical Termination’. The Claimant says that this shows that the decision to dismiss her had already been made in May 2019 and she says that the decision was made by a combination of Ms Ryland, Mr Monk, Mr Pettitt and possibly Mr Bland.

10.28 However, even if the form could have been worded more clearly, the tribunal accepts the Respondent’s consistent evidence as to the purpose of this form. The tribunal was told, and accepts, that a new Finance Director had started some time before May 2019 and was concerned at the number of medical dismissals, with sometimes substantial payments, which were causing problems maintaining the balance sheet. As a result he introduced a system where approval had to be obtained at director level for any payment on medical termination. If approval at a particular time would cause balance sheet problems because of the number of other approved payments at or around that time, then termination could be delayed to spread out the adverse effect of the payments. However inelegantly the form was worded, the purpose and intent behind Ms Ryland completing the form when she did was that if a decision were ultimately taken to dismiss the Claimant on medical grounds (a possibility which had been raised with the Claimant a number of times since December 2018), then there was already authority to make the relevant payments to her. There was not, the tribunal finds, any decision taken to dismiss the Claimant before the decision by Mr Pettitt at his second meeting with the Claimant in mid-July 2019.

10.29 Ms Ryland, having returned from a period of absence, was then again unavailable to deal with the next meeting, so Mr Pettitt, an Operating Manager from another garage, was asked to step in. The reason Ms Ryland, and then Mr Pettitt, was going to hold the next meeting was because Mr Monk did not have authority, if this was the ultimate decision, to terminate employment.

10.30 On 18 June 2019 the Claimant and her union representative met with Mr Pettitt. Although the invitation letter did not spell out that she could be accompanied, the Claimant was in fact accompanied by a union representative who was available as he had been released for the whole day because there were a number of other long term sickness reviews being undertaken.

10.31 As with Mr Monk’s previous meeting, Mr Pettitt produced a typed summary of the meeting to which he made a few handwritten additions. The notes say in terms that they are only a summary.

10.32 One point made by the Claimant is that Mr Pettitt’s notes of this meeting and the next meeting are very similar. That is because Mr Pettitt used a pro forma to make sure that he covered all the things he wanted to cover, and to which he then added in light of what was discussed at each meeting. There is nothing untoward in that.

10.33 He noted that the DVLA had suspended the Claimant’s licence and that she would need 3 months of data to get her licence back. He noted that the data shown to him indicated good results so far. He asked the Claimant if she had been given a return date and she said there was a possibility that her licence would be returned in August. They discussed alternative work and the Claimant asked for details of two vacancies which were sent to her.

10.34 Mr Pettitt then informed the Claimant that in accordance with policy he would have to weigh up the prospects for a return to work within a reasonable timescale against the company’s operational needs given that she had now been absent for over 200 days. He said he would adjourn the meeting to make a decision as to whether the company could wait any longer. It was at that point that the Claimant said she was not aware that termination might be an outcome of the meeting, so Mr Pettitt adjourned the meeting for that reason, and also so that she could apply for any available vacancies. He made it clear that if there was still no return date by the time of the next meeting, termination would be considered. She confirmed that she understood.

10.35 Before the next meeting the Claimant did apply for an alternative role, Deputy Operating Manager (which would have been a significant promotion), but was unsuccessful. She was made aware of, but did not apply for, other vacant roles.

10.36 On 4 July 2019 Mr Monk wrote to the Claimant inviting her to a meeting with ‘a manager’ on 11 July. As the tribunal understands it, the Claimant says that she did not receive this invitation, but in any event the meeting was postponed to the following Monday, 15 July 2019.

10.37 Then, on the morning of 15 July, it seems that the Claimant spoke with Mr Monk on the phone to say that she had a domestic emergency and could not attend. Mr Monk emailed at lunchtime that day to confirm that the meeting was rearranged for 17 July but that the Claimant was not entitled to choose the manager who would conduct the meeting.

10.38 The Claimant replied that afternoon, essentially saying that she was entitled to choose which manager conducted meetings and that ‘I expect my wish to be honoured’.

10.39 Later that same evening, the Claimant wrote a detailed complaint email about Mr Monk which she sent to herself. She did not send it to anyone else.

10.40 The next morning, 16 July 2019, the Claimant emailed Ms Ryland effectively to ask when she, Ms Ryland, would be available to hold the next meeting. Ms Ryland wrote back the same morning to say that she was out of the office and could not say whether she would be available, but that the review meeting had to go ahead on 17 July.

10.41 Also on 16 July 2019, the Claimant emailed Mr Bland, giving the subject as ‘grievance’ and raising a complaint against Mr Monk. She said that she did not want to set out the grievance in full but that Mr Monk had targeted her on two occasions and, amongst other things, that she could never feel comfortable in his presence. The tribunal notes a number of similarities with her 2018 complaint against Mr Elliott.

10.42 There was no mention in this email of disability or discrimination or of anything from which it could reasonably be inferred that this was a complaint about discrimination or anything else under the EqA.

10.43 A further meeting took place with Mr Pettitt on 17 July 2019. The Claimant attended with a union representative. The tribunal has seen Mr Pettit’s typed notes of the meeting which are in similar form to the notes of the previous meeting.

10.44 The Claimant was asked if there had been any change in her condition since the previous meeting, and she said there had been continued improvement and her blood sugar had stabilised. She had seen her GP two days earlier and he was happy with progress. They discussed a return to work date, the Claimant saying that she had no date from her GP because it was a DVLA decision, and they had said that she would need 3 months’ data and then a decision would be made. She then said that she would return to work on 11 September 2019. When asked whether this was a date given by the DVLA, she said it was the date she expected to be back.

10.45 Mr Pettitt adjourned the meeting for nearly an hour to consider everything presented to him, and when he reconvened the meeting he said that his role was to weigh up the prospect of a return within a reasonable timescale against the Respondent’s operational needs. Alternative work had been considered but the Claimant’s only application had not been successful. He noted the DVLA process and the Claimant’s opinion that she would be able to return on 11 September. He noted that she had been absent for 230 days and that, even on the Claimant’s timescale, it would be a total absence of over 9 months.

10.46 Mr Pettitt said that he had concluded that there was no definite return date, there would be no return within a reasonable timescale and so he had taken the difficult decision to terminate employment on medical grounds with pay in lieu of notice.

10.47 As noted above, the Claimant had covertly recorded the meeting. The tribunal has a transcript. It is the Claimant’s suggestion that Mr Pettitt’s notes of this and other meetings, and Mr Monk’s notes of his meeting, deliberately omitted material things to facilitate her dismissal, which had in fact already been decided in May. The Claimant says that the transcript demonstrates this. The tribunal disagrees. Mr Pettitt’s notes were always intended as a summary of the key points discussed, and that is what they are.

10.48 Looking at the transcript, it is clear that this was a long and often fractious meeting. There were many occasions on which the Claimant and/or her union representative talked over Mr Pettitt. On various other occasions the Claimant gave what could be described as long speeches. The tribunal is not saying that that was inappropriate; this was inevitably a difficult meeting for someone in the Claimant’s position. However, it does not support the Claimant’s assertions as to the content or tone of the meeting.

10.49 One point the Claimant says is important is that Mr Pettitt’s notes do not record concerns about obtaining further medical evidence. The Claimant said that she had asked her GP for a letter but he wanted to charge her and she could not pay. The Claimant’s point, it seems, is that she says the Respondent should have sought further medical evidence from her GP. However, the transcript shows that the Claimant herself confirmed at the meeting that her GP would not write a letter ‘midstream’ (ie before the end of the DVLA process) just to say that things were going quite well.

10.50 It is also notable from the transcript that Mr Pettitt accepted what the Claimant said about her condition stabilising and that no one was disputing that she wanted to come back to work.

10.51 Another point made by the Claimant is that Mr Pettitt never told her why he did not accept that she would be able to return on the date she said. The first point is that she gave three different dates during the meeting. But it is also clear that Mr Pettitt did confirm that the outcome of the DVLA process was never as simple as just waiting for the 3 months’ data. He confirmed that the DVLA would need to analyse the data and talk to her GP, then follow the rest of the procedure. He confirmed that from his experience when dealing with a lot of such cases, the DVLA do tend to drag their feet. He described the Claimant’s suggested return date as ‘misplaced optimism’. In fact it was the experience of Mr Pettitt and the Respondent in general that stages 2 and 3 of the DVLA process usually took 2-3 months after the initial 3 months of stable blood sugar readings.

10.52 The tribunal cannot see that there is any material difference between Mr Pettitt’s notes and the transcript in terms of key points which were relevant to his decision.

10.53 The decision to dismiss was confirmed in writing on 18 July 2019.

10.54 The Claimant appealed on 24 July 2019 to Mr Bland, and he replied the same day inviting her to an appeal meeting on 30 July 2019.

10.55 The appeal meeting took place on 30 July 2019 before a panel of Mr Bland and an Operating Manager, Davina Henry. The Claimant was again accompanied by a union representative.

10.56 The evidence available at the appeal was much the same as before, save that the Claimant had another two weeks or so of blood sugar readings, which continued to be heading in the right direction.

10.57 Having adjourned to consider their decision, the appeal panel announced that the appeal was not upheld. However, Mr Bland did invite the Claimant to reapply to the Respondent if and when her PCV licence was returned to her.

10.58 The appeal decision was confirmed in writing in a letter of the same date.

10.59 The Claimant did not in fact start the second stage of the DVLA process until some time around late October 2019. Her PCV licence was then returned to her in early December 2019.

Law

[11]The tribunal has reminded itself of the key provisions of relevance to this case, in particular the following sections of the EqA: ‘15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. …

[19]Indirect discrimination(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. …

[20]Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. …

[21]Failure to comply with duty(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. …

[26]Harassment (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. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. …

[27]Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. …’ 12. The tribunal has also reminded itself of relevant guidance from appellate authority, including the following cases which were referred to by the parties in their submissions: Barry v Midland Bank

[1999] ICR 859

, HL Pnaiser v NHS England & Anor

[2016] IRLR 170

, EAT Griffiths v Secretary of State for Work and Pensions

[2016] IRLR 216

, CA Buchanan v Commissioner of Police of The Metropolis

[2017] ICR 184

, EAT Submissions 13. Both parties made closing submissions by reference to written submissions, which they each supplemented orally. The tribunal has taken into account all of the points made by the parties, but given that the parties have set out the key aspects of their respective positions in writing, the tribunal does not consider it necessary to repeat those submissions here. Discussion and conclusions 14. The tribunal considered each of the remaining disability claims in turn. Section 15 – discrimination arising from disability 15. As noted above, the Claimant’s case is that her dismissal and/or the failure on the part of the Respondent to wait to see if her condition could be controlled by medication so that she could have her PCV licence back were unfavourable treatment because of the suspension of her licence, which arose in consequence of her disability. As also noted above, the Respondent accepts the Claimant’s case to that extent. This aspect of the case therefore turns on the question of whether the Respondent can show that its conduct was objectively justified. 16. Two legitimate aims were formulated in the list of issues. However, the health and safety of the Claimant and passengers and other road users when she driving was not really in issue, (a) because she could not drive until cleared as safe by the DVLA, and so achieving this aim was out of the Respondent’s hands in any event, and (b) because it was not pursued by the Respondent at this hearing. The second aim raised in the list of issues was the need to ensure that there were sufficient drivers available to deliver services without undue impact on the wellbeing and safety of those other drivers who having to cover her role, but the tribunal has not heard evidence about that and, again, it was not pursued by the Respondent at this hearing. 17. In evidence and submissions, the Respondent raised a somewhat different legitimate aim, ie the need to fulfil its contractual obligations and the need to manage the costs of covering the Claimant’s absence, including the cost of overtime and late mileage penalties paid to TfL if services did not run due to lack of staff available to deliver the required services. The Claimant said in submissions that this is not something set out in the agreed list of issues. The tribunal has considered that point, but the further aim now relied on was clearly set out in the Respondent’s witness statements and in the contemporaneous documents, eg Mr Pettitt’s notes of his meetings with the Claimant. 18. The tribunal has also considered the Claimant’s point that there is no detailed documentation to show the precise cost of covering the Claimant’s absence. However, the tribunal has been provided with clear witness evidence to the effect that:

18.1 the Respondent cannot use agency staff to cover absence because of an agreement with the recognised union (and agency staff would be more expensive in any event),

18.2 it therefore has to use existing staff to cover absences;

18.3 that requires the Respondent to try to find people to cover absences and well as their regular duties, and to pay at overtime rates even if they can;

18.4 it also gives rise to an obvious risk that the Respondent may not be able to cover every shift, in which case there would be significant financial penalties imposed by TfL. 19. In all the circumstances, the tribunal finds that the need to fulfil contractual obligations and to manage the cost of doing so was a legitimate aim. It represented a real business need on the part of the Respondent. The aim included consideration of cost, but cost was not the sole consideration and so it was, the tribunal finds, capable of being, and was, a legitimate aim: see Heskett v Secretary of State for Justice

[2010] EWCA Civ 1487

. Although not strictly necessary, the test being an objective one, the tribunal also finds that this was, in fact, the aim relied on by the Respondent at the time as is clear from the witness evidence and the contemporaneous documents. 20. The tribunal now turns to the question of whether the unfavourable treatment relied on was a proportionate means of achieving the legitimate aim. The tribunal accepts that the Claimant found herself in an unfortunate position, and through no fault of her own. Had she only had the first period of sick absence for heart palpitations, then the chances are that she would have come back to work in late April 2019 as had been agreed. Had she only had the second period of sick absence, then the Respondent’s decision might have been different. However, the position in which the Claimant found herself was that her absences for palpitations and then diabetes led to a continuous absence of nearly 9 months’ duration by the date of the dismissal meeting, and there was no firm or reliable date on which she could be expected to return. 21. The tribunal accepts, as the Claimant has urged upon us, that the DVLA process may well be aimed at getting diabetic drivers back to work and that it requires a number of steps to be completed, but the position by mid-July 2019 was that stage 1 of the process would not be completed before mid-August at the earliest, and, as far as the Respondent reasonably knew at the time, stages 2 and 3 would take at least another 2 to 3 months thereafter. That would take the Claimant’s total absence to a year or more, and with no guarantee as to timing or outcome at the end of the process. 22. In all circumstances, the tribunal finds that not waiting for the DVLA process to be completed, and proceeding with dismissal, were proportionate means of achieving the Respondent’s legitimate aim; to use the language of the Barry case, the Respondent’s actions were reasonably necessary to achieve that aim. Indirect discrimination 23. The Claimant said in closing submissions that this and the section 15 claim are likely to stand or fall together. The tribunal agrees. Even if, which to the tribunal is not clear, the Claimant could satisfy the first three elements of the section 19 test (and we note here that the PCP relied on is dismissing after a set time, which on the evidence the Respondent did not do) this part of the claim would fail on the basis that the Respondent has established objective justification for the Claimant’s dismissal for the reasons set out above. Reasonable adjustments 24. Again, even if the Claimant would be able to surmount the initial hurdles of showing that a duty to make reasonable adjustments arose at all, and in this context the tribunal notes that the PCPs now relied on are essentially the reverse of the adjustments for which she contends, the first adjustment contended for would not have avoided any disadvantage to the Claimant in that waiting for 3 months’ data would have completed stage 1 of the DVLA process at most, whereas there were two further stages to be completed before the DVLA would consider returning her PCV licence. 25. As for the second adjustment, ie waiting until the end of the DVLA process to see whether the Claimant’s licence would be returned to her, the tribunal has already found that the Respondent’s actions in that regard were reasonably necessary. In the circumstances, the tribunal also finds that it would not have been reasonable to expect the Respondent to wait until the end of the DVLA process, which as far as the Respondent knew from previous experience would have been another 3 to 4 months from the date of dismissal, ie another month at least to complete stage 1 and then another 2 to 3 months to complete stages 2 and 3. 26. Although not part of the issues as identified by the parties before or at this hearing, the tribunal has heard evidence about the search for alternative work for the Claimant. However, even if a duty to take reasonable steps to find alternative work for the Claimant arose, it was clearly complied with. The Claimant was sent information about every vacancy in London (she having said she was not interested in anything anywhere else) and she was allowed time to apply. Victimisation 27. This claim can be dealt with shortly. The tribunal finds that there was no protected act within the meaning of section 27 of the EqA. The Claimant has invited the tribunal to read the Claimant’s email to Mr Bland in the context of previous events, but the tribunal cannot infer in all the circumstances that her email was raising anything to do with the EqA or that it could reasonably be perceived as having done so. Harassment

Discussion and conclusions

[28]Finally, the tribunal comes to the harassment aspect of the case. This raises a number of specific allegations against Mr Monk, and one against Mr Pettit. Dealing with each in turn:28.1 Did Mr Monk order the Claimant to attend fortnightly meetings from around 4 June 2019? Mr Monk did not order the Claimant to do anything. In so far as he invited her to meetings, he did not invite her to fortnightly meetings. The only meetings after he became involved were on 28 May 2019 (with him) and then 18 June and then another on 17 July 2019 (postponed from 11 and then 15 July) (both with Mr Pettitt); those were not fortnightly. This allegation therefore fails on the facts.

28.2 Did Mr Monk repeatedly ask the Claimant for a return to work date in a hostile tone? Mr Monk only met the Claimant once, on 28 May 2019. In so far as the tribunal has heard any evidence about the tone of meeting (and we note that hostility or a hostile tone were not put to Mr Monk in crossexamination) we accept that Mr Monk was professional throughout the meeting and in all his other dealings with the Claimant. In so far as he asked the Claimant about a return to work date during the meeting, the tribunal finds that this was in accordance with the Respondent’s standard procedures, and notes that no complaint was made about this either at or immediately after the meeting (at which the Claimant was represented). In any event, and taking into account all the circumstances, the tribunal does not accept that asking about a return date had the purpose or effect required under section 26 of the EqA.

28.3 Did Mr Monk say that he did not believe the date of return proposed by the Claimant without explaining why? It was the Claimant’s evidence to the tribunal that she said at the 28 May meeting that she would return after the monitoring ended in August, but that she could not give a date because it was dependent on the outcome of the monitoring and the DVLA’s consideration of the results of that monitoring. On that basis, this allegation fails on the facts: the Claimant was clear that she was not able to give a return date at that time.

28.4 Did Mr Monk arrange a meeting between the Claimant and Mr Pettitt with a view to dismissing her whilst failing to inform her of the purpose of the meeting or of her right to be accompanied? No meeting was arranged with a view to dismissing the Claimant; as noted above, the tribunal does not accept that a decision to dismiss had been made in May 2019 or at any time before Mr Pettitt adjourned his second meeting with the Claimant on 17 July 2019 to reach his decision. It is right that Mr Monk did not specifically tell the Claimant that she could be accompanied at the next meeting, but the Claimant must have known that she could be accompanied, as she was at all relevant meetings, and she was in fact accompanied at the next meeting. Mr Monk did warn the Claimant at his meeting on 28 May that one option would be termination (as the Claimant had been told consistently since December 2018) but he did not say in terms that that might happen at the next meeting. However, as soon as the Claimant told Mr Pettitt at his meeting on 18 June that she did not realise that dismissal could be one outcome of the meeting, he adjourned to another date some weeks in the future. That being so, the tribunal finds that the failure to inform the Claimant in terms that dismissal might be one outcome of the June meeting did not, in all the circumstances, have the effect required by section 26(1)(b) of the EqA. Further, the tribunal finds that the failure by Mr Monk to be as specific as he could have been in his invitation was not related to disability. This aspect of the Respondent’s handling of the procedure could have been better. For example, the Respondent could have implemented a system of standard form meeting invitation letters which would spell out all relevant matters, but in terms of a claim of disability-related harassment, it does not succeed.

28.5 Did Mr Pettitt say he did not believe the date of return proposed by the Claimant without explaining why? This allegation fails on the facts: as already noted above, it is clear from the transcript of the meeting with Mr Pettitt that he did explain why he did not accept the return date(s) proposed by the Claimant.

[29]In all the circumstances, the Claimant’s claims for disability discrimination, harassment and victimisation fail and are dismissed. ............................................................