Mr E P Briggs v Lancashire County Council and Others: 2400274/2022

EMPLOYMENT TRIBUNALS

Case No 2400274/2022

Between

Mr E P BriggsClaimant

1. Lancashire County Council 2. The Governing Body of White Ash Primary School 3. Governor Support LimitedRespondent

Before

Employment Judge Leach

Mr K Ali (instructed by Counsel) for respondent

Date 9 October 2023

JUDGMENT

[1]The claimant's complaint of unfair dismissal was presented out of time. It was reasonably practicable for the complaint to have been presented in time and it is therefore dismissed.

[2]The complaint of discrimination (protected characteristic of sex) was presented out of time. It is not just and equitable to allow an extension of time such that the complaint can proceed and it is therefore dismissed.

[3]The remaining complaint against the first and second respondent ( failure to comply with duty to make adjustments under s20 and 21 Equality Act 2010) proceeds to a final hearing.

[4]All complaints against the third respondent (Governor Support Limited) are dismissed following withdrawal by the claimant. Case No. 2400274/2022 2

REASONS

[1]This is a case where it is agreed that the claimant was a disabled person within the meaning of section 6 Equality Act 2010 by reason of a mental impairment of anxiety and depression. By the time of this hearing the respondent had also agreed that they knew the claimant was disabled at the relevant time.

[2]The claimant was represented throughout the hearing by his mother, Mrs Briggs. The respondents were represented by Mr Ali, counsel.

The Issues

[3]The issues for the Tribunal to decide in this case were very narrow and are set out below. The Tribunal understands that from the claimant’s perspective and that of his mother, there are many concerns that they wished to raise in relation to the termination of the claimant's employment. However, the only issues which were relevant for the Tribunal were those identified by Judge Leach at a case management hearing in October 2022.

[4]The claimant was employed to work at White Ash Primary School as a Teaching Assistant. We find White Ash Primary School is a school for children with disabilities.

[5]The claimant was employed by Lancashire County Council, the first respondent, but we find as stated in the Response that the Council delegates appointment and dismissal duties to the second respondent, The Governing Body of White Ash Primary School, under Part 2 of the School Staffing (England) Regulations 2009.

[6]The claimant was employed at the school from 1 January 2015 until his employment was terminated by reason of gross misconduct on 22 October 2020.

[7]The issues were identified by Employment Judge Leach at a case management hearing on 14 October 2022. At that hearing Employment Judge Leach struck out the claimant's claims for whistleblowing dismissal, whistleblowing detriment and unfair dismissal.

[8]The only issues for this Tribunal are set out at Appendix A of his Case Management Order, to be found at pages 105 and 106 of the agreed bundle. By the time of this hearing a number of those issues had been agreed by the respondents. As we have indicated, there was no dispute that the claimant was a disabled person within the meaning of section 6 Equality Act 2010 by reason of the impairment of anxiety and depression. There was no dispute that the respondent knew the claimant was disabled at the relevant time. There was no dispute that the respondents had applied two provisions, criteria or practices. These were: (1) A practice of only allowing representation by a trade union representative or work colleague at a disciplinary or disciplinary appeal meeting; and

[9]The issues which remained in dispute were:(1) Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability in that the claimant's medical impairment was such that he had switched off from wider society and would not engage with any representative, or potential representative, other than a close family member?

(2) Did the respondents know, or could they reasonably have been expected to know, that the claimant was likely to be placed at the disadvantage?

(3) Did the respondents fail in their duty to take such steps as it would have been reasonable to have taken to avoid the disadvantage? The claimant says that the following adjustments to the PCP would have been reasonable: (a) In relation to the insistence on holding a hearing on the scheduled date, allowing a postponement of the hearing to enable the close family to review and understand all documentation provided to ensure she can provide adequate representation (whether in person or in writing) to the disciplinary panel; (b) Allowing a close family member to represent the claimant, as the claimant would then be willing and able to engage with his representative.

(4) By what date should the respondent reasonably have taken those steps?

[10]We heard from the claimant and from his mother, Mrs Briggs, who had also provided a witness statement, although neither the respondents nor the panel had questions for her. The panel had a statement from the claimant's partner, Ms Maden, but attached limited weight to it because she did not attend the Tribunal.

[11]The Tribunal also heard from Mr Cooper and Ms Neville for the respondents, who are both HR advisers employed by Lancashire County Council to advise the relevant school.

The Facts

[12]We find the following facts.

[13]We find that on 1 September 2020 the claimant was invited to an investigatory meeting on 8 September 2020 (pages 151-152) concerning an allegation that from 12 June 2020 until Friday 17 July 2020 he was working as a self-employed handyman whilst claiming sick pay from the school (page 51). We find the claimant informed the school he was unable to attend the meeting due to his mental health (pages 153-154). We find that the 2nd respondent sought an Occupational Health report (pages 162-165). We find the report stated that the claimant was suffering from anxiety and depression. It stated that his absences were linked to his reported

[14]In response to specific questions as to whether the claimant was fit to attend and cooperate at a meeting with regular breaks, the doctor stated: “In my opinion he would not be fit to attend a face-to-face meeting at this stage. The new prescribed medication needs to become effective first. I am unable to give you a date when this might be.”

[15]In response to the question, “If the claimant was not fit to attend, was he fit enough to understand the allegation and able to inform a trade union to represent him?” the answer was “yes, he could consider this”. In answer to the question whether the claimant was able to respond to the allegations in writing the answer was “yes”.

[16]The claimant agreed in cross examination that he was a member of a trade union. We find there is reference in the bundle to the claimant copying correspondence to his trade union and referring to his trade union (page 573).

[17]We find the claimant responded in writing to questions put to him by the Head Teacher as to whether or not the claimant was running a business in the name of Mr Odd Job when he was absent from work on sick leave (pages 171-172). We find the Head Teacher compiled a report for the disciplinary and dismissal committee regarding the claimant. She stated she had witnessed the claimant attending a property to carry out repairs to a back gate and had found evidence of his self-employed status as Mr Odd Job on social media sites of Facebook and Nextdoor. The claimant disputed the allegation and said that although he agreed he was working whilst absent on sick leave, the work was on a voluntary basis to help others during the Pandemic and for his own mental health.

[18]There is no requirement for this Tribunal to determine whether or not the allegation about the claimant being paid to work whilst claiming sick pay was true.

[19]We find that the claimant was invited to a disciplinary hearing by a letter dated 2 October 2020 (page 178), to take place on 21 October 2020 (pages 180, 182).

[20]The claimant had been continuously absent from work and was covered by fit notes. The fit note for the period commencing 28 September 2020 was for one month and is at page 557. The fit note indicates that the claimant is unfit for work and does not record any adjustments which would enable him to work.

[21]We find that the claimant wrote six emails to the respondent during this period on 14 October 2020 (page 185); 15 October 2020 (pages 187-188); 16 October 2020 (page 191); 19 October 2020 (pages 193-195); 20 October 2020 (page 208 at 06:59 hours); and again on 20 October 2020 (pages 217-218 at 21:39). Some of these emails are duplicated elsewhere in the bundle as email trails where they were forwarded to others.

[22]We find a number of those emails were copied to the claimant's trade union and solicitor.

[23]We find an email of 20 October 2020 (the day before the listed hearing) stated a trade union representative would not be attending the meeting. The email suggested the claimant may represent himself (page 216). We find prior to that the claimant had referred to his GP to say that he was being supported by his trade union (see GP record).

[24]There is no dispute that the claimant did not attend the disciplinary hearing which went ahead in his absence (pages 229-232).

[25]We find the only express reference to a postponement of that disciplinary hearing by the claimant is in an email on 19 October 2020 at 11.45am sent to John Halshaw of the first respondent (pages 201-202) where the claimant asked for a postponement to carry out his own investigation. The claimant does not refer to his mental health as the reason for the postponement. We find at this stage the claimant did not provide any other medical evidence to the respondent.

[26]Despite the fact the claimant had not expressly asked for a postponement we find the committee considered whether a postponement would be appropriate in the circumstances as he did not attend, but was satisfied that he had been able to seek professional advice regarding his case (a letter of 16 October 2020 at 19:40 states that the claimant will be addressing an email “with the support of professionals”) and was able to submit written representations.

[27]We find that the committee considered the evidence before it, which included the Head Teacher’s report, the claimant's answers to the questions posed to him, the claimant's emails, the Occupational Health report of 2020 and the respondent’s disciplinary procedure.

[28]The committee, which was formed of three governors of the school, decided that they were satisfied that the claimant had been working as a paid handyman whilst in receipt of sick pay and that the appropriate sanction was dismissal (page 233). It did not accept the claimant's evidence in his written answers – that the work was voluntary and unpaid to assist the community during the Covid-19 crisis to support his own mental health. The committee referred to the evidence, which referred to prices for jobs, comments from customers referring to prices charged and comments from the claimant offering free no obligation quotes. They were therefore satisfied on the balance of probabilities that the claimant was carrying out paid work whilst in receipt of occupational sick pay and that the appropriate sanction, given that the action of undertaking paid work during school hours whilst in receipt of sick pay was fraudulent and therefore amounted to gross misconduct, was dismissal.

[29]The Tribunal finds that the school was relying on Lancashire County Council’s disciplinary policy which we find, based on the evidence of Ms Neville, they were entitled to adopt as their own policy.

[30]The claimant immediately stated he intended to appeal (page 240). The respondent wrote to the claimant to invite him to an appeal to be held on 1 December 2020 explaining that he had a right to be represented by a trade union representative or a work colleague (see letter dated 13 November 2020 page 249).

[31]The claimant wrote to the respondent on 27 November 2020 requesting the appeal be postponed due to his mental health (page 276). We find that Mr Halshaw,

[32]We find the appeal was rescheduled for 21 April 2021 by a letter of 19 March 2021 (pages 314-315).

[33]We find on 15 April 2021 the claimant's mother informed the respondent that the claimant was not mentally fit to attend the appeal hearing on 21 April 2021 (page 337) and provided a GP letter to confirm he was not well enough to attend a face-to-face meeting (page 340) and which supported a request to allow a representative to attend the panel meeting on his behalf if possible (page 340). Mrs Briggs also stated that the claimant requested that representation be conducted by herself and his partner, as next of kin, and that communication should be via their email addresses (page 339). We find that there was no request for a postponement of that appeal hearing. We find on 18 April 2021 (page 367) the committee agreed that the claimant could be represented by his next of kin.

[34]We find the appeal hearing went ahead on 21 April 2021 with the claimant's mother and partner attending on his behalf (page 390). We find it was not possible to conclude the appeal hearing and it was rescheduled to continue on 25 May 2021 by a letter dated 5 May 2021 (page 509).

[35]We find the appeal did not conclude on second attempt either and was listed to reconvene on 12 July 2021 (pages 467-474). The hearing did not conclude on that occasion either. Unfortunately, two of the governors retired at the end of that term and accordingly the hearing could not be reconvened. Instead a new panel had to be convened. We find the school summer holidays intervened.

[36]Meanwhile, on 22 July 2021 a new HR Manager, Clare Neville, took over (the HR Manager responsible had previously been Mr Cooper). Ms Neville indicated: “In particular I will be advising the new committee that HB will not be allowed to represent EB.” (HB is Hazel Briggs, the claimant's mother)

[37]Meanwhile, the claimant's mother had sent extensive correspondence to the first respondent in relation to the appeal hearing. The Tribunal noted that there were over 40 emails in the period 6 April 2021 until 19 October 2021.

[38]The claimant was invited to a new appeal hearing to take place on 19 October 2021 by a letter dated 1 October 2021 (483).

[39]The claimant had obtained a letter from his GP dated 14 September 2021, again requesting that a representative attend the panel on behalf of the claimant to circumvent the need for him to attend the meeting in person, based on the negative effects it may have on his mental health (page 564).

[40]By email of 13 October 2021 the claimant was informed via his mother’s email address that the decision of the new appeal committee was that the claimant could not be represented by anybody other than a trade union representative or work colleague, relying on an extract from the school’s disciplinary procedure. The

[41]The hearing took place on 19 October 2021 and the claimant's mother attended as an observer. The appeal was upheld (page 537).

The Law

[42]The relevant law is found in the Equality Act 2010 Sections 20 to 21 (Duty to make reasonable adjustments). The burden of proof provisions are relevant, Section 136.

[43]We reminded ourselves of the principles in Igen Limited & others v Wong

[2005] ICR 931

CA; Anya v The University of Oxford

[2001] IRLR 377

; Shamoon v The Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

HL; Barton v Investec Securities

[2003] ICR 1205

; Madarassy v Nomura International PLC

[2007] ICR 867

; Laing v Manchester City Council

[2006] ICR 1519

; Nagarajan v London Regional Transport

[1999] ICR 877

HL and Chief Constable of Greater Manchester v Bailey

2017 EWCA Civ 425

[44]In the reasonable adjustments claim the Tribunal had regard to the principles in Environment Agency –v- Rowan

2008 ICR 218

EAT, Project Management –v- Latif

2007 IRLR 579

and Smith –v- Churchills Stair Lifts Plc

2006 IRLR 41

CA.

[45]The Tribunal also had regard to the EHRC Code of Practice. Applying the Law to the Facts

[46]The Tribunal turned to the first issue, which was set out at paragraph 2.3 at page 106 of the bundle. This is the issue as defined by Employment Judge Leach: “Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant's disability, in that the claimant's mental impairment was such that he had switched off from wider society and would not engage with any representative or potential representative other than a close family member.”

[47]The Tribunal entirely accepts that the claimant was suffering from a mental impairment at the relevant time, and that is not disputed by the respondent who accepts that the claimant was a disabled person by reason of anxiety and depression. The issue is whether the claimant was placed at a substantial disadvantage by the listed PCPs. So the question is whether each PCP put the claimant at the stated substantial disadvantage ie: (1) Did the first PCP of only allowing representation by a trade union representative or work colleague at a disciplinary or disciplinary appeal hearing put the claimant at a substantial disadvantage in that the claimant's mental impairment was such that he had switched off from wider society and would not engage with any representative or potential representative other than a close family member and/or

[48]The Tribunal considered this at two key relevant points in time. Firstly, in October 2020 at the time of the first disciplinary hearing, and secondly in October 2021 at the time of the second and final appeal hearing.

[49]The Tribunal finds that in October 2020 the claimant had been absent from work since June 2020. The school was in receipt of fit notes which showed he was unfit for work (pages, 547, 548, 553 and 557). There is no dispute that the claimant was a disabled person by reason of his mental health at that time and the respondent had knowledge of disability. This has been conceded by the respondent. Initially, the fit notes indicated that it was a stress-related problem but the later notes explained the claimant was suffering from mixed anxiety and depressive disorder. However, there was nothing in the claimant's witness statement which said in October 2020 the claimant's mental impairment was such that he had switched off from wider society and would not engage with any representative, or potential representative, other than a close family member. At that time the report from the Occupational Health doctor in September 2020 explained that the claimant was not well enough for a face to face meeting because the new prescribed medication needed to become effective first and he could not say when that might be. However, the doctor did consider that the claimant was well enough to respond in writing and well enough to understand the allegation and to inform a trade union to represent him.

[50]The Tribunal finds that in advance of the hearing on 20 October 2020 the claimant was writing detailed and informed emails to the respondent raising issues in relation to the procedure to be adopted, the structure of the meeting given the Covid pandemic and made a subject access request (see email 14 October 2020 at 21:32 at page 185 which asks about data protection; also the other emails: email 15 October 2020 pages 187-188 at 22:53; email 16 October 2020 at 19:40 page 191; email 19 October 2020 at 11:45 at pages 193-195; email 20 October 2020 at 6:49 page 208; and email 20 October 2020 pages 217-218).

[51]That correspondence also referred to the claimant's trade union representative (see pages 185-186) and it certainly appeared (as the claimant agreed in cross examination) that he was a member of the union and up until the evening before the disciplinary hearing(p216) that they were actively involved.

[52]There was no GP letter obtained from the claimant's GP at this stage, in October 2020. The claimant's GP records suggest that he had the support of his union in September 2020 (page 573) and in December 2020 (page 571).

[53]The Tribunal finds there is no evidence in the claimant’s witness statement, his GP records or the Occupational health report that the claimant was so unwell that he had switched off from wider society and would not engage with any representative or potential representative other than a close family member in October 2020. In fact the evidence from the OH Report was that although the claimant was not well enough to attend in person, he was well enough to send in

[54]Accordingly we find the answer to the question in relation to the first PCP in October 2020 is no.

[55]So far as the second PCP is concerned in October 2020 : Did the PCP of holding a disciplinary hearing on the date that the hearing was scheduled place the claimant at a substantial disadvantage compared to someone who was not disabled in that the claimant's mental impairment was such that he had switched off from wider society and would not engage with any representative or potential representative other than a close family member , the answer is also no.

[56]Firstly the claimant had not switched off from wider society such that he would not engage with any representative or potential representative other than a close family member ,at this stage and we rely on our reasons above.

[57]The Tribunal asked itself the same question in October 2021 in relation to the substantial disadvantage in relation to the first PCP (representation) and the second PCP ( adjournment). October 2021 was the point at which the appeal was finally heard and completed.

[58](There was no issue about the hearings which occurred in relation to the first appeal on 21 April, 22 May and 12 July because that hearing never concluded.)

[59]The Tribunal finds that in October 2021 the claimant continued to be ill by reason of anxiety and depression, but there is no medical evidence that the claimant had “switched off from wider society and would not engage with any representative or potential representative other than a close family member”. The two letters obtained from the claimant's GP in April 2021 and September 2021 do not state that the claimant had switched off from society and would not engage with any representative or potential representative other than a close family member. Instead the GP says that the claimant has requested a letter to support a request “to allow a representative to attend the panel meeting on his behalf if possible”. The letter explains that this is because it would be stressful for the claimant to attend in person and may trigger panic attacks. The Occupational Health report from the previous September does not say that the claimant was placed at that substantial disadvantage either Accordingly, we find the answer to the question in relation to each PCP is no.

[60]Therefore the claim fails at that point. However in case we are wrong about our findings that the PCPs did not put the claimant at the substantial disadvantage claimed in October 2020 and October 2021 we went on to consider the other issues.

[61]We turn to the next issue (at 2.4 in Employment Judge Leach’s note at page 106): “Did the respondent know, or could they reasonably have been expected to know, that the claimant was likely to be placed at the disadvantage?”.

[62]The claimant did not say to the respondent prior to the disciplinary hearing in October 2020 that he had switched off from wider society and would not engage with any representative or potential representative other than a family member. The claimant was able to engage in correspondence prior to the disciplinary hearing. He did not ask for a postponement on mental health grounds or explain that he could not engage. The first respondent had a fit note which said the claimant was unfit for work. However, a fit note meaning a person is unfit for work does not mean that they are unfit to attend a disciplinary hearing.

[63]The Tribunal finds in October 2020 the respondents did not know from the claimant or from their Occupational Health doctor (who they had specifically asked whether the claimant was able to attend a face to face meeting) that he had switched off from wider society and would not engage with any representative or potential representative other than a close family member. Indeed the evidence before the respondent was that he could engage in written representations and/or a trade union representative. Until the day before the hearing the claimant appeared to be engaged with his trade union and the claimant was submitting cogent and detailed correspondence to the respondent. Accordingly, in October 2020 the respondent could not have known that the claimant was to be placed at the disadvantage.

[64]We turn to the position in October 2021. By that stage we find that the respondent had permitted the claimant to be represented by his next of kin because his mother had said he was too unwell to engage with them. Accordingly, we find that the respondent knew or should have known that the claimant was not well enough to deal with this matter at that time. However, that is not the same as saying the claimant’s mental impairment was such that he had switched off from wider society and would not engage with any representative or potential representative other than a close family member. Therefore we are not satisfied the respondents knew the claimant was placed at that disadvantage.

[65]In case we are wrong about our findings so far, we turn to the next issue question 2.5 From Judge Leach’s List of Issues: “Did the respondents fail in their duty to take such steps as it would have been reasonable to have taken to avoid the disadvantage? The claimant says that the following adjustments to the PCP would have been reasonable: 2.5.1 In relation to the insistence on holding a hearing on the scheduled date, allowing a postponement of the hearing to enable the close family member to review and understand all documentation provided to ensure she can provide adequate representation (whether in person or in writing) to the disciplinary panel.”

[66]Firstly we considered the position in October 2020.We find that the claimant did not expressly request postponement of the first preliminary hearing because of his mental health. We find that the respondent considered the postponement. We remind ourselves that the main purpose of a reasonable adjustment is to avoid the substantial disadvantage. The employer has to do what is reasonable. A postponement would not have alleviated the substantial disadvantage “that the claimant's mental impairment was such that he had switched off from wider society and would not engage with any representative or potential representative other than a close family member .”

[67]At the time of the first disciplinary hearing the Occupational Health doctor could not say when the claimant's medication would take effect, so when he would be well enough to attend a face to face meeting. The information before the respondent was that the claimant was well enough to understand the allegations and to engage in written representations or to instruct a trade union representative. A postponement would not have assisted the claimant or avoided the substantial disadvantage. The respondent is a special school. The claimant had been suspended on full pay. The claimant’s absence from work was having an impact on the classroom (see pages 181 and 391).

[68]In addition, the claimant had the opportunity to make his points in writing and to do so via written representations, as Occupational Health had suggested. He also had the option to instruct the trade union to represent him, of which he was a member.

[69]The Tribunal reminded itself that the issue at the disciplinary hearing was relatively straightforward. There was no dispute that the claimant had been working whilst on sick pay. The issue was whether he had been paid for the work or not. That was the only factual issue to be determined at that first disciplinary hearing.

[70]Accordingly, the Tribunal is satisfied given the opportunities for the claimant to present his point of view via his written submissions and/or a trade union representative and for the reasons listed above that the adjustment of a postponement in October 2020 was not reasonable.

[71]The Tribunal turns to consider the position in October 2021. The Tribunal relies on its reasoning above. By that stage the claimant’s appeal had been delayed for a year. Finality in disciplinary procedures must be in the interests of all parties. The Tribunal relies on its reasoning above that it was not reasonable to permit a postponement of the final appeal hearing in October 2021, over a year after the claimant's dismissal. There was no medical evidence from the GP or Occupational Health to suggest that that was an appropriate course of action, and indeed the postponement requested by the claimant's representative did not clearly indicate the reason for the postponement (see email pages 521-525). It is headed “Postponement” but there is no clear articulation of the reason why. There was no evidence to suggest a postponement at this late stage would avoid the substantial disadvantage. The claimant’s mother had been involved for many months and was able to make written representations in advance of the October 2021 hearing. It is difficult to understand how a postponement would have avoided the stated substantial disadvantage. Therefore the Tribunal finds the respondents did not fail in their duty to make a reasonable adjustment by declining to postpone the October 2021 appeal hearing.

[72]The Tribunal turns to the second reasonable adjustment: “2.5.2 Allowing a close family member to represent the claimant as the claimant would then be willing and able to engage with his representative.”

[73]We find that this did not apply to October 2020 because the claimant never requested that his mother represent him at the hearing in October 2020. There is

[74]The Tribunal turns to consider the position in October 2021.

[75]From the claimant’s point of view, it seemed unfair that having permitted his mother and partner to represent him at the appeal hearing which took place on 21 April 2021, 25 May 2021 and 12 July 2021 but failed to conclude, the respondents withdrew that concession when a new appeal panel was constituted.

[76]We reminded ourselves of the Equality and Human Rights Commission Code of Practice on Employment Law [2011] “the EHRC Employment Code”, which states that: “When considering reasonable adjustments we should have regard to the following:• The extent to which taking the step would prevent the effect in relation to which the duty was imposed (i.e. the effectiveness of the step);

• The extent to which it was practicable for the employer to take the step;

• The financial and other costs that would be incurred by the employer in taking the step and the extent to which it would disrupt any of its activities;

• The extent of the employer’s financial and other resources;

• The availability to the employer of financial or other assistance in respect of taking the step;

• The nature of the employer’s activities and the size of its undertaking.”

[77]It is not disputed that the employer changed its mind in terms of permitting Mrs Briggs and/or the claimant's partner, Ms Maden, to represent the claimant. The purpose of Mrs Briggs and/or Ms Maden representing the claimant was to remove a disadvantage from the claimant. That was the purpose of taking the step. However, the Tribunal finds the employer was entitled to have regard to the fact that when Mrs Briggs had engaged in the proceedings on behalf of the claimant, they had become very elongated. It is extremely surprising that a disciplinary appeal hearing based essentially on a simple factual dispute (namely whether the claimant was engaged in paid work or voluntary work at the time he was absent from work on sick leave) managed to generate three separate meetings on 24 April 2021, 25 May 2021 and 12 July 2021 and could not be concluded. We find that some of Mrs Briggs’ correspondence was intemperate and although she did not email the respondent as excessively as the respondents have suggested (in particular, some of the emails appear to be duplications and email chains), nevertheless the Tribunal finds that she sent over 40 emails, some very detailed, between 6 April 2021 and 19 October 2021, and many of those do not appear to be directly relevant to the issue the Appeal Panel had to decide.

[78]The Governors at White Ash Primary School (like at most schools) are volunteers. The school relies on their goodwill to give up their time.There had been an extensive use of their resource during the appeal which failed to conclude after 3 meetings and if the new appeal hearing had continued in the same fashion with the new Panel (which looked likely from the nature of the correspondence immediately prior to the October 2021 hearing) then that was a very significant use of the resource of the Governors for both respondents.

[79]The Tribunal reminded itself that although the school’s policy stated that the normal position was there was a right for “employees to be accompanied by a chosen companion who may be a fellow worker, a trade union representative or an official employed by a trade union” (see paragraph 4.8 of the disciplinary policy at page 118), the policy states that: “There will be cases where an employee may have a disability that has a serious impact on his ability to conduct himself during the investigation meeting or disciplinary hearing. If this is case whatever reasonable adjustments are practicable will be made to ensure that such disadvantages are overcome.” It goes on to state that: “Anyone with a depressive illness, anxiety state or stress-related illness will be offered at least one postponement of the hearing where appropriate and where this can be accommodated within a reasonable timescale.”

[80]There is no dispute that the first appeal hearing was postponed.

[81]At paragraph 4.12 the policy states: “Other than in circumstances where the employee provides medical evidence that he or she is unable to understand what is being said and cannot give instructions to his or her representative, the hearing will take place. Head Teachers/governors may consider holding a hearing at a neutral venue if this is practicable to assist the employee, if medical advice recommends this. Other alternatives may be for the employee to be offered the opportunity to send in written representations or send a representative in his/her place.”

[82]It goes on to state that all requests for reasonable adjustments will be sympathetically considered on a case by case basis on light of medical evidence.

[83]No medical evidence was ever supplied to the respondent to expressly state that the representative had to be a family member. We find it was legitimate for the respondent to have regard to the way Mrs Briggs had conducted herself in the previous hearings and the fact she had been unable to comply with timescales to complete previous hearings meaning the process could not be concluded. We find it was entitled to have regard to the fact that there were considerable difficulties in scheduling meetings because the Governers were available term time and during the day where as Mrs Briggs and Ms Madden had difficulty attending during those hours and could attend evenings and during school holidays. There were therefore issues of practicability of allowing the adjustment.

[84]We rely on the evidence of Ms Neville that the claimant could have asked the trade union to attend and/or a former work colleague. She said there were several options which she gave the committee:(1) To allow the claimant to be represented by a trade union representative or a work colleague as per the normal practice;

(2) To allow his mother or his partner to attend in his place;

(3) To allow the claimant’s mother or his partner to attend as an observer.

[85]She explained that at a pre-appeal meeting the panel discussed the alternatives and chose the alternative that Mrs Briggs was to be offered the option to attend as an observer, which she did.

[86]Having regard to the factors in the EHRC Code, the length of time this matter had been going on, the narrowness of the issues the panel had to decide in terms of the appeal against dismissal and the fact that the previous appeal panel had been unable to conclude within a reasonable timescale in the sense of the number of meetings it had taken and still the matter had not been concluded, and the difficulty in arranging meetings given the availability of Governors and staff to support the hearings compared to the availability of Mrs Briggs and Ms Madden, having regard to the number of emails provided to the panel by the claimant’s representative in advance of the meeting, and having regard to the fact that Mrs Briggs was able to supply written information to the Panel and did so in advance of the October Hearing, which the Appeal Panel considered, the Tribunal finds that it was a reasonable adjustment to permit Mrs Briggs to attend as an observer and given the particular circumstances and facts of this case it was not reasonable to allow a close family member to represent the claimant at the appeal hearing in October 2021.

[87]For all these reasons the claimant’s claim fails.

[88]The Tribunal reiterates that its task has been to look at the narrow issue of the reasonable adjustment of a postponement and the reasonable adjustment of a family member attending on behalf of the claimant in relation to two meetings in October 2020 and October 2021. All other matters are outside the Tribunal’s remit.

[89]Finally, the Tribunal deals with two issues raised by the claimant's representative. Firstly, that the governors who were the decision makers at the disciplinary hearing in October 2020 and the disciplinary appeal in 2021 (different governors) did not attend to give evidence at the Employment Tribunal. The Tribunal heard only from HR advisers of Lancashire County Council.

[90]The Tribunal was informed that the governors are volunteers and given the specific facts of this case it had been decided that it was more appropriate for the HR advisers to give evidence. The Tribunal were satisfied due to the extensive documentary evidence in this case and the fact that there were in fact very few factual disagreements between the parties which were directly relevant to the issues that the Tribunal had to decide, that this does not affect the Tribunal’s judgment.

[91]Secondly, the claimant's representative expressed concern about the fact there were two named respondents. The Tribunal relies on its reasoning above in

[92]This hearing took place remotely by Cloud Video Platform “CVP” as a reasonable adjustment for the claimant. There were regular breaks for the claimant. Sadly the claimant did not feel sufficiently well to attend the final day when each party gave submissions but Mrs Briggs explained he wished the Hearing to continue.

[93]On the second day I indicated to the claimant's representative that we would normally give (if there was time) an oral decision and written reasons could be requested. I also explained that if a judgment was reserved (a purely written decision including reasons) it would be inevitable that the whole Judgment would be placed on the public register, which in the present day goes online.

[94]The claimant's representative stated that the claimant was of the view he wished the Judgment to be reserved, and accordingly that is the option the Tribunal took.