Dr A Schaeffer v University of Manchester: 2400364/2022
EMPLOYMENT TRIBUNALS
Case No 2400364/2022
Between
Dr A SchaefferClaimantUniversity of ManchesterRespondent
Before
Employment Judge Johnson
Members
Mrs A RoscoeMr J MurdieMr C Breen (instructed by counsel) for respondentDate 19 December 2023
JUDGMENT
[1]The complaint of discrimination arising from disability contrary to section 15 Equality Act 2010 is not well founded, which means it is unsuccessful.[2]The complaint of discrimination arising from a failure to make reasonable adjustments contrary to sections 20 & 21 Equality Act 2010 is not well founded, which means it is unsuccessful.
REASONS
[1]This is a claim about the claimant’s employment as a teacher with the respondent University and her belief that she suffered discrimination in connection with her disability of Autistic Spectrum Disorder (ASD), and which she says gave rise to unreasonable behaviour and a failure to make reasonable adjustments. This case relates to the period of employment beginning in June 2021 and ending in May 2022, although the claimant remained employed albeit off sick, at the date of this liability hearing.[2]These proceedings arose from a claim presented to the Tribunal on 20 January 2022 following a period of early conciliation. She initially identified complaints of disability discrimination and whistleblowing detriments.[3]The response was presented on 29 March 2022 and following several preliminary hearings relating to matters of case management, a list of issues was finalised, and the whistleblowing complaint being dismissed. This judgment considers the issues arising at the final hearing which took place in October 2023, and which relate to allegations of disability discrimination.
Issues
[4]The list issues was more or less completed at the preliminary hearing case management (PHCM), before Judge Benson on 29 September 2022.[5]In the amended grounds of resistance presented by the respondent in accordance with case management orders made by Judge Benson, further clarification was provided concerning the list of issues, including the respondent’s acceptance of the claimant’s disability as being ‘high functioning autism’, but disputing knowledge at material time and details of the legitimate aim in defence of any positive finding in respect of the section 15 Equality Act 2010 (EQA) complaint.[6]The Tribunal was left to determine allegations of discrimination arising from disability contrary to section 15 EQA, namely: a) Did the respondent treat the claimant unfavourably: i) Causing the claimant to take sick leave by refusing a request for extra days to complete marking papers in June 2021, not permitting the claimant to take a period of special leave in September 2021 and refusing the claimant to teach online from home in September 2021. ii) Not allowing the claimant to return to work from December 2021 until he had first attended an Occupational Health (OH) meeting. iii) Refusing to appoint an independent arbitrator to resolve the issues between the parties. iv) Placing the claimant on sick leave from May 2022 and thereby threatening dismissal. b) Did the following things arise as a consequence of the claimant’s disability: i) The inability to deal with a number of competing issues at one time thereby causing sever anxiety? ii) The claimant’s lack of trust in the respondent? c) The remaining matters in relation to the consideration of this complaint including the respondent’s legitimate aim are considered in the discussion below.[7]The other form of disability discrimination to be considered by the Tribunal was the question of reasonable adjustments in accordance with sections 20 & 21 EQA, namely: a) Provision, criterion or practice (PCP), did the respondent have the following PCPs in place? i) PCP1: requiring of marking of papers by a set deadline? ii) PCP2: requiring an employee to give 3 months’ notice before requesting special leave? iii) PCP3: requiring all teaching to be carried out in person in September 2021? iv) PCP4: to require an employee to attend OH in order to return to work after a long period of absence? v) PCP5: not allowing external arbitrators to assist in resolving employee disputes? vi) PCP6: Requiring an employee to provide a reason for their absence? b) Did the PCPs place the claimant at a substantial disadvantage when compared with someone without their disability? i) In the case of PCPs 1, 2 and 3, the claimant said her ASD made it difficult to deal with a number of pressing demands upon her at one time. The claimant suffered severe anxiety and was signed off as unfit for work. ii) In the case of PCPs 4, 5 and 6, the claimant did not trust the respondent. c) The adjustments which the claimant say were reasonable were as follows: i) Allowing extra days to complete the marking of exam papers on June 2021. ii) Allowing a period of special leave in September 2021. iii) Allowing the claimant to teach from home in September 2021. iv) Allowing the claimant to return to work without attending OH in December 2021. v) Appointing an independent arbitrator to resolve the issues between the parties in 2022. vi) To not put the claimant on sick leave from May 2022. d) The remaining matters relating to the consideration of this complaint will be discussed below.[8]The Tribunal noticed the overlap between the section 15 and sections 20 & 21 EQA complaint. Evidence Used[9]The claimant relied upon only her own witness evidence. It was contained within a document consisting of some evidence and screenshots of a number of other documents, primarily emails.[10]The respondent relied upon the following witnesses: a) Professor K Posso (Professor of Latin American Studies and overall manager for claimant). b) Ms D Thomas (People & Organisational Development Partner). c) Ms A Mullen (Deputy Director of People & Organisational Development).[11]Documents were primarily included within the main bundle prepared by respondent and including documents from the claimant and amounting to 498 pages.[12]The claimant had produced an additional bundle of 64 pages which included mainly screenshots of emails.[13]Respondent provided a correspondence bundle of emails running to 48 pages and suggesting issues relating to claimant’s capacity.[14]The claimant was unrepresented and was disabled by reason of ASD. However, the Tribunal was satisfied that she had a good understanding of the procedure to be adopted at the final hearing following a detailed explanation of a typical Tribunal process by Judge Johnson and the claimant was reminded that she could ask questions at any time.[15]Nonetheless, the Tribunal took notice of her unrepresented status and applied the overriding objective (Rule 2 of the Tribunals’ Rules of Procedure and the relevant sections of the Equal Treatment Bench Book concerning litigants in person and neuro-diverse parties. From time to time, Judge Johnson would intervene where it was felt that the claimant needed assistance, which was necessary when she was seeking to cross examine the respondent’s witnesses. She was reminded to the need to pay close attention to the list of issues and to ensure that all relevant questions were asked of witnesses so that the Tribunal had evidence which might support her case.[16]She did require frequent breaks and some flexibility insofar as it was reasonable to allow her to fully participate. The Tribunal felt that Mr Breen on behalf of the respondent took considerable effort to ensure that Dr Schaeffer had time to answer questions and was pragmatic as to additional documents and other matters which she raised during the final hearing. There were occasions where he would object or insist that she answer a question while giving evidence, but this was entirely appropriate and sufficiently measured taking into account Dr Schaeffer’s impairments balanced against the need for her to prove her case and provide relevant evidence. Findings of fact
Introduction
[17]The respondent (the University) is one of largest UK universities and employs many academics and support staff across numerous departments.[18]Given its size, the University has considerable HR resources and provides facilities for employees to access counselling, Occupational Health (OH) and Disability and Advice Support Service (DASS). It has numerous policies and procedures which apply to employees, including grievance procedures and sickness absence management policies.[19]The claimant (Dr Schaeffer) is a language tutor (French) in LEAP (Language Experience for All Programme) and was employed as a fixed term employee from 23 October 2015 until 1 September 2019 when her contract of employment was converted to permanent employment. Her contract was a 0.69 full time equivalent (FTE), which meant that she was paid to work 10 months. During the 10 months when she was working, her contract covered 0.83 FTE. Consequently, during July and August she was 0.00FTE as she did not have any duties, (p107). She remained employed by the University at the date of the liability hearing. Autistic Spectrum Condition and notifying the respondent[20]There was no dispute that Dr Schaeffer was autistic. Although this is a life long condition, she did not receive a formal diagnosis of autistic spectrum disorder (ASD) until 20 September 2017, when Dr Shahzad consultant psychiatrist from Cheshire and Wirral Partnership (p79-86), was of the opinion, ‘that Amani [Dr Schaeffer] meets the threshold for a diagnosis of autism spectrum disorder.’[21]Dr Schaeffer’s evidence was inconsistent as to when she disclosed the report (or at least her diagnosis of ASD), to her employer. In her reply to the respondent’s amended grounds of resistance, she describes disclosing her diagnosis by email 3 December 2019 to Gavin Dodsworth who was the director of LEAP at that time (p60). No such email was available to the Tribunal. However, in cross examination, she said that she disclosed her diagnosis verbally in 2017 shortly after the report became available to her manager Mr Morely.[22]Professor Posso said that Dr Schaeffer did not notify her managers that she had a diagnosis of ASD and she needed additional support from them to assist her in the workplace. He was very clear that it was the erratic nature of her email messages during late 2021 and early 2022 which caused him a genuine concern regarding her health. However, he believed it related to mental health issues, rather than ASD. As will be discussed below, the Tribunal felt that Professor Posso’s evidence concerning this matter was reasonable and amounted to a genuine concern regarding Dr Schaeffer.[23]Diane Thomas (HR) referred to an email sent by Dr Schaeffer at 7.11am on 4 January 2022 to a wide range of people referring to work related anxiety and also stating: ‘I want to stress that while this has nothing to do with my diagnosis (already disclosed – I am autistic, for the record) as these issues may also apply to others, the University has a duty of care it has failed to exercise – based on evidence’.[24]The first time that the Tribunal could identify from the available evidence, circumstances where Dr Schaeffer mentioned a diagnosis of ASD, was in her email sent to Professor Posso on 9 June 2021 at 20.56. In this email, she says, ‘as an autistic person (as disclosed previously),’ (p138). This was the earliest reference to ASD within the documents available to the Tribunal and there was no other evidence which supported the claimant’s contention that a disclosure had taken place earlier.[25]Dr Posso replied at 21.04 on 9 June 2021 and noted the health issues raised by Dr Schaeffer (which were not just restricted to ASD), and suggested a referral to OH, while accepting there was no obligation for Dr Schaeffer to accept that offer.[26]On balance, we do not accept Dr Schaeffer’s evidence that a reference to autism was made prior to the University before 9 June 2021. The evidence of the respondent’s witnesses was that the University was well aware of autism as a condition both in terms of how it might affect staff and students. The Tribunal accepts that from 9 June 2021, Professor Posso as a senior manager dealing with Dr Schaeffer, was aware of her being autistic. As a consequence, the University management who were dealing with Dr Schaeffer could be expected to be aware of her circumstances shortly after this date. June 2021[27]Dr Schaeffer argues that her problems at work only began when she disclosed that she had ASD. The earliest issue relating to the allegations of discrimination arose in June 2021 which was towards the end of the 2020/21 academic year. The Tribunal notes that the Covid pandemic remained an ongoing issue, but steps were being taken to reduce the protective measures that had been imposed previously by the government, including the imposition of remote learning and restrictions on face to face teaching.[28]On 3 June 2021, Dr Schaeffer reported to her line managers that she was unwell and needed to take sick leave. She had written to the Senior Language Teacher (SLT) Ms Morton and Dr Franc and told them that she had 20 intermediate exam scripts to mark which were due the previous day. This was presumably 2 June 2021 and she raised capacity issues concerning her ability to complete them, (p109.1).[29]Professor Posso explained to Dr Schaeffer what the reporting requirements were for sickness absence, and she provided a self certificate to the University, (p116). Then, on 9 June 2021, she returned to work, and Professor Posso recommended that she have an Occupational Health (OH) referral in his email sent at 20.41, (p121). Dr Schaeffer was asked by the departmental administrator by email on 9 June 2021 to discuss the completion of outstanding work with Dr Franc and Ms Morton, (p125). Dr Schaeffer responded with some caution about how quickly she can complete this work due to concerns about her wellbeing following return to work, although it appeared that the number of scripts requiring completion at this stage had been reduced by colleagues.[30]At this time, Dr Schaeffer shared with Professor Posso emails that she had been exchanging with the external examiner Dr Laurence Richard, from the University of Southampton together with Ms Morton, Dr France and Mr Lozoya. No specific request for an extension of the time was made by Dr Schaeffer for the submission of exam scripts with her own managers at the University. Instead, she went to the external advisor to revise her timetable for submitting marked scripts to Dr Richard. The Tribunal recognised that these actions were probably a complete disregard by Dr Schaeffer of the proper lines of reporting within the University and she had contacted Dr Richard without management approval. However, we were unable to see evidence of a refusal of a request for extra days to complete marking of papers. Indeed, if anything, Dr Schaeffer’s colleagues appeared to assist her in reducing the workload. The approach to Dr Richard was not provoked by any desperation on Dr Schaeffer’s part. She had been referred to OH and support was being offered to her by Professor Posso and HR. September 2021 and the start of the 2021/22 academic year[31]At the beginning of the 2021/22 academic year, the University expected teaching staff to ordinarily teach face to face as Covid restrictions were relaxed. This was a reasonable step to take as their students expected to normally have face to face teaching from their teachers.[32]On 29 September 2021, Professor Posso became aware of an issue arising from Dr Schaeffer moving an in person Monday class on 27 September 2021 to an on line remote class, at very short notice. It had resulted in a complaint from a student, (pp176.1 and 176.2). This caused issues for the University, especially given the recent move to restore normal teaching following Covid and concerns expressed by students that they were receiving inadequate teaching because of remote learning. This was not helped by Dr Schaeffer only alerting students of the change from in person to online teaching within 5 minutes of the lesson beginning. The change of format to the lesson did not arise from a prior request being made to management and refused and was a unilateral decision on her part.[33]A series of emails between Professor Posso and Dr Schaeffer followed on 29 September 2021 and while he acknowledged that up to 5 days could be taught online within the department, he informed her that she should have liaised with her colleagues beforehand. That way. efforts could have been made to either arrange cover or to reschedule the lecture. He recognised Dr Schaeffer’s issues concerning her childcare and that while this was not a reason for sickness absence, emergencies could happen and there was a possibility of Special Leave being offered. However, he explained that teaching should routinely be held in person. The Tribunal felt that Professor Posso was both measured and understanding in how he dealt with this matter. We also appreciated that in person teaching needed to resume and could not simply be held remotely at short notice on the whim of Dr Schaeffer, (pp177-181).[34]Ms Thomas then approached Dr Schaeffer ‘…from a HR perspective’, to discuss issues relating work and childcare with a meeting taking place by Zoom on 8 October 2021. There was some confusion on the part of the newly appointed Ms Thomas concerning how annual leave could be requested and she apologised to Dr Schaeffer once she realised her error. Professor Posso explained to her that Special Leave was designed for ‘one off’ emergency situations and not relating to child care issues and that as a member of teaching staff, she could not normally request annual leave during term time.[35]With all this in mind, Professor Posso tried to help Dr Schaeffer and encouraged her to engage with OH and the counselling services which were available within the University. Dr Schaeffer did not take advantage of the support services being offered.[36]Taking into account the evidence available, the Tribunal accepted that from 2021/22, there was a reasonable obligation placed upon teachers to be available for students and subject to emergencies, they should teach in person rather than online. The University was a provider of education services and this had to be a priority. Nonetheless, the University made provision for Special Leave, unpaid leave and sickness absence where appropriate. Sickness absence from October 2021[37]Dr Schaeffer was absent through ill health from 11 October 2021. She was informed by her GP during an appointment that she should consider taking time off because of work related stress on 8 October 2021. She then informed Professor Posso that she would take sick leave the following week, (p195). She in initially self-certificated for the first week and then submitted fit notes provided by her GP on 15 October 2021, 2 November 2021, 19 November 2021 and 19 December 2021. They all stated the reason for the absence as being ‘anxiety’, but no reference was made in any of them to it being work related. It was then agreed with management that Dr Schaeffer would return to work 4 January 2022. However, during her absence, Dr Schaeffer began to send emails which were unorthodox and caused her employer some considerable concern regarding her mental health and her fitness to resume work and return to teaching lessons.[38]On 14 November 2021 an email was sent to Professor Posso concerning allegations of being ‘doxxed’ at work with professional and personal data being shared with third parties, (p215). He informed her to tell IT. In considering this evidence, the Tribunal took judicial notice of the commonly understood meaning of the term ‘doxxing’, which is exposing sensitive private information online and often conducted by persons who wish to harass, threaten, or get revenge. Quite naturally, reference to such an activity by Dr Schaeffer was a matter which would fall within the expertise of the University’s IT service and Professor Posso behaved reasonably in directing her to that department.[39]A further email was sent on 11 December 2021 from Dr Schaeffer and sent at 23.22 to an unknown third party ‘Loveshack.org’ but which copied in Professor Posso and Diane Thomas, (pp222-3). The email content was lengthy and appeared to have been sent to an organisation which describes itself as being ‘an interpersonal relationship advice and assistance community’. However, quite reasonably Prof Posso responded to Ms Thomas stating that the email had nothing to do with the University and suggested neither of them should get involved with it and respond, (p222). Naturally, it caused them concern about why Dr Schaeffer might include them in such an email.[40]A further email was sent from Dr Schaeffer to Prof Posso and 13 other internal and external recipients including a person associated with Loveshack.org, (p224). Its content was curious considering the diverse recipients. Despite being headed ‘Recruitment Process Feedback’ it related to Dr Schaeffer’s return to work: ‘I am increasingly concerned at not having heard back from anyone either from the University or from this untraceable recruitment team. I’m not really chasing for any update on any actual job as I have a strong inkling it as, as they say, too good to be true, and feel like I have spent the last 15 months paying for somebody else’s mistakes. I have been given the all clear by my medical team and am considered fit to work mentally, emotionally and physically so will be coming back to my position as a Language Tutor on the 4th January. I’d really like to be taken at my word this time around, and would really appreciate anyone from HR and/or management to get back to me in person via Zoom – either is fine with me. I’m on leave until January 3rd and would not go to University so Zoom would be a strong preference. I’m only available Wednesday 15th after 3pm or Thursday 16th after 2pm’, (p224)[41]At this point Professor Posso referred to Ms Thomas on 15/12/21 and explained: ‘…I have been dealing with Amani [Dr Schaeffer] as best I can to date, but this is now unsustainable. Although I’ve dealt with [a] myriad [of] challenges and challenging colleagues over the years, I am not trained to deal with someone with these sorts of serious problems. And I am concerned that it would be irresponsible for me to attempt to do so given the gravity of this irrational behaviour. Colleagues are deeply unsettled by all this and are fearful of interactions. Professional help is needed. At this point I need you both to intervene, however possible.’[42]A further exchange of emails followed, and he recommended to HR that: ‘…I suggest that we hold off any further routine communication about the resumption of teaching and marking duties for the time being. Critical decisions need to be taken institutionally about how best to address this worrying situation’. (p229.2) Quite reasonably, at this point, Professor Posso had concerns regarding Dr Schaeffer’s mental health and it was understandable that he referred the matter to HR, (p225). Professor Posso simply did not have skills to deal with this matter and it related to the apparently erratic behaviour of a university employee rather than simple line management issues.[43]These strange emails continued and on 19 December 2021, an email was sent by Dr Schaefer to Professor Posso, but also copied in the Head of School Thomas Schmidt and Ms Thomas and entitled: 'Recruitment Process'. She said that she: “…is taking [herself] out of the illegal process [she] has been put forward without [her] knowledge or consent. She has done “enough 'work' / 'training' behind the scenes for free and will be looking at either settling out of court with a compensation, talking to arbitration or simply taking the law into [her] own hands”. She referred to “cutting short” a “process” that “technically ends at the end of the 2022 academic year” because she knows “how this incredibly abusive, untraceable, one-sided, unethical ‘system’ works”. She mentioned several disturbing personal issues which need not be repeated in this judgment as well as stating she had been falsely diagnosed with having “a non-existent psychosis” and that she had been given the “all clear” by her GP, (pp230-1).[44]This prompted Professor Posso to forward this email to HR and including Mr Mullen, when he forwarded the email on 19 December 2021 at 18.44 and explained his concern about the urgency of the situation, (p230).[45]Andrew Mullen took over the conduct of the management of Dr Schaeffer’s return to work and emailed her on 20 December 2021. He explained the employer’s position concerning how she could return to work: ‘We are pleased to hear that those clinical staff responsible for your care and treatment have declared you fit to return to work. In cases of long term absence and in accordance policies, we seek advice from Occupational Health. You should therefore on no account resume your duties or return to work until we have arranged an appointment with Occupational Health, received a report from them and discussed its contents with you. Arrangements have been made for an appointment to take place with you by remote means such as Zoom as soon as possible…’ (p232) The Tribunal felt that this was a succinct and clear email to send to Dr Schaeffer. It is correct that the University was not allowing her to return to work, but this was due to concerns regarding her mental health.[46]On 20 December 2021, Ms Jenny Knights (P&OD Partner in Faculty of Humanities) emailed Dr Schaeffer to say she can offer an OH appointment on Wednesday 22 December 2021. Dr Schaeffer replied that she is on annual leave so cannot attend, but also responded to OH directly asking for the appointment to be rescheduled to 4 January 2022, which they were able to accommodate (pages 235 and 241). .[47]On 27 December 2021, Dr Schaeffer sent an email to Mr Mullen and copied to the Vice Chancellor of the University, Professor Nancy Rothwell and headed the email: “Informal Chat”. In summary, she asked for a meeting with Mr Mullen or Professor Rothwell to discuss why the series of emails had been sent to various colleagues about the “recruitment process” she has “…been subjected to for months since March of 2021”, were being left unanswered. Dr Schaeffer said that although she has an appointment with OH on 4th January 2022, as per the guidelines, she will not consent to the sharing of any of her medical records. She mentioned deeply personal matters again and having “…had to field concerns over a non existent 'psychosis’ having been “offered” a non existent 'dream position' in NYC starting some time in January, having made pointless 'connections' that are both untraceable and useless to me personally” (p244).[48]On Tuesday 4 January 2022, Dr Schaeffer was due to attend the pre-arranged OH appointment at 11am, (which was the University’s first day back from Christmas closure). Mr Mullen received an email from her at 7.11 am, copied to a wide group people internal and external to the University stating that she would not be attending the appointment. There was some confusion between the email time records for Professor Posso and Dr Schaeffer, but it appears that he urges her to keep the OH appointment and reminds her that “…it is essential that you receive the necessary support via the service and that we can appropriately guide on how best to support you when you are in a position to return. I suggest a meeting via Zoom as a priority. I can be free to do that today at a time between 12 and 2.”[49]Mr Mullen, quite reasonably, attempted to encourage her to attend and at this point, she had also raised an official grievance concerning Professor Posso, (pp245-7). She said that she would be happy to meet via Zoom before OH but will only consider returning to work once all answers to my queries have been resolved. I don’t trust the university to have my best interests at heart and would rather all emails be audited. Eventually a Zoom meeting was arranged between her and Ms Thomas, (pages 245 – 247).[50]Further emails were exchanged between Dr Schaeffer during 4 to 6 January 2022 following the Zoom meeting with her copying in various other recipients, (both internal and external). Mr Mullen explained the need for her to attend a meeting with OH and outlined the information required from her in relation to her grievance against Professor Posso, (pp 249-257). She refused to provide the information or attend OH and said that she needed to speak with ACAS.[51]On Friday 7 January 2022 at 00:29, matters began to take a serious turn when an email was received by Mr Mullen and Ms Thomas from a third party using the Loveshack email address, the subject of which was “Contact GMP” and contained allegations of a campaign of harassment by Dr Schaeffer since February 2021 (pp 258-9). Whatever the truth of the matter, this was an alarming matter and the University understandably had to take it seriously.[52]A few days later on 13 January 2022, Dr Schaeffer emailed Mr Mullen as well as copying in the Vice Chancellor and “paul@loveshack.org” entitled “Employment Tribunal”. She confirmed that she has contacted ACAS and had received a case number for a court hearing at the Employment Tribunal for discrimination. She added that she would prefer dealing with a neutral outside party with no links to the University for arbitration (pp264-265).[53]Mr Mullen confirmed in evidence that he was willing to engage with ACAS if they got in touch and the Tribunal accepts that he assumed their reference to arbitration was meant to relate to the involvement of ACAS, rather than the internal appointment by the University of an independent arbitrator. Indeed, on 19 January 2022, he replied to Dr Schaeffer explaining that he would wait to hear from ACAS. However, he also clarified that his understanding was that she claims to be fit for work but cannot return to her role until her concerns have been addressed. He added that the University will not be able to allow her to return to work given concerns about her health and wellbeing and her ability to carry out her duties, until she has seen OH. He did explain to her that whilst the University was paying her normal salary ‘for now’, it could not continue to do so without further progress being made to address the current position, either by Dr Schaeffer engaging with university processes or via ACAS processes. He concluded by saying she would be paid as normal for January, but the position will be reviewed again early in February in the light of the position at that point (p 266).[54]Many employers in this scenario would have quite reasonably made an ultimatum that if an employee refused a request to attend OH, their contractual sick pay would cease until they complied with this request. Dr Schaeffer was treated with some a great degree of consideration by Mr Mullen and was allowed time to reflect. Surprisingly, she argued in evidence that this was discriminatory, even though she appeared to be treated no differently than anyone else who had been absent on long terms sickness absence and that is before her strange behaviour with the numerous emails was considered.[55]We accepted that Dr Schaeffer was being required to attend OH before returning to work, but regardless of what was happening in this case, it is entirely appropriate for an employer to want to have a specialist OH opinion regarding. The respondent was a university, teaching primarily young adults and in this case, she was a person who objectively was demonstrating irregular behaviour which could reasonably raise concerns about her mental health. It was important to protect not only students and work colleagues but also Dr Schaeffer herself.[56]The term ‘impasse’ was used by Professor Posso and ‘deadlock’ by Dr Schaeffer. Both terms could be applied to the relationship between claimant and respondent at this point. But the Tribunal finds that it was one created by the claimant. Without an OH report, the University could not know how to support Dr Schaeffer back to work and whatever her reasons were for refusing, the University could not countenance a return until this expert advice had been given. Indeed, in cross examination, Professor Schaeffer confirmed that “I didn’t want to go back to work with the imposition of OH. Had I gone to work, then maybe I would have gone to an OH appointment”. This was not a reasonable step to take, and Dr Schaeffer was being unnecessarily obstructive.[57]A few days later, Tribunal proceedings were presented on 20 January 2022.[58]Some few weeks later, Dr Schaeffer sent an email to an academic at UCL on 15 March 2022, but she copied in Ms Rothwell, the Vice Chancellor and making very serious allegations against the UCL academic whom it is unnecessary to name. However, this email would have added to the University’s concerns about her mental state and her fitness to return to work, (p269.1)[59]Dr Schaeffer remained absent from work through ill health. On 23 May 2022, Mr Mullen emailed her to clarify whether she wished the period of ongoing absence to be treated as sickness or not, noting that she previously had not agreed for it to be recorded as such. He observed that “we appear to be at an impasse”. There was also concern raised, “that you may not have been receiving appropriate medical care and we did not believe that the situation could be resolved until you did so. However, we appreciate that the situation may have changed since then and it would be helpful to understand what, if any support you are receiving.”[60]Mr Mullen also, explained in this letter that for the time being she would be treated as being on sick leave. He explained that full pay would be exhausted by 29 April 2022 and half pay would then continue to 28 October 2022.[61]Mr Mullen accepted that in ideal circumstances, Dr Schaeffer would have notified of the position regarding sick pay before April 2022. She continued to remain off work but was not submitting fit notes which the issue relating to OH remained unresolved and a point was reached where it was no longer sustainable to allow full pay to continue. She had after all, been of sick since October 2021 by the time she was informed that full sick pay would be exhausted and in circumstances where fit notes had not been provided for some time. Based upon the evidence before the Tribunal, we find on balance that there was no threat of dismissal and indeed at the date of the final hearing she was still employed by the University.[62]Dr Schaeffer replied the same day copying in the same diverse range of recipients as before and stating the only way ‘to resolve this impasse is at the Tribunal’. (p276). At this point she sought the appointment of an independent mediator.[63]The Tribunal found that the University’s witnesses who were called to give evidence were both credible and reliable. Mr Mullen particularly so, being sensitive to Dr Schaeffer’s position, adopted a fair approach to her difficulties and was not in any way prejudicial to her as an autistic person despite what she suggested. Law Disability (section 6 EQA)
Law
[64]Section 6 of the Equality Act 2010 provides that a person has a disability if he has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out day-to-day activities. Section 212 provides that ‘substantial’ means ‘more than minor or trivial’. Schedule 1 of the Act provides that the effect of an impairment is long-term if it has lasted for at least 12 months, it is likely to last for at least 12 months, or it is likely to last for the rest of the life of the person affected. An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if measures are being taken to correct it and but for that it would be likely to have that effect. Discrimination arising from a disability (section 15 EQA)[65]Section 15 of the Equality Act 2010 provides that a person(a) (A) discriminates against a disabled person(b) (B) if A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. However, this kind of discrimination will not be established if A shows that he did not know, and could not reasonably have been expected to know, that B had the disability. Disability discrimination arising from a failure to make reasonable adjustments (sections 20 & 21 EQA[66]Sections 20, 21 and 39(5) read with Schedule 8 of the Equality Act 2010 provide, amongst other things, that when an employer applies a provision, criterion or practice (“PCP”) which puts a disabled employee at a substantial disadvantage in relation to a relevant matter in comparison to persons who are not disabled, the employer is under a duty to take such steps as it is reasonable to have to take to avoid the disadvantage. Paragraph 20 of Schedule 8 provides that an employer is not expected to make reasonable adjustments if he does not know and could not reasonably be expected to know that the employee has a disability and is likely to be placed at the disadvantage.
Discussion
[67]The Tribunal reviewed the findings of fact and the relevant law described above and applied them to its consideration of the issues identified at the PHCM before Judge Benson. Disability[68]The University accepts that Dr Schaeffer was diagnosed with autistic spectrum disorder and that this amounts to a disability. However, the question of knowledge remains in issue and while the University argued that it did not know and could not reasonably have been expected to know that the Dr Schaeffer had the disability in question, Professor Posso was aware that she was diagnosed with autistic spectrum disorder from 9 June 2021 and as a senior manager responsible for her and in communication with other managers and HR, the Tribunal accepts that the University had knowledge of the disability from that date. Discrimination arising from disability (section 15 EQA)[69]The University had relevant knowledge from June 2021 and therefore the allegations of unfavourable treatment were considered with that knowledge existing at the time to which they relate.[70]Dr Schaeffer’s first allegation was that there was a refusal of her request for extra days to complete the marking of papers in June 2021. This was not actually what happened at the time and based upon the evidence available to the Tribunal, Dr Schaeffer took sick leave at the beginning of June 2021 and told colleagues that she may have difficulties with completing the marking of outstanding examination papers. Professor Posso as the manager of her department reminded her of the correct procedures to follow when thaking sickness absence and she was also informed to discuss with colleagues how the outstanding marking could be concluded, possibly with their assistance.[71]What Dr Schaeffer did not do, was to request additional days to complete the marking of papers. Instead, she made a direct approach to the external examiner who would have checked the internally marked papers and agreed with them that she could have additional time to submit the marked papers. This was unusual step to take and contrary to the expected channels of communication and it may well have caused some embarrassment to the University’s management. However, based upon the evidence available to the Tribunal, we are unable to find that Dr Schaeffer made any approach to her line manager or Professor Posso to have additional time made available for her to complete the marking that was outstanding. This unfavourable treatment did not take place as alleged.[72]The next alleged unfavourable treatment related to Dr Schaeffer not being permitted to take a period of special leave in September 2021. It is also related to the third allegation where Dr Schaeffer was not permitted to teach from home in September 2021.[73]The problem arose when she cancelled an in person lecture 5 minutes before it was due to take place and informed those attending (and who by this time would have expected lectures to take place in person), that it would now take place online. Not surprisingly, this gave rise to a complaint and Professor Posso had to remind Dr Schaeffer that for the 2021/22 academic year, the expectation was that most teaching would take place in person at the University.[74]Professor Posso was aware of Dr Schaeffer’s difficulties with childcare and suggested she should explore the possibility of Special Leave. However, understandably, he was not a HR expert and Ms Thomas discussed the matter further with Dr Schaeffer. Ms Thomas, whose evidence was unchallenged by Dr Schaeffer was honest about her initial error concerning her understanding of how leave worked, and that teaching staff had certain restrictions not imposed on non teaching staff, because of their teaching responsibilities during term time. Ms Thomas did apologise to Dr Schaeffer for her error and explained to her that teaching staff could not take annual leave during teaching weeks. Moreover, Special Leave could only be granted in certain circumstances, which were normally emergency situations. Immediate unpaid leave could be taken if Dr Schaeffer required an absence from work at short notice.[75]Accordingly, the University did refuse Dr Schaeffer permission to take a period of leave in September 2021 and that this was consistent with existing policies and procedures. Dr Schaeffer was well aware of the expectation that the majority of teaching should take place in person. But what was particularly problematic with the incident where she changed a lecture from in person to online and communicated the decision with almost no warning to the students concerned.[76]While both allegations reflect the circumstances arising at the time, the Tribunal was unable to accept that the treatment was unfavourable because of something arising in consequence of Dr Schaeffer’s disability. This was simply a childcare matter and while the University was aware of her disability at this time, it was not connected with the asserted ‘things’ in the list of issues, namely an inability to deal with complex issues at one time, or because of a lack of trust on her part. No disciplinary action took place and the process adopted by management was one of engagement, an exploration of possible options. Once it became clear that annual leave or special leave could not be offered, Dr Schaeffer was recommended to use OH and counselling services and that if necessary, she could take unpaid leave with immediate effect.[77]In relation to these three allegations which have been discussed, the Tribunal recognised the University’s legitimate aim, namely that the University had an obligation to students to provide the teaching that they expected, to ensure Dr Schaeffer’s mental health and that she was fit to teach. It is not necessary to consider this ‘defence’ in detail, but the Tribunal accepts that the University’s duty to its students was such that Dr Schaeffer was expected to mark papers within the time required and if not possible, to cooperate with management in ensuring the student’s reasonable expectations were met. This of course extended to the question of leave during term time and the expectation that teaching would take place in person.[78]The fourth allegation involved Dr Schaeffer being required to attend OH to assess her fitness before she was allowed to return to work. The Tribunal found that this was a very puzzling allegation to make given that Dr Schaeffer had been absent from work due to anxiety since October 2021 and a return to work was not proposed until January 2022, more than 2 months later. During this period, she had sent a number of emails which were sent to a diverse range of recipients, not all of whom were working for the University, and which made some very strange allegations which appeared to be unconnected with her job or her colleagues. Professor Posso and Mr Mullen both gave credible and reliable evidence about their concerns regarding her mental health and the Tribunal accepted that in the absence of any medical evidence from Dr Schaeffer, this was a reasonable position to take.[79]It also added to the expectation from the University that Dr Schaeffer attend OH to assess her health. She may well have told her GP that she wanted to return to work, but it is probable that her GP was unaware of the correspondence which had been seen by the University and described in the findings of fact above. It was not entirely clear why Dr Schaeffer was unhappy and unwilling to proceed to an OH examination before she was permitted to return to work, but it was a necessary step and appropriate means of protecting the employee from returning to work before they were fit to do so. OH, could have also recommended a phased return or appropriate supervision to assist a smooth resumption of teaching at the beginning of 2022.[80]The Tribunal were unable to accept that the requirement for an OH examination was something which could amount to unfavourable treatment. It is a long recognised practice that medical examinations by OH or another relevant medical practitioner should take place following a lengthy period of absence or where specific reasons for an absence might be a cause for concern. Dr Schaeffer by sending a number of unorthodox emails while absent combined with an absence arising from anxiety increased the reasonable expectation of the part of the University that an OH attendance was prerequisite before permission could be given to return to work.[81]Professor Posso and Mr Mullen both gave credible and reliable evidence about their concerns regarding Dr Schaeffer’s mental health at this time and their belief that this was the problem which she was experiencing, rather than matters relating to her autism.[82]The Tribunal does acknowledge that the asserted ‘things’ arising in consequence of Dr Schaeffer’s disability are an inability to deal with complex issues more than one at a time, thereby increasing the risk of anxiety and a lack of trust on her part too.[83]In the absence of specific medical evidence, the Tribunal found difficult to conclude that the treatment complained of arose because of those things which were a consequence of Dr Schaeffer’s disability. Anxiety which was the reason for the fit notes being granted, was something which could arise when Dr Schaeffer was being expected to deal with more than one complex issue at any time. The requirements expected of her in terms of OH may have affected her stress levels, but there was nothing before the Tribunal to suggest to the University that this was an issue. The emails which she sent did suggest wider mental health issues, but no medical evidence was available and of course an OH attendance did not take place. The unfortunate thing in this case was that no OH examination took place, as it may well have assisted her return to work. But there was no medical evidence provided explaining that the OH appointment would have triggered Dr Schaeffer in a disproportionate way and instead, her refusal appeared to be nothing more than an attempt to control the situation on her terms.[84]Even if the Tribunal is wrong in concluding that the requirement that Dr Schaeffer attend OH was not unfavourable treatment, we accepted the University’s legitimate aim that they had to protect students, staff and of course Dr Schaeffer as an employee and thereby ascertain her mental health and fitness to return to work. In our view, the steps which were taken and the patience and sensitivity of Mr Mullen in encouraging Dr Schaeffer to return to work were proportionate measures supporting that legitimate aim.[85]The fifth allegation concerned a refusal by the University to appoint an independent arbitrator to resolve the issues between the parties. Dr Schaeffer was not particularly clear about when and how she wanted this step to take place. However, there was evidence available within the emails sent that when the grievance was raised in January 2022 and later in correspondence in May 2022, she referred to an independent person being asked to consider the correspondence and issues between her and the University.[86]The Tribunal noted that although there was no evidence of an express refusal being given by Mr Mullen or anyone working at the University concerning this request, no independent arbitrator was offered. However, the University as a large employer was offering Dr Schaeffer the support of OH and was requesting information from her so that her grievance could be investigated. Throughout the relevant period of the claim Dr Schaeffer was offered counselling, the Disability Advisory Support Service (DASS) to provide appropriate support for staff in accessing support arrangements and encouraged the support of trade unions, with her understood to be a member of UCU.[87]The problem was that when each step was offered to Dr Schaeffer, it was refused. Had she engaged properly in the OH and grievance processes, it may well have been the case that further support could have been offered. Given the patience and support offered and opportunities that were given to engage, the failure to offer an independent arbitrator was not considered by the Tribunal to be unfavourable treatment. Dr Schaeffer failed to engage with her employer and was unable to allow processes to continue, with ACAS being from 7 January 2022. There was a clear willingness to engage with ACAS and of course later, to involve judicial mediation which did take place during the proceedings and which both parties referred to during the final hearing, although it was made clear by the Tribunal that the details could not be discussed during the liability hearing.[88]The final allegation of unfavourable treatment involved the placing of the claimant on sick leave from May 2021 and thereby threatening dismissal. This allegation appeared to be confused. The evidence before the Tribunal was that Dr Schaeffer continued to be treated as absent on grounds of ill health from the point that her 2021 fit notes expired, and this status continued until the date of the final hearing. While she wanted to return to work shortly before the end of 2021, the University required her to first of all be examined by OH to ensure that she was fit to return to work and there is no need to repeat the reasons behind this decision as they have been discussed at length above.[89]The implication therefore was that she had not been declared fit to return to work by the University at the beginning of 2022 and Dr Schaeffer’s continued refusal to attend OH so that her fitness could be assessed, meant that the University took what appeared to be a pragmatic step of treating her as absent through ill health. This attracted continued contractual sick pay and she was informed of this position at the end of January 2022. Mr Mullen confirmed in evidence his recognition that this situation was not ideal, and he contacted Dr Schaeffer once more in May 2022 to ask whether she wished to be treated as being absent on sick leave. He reminded her of the remaining time where she would be paid full pay and the subsequent period where she was entitled to half pay in accordance with sickness absence procedures.[90]The Tribunal was unable to identify any threat of dismissal being made towards Dr Schaeffer either expressly or implicitly at this time and this allegation would appear to be contradicted by the fact that she has been allowed to remain absent of sick leave (albeit having exhausted her entitlement to sick pay), until the date of the final hearing. Accordingly, we do not accept that this allegation happened as alleged or that the decision to retain her on sick leave presumably in the hope that Dr Schaeffer might agree to an examination by OH at some point, could in itself amount to unfavourable treatment.[91]While Dr Schaeffer’s disability and the consequences identified under section 15 EQA, may have led her to believe that she was being managed out of the University, it simply was not the case that she was the subject of treatment which was seeking to achieve that outcome.[92]Although there is no need to explore the question of the University’s legitimate aim in relation to this final allegation of unfavourable treatment, the Tribunal noted that they were taking steps to give Dr Schaeffer time to reflect and change her mind about engaging with OH and the grievance process which she had commenced. This supported their desire to ascertain Dr Schaeffer’s mental health and her fitness for work and by continuing to pay her contractual sick pay despite a reluctance on her part to engage with OH, represented a more than proportionate measure in support of that legitimate aim. Reasonable adjustments (sections 20 &21 EQA) The PCPs and substantial disadvantage[93]There were 6 PCPs identified by Dr Schaeffer in the list of issues.[94]The Tribunal accepted that there was a requirement that teachers responsible for marking student’s exam papers were required to complete them within a set deadline. This was understandable given the need to submit marked papers to external examiners and to be able to give results to students by the designated date that was normally provided by the University. PCP1 was therefore correct as alleged.[95]The Tribunal accepted that as a member of the University’s teaching staff, Dr Schaeffer was not permitted to take annual leave during term time. The Tribunal were not taken to any specific policies or procedures within the hearing bundle but accept that ordinarily any leave request would only be granted with a reasonable period of notice having been given.[96]Special leave was available, but this was only granted for specific emergencies which did not include childcare which appeared to be the reason for Dr Schaeffer’s difficulties in 2021. There was an offer made for unpaid leave to be granted at short notice. This matter was not assisted at the time it arose due to the error made by Ms Thomas in her interpretation of the University’s absence requirements. However, to her credit, she acknowledged her mistake to Dr Schaeffer as soon as it was discovered.[97]Ultimately however, there was an expectation that whatever leave was requested, it would be made with a reasonable degree of notice, especially if it was planned to take place when teaching was expected. This is understandable given the need to rearrange lessons or source alternative teachers. For this claim PCP2 was not made out as alleged.[98]The third PCP requiring all teaching from September 2021 to take place in person was in existence and the Tribunal understood that as the Covid pandemic threat reduced during 2021, the University was anxious that students could have the face to face teaching that they expected as part of their course. There was a limited amount of remote working allowed during the academic year, but this was a very small part of the teaching to be carried out and was the exception rather than the rule.[99]In relation to alleged substantial disadvantage arising from PCPs 1, 2 and 3, Dr Schaeffer alleged that her ASD made it difficult for her to deal with several pressing demands upon her at one time. This made her anxious and resulted in her being signed off from work.[100]In relation to PCP1, it was not clear that Dr Schaeffer’s sickness absence related to anxiety arising from her ASD. Her self certification mentioned that she was autistic, and the nature of her absence was described as ‘essentially whiplash from sustained extreme emotional abuse’, (p113). This certification was not supported by any later medical evidence by way of fit note and while reference was made to autism, there was no suggestion that the absence was caused by anxiety arising from the pressures imposed on Dr Schaeffer to mark exam papers by a set date. There simply was insufficient evidence available to the Tribunal to say that PCP1 caused the substantial disadvantage alleged.[101]In relation to PCPs 2 and 3 (subject to the Tribunal’s consideration of their accuracy above), the evidence before the Tribunal was that they placed her at a disadvantage in relation to Dr Schaeffer’s childcare, but there was insufficient evidence available to persuade us that they placed her under a substantial disadvantage in relation to the effects of her ASD.[102]PCP 4 was a requirement that Dr Schaeffer attended OH before being permitted to return to work. This matter has already been considered extensively in relation to the alleged unfavourable treatment under section 15 EQA, above. However, for the purposes of a reasonable adjustments complaint, this was a valid PCP and is made out by Dr Schaeffer.[103]In relation to this PCP placing Dr Schaeffer at a substantial disadvantage in that it caused Dr Schaeffer not to trust the University, the Tribunal is not persuaded that this was the case. For such an allegation to succeed, the Tribunal would need to have been shown medical evidence which confirmed that by being pressurised to undertake procedural steps by her employer, Dr Schaeffer’s ASD meant that she responded by developing a lack of trust and becoming intransigent. No such evidence was made available to the Tribunal and instead there appeared to be sick leave arising from anxiety in late 2021 which may or may not have arisen from reactions connected with Dr Schaeffer’s ASD.[104]However, the only available medical evidence was the submitted fit notes which provided limited information. During the period of absence, Dr Schaeffer’s behaviour in terms of emails which she was sending to the University and elsewhere became eccentric and quite reasonably caused concern to Professor Posso and Mr Mullen as to her state of mental health. This appeared to be the primary concern regarding fitness to work and we cannot accept on balance that any substantial disadvantage arising from PCP 4 related to a lack of trust arising from ASD.[105]PCP5 was an allegation that the University did not allow an external arbitrator being appointed to resolve employee disputes. However, while it is fair to say that no external arbitrator was appointed by the University despite requests having been made by Dr Schaeffer on two occasions, there was no actual refusal by the University.[106]Instead, the University was seeking to get her examined by OH and was seeking to obtain information relating to her grievance and she was refusing to cooperate. She had declined to take advantage of support services previously recommended to her by management and a point had not been reached where an external arbitrator would be appropriate. There was no evidence of any refusal by the University to explore such an option should it become appropriate. Moreover, the University were willing to engage with ACAS who were notified in January 2022 and participate in judicial mediation once the proceeding began. Accordingly, PCP5 is not made out.[107]PCP6 was alleged as being a requirement that an employee provide a reason for their absence. Whether self certifying or obtaining a fit note, employees are reasonably expected to have given a reason for their absence, whether their own understanding of what that reason is, or their doctor’s understanding of the reason. That is an expectation that all employers reasonably have.[108]In terms of whether PCPs 5 and 6 put Dr Schaeffer at a substantial disadvantage compared to someone without her disability (in that he did not trust the University by reason of her ASD), the Tribunal was unable to find that this was a substantial disadvantage arising from Dr Schaeffer’s ASD for the reasons already explained above in relation to PCP4.[109]While the University was aware of Dr Schaeffer having been diagnosed with ASD since June 2021 when she informed Professor Posso, the Tribunal is unable to find that she was likely to be placed under the disadvantages identified because no medical evidence was available to suggest that they would arise from this condition. The real problem in this case was the absence of medical evidence and the potential mental health issues that appeared to arise separately from the ASD condition in late 2021 while she was absent from work through ill health. Had she engaged with OH as requested by the University, relevant and persuasive medical evidence may have become available, but as it is, on balance we cannot find that any actual or constructive knowledge existed on the part of the University. The reasonable adjustments[110]Consequently, the consideration of reasonable adjustments is of little importance, however, they are briefly considered.[111]The provision of additional time to mark exam papers for a reasonable period, would have been a reasonable adjustment if requested by Dr Schaeffer of her employer. However, she did not ask for this time and before they could consider what assistance that they might need to provide her with, she had independently contacted the external examiner and arranged her own personal extension of time.[112]Dr Schaeffer’s reason for requesting leave in September 2021 were not connected with her disability, but she was not prevented from taking unpaid leave if she needed it.[113]Similarly, the request to work remotely from home related to childcare issues and not related to Dr Schaeffer’s ASD. It was reasonable in September 2021 to expect teachers to attend classes in person, but this was not a case where an employee presented an employer with medical evidence requiring this adjustment in connection with a disability. Accordingly, the University was not placed in a position where it could be expected to consider this as an adjustment for a disability.[114]The Tribunal did not accept that it would be a reasonable adjustment to allow Dr Schaeffer to return to work without having first been assessed by an OH physician as fit to return to duties. For the reasons explained above, there is an absence of evidence to support her belief that the refusal to see an OH physician before returning to work related to her disability of ASD. However, whatever the reason, it simply cannot be the case that an employer should be expected to allow an employee who has been absent on long terms sick leave with anxiety (and who has been sending unorthodox emails while off sick raising mental health concerns), to return to work without an OH assessment. This would be contrary to their duty of care to the employee, her colleagues, and the students whom she teaches.[115]Given the findings made above, the Tribunal does not accept that there was an absolute refusal by the University to appoint an independent arbitrator. Instead, Dr Schaeffer had simply not engaged with the University to a sufficient degree where an arbitrator would have been appropriate in relation to any grievance.[116]In terms of the adjustment relating to sick leave, the Tribunal noted that Dr Schaeffer remained on sick leave from October 2021 until October 2023 when the final hearing took place. her employer engaged with her in January 2022 and May 2022 to ask whether she wished to remain on sick pay, but she did not engage with the University. As it was, it played no part in a decision to manage Dr Schaeffer out of university employment and was simply a measure designed to protect her financially while she considered her position regarding OH and her grievance.
Conclusion
[117]Accordingly, both the complaints of disability discrimination under section 15 and sections 20 & 21 EQA reasonable adjustments are not well founded and must be dismissed as they are unsuccessful.