Mrs N Lawler v The Co operative Group Ltd and D A Collingwood: 2403575/2017
JUDGMENT
[1]The claimant resigned from her employment with the first respondent and she was not dismissed. The claimant's claim of constructive unfair dismissal fails and is dismissed.[2]The claimant's claim that the first respondent failed to make reasonable adjustments in respect of operations meetings held at the Altrincham office in 2016 (page 46 paragraph 1, all page references being to the agreed trial bundle unless otherwise stated) was presented to the Tribunal out of time in circumstances when it would not be just and equitable to extend time to the date of presentation of the claimant's claim on 2 August 2017. This claim is dismissed.[3]The claimant’s claim that the respondent failed to make reasonable adjustments in respect of time spent by her at the first respondent’s Ambrose Grove office (page 47 paragraph 2), in respect of arrangements for divisional meetings (page 47 paragraph 3), by requiring managers to be physically present at work at all times (page 48 paragraph 4), and by operating a policy that disallowed light duties[4]The claimant’s following claims of harassment in respect of the protected characteristic of disability are well-founded and succeed, namely:(1) Remarks made by the second respondent at a divisional meeting in March 2016 (page 51 paragraph 3);(2) Remarks made by the second respondent to the claimant in July 2016 (page 51 paragraph 4) that caused her embarrassment;(3) Comments made by the second respondent at a meeting in Altrincham in August 2016 (page 51 paragraph 6);(4) Comments made by the second respondent on 2 November 2016 (page 51 paragraph 7);(5) Comments made by the second respondent in late 2016 at Runcorn (page 51 paragraph 8);(6) Comments made on the telephone by the second respondent on 13 February 2017 (page 51 paragraph 9).[5]The following claims of harassment are not well-founded, fail and are dismissed, namely:(1) Comments made by Richard Lancaster (Managing Director) in July 2016 (page 51 paragraph 5);(2) Claims in respect of a home visit conducted by the first respondent on 9 March 2017 (page 51 paragraph 10).[6]The claimant’s claim of harassment in 2014 by the claimant's then line manager, Mrs R Hopkin-Hoggarth (page 50 paragraph 1), and her claim in relation to a telephone conversation with Mrs Hopkin-Hoggarth on 18 December 2015 (page 50 paragraph 2) were presented to the Tribunal out of time in circumstances when it would not be just and equitable to extend time to the date of presentation of the claimant's claim on 2 August 2017. These claims are dismissed; the tribunal does not have jurisdiction to hear them because they were presented out of time.[7]Case Management Orders will be issued separately.REASONS
[1]The Issues The parties agreed a case specific List of Issues (C3) and the Tribunal has resolved each of the issues identified by the parties, which were as follows:[2]The Facts 2.1 Miscellaneous Facts 2.1.1 The Respondent 2.1.1.1 The respondent is a large employer divided into various divisions of which Funeral-care is one. It has a tiered management structure with in-house professional employment relations advisers (ER Services). It has a divisional and regional structure with Regional Managers covering wide geographical areas of the United Kingdom. It operates with several written policies and procedures, including a written policy on making reasonable adjustments in respect of employees with disabilities (pages 58-60), a grievance policy (pages 61-68), and absence policy (pages 69-74), a Manager’s Guide to Absence policy (pages 75-80B), Long-term absence policy (pages 80C-80F), a Manager’s Guide to the long-term sickness policy (pages 80G-80M), a Manager’s Guide to managing stress (pages 80N-80R), a work related stress policy (pages 80S-80U), a respect policy on antibullying and harassment (pages 81-87),[1]Home visit 9 March 2017:2.2.1.1 On 2 March 2017 the first respondent called a divisional meeting to brief managers about a planned divisional reorganisation. The reorganisation necessarily involved consultation with the trade union. DC met with each of the managers in advance of the formal briefing on a one-to-one basis to give an overview and also some indication of how the reorganisation might affect the individuals. DC met with the claimant. DC explained that the claimant had a role in the reorganised structure as he felt she matched up to one of the first respondent’s requirements. There were several such managers in this position. DC’s attitude and comment was that each of them, including the claimant, could take the new role if she/they considered there was a suitable match, or if not then it was her/their choice and she/they could leave the business. One way or another DC indicated that the claimant could take or leave the new role. The claimant took this as a disparaging and dismissive comment, which the Tribunal finds was not DC’s intention. In speaking to the claimant specifically DC referred to her health as being a factor that she may wish to consider in making her decision as to whether to accept the matched role or to refuse it and leave the business. This was a reference to her disabling condition. This upset the claimant.2.2.1.2 The claimant then attended the divisional meeting with her peers, but she could not see the screen presentation clearly. She asked that DC allow her to rearrange the[2]Alleged failures by Mark Potts: 2.2.1.5 Mr Potts conscientiously and sincerely applied himself to his role as the claimant's welfare liaison. He contacted the claimant in a constructive manner, regularly but not so frequently as to, to his mind, apply undue pressure on the claimant. He contacted the claimant appropriately by both email and telephone during her incapacity. Mr Potts agreed the levels and extent of contact with the claimant, under her instruction as to the requirement, frequency and speed of response. Mr Potts took matters at the claimant's own speed and dealt satisfactorily and meaningfully with the claimant's welfare insofar as he was able.[3]Lack of assistance and transparency by HR: 2.2.1.6 The claimant requested that the first respondent’s HR department provide her with “the no light duties policy”. The first respondent attempted to make it clear to the claimant that there was no such policy, that is there was no policy that disallowed light duties for the claimant. The claimant did not believe that and continued, as she did throughout the hearing, to assert that there was a specific policy on the part of the respondent not to allow light duties. The first respondent’s HR department offered to[4]Six months to conclude grievance: 2.2.1.9 The claimant raised a written grievance on 23 March 2017 (page 155) addressed to Mark Potts. The claimant's grievance email is relatively short. She complained of harassment and bullying because of her disability over a few years, and in particular by DC. She also raised a[5]Removing the claimant from the divisional email distribution list: 2.2.1.14 The respondent circulates various publications to regional and other managers. Some are distributed centrally. The respondent circulates weekly KPI figures, financial reports, bulletins and there is also an email publication list. Mr Potts, acting on advice from the Employment Relations Services team, took the view that during the claimant’s absence with stress related symptoms it would not assist her if she was included in all the distribution lists. He stopped sending her the divisional team cascades. He did this with all good intent and not with a view to disadvantaging the claimant, who still received and could access other reports, bulletins and emails. The claimant complained in July 2017 that she was not receiving the divisional team cascades. On 1 August 2017 Mr Potts explained that he had not wanted to overload her and said that he would update her on her return to work in respect of all relevant points in issue. In[6]Declining to reinstate the claimant on distribution lists: 2.2.1.16 The claimant was reinstated on the said list. Mr Potts instructed reinstatement on 17 August and the claimant certainly recommenced receiving the divisional team cascades by 4 September 2017 in response to her July complaint. 2.2.1.17 The Tribunal was satisfied that this was the soonest available divisional team cascade following Mr Potts revised decision on the matter. The respondent responded appropriately to the claimant's complaint.[7]Removal from email contact list in August 2017: 2.2.1.18 The Tribunal finds that the claimant had remote access to emails throughout her absence and was not removed from the contact list. This finding is based on the respondent’s witness evidence which on this point the tribunal found to be more convincing than the claimant’s assertion.[8]Failing to uphold the claimant's grievance/flawed investigation: 2.2.1.19 Mr Baker, with the advice and assistance of Gill Aldom, considered the claimant’s grievance, listed her allegations and checked with the claimant by a letter of 11 April 2017 (pages 193/194) that they had understood the grievance properly by summarising the points of complaint. They also raised enquiries of the claimant. The claimant responded on 24 April 2017 at page 202 following which Mr Baker interviewed Mr Potts, Miss Clarkson and DC. Mr Baker made an executive decision not to interview others about historic or ancillary matters, that is specifically[1]BHH displayed hostility and bullying behaviour towards the claimant and others, both privately and during meetings. 2.2.6.1 The claimant perceived BHH’s conduct as being aggressive, paying attention to her disability and criticising and undermining her. However, in the light of all the evidence heard, including from BHH, it is apparent that BHH’s management style was at least robust and at worst perceived to be aggressive to many of her reports. The claimant was not the only person who said that they felt bullied and harassed by BHH. BHH’s management style towards the claimant was not related to her disability but reflected her approach to her subordinate colleagues in general.[2]On 18 December 2015 BHH telephoned the claimant to discuss with her a conversation that the claimant had had at a meeting with Robert McLoughlin, the then Regional Manager. 2.2.6.3 BHH asked the claimant whether she had raised the question of her disability with Mr McLoughlin and accused the claimant of drawing attention to BHH by using disability related issues. BHH said that she would speak to DC about the claimant’s conversation with Mr McLoughlin, and stated words to the effect that she had an issue with the claimant’s “health issues”. Those words were unwanted. BHH comments appeared to put pressure on the claimant not to mention her disability and to therefore draw attention to both herself and to BHH’s management of her; she put the claimant on the defensive by threatening to speak to DC; BHH saying that the claimant's disabilities were “a real issue” undermined the claimant's confidence in her post. 2.2.6.4 The claimant felt a harassing effect from each of these statements. The comments were made by BHH on 18 December 2015; BHH left her employment in March 2016. The claimant had complained of them. The claimant decided not to take any action because BHH was removed from the business, and she felt that matters would then improve. Nevertheless, she took no formal action regarding BHH, who was generally considered to be overbearing and was accused by others of being a bully. The claimant presented her claim to the Tribunal in August 2017 in relation to events that occurred in December 2015, and that is approximately 21 months after the incident.[3]At a divisional meeting in March 2016 DC again used the expression that he expected managers to be “on the pitch”.[4]In July 2016 DC said to the claimant either that she was an embarrassment to him because of her disability, or her disability was embarrassing to observe. 2.2.6.7 In any event, and whilst the Tribunal cannot make a finding as to the exact quotation, it is satisfied that DC referred to the claimant’s disability in terms of embarrassment. The claimant did not want to hear this. She was upset by the comment. The claimant’s evidence was credible, cogent and consistent on each of these allegations of harassment by DC (where the tribunal found in the claimant’s favour) which themselves were consistent with DC’s reluctant tolerance of sickness absence and the regime at large in respect of “light duties” as described above. For his part DC either had[5]In July 2016 the claimant was introduced to Richard Lancaster, the Managing Director. 2.2.6.8 In the introductory conversation the claimant referred to having been bullied by BHH and she alleged that this had continued under DC’s management. Mr Lancaster said that the claimant needed to move on, and he gestured to her with his hands to the effect that she ought not to continue with that line of complaint. He said words to the effect that she ought to stop and move on. He had been concerned about complaints regarding bullying and harassment by senior management and had taken action to look into matters. BHH had left the business. Mr Lancaster did not admit to having made the comment or using the hand gesture, however the Tribunal finds as a fact that he did both; the claimant’s recollection was clear and there was a witness to the event. These were unwanted words and it was an unwanted gesture. 2.2.6.9 The Tribunal is satisfied in the context, and considering all the evidence heard in relation to this episode, that Mr Lancaster merely sought to draw a line under past events involving BHH generally, particularly those that had been dealt with. The claimant was disappointed. The Tribunal is satisfied that Mr Lancaster’s comments were not related to the claimant's disability; they were related solely to what he considered was a resolution of issues and a need to carry on.[6]At an operations meeting in Altrincham in April or May 2016 2.2.6.10 Whilst the claimant was ascending the stairs to the meeting room DC made a comment along the lines of, “There we are, it’s you and the stairs again”. 2.2.6.11 The Tribunal finds that words to that effect were spoken in that context, and that those words were unwanted. DC meant no harm and it was not his purpose to harass the claimant, however she felt a harassing effect and was upset at his drawing attention to her compromised capacity to ascend the stairs.[7]On 2 November 2016 2.2.6.12 Prior to a divisional meeting in Nottingham the claimant stayed in a hotel along with other colleagues. The claimant had enquired at reception about the lift to her room. DC commented to the claimant that he had overheard the claimant discussing the lift or asking about the lift at reception, and made a remark about not wanting her to cause “any fuss”. This was a reference to the claimant's mobility. These words were unwanted by the claimant. 2.2.6.13 Once against the Tribunal considers that it is likely DC thought that he was being light-hearted. However, the claimant was upset that he was commenting on her disability and drawing attention to her with an apparent criticism and instruction.[8]At premises in Runcorn in late 2016 2.2.6.14 DC said to the claimant that she was drawing attention by using a walking stick and he may have said she was drawing attention to him. Once again, he made some reference to the use of the walking stick being embarrassing, either to the claimant or to him. 2.2.6.15 The Tribunal finds that DC did say that using the stick drew attention and did refer to embarrassment. Those comments or words of that nature were repeated by DC to the claimant on 25 January 2017 and 8 February 2018. The claimant had never wanted attention to be drawn to her mobility issues. She was embarrassed and upset at the comments made. The words were unwanted.[9]On 13 February 2017 2.2.6.16 DC spoke to the claimant about the forthcoming restructure. In the context of saying that the restructure could give the claimant an opportunity to consider her long-term future, either within the business or leaving; DC made a reference to the claimant's health. He was referring to her disability. He indicated to the claimant that her health was something that she might want to consider and it could be an opportunity for her to do what she thought was best in the light of her disability. The claimant did not wish to be considered by reference to her disabilities, particularly about her long-term future. Such matters were personal to her. As far as she was concerned the first and second respondents’ considerations should only have been about whether her[10]On 9 March 2017 2.2.6.19 The claimant was visited at her home by Ms Clarkson and Mr Potts as detailed above. 2.2.6.20 The Tribunal finds as a fact that neither Ms Clarkson nor Mr Potts were oppressive or confrontational during the visit; they eventually became defensive owing to the confrontational attitude of the claimant and her husband. The visit was arranged at an earlier stage than usual under the first respondent’s absence management policy because of the particularly serious symptoms displayed by the claimant on 3 March 2017 at which time she made serious allegations against DC, a senior manager, and then was absent from work with work-related stress. Ms Clarkson was genuinely motivated by concern for the claimant and took appropriate advice from ERS. The meeting was arranged with the claimant's consent. It was entirely reasonable of Ms Clarkson and Mr Potts to seek reassurances about the claimant's wellbeing and to try to get to the bottom of her concerns over DC’s conduct with a view to seeing to her speedy, amicable and healthy return to work and so that the first respondent could address allegations of bullying in the workplace as appropriate. 2.2.6.21 The Tribunal finds that this was not an opportunistic bid to force her out of the business quickly because of her disability as alleged. It was an attempt at a constructive meeting because of the seriousness of the claimant's condition and her complaints on 3 March and the esteem in which she was held in the business as a Regional Manager. The claimant had consented to the visit but was then confrontational and suspicious about it from