Employment Judge Phil AllenIn person for claimantDate 25 July 2024
JUDGMENT
[1]The claim of sex discrimination is dismissed upon withdrawal.[2]The claim of unfair dismissal is struck out under rule 37(1)(a) of the Employment Tribunal rules of procedure because it has no reasonable prospect of success.[3]The claims of harassment related to disability are not struck out under rule 37(1)(a) of the Employment Tribunal rules of procedure because it has not been found that they have no reasonable prospect of success.[1]The claimant’s complaints of disability-related harassment, discrimination arising from disability and failure to make reasonable adjustments are not well-founded. The claim is dismissed in its entirety.
REASONS
[1]The respondent (“Vesta”) provides daycare services to vulnerable adults. Mr Salmon was employed as a support worker. He was still employed at the time of the hearing, although he had not worked any shifts for a long time.[2]Mr Salmon has autistic spectrum disorder. Vesta agreed before the start of this final hearing that he is a disabled person for the purposes of s.6 Equality Act 2010 due to that condition (and that he was a disabled person at the time of the events in this case). Although it is agreed that Mr Salmon was disabled, Vesta’s position was that they didn’t know he was disabled before 11 April 2022, at the earliest.[3]Mr Salmon also has some degree of learning difficulties. We have not needed to decide whether that amounts to a separate disability. We record it here because it did have an impact on the way in which the hearing was conducted. We have also tried to write this Judgment, so far as possible, in simple language, to help Mr Salmon understand it better.[4]In the first part of his claim, Mr Salmon brings complaints about eight separate incidents, which he says happened whilst he was working. He says these incidents amount to harassment on the grounds of his disability. During 2021 and into 2022 Mr Salmon had a long period of sick leave. The second part of the claim is that he was not allowed to return to work without taking covid lateral flow tests. He says this was discrimination arising from his disability and also that there was a failure by Vesta to make reasonable adjustments.
The Hearing
[5]The hearing took place in person over three days on 8, 9 and 10 July 2024. We started the hearing at 10.00am with introductions. The panel then took the morning of the first day to read the witness statements and the agreed bundle of documents. As the bundle of documents was relatively short (around 270 pages), we were able to look at every document.[6]We re-started the hearing at 2.00pm when we discussed the List of Issues with Mr Warne and Mr Salmon. Everyone agreed that the List of Issues was correct. We also outlined to Mr Salmon the way the Tribunal hearing would run. It helps Mr Salmon to use a “now and next” format to understand what is happening. As well as explaining the whole course of the hearing at the start, the Judge frequently checked in with Mr Salmon and used “now and next” to remind him of what we were doing at this stage of the hearing, and what would be coming next.[7]We then heard evidence from Mr Salmon, who was cross-examined by Mr Warne. The next day, Mr Salmon was due to continue giving his evidence. Overnight, he had found some documents which he wanted to introduce. After some consideration from Mr Warne and the Tribunal, it seemed that copies of most these documents were already in the bundle. One new supervision notes document was introduced, with no objection from Mr Warne. We had a slightly delayed start to check that all the documents Mr Salmon wanted to refer to were available and had been read. When Mr Warne had finished cross-examining, the Panel asked Mr Salmon some questions. He finished giving his evidence at lunchtime on day 2.[8]The respondent called two witnesses. The first was Liz McLoughlin, who was a Team Leader and who supervised Mr Salmon at the time of some of the events in the case. Mr Salmon cross-examined Miss McLoughlin, asking her questions he had prepared in advance. When he had finished, the Panel asked her some questions too. Miss McLoughlin’s evidence finished around 3pm on day 2.[9]The respondent’s second witness was Neela Mody, who was Vesta’s Head of Business Development. She gave evidence by video link from the Republic of Ireland. Mr Salmon cross-examined Miss Mody, asking her questions he had prepared in advance. When he had finished, the Panel asked her some questions too. Miss Mody continued to give evidence on day 3, and finished her evidence just after 11am.[10]After we had heard all the evidence, we invited the parties to make their submissions. That is, to explain their arguments about each complaint in the List of Issues, based on the evidence we had heard. Mr Warne went first and talked through each of the issues. We then had a break and, when we came back, Mr Salmon made his submissions. When Mr Salmon had said what he wanted to say, we also invited Ms Johnson, who had been supporting him, to add to the submissions on his behalf.[11]The Panel then asked the parties to leave the room so that we could discuss our decision. We were able to give an oral decision to the parties at the end of Day 3. We explained what the decision was and our reasons for it.[12]Mr Salmon asked for written reasons to be provided as well. This was not a surprise, as we understand that Mr Salmon sometimes needs extra time to process things, and the Judgment included a lot of information to take on board. The Judge explained that she was about to take some extended leave, and whilst the written reasons would be provided it would not be until after the summer.[13]Everyone in this case acted with patience and courtesy towards each other. We were grateful for that, and want to commend everyone involved on their conduct of the case. We know that being involved in a Tribunal hearing is not easy for anyone.
The Issues
[14]There were two preliminary hearings in this case, before Employment Judge Horne on 27 March 2023 and before Employment Judge Allen on 29 June 2023. Those Judges helped the parties to put the Issues in the case into legal terms in a “List of Issues”. This provided the ‘road map’ for the final hearing, setting out all the decisions that this Panel had to make in order to decide the claims.[15]The List of Issues we have copied out below is from Employment Judge Allen’s case management Order, except that we have taken out the Issues that related to the question of whether Mr Salmon was disabled. As we have said, by the time of the hearing, Vesta had accepted that he was.[16]We understand that parts of the List of Issues were difficult for Mr Salmon to follow. Unfortunately, discrimination law is complicated, and it is part of the Tribunal’s job to make sure we apply the law correctly, so we needed to stick to the List of Issues, even where that made things difficult for Mr Salmon to understand.[17]Sometimes, especially in relation to the reasonable adjustments claim, this Panel felt that the List of Issues did not clearly include all of the legal tests we had to apply in a sensible order. We have explained this in our Discussion and Conclusions section, so that hopefully our thought processes in deciding the complaints are clear. List of Issues Harassment
List of Issues
[1]Did the respondent do the following alleged things:(1) In a (private) Whatsapp message sent by Lola Ige to the claimant in approximately April 2021, after the claimant had been injured by a service user, she said “You are not a hero” and said that what had happened was the claimant’s fault;(2) The claimant was called to a meeting to discuss service user CB and vaccines by Lola Ige and was spoken to harshly in front of other staff and suspended that week, in April 2021;(3) When the claimant asked why the father’s day cards which had been designed with service users (using his own money) had not been handed out, Lola Ige first said that the claimant had missed a deadline (when he says he hadn’t) and, afterwards, said she did not like the design (when she had liked the design when it was first shown to her), in June 2021;(4) Lola Ige yelled at the claimant to “get out” the office when the claimant spoke to her about the father’s day cards in June 2021, and told the claimant that he was causing her a lot of problems and stress and she would report it to head office;(5) When the claimant was required to attend a meeting in June 2021 about tying the toilet seat up with chord, he was only shown the letter about it briefly by Lola Ige and could not read it and, when he asked for a copy, it was not given to him. She also shouted at the claimant to “just get out”;(6) Liz McLoughlin called the claimant a “clown” on 30 June 2021. The Tribunal will need to decide if she called the claimant a clown (as he alleges), or did she tell him to stop acting like a clown (which is what the respondent contends)?(7) Lola Ige mocked an England flag artwork which had been produced by a service user with the claimant’s support, saying in front of other staff and service users “What is this?” and that it did not look like what the claimant had been asked to do, in early July 2021; and(8) Within a few days following a supervision meeting held on the last day before the claimant’s illness (so within a few days of 7 July 2021), when the claimant asked Lola Ige for his supervision meeting notes, she said that there weren’t any.[2]The issues are:(1) Was the harassment part of conduct extending over a period which ended on or after 8 March 2022?(2) If not, would it be just and equitable to extend the time limit?(3) Was that conduct unwanted?(4) Was it related to the claimant’s disability (autism)?(5) Did it have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him?(6) If not, did it have the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him? (The tribunal will consider the claimant’s perception and whether in all the circumstances that perception was reasonable.)[3]On 2 May 2022, the claimant tried to return to work, but was not allowed to do so.[4]The respondent’s refusal was unfavourable treatment.[5]The reason why he was not allowed to work was because he had not taken a lateral flow test and had not agreed to the condition of taking a lateral flow test before the start of each shift.[6]The claimant says that his refusal to agree to that condition, or to take a test, arose in consequence of his disability in two ways:(1) The thought of a lateral flow test was a reminder to him of a traumatic incident in his past. As a consequence of his autism, he had allowed a person to take advantage of him. He does not want to talk about what happened. What he did say was that, as a result of that incident, “I don’t want anyone putting anything in me without my informed consent”; and/or(2) Another consequence of his autism is that he tends to ruminate and think obsessively about things. One of these is the intrusion of a lateral flow test and its association in his mind with the previous incident.[7]The respondent accepts that it could reasonably have been expected to know of the claimant’s disability by 11 April 2022.[8]The respondent will seek to justify the unfavourable treatment. It will rely on the aim of protecting colleagues and service users from the coronavirus. That aim is legitimate. Requiring the claimant to take a test was a means of achieving that aim. The Tribunal will need to decide if that was a proportionate means of achieving that aim.[9]The claimant says that the treatment was disproportionate, because:(1) He would not go to work if he had any symptoms;(2) The service users were young and were not clinically vulnerable to COVID- 19; and/or(3) His previous manager had been happy to allow him to go to work without a test.[10]The issues are these:(1) Did the claimant’s refusal to take a lateral flow test, and to agree to the testing condition, arise in consequence of his disability?(2) Was it proportionate to prevent the claimant from returning to work? Duty to make adjustments[11]The respondent had a provision, criterion or practice (PCP) that a Support Worker was required to take a lateral flow test before the start of each shift.[12]The claimant says that this PCP put him at a substantial disadvantage in comparison with people who were not disabled. The nature of the disadvantage is set out in paragraph 6 above.[13]By way of adjustment, he says, the respondent should have taken the step of allowing him to return to work without having to take a lateral flow test.[14]Ms Mody decided not to take the step on 16 February 2022 and (possibly) again on 9 March 2022 and 11 April 2022. The claimant was refused permission to work on 2 May 2022.[15]So far as the claim is about any breach of the duty to make adjustments before 11 April 2022, the respondent denies knowledge of the claimant’s disability.[16]For the whole period of the claim, the respondent denies knowledge of the disadvantage.[17]The issues are:(1) When should the failure to make adjustments be treated as having been done for the purposes of section 123 of the Equality Act? Was it on or after 8 March 2022?(2) If it was before 8 March 2022, is it just and equitable to extend the statutory time limit?(3) So far as any part of the claim is about a breach of the duty occurring prior to 11 April 2022: 17.3.1. Can the respondent prove that it did not know that the claimant was disabled? 17.3.2. Can the respondent prove that it could not reasonably have been expected to know of his disability?(4) For the whole of the period from 16 February 2022 onwards: 17.4.1. Can the respondent prove that it did not know that the claimant was likely to be placed at a substantial disadvantage by the PCP? 17.4.2. Can the respondent prove that it could not reasonably have been expected to know of the likely disadvantage?(5) Did the PCP put the claimant to the alleged disadvantage?(6) Was the disadvantage more than minor or trivial?(7) Was it reasonable for the respondent to have to take the step of allowing the claimant to return to work without taking a lateral flow test? Findings of Fact
Background Facts
[18]As we have already said, Mr Salmon has autism spectrum disorder. Although that was only formally diagnosed towards the end of his employment it is a lifelong condition which Mr Salmon has always had. Mr Salmon attended a special school for the early part of his education, and refers to himself as having learning disabilities and “coming from a background of special needs”. Although he struggled with the academic side of school, he showed a talent for art at an early stage, and ultimately moved to mainstream school in order to be able to sit GCSE exams in art. He now holds a visual arts degree.[19]References in the evidence from both parties make it clear that Mr Salmon’s autism affected the way he conducted himself at work. It was his manager, Lola Ige, who suggested that he seek a referral for an autism assessment. This was based on her observations and interactions with him, although it is not exactly clear when she did this.[20]Vesta provides daycare services to vulnerable adults. Mr Salmon was employed as a support worker from April 2017, working in the Paul Murphy Centre. Mr Salmon made use of his artistic skills and talent in his support worker role, and he came up with ideas for arts projects that the service users could do, and helped them to complete the projects. We find that he acted, in effect, as the Arts Co-ordinator for the centre, although his job title remained “Support Worker” and that was the role he was formally employed to do.[21]Everyone agrees that Mr Salmon did some excellent work for Vesta and its service users. In her evidence, Miss Mody spoke movingly about the impact of that work. She recalled a conversation she had had with the parents of a service user who had sadly passed away. They had told her about the greetings cards the service user had made with Mr Salmon and how much they meant to the family.[22]Mr Salmon was managed initially by Nicky Bradshaw, until, approximately, the end of 2020, and then by Lola Ige. He also had various supervisors, including Miss McLoughlin. It is clear that there were occasions when Mr Salmon did not do everything right, at least in the eyes of his managers. For the most part, this could be addressed by means of informal conversations.[23]We find that some flexibility was shown by Vesta and its managers accommodating the difficulties that Mr Salmon had. For example, there was an incident where Mr Salmon was told to ‘dump’ some unneeded medication and he took this instruction too literally, putting it in the bin rather than returning it securely. Instead of disciplining Mr Salmon, Vesta’s managers simply decided that he should not be responsible for service users’ medication. His role evolved to become, in practice, the Arts-Coordinator role, both because that was what he was good at, but also because there were other parts of the more general Support Worker role he could struggle with.[24]Overall, before the key events in this case, we find that Vesta chose to manage issues in a low-key way when they arose, when another employer might have gone down a formal disciplinary or capability route. That might because it is hard to recruit workers in this sector, or because Mr Salmon’s strengths compensated for his weaknesses, or a combination of those factors.[25]We pause here to note that The Buckland Report, published this year, highlighted the disadvantages faced by autistic people accessing the workplace. It estimated that only 3 in 10 autistic people are in work, compared with 8 in 10 of the general population. Against that backdrop, we believe that credit is due both to Mr Salmon, for obtaining work and persisting in it even when it was difficult at times, and to Vesta for showing the flexibility which enabled him to do so. Covid[26]Unfortunately, the positive relationship between Mr Salmon and Vesta became more difficult to maintain when the covid pandemic interrupted everyone’s lives in 2020. This created a more stressful environment for everyone; rules and guidance changed quickly, and there was a lot of fear and heightened emotions.[27]Our evidence bundle contained an autism spectrum disorder assessment report. The assessment was carried out on 19 March 2022 by a team of specialists including Clinical Psychologists. The report says that “Marcus becomes very fixated on things. Now and over the last two years this has been anything related to Covid-19. This has virtually ruled his life to the point that he had to see his GP and get support for the anxiety it caused him.”[28]We find that Mr Salmon quite quickly became a sceptic in relation to the governmental and medical response to covid-19. He has told us that the vaccines are experimental and untested and that PCR tests are ineffective in detecting covid. He does not view these as matters of belief, but of fact.[29]Mr Salmon also held strong objections to wearing face masks, and to taking any form of self-administered swab test.[30]The onset of covid therefore led to increased friction between Mr Salmon and his colleagues, particularly Miss McLoughlin, throughout 2020 and the first part of 2021. It was also roughly this time that Miss Ige came into post. Mr Salmon views Miss Ige as being less accommodating than previous managers, particularly Nicky Bradshaw, with whom he had a very good relationship. That might be right, but it might also be a reflection of the fact that everything had become more difficult with covid.[31]Mr Salmon’s complaints of disability harassment are largely about incidents with Miss Ige. It was unfortunate that Miss Ige did not give evidence. We accept the respondent’s position (which Miss Mody confirmed on oath) that Miss Ige has unfortunately suffered from serious illness since the events in this case. Given her circumstances, the respondent felt unable to ask her to be a witness, either voluntarily or by applying to the Tribunal for a witness order. We did not make findings about some of the earlier incidents set out in the List of Issues, for reasons we will explain later. Broadly, however, we accept that there were some incidents and some friction between Mr Salmon and Ms Ige from spring 2021. From Vesta’s point of view, we accept that there were genuine concerns about Mr Salmon’s attitude to infection control, and to covid generally. For example, there were concerns that he had tried to discourage a service user from agreeing to be vaccinated (which he denied). From Mr Salmon’s point of view, he felt that the artwork he was doing with the service users was being criticised or ridiculed, and that he was being picked on. The ‘clown’ incident[32]In June 2021 the incidents seemed to be happening more often, and to be more serious. This led to an unpleasant conversation in Miss Ige’s office on 30 June 2021. Mr Salmon says that Miss McLoughlin called him a clown. She says that she said he was acting like a clown. We found that both witnesses were giving their honest account of a short and heated conversation as they remembered it. We have chosen not to prefer one account over the other as the exact words used don’t affect our decision. We accept Miss McLoughlin’s account that Miss Ige then told her to apologise, and that she did. It follows from that, that the words said, and the way they were said, was not professional or appropriate. The way Miss McLoughlin acted was not okay, and she recognised that. Sickness Absence[33]A few days after the clown incident, there was another incident where Mr Salmon felt that work he had done with service users was being criticised. Mr Salmon went off sick with work-related stress from around 7 July 2021. This was a result of the incident where he felt art work was being criticised, but also generally due to difficulties in his relationships at work arising out of all of the incidents and disagreements.[34]On 1 November 2021 Mr Salmon raised a grievance via his UNISON representative, Pete Banks. The grievance was heard by Miss Mody, after a delay, in a meeting held on 6 December 2021. She produced an outcome letter on 3 February 2022 partially upheld the grievance in relation to the clown incident. The respondent accepted the incident had happened. It did not offer any redress in respect of the incident.[35]The grievance also included wide-ranging complaints about other problems Mr Salmon felt he was having at work and included proposals about how Mr Salmon could come back to work. He was concerned about working with Miss McLoughlin and suggested how and where he could work to avoid contact with her.[36]Discussions about Mr Salmon returning to work were going on throughout the period of the grievance process. Miss Mody took the lead on those discussions from Vesta’s side, and she prioritised this over reaching a conclusion about the grievance.[37]There were several barriers to getting Mr Salmon back to work. He was not sure that he could work with Miss McLoughlin and Miss Ige again, and that was a significant barrier. When the grievance outcome was produced, he was unhappy with it and that was then another barrier. However, there was a further specific problem in relation to covid. Miss Mody had informed him he could not return to work if he was not prepared to take daily lateral flow tests, or provide a medical exemption. The lateral flow test issue[38]The requirement to take daily lateral flow tests (“LFTs”) was already becoming an issue immediately before Mr Salmon went off sick. On 21 June he emailed Miss Ige, attempting to provide Vesta with an “exemption document”. We have seen this document in the bundle. It relates to vaccines, rather than lateral flow tests, and is a statement cut and pasted from the internet. We find that such a statement had no effect on whether or not an employer can require an employee to take LFTs (nor whether an employer can require an employee to be vaccinated).[39]Miss Ige forwarded the document to Miss Mody by email, and noted that Mr Salmon had not been taking tests as employees were being asked to, and said that “this has been [going] on since last year”.[40]In the period from November 2021 (when Mr Salmon went of sick) to spring 2022, Miss Mody repeatedly told Mr Salmon in emails that she needed to see a medical exemption before she could allow him to attend work without taking a lateral flow test. We find her communication on this was consistent and very clear.[41]There is a document in the bundle dated 9 December 2021 which is, on the face of it, a medical exemption certificate relating to vaccination. It takes the form of a letter to Mr Salmon on NHS header paper. There is no signature or footer and the sender’s address seems to have been blanked out. The letter states that Mr Salmon’s application for a medical exemption from vaccination has been successful. There are then several bullet points which state what the exemption means, including that Mr Salmon is “exempt from quarantine and completing a test on day 8 if you travel from a non-red list country”. There is no other reference to testing.[42]Mr Warne had his doubts about aspects of this document, and we sympathise with those concerns. In any event, however, Vesta’s position was that the document was never actually provided to Miss Mody, or anyone else, during the time of the events in this case. We accept that, because we are satisfied that if Mr Salmon had provided it, Miss Mody would have responded to him. She explains in her witness statement why she does not consider that the document amounts to a valid exemption document from testing (as opposed to from vaccination). We find that she would have provided a similar explanation to Mr Salmon at the time if he had provided this document to her. 2 May 2022[43]Mr Salmon turned up to work on 2 May 2022. No one at Vesta was expecting him, and he had turned down Miss Mody’s attempts to arrange meetings with her to discuss a return. On Miss Mody’s instructions, Mr Salmon was sent home from the centre as he had not taken an LFT. The current situation[44]The parties agree that Mr Salmon remains employed by Vesta. He has not attempted to return to work again and is not being paid. Vesta’s position is that the door remains open for Mr Salmon to come back.[45]At some point between May 2022 and this hearing in July 2024, the requirement for testing has ended. Vesta did not actively reach out to tell Mr Salmon that and encourage him to return. Miss Mody suggested that that was due to this litigation being underway.[46]Mr Salmon started ACAS Early Conciliation on 7 June 2022 and presented his claim on 17 August 2022. We think it is a shame that Vesta did not tell Mr Salmon when the testing requirement ended, and that the parties have not attempted a return to work now that the covid situation has eased. We would encourage them to do so. Relevant Legal Principles Time Limits[47]Section 123 Equality Act 2010 sets out the time limits for bringing a complaint of unlawful discrimination in the Employment Tribunal. It provides as follows:(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable.(2) [Omitted](3) For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it.(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a)when P does an act inconsistent with doing it, or (b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. Harassment[48]Section 26 of the Equality Act 2010 provides (as relevant) as follows: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B[49]The leading case on harassment is Richmond Pharmacology v Dhaliwal [2009] IRLR 336. In particular, we took account of the guidance set out in paragraphs 13-16 of that decision as to how the Tribunal should approach harassment claims.[50]In the case of Land Registry v Grant [2011] EWCA Civ Elias LJ commented in relation to the words “intimidating, hostile, degrading, humiliating or offensive” that: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.” A similar point was made in paragraph 22 of the Richmond Pharmacology case.[51]Section 15 EqA provides materially as follows:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[52]This test requires the following questions to be asked (See Pnaiser v NHS England [2016] IRLR 170):(1) Was there ‘unfavourable treatment’?(2) What was the cause of, or reason for, the impugned treatment, in the mind of the alleged discriminator (what was ‘the something’, in the language of the Act)?(3) Objectively speaking, did that ‘something’ arise in consequence of the employee’s disability? Failure to make reasonable adjustments[53]Where an employee is disabled within the meaning of s.6 EqA, their employer may come under a legal duty to make reasonable adjustments. This duty is set out in ss.20-21 EqA, which provide as follows: 20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(4) […](5) […] 21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) […][54]There is further guidance provided by the 2011 Code, to which we have had regard. Submissions[55]Mr Warne’s submissions followed the List of Issues and we have referred to some of the specific points he made in the discussion section below. He did not rely on any particular legal authorities and addressed us primarily on the facts.[56]Mr Salmon relied mainly on his witness statement, which was a detailed document. When Mrs Johnson added her submissions she provided some valuable context to the case and to Mr Salmon’s difficulties. We kept in mind, though, that this was not the time to introduce new evidence and did not allow Mrs Johnson’s statements to influence the facts that we found based on the evidence we had heard. Discussion and conclusions Harassment claim
Discussion and conclusions
[57]The List of Issues sets out eight acts which Mr Salmon says happened between April 2021 and early July 2021. We had to decide whether the complaints about these acts were presented in time. Any complaint about an act that happened before 8 March 2022 would be out of time, unless it was “conduct extending over a period of time”. This is often referred to as a “continuing act” and in that case, the time limit runs from the end of the continuing act. If the end of the continuing act was after 8 March 2022, then everything that formed part of the continuing act would be in time.[58]We found there is no continuing act in this case extending to 8 March 2022. The harassment allegations relate to separate events and incidents. Seven of the complaints are about Miss Ige, one is about Miss McLoughlin. The issues after 8 March 2022 were between Mr Salmon and Miss Mody and related to the on-going issues about getting Mr Salmon back to work. We find that the harassment allegations and the complaints about lateral flow testing are distinct and separate. There is no continuing act.[59]That means all of the harassment allegations are out of time. The Tribunal is able to extend the time limit if it is “just and equitable” to do so. That means if we think it is fair to do so, balancing the interests of both parties.[60]We thought about the complaints against Miss Ige first. From Vesta’s side, we have accepted that Ms Ige has suffered serious health problems that mean she is not able to be a witness. That means that there would be serious prejudice to Vesta in allowing the late claims to proceed. On the other hand, there is also prejudice to Mr Salmon in not allowing them to proceed as these are things he feels strongly about, and wants to complain about. It is also right to bear in mind that Mr Salmon is restricted by his disability, and that he was in poor health for some of the period of delay. In our view, however, that prejudice is limited for these reasons:56.1 The delay is very long. If Mr Salmon had wanted to complain formally about these things he could have done it much earlier, even taking into account his disability and ill health;56.2 The complaints are mostly about quite trivial things; 56.2 Mr Salmon himself did not mention certain of the complaints in his witness statement;56.3 The complaints are not overtly related to disability. In his grievance, Mr Salmon had suggested they were sexist. We would be more worried about excluding the complaints if they were more overtly related to his disability.[61]Balancing up those points, we have decided that it is not just and equitable to extend time for the complaints involving Ms Ige. We made no findings about whether or not those complaints would have succeeded if they had been brought in time.[62]The only other harassment complaint is the complaint about the “clown” comment, which was made by Miss McLoughlin. That happened on 30 June 2021, so it is out of time by many months. The factors we had to balance in relation to this complaint were different.[63]From Vesta’s point for view, the complaint was made very late. At the deadline for bringing the claim, Mr Salmon had not even raised a grievance. However, the prejudice that arose from Miss Ige’s illness is not relevant here. We had Miss McLoughlin as a witness, and, in any event, the parties were essentially in agreement that the incident had happened, even though there was a disagreement about the exact words used.[64]We decided in relation to this complaint that it was just and equitable to extend time and allow the complaint to be decided. This was a narrow decision, taking into account all the circumstances we have mentioned above.[65]We then have to turn to the test for harassment. Mr Warne rightly accepts that the clown comment was unwanted conduct. We then have to decide whether it was related to Mr Salmon’s disability? The connection is not obvious. We find that the clown comment (whatever the exact words) was a disparaging and insulting term relating to Mr Salmon’s behaviour at the time around infection control and covid measures. We are satisfied that Mr Salmon’s attitude to covid was a consequence of his disability. The conclusion is supported by the autism assessment report. Miss McLoughlin did not know about Mr Salmon’s diagnosis at the time she made the comment, but it isn’t necessary for her to know. In effect, she was commenting in an insulting way about his symptoms. We find that is enough to mean that the comment was “related” to the disability within the meaning of the Act.[66]We next had to decide whether the comment had the purpose or effect of violating Mr Salmon's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. In considering that, we have paid careful attention to the legal authorities referenced above.[67]We find Miss McLoughlin’s purpose in making this comment was expressing her frustration, in that moment, at Mr Salmon’s actions and attitude; it was not to violate his dignity or create an environment as described in s.26 EqA.[68]In relation to the effect of the comment, we find that Mr Salmon was genuinely and understandably upset by being called a clown (that was how he had understood the comment, regardless of Miss McLoughlin’s exact words). We find that he was not, however, negatively affected to the extent signified by the words in the statute. Further, if he was affected to that extent, then that was not a reasonable response, especially considering the verbal apology that was given quickly afterwards. In more simple terms: the effect the comment had on Mr Salmon was bad, but it was not bad enough to meet the legal test for harassment.[69]We are not here to Judge whether Miss McLoughlin did the right thing in making the comment, but whether she acted unlawfully. We find this comment was hurtful and unprofessional, but it was not unlawful harassment.[70]The List of Issues records that Mr Salmon was treated unfavourably by Vesta when he was not allowed to return to work on 2 May 2022. It is agreed by the parties that the direct reason he was not allowed to return was because he had not taken an LFT, and had not agreed to taking LFTs.[71]The first question for the Tribunal is whether Mr Salmon’s refusal to take LFTs was something “arising from his disability”. In the List of Issues, it is recorded that the refusal was related to autism in two ways:(1) The thought of a lateral flow test was a reminder to him of a traumatic incident in his past. As a consequence of his autism, he had allowed a person to take advantage of him. He does not want to talk about what happened. What he did say was that, as a result of that incident, “I don’t want anyone putting anything in me without my informed consent”; and/or(2) Another consequence of his autism is that he tends to ruminate and think obsessively about things. One of these is the intrusion of a lateral flow test and its association in his mind with the previous incident.[72]The respondent said that we had no evidence to link the traumatic childhood event to Mr Salmon’s autism. That would probably require medical evidence about the effect of autism, as well as factual evidence about the event itself. We agree.[73]However, we are satisfied that we can find a connection broadly in the way set out in the second paragraph taken from the List of Issues. Relying on the autism assessment report, we find that Mr Salmon’s disability causes him to become fixated on issues in current affairs, and that his covid fixation was an example of this. That fixation caused Mr Salmon to reject all the Covid rules the government wanted to put in place. As Mr Warnes suggested, it is common for people who have anti-vaccine views to also be against facemasks, testing and other precautions. Mr Salmon is an example of someone who has adopted that sceptical viewpoint. We find that his doing so arises, at least in part, from his autism. That is not to say that everyone who shares Mr Salmon’s condition would share this ‘symptom’ – Mr Salmon could just as easily have become fixated with adhering to covid guidance, or could have developed no fixation in relation to covid at all. We are satisfied in the specific circumstances of this case, however, that Mr salmon’s refusal to take LFT tests was something which can properly be said to arise from his disability.[74]We should also state that we reject Mr Warne’s assertion that taking an LFT test is a minor matter (and therefore, he says, the refusal was not connected to disability). For many people with sensory issues, an LFT test could be a major ordeal. The autism report acknowledges that Mr Salmon does have some sensory issues, albeit it does not go into detail.[75]In any event, we are satisfied on the balance of probability that Mr Salmon’s refusal to take LFTs was something that arose from his disability.[76]In a case under s.15 EqA, the respondent will not be liable if it did not know (and could not reasonably be expected to know) that the claimant was disabled. However, unlike in cases about reasonable adjustments, there is no need for the respondent to know about the effect of the disability. In other words, provided the Tribunal has found that Mr Salmon’s difficulty in taking LFTs was “something arising” from his autism, it doesn’t matter whether or not Vesta realised that.[77]Vesta has accepted that Mr Salmon is a disabled person for the purposes of the Equality Act 2010. However, it has argued that it had no knowledge of this under “at the earliest 11th April 2022, if not later”. That date is prior to the incident on 2 May 2022 when he was not permitted to return to work. In any event, if we were called upon to make a decision about Vesta’s knowledge of Mr Salmon’s disability status, we would find that the respondent had that knowledge from a point prior to July 2021 when Mr Salmon’s sickness absence commenced. From before that date there was a broad awareness amongst members of the management team that Mr Salmon had a mental impairment of some form, in the nature of learning disability, which caused him problems at work. We find that in those circumstances, even though Vesta did not know that Mr salmon had autism, it could “reasonably be expected” to know that he had an impairment which met the test under s.6.[78]So, we have found that Mr Salmon was treated unfavourably due to something arising from his disability. But that is not the end of the matter. A s.15 claim will fail if the respondent can show that its actions were “a proportionate means of achieving a legitimate aim”. The List of Issues records that the respondent “will rely on the aim of protecting colleagues and service users from the coronavirus” and that “That aim is legitimate.” We find that that aim was the genuine reason why Vesta, and particularly Miss Mody, refused to allow Mr Salmon to return to work on 2 May 2022. We also find that, had Mr Salmon produced a medical exemption certificate, letter from his GP, or similar, which specifically addressed the question of LF testing, and came from a clinician who was actually assessed Mr Salmon then Vesta would have accepted this and dropped the requirement for him to take LFTs.[79]The question is therefore whether it proportionate for Vesta to stop Mr Salmon from returning to work without either agreeing to LF testing or providing a medical exemption document? We find that was proportionate. It was proportionate generally for employers, particularly those in the care sector, to require employees to test regularly. This balances the interests of service users and colleagues to be protected from catching covid, with the obligation on the worker to take a test which most people find fairly quick and unobstrusive. An important part of that balance is that medical exemptions are available for people who experience real physical or mental difficulty in taking the test. Vesta (and employers generally) cannot be expected to determine which of its employees “can’t” test and which “won’t” test. That is, which employees have real difficulty caused by medical conditions (whether physical or mental). That is a medical role, and that is why medical exemptions are an important part of this system.[80]We do not know why Mr Salmon did not obtain a medical exemption clearly explaining that he should not be required to take LFTs – it may be that he was confused about what he needed to provide, despite Miss Mody attempting to clearly explain to him, it may be that his doctors did not agree to provide one because the level of difficulty he experienced did not meet the threshold for an exemption, it may be that he had an ideological objection to being required to provide one, or it may be for some other reason. Whatever the reason, however we are satisfied that it was propriate for Vesta to require Mr Salmon to take tests in circumstances where no exemption had been provided. It follows that it was proportionate for Miss Mody to bar him from returning to work when he tried to return without taking a test. Reasonable adjustment claim[81]The complaint about failure to make reasonable adjustment is very similar to the claim under s.15, which we have discussed above.[82]The framing of the list of issues suggests that the complaint about reasonable adjustments may be out of time, and that we should consider this first. In order to make a decision about time limits, however, we have to find when the adjustment should have been made (and, therefore, when the failure happened). That makes it hard to deal with that issue first. We decided to consider whether there was a failure, so that we could then identify the date.[83]The respondent accepts that it had a Provision,Criterion or Practice (PCP) that Support Workers were required to take LFTs before the start of each shift.[84]We are satisfied that this PCP put Mr Salmon at a substantial disadvantage compared to non-disabled (or differently-disabled) colleagues, either because he could not take LFTs, or because he found it very difficult to do so (it does not matter which). We find that difficulty was caused by his disability, for the reasons we have explained above.[85]We also find that Vesta had knowledge of Mr Salmon’s disability, at all material times, in line with our findings above. Further, we are also prepared to find that Vesta had knowledge of the disadvantage to Mr Salmon by the requirement to take LFTs. We accept that other people may be unable or unwilling to take lateral flow tests and not be disabled. But we must focus on circumstances of this claimant and this case. Mr Salmon’s approach to Covid, alongside other matters, was a flag to the respondent that he was suffering with an impairment. It was obvious that being unable to return to work was a disadvantage, and we consider that the respondent was in a position to appreciate that the disadvantage arose out of the mental impairment.[86]The proposed adjustment, of allowing Mr Salmon to attend work without taking a test would have been effective in removing the disadvantage. However, was it a reasonable adjustment? We find that it was not reasonable, as it would have had a negative effect on the respondent’s ability to protect colleagues and service users from catching Covid. As stated above, the necessary balance was provided by the possibility of having a medical exemption from the need to LFTs, but Mr Salmon never produced valid medical exemption documentation.[87]If Mr Salmon had been able to provide a medical exemption, then discussions may have followed about further possible adjustments to his duties (for example, to keep him away from particularly vulnerable service users). Unfortunately, that part of the process was not reached.[88]We have found that allowing Mr Salmon to attend work without taking LFTs, in the absence of a medical exemption, would not have been a reasonable adjustment. Therefore, there was no failure to make reasonable adjustments and the time limit issues do not apply. We have already said that it would have been better if someone from Vesta had contacted Mr Salmon to tell him when the testing requirement had stopped, and invited him back to work, but that does not form part of the claim. Overall conclusion[89]For the reasons we have given our overall conclusion is that Mr Salmon’s complaints are not well-founded and the claim is dismissed. That means that Vesta has won.[90]Our conclusion does not mean that Vesta and its managers always did the right thing. Instead, it means that the complaints don’t meet the legal tests we have to apply.[91]Ms Johnson said at the end of her submissions that she is proud of Mr Salmon for bringing the claims. This judgment shouldn’t change that. Bringing a claim in the Tribunal is not an easy thing to do and we appreciate the Mr Salmons feelings that he has been discrimination against are real. We also appreciate that he has put in a lot of effort and managed the hearing process well. Although this isn’t the result Mr Salmon wanted, we all hope it will bring some closure and he will be able to either explore returning to work with the respondent, or possibly moving into another role somewhere else. This is a sad case which has arisen mainly out of the difficult circumstances of the pandemic, rather than due to the fault of any of the people involved.