Employment Judge SlaterIn person for claimantMr S Walker (instructed by solicitor) for respondentDate 23 November 2023
JUDGMENT
The claimant was disabled at relevant times by reason of a physical impairment, being Chronic Kidney Disease. JUDGMENT having been sent to the parties on 22 August 2022 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
Issues
[1]This was a hearing to determine whether the claimant was disabled at relevant times (April 2020 onwards) within the meaning in the Equality Act 2010 by reason of Chronic Kidney Disease (CKD).[2]The respondent concedes that the claimant had the condition, that this was diagnosed in February 2020 and that the condition was long term, in that it is likely to last the rest of the claimant’s life.[3]The live issues for me to determine are whether the condition had a substantial adverse effect on the claimant’s ability to carry out normal day to day activities or whether the provisions relating to a progressive condition are met, in which case the progressive condition is taken to have a substantial adverse effect, so the test of disability would be met.[4]The provisions relating to progressive conditions are that the condition is a progressive condition, that it had some impact (but not a substantial one) on the claimant’s ability to carry out normal day to day activities and the condition is likely to result in the claimant having such an impairment.
The evidence
[5]I had an electronic bundle of documents. Both parties confirmed this included all the material they wanted me to look at. I had read this before the start of the hearing. Because this contained little information about CKD and because the claimant was not legally represented, I considered it appropriate to inform myself more about the condition by looking at the overview of CKD on the NHS website and the part of the UK Kidney Association’s website on CKD Stage G3. I informed the parties what I had read and offered an adjournment for them to read the material but neither considered they needed this.[6]The claimant, in her answers to a request for further particulars, stated that her condition did not impact on her ability to carry out day to day tasks. In her disability witness statement, she wrote that “under normal circumstances this disability would not have impaired my day to day activities” before explaining about the impact of coronavirus.[7]The claimant’s witness statement was very brief and her GP provided a one line letter confirming only the diagnosis of CKD. I accept the claimant understood her GP was refusing to provide any other medical evidence.[8]Since the claimant was not legally represented, I felt it appropriate, in accordance with the overriding objective, to ask the claimant some open questions, before cross examination, relevant to whether CKD had any impact on her ability to carry out normal day to day activities. Since this questioning brought out information not previously provided by the claimant, I offered Mr Walker time to consider his questions and/or take instructions before his cross examination and raised the possibility that he could make an application for a postponement if the respondent did not consider it could fairly proceed today. Mr Walker chose to start his cross examination without an adjournment, but we took a break after his questions for him to take instructions, after which he could ask further questions or make an application. After a 15 minute break, Mr Walker said he did not have any further questions and had no application to make.
Facts
[9]The claimant was diagnosed with stage 3 CKD in Feb 2020.[10]The claimant had been suffering with back pain for several years before this, for which she had been prescribed non-steroidal anti-inflammatory painkillers. After routine blood tests, she was diagnosed with CKD and taken off those particular pain killers which could increase damage to her kidneys.[11]With the advent of the coronavirus pandemic, the claimant was advised by her GP that CKD would make her particularly at risk if she contracted coronavirus, and her GP signed her off work for 3 months on 26 March 2020. The claimant would have been fit to continue to work had it not been for the pandemic. The claimant was subsequently placed on furlough by the respondent in early April 2020.[12]The claimant is a nurse by training. She retired from working nursing shifts 3-4 years ago. She was used to working 12 hour shifts as a nurse. I accept the claimant’s evidence that, after these shifts, prior to her health problems, she frequently walked, cycled or went to the gym.[13]The claimant worked in the respondent’s butcher’s shop. She worked shifts of 5-6 hours without a break, being on her feet all the time.[14]I accept the claimant’s evidence that, by April 2020, the claimant was feeling very tired. After her shifts in the respondent’s shop, she ate, then fell asleep. She did not have the energy to walk, cycle or go to the gym as she had in the past. She could not keep her house as clean and tidy as she would have done previously because of fatigue. The claimant did not attribute this tiredness to CKD until recently, when she has become more informed about the condition. She now believes it to be because of the condition.[15]The claimant is now employed in a nursery, although currently on sick leave because of back pain. She is not on her feet as much in this job. She still suffers from fatigue but has learned that it is important to keep as fit as she can to help manage the CKD. She has, therefore, started taking exercise again, forcing herself to do this, although she does not walk as far as she used to. She is still not able to keep her house as clean and tidy as she would like.[16]The claimant was diagnosed about a month ago with spinal stenosis. The claimant confirmed there is no link between this condition and CKD. She suffered back pain because of the stenosis, although of a different nature to the back pain which she had suffered for 3-4 years, in the kidney area. She is on painkillers which helps her to manage the back pain of both types. The stenosis also causes fatigue.[17]The claimant is on medication for high blood pressure and high cholesterol.[18]The NHS website notes that symptoms of CKD can include tiredness. It does not list high blood pressure or high cholesterol as symptoms of CKD. It does, however, list these as causes of CKD. The website states that there is no cure for CKD, but treatment can help relieve the symptoms and stop it getting worse. Treatments include lifestyle changes and medicine to control associated problems such as high blood pressure and high cholesterol.[19]The UK Kidney Association website states: “Patients with CKD stage G3 have impaired kidney function. Only a minority of patients with CKD stage G3 go on to develop more serious kidney disease. Cardiovascular disease, the umbrella terms for diseases of the heart and circulation (e.g. heart attacks and strokes), is more common in patients with CKD. It is important to try and identify which patients may go on to develop more serious kidney damage and to try and reduce the chances of patients developing cardiovascular disease.”[20]I accept the claimant has been told that 3-4% of patients with stage 3, go on to develop stage 4 CKD. The claimant’s sister is a retired GP and has told the claimant, after looking at information about CKD, that she thinks her risk of developing stage 4 CKD is higher than for other people because of the family history.[21]I accept the claimant’s evidence that she has a family history of CKD.[22]The claimant accepted that someone with stage 4 CKD has a 50% chance of a cardio-vascular episode.[23]The claimant no longer does the shopping because of difficulty carrying heavy bags, which she accepts is due to spinal stenosis, and because of fatigue. Her husband now does the shopping. Submissions[24]Mr Walker made the following oral submissions on behalf of the respondent.[25]The respondent accepts that the claimant has stage 3 CKD, that it was diagnosed in February 2020 and that the condition will last for the rest of the claimant’s life. The issue was whether, at the time of the events complained of, back in April 2020, CKD had a substantial adverse impact on her ability to carry out normal day to day activities.[26]Mr Walker submitted that it was clear from the pleadings that the claimant’s position was that CKD does not have a substantial adverse impact; he referred to paragraphs 8.29 and 50. The position has changed today.[27]It was undoubtedly the case that the claimant was advised she was at risk because of CKD during the pandemic. That in itself is not a substantial adverse effect. The claimant did not identify day to day activities affected by her condition.[28]Mr Walker submitted that the claimant had still not demonstrated that CKD had a substantial adverse impact on her ability to carry out normal day to day activities. The claimant, in answer to the judge’s questions, referred to fatigue and back pain. There was no definite causal link between back pain and CKD. It was very unusual for a GP to say they would not provide evidence. The respondent did not dispute that the GP said this, but it left the position that there was no evidence about a causal link.[29]Three impacts were identified: on exercise, on home management and on shopping. The claimant was still able to do exercise. Her home was not as clean and tidy as she would like it, but she had high standards. This was not enough to be a substantial adverse effect, even if the link between CKD and fatigue could be made out (and there was no medical evidence to this effect). In relation to shopping, the problem with lifting was due to the lumbar condition rather than CKD.[30]There was no evidence to allow the Tribunal to form the view that there was substantial adverse impact and a causal link with CKD.[31]The respondent did not challenge that the information on the NHS website was accurate. High blood pressure and high cholesterol were causes, rather than consequences, of CKD.[32]It was unclear whether this condition is progressive. The best evidence is the claimant’s assertion that 3-4% are likely to progress to stage 4. The claimant had received advice from her sister that she had a higher chance because of her family history. This was not evidence on which the Tribunal could rely.[33]If the condition went to stage 4, there was a 50% chance of a cardio-vascular episode. Mr Walker referred to Mowat-Brown v University of Surrey [2002] IRLR 235. He submitted that it was not enough simply to establish that there was a progressive condition; the claimant had to show that it was more likely than not that the condition would have a substantial adverse impact. It could not be said that the claimant’s condition would turn into something which would have a substantial adverse impact.[34]The claimant said she had nothing to add. She said that the National Kidney Federation defined CKD as a disability and that was the basis on which she perceived herself to have a disability. She said she was not an expert and went on what she had been told by her GP and what she had read.
Law
[35]Section 6 of the Equality Act 2010 (EqA) and Schedule 1 to that Act contain the relevant provisions relating to the determination of disability. Section 6(1) provides: “(1) A person (P) has a disability if – P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities.[36]Paragraph 1 of Schedule 1 provides that the effect of an impairment is long term if(a) it has lasted for at least 12 months,(b) it is likely to last at least 12 months, or(c) it is likely to last for the rest of the life of the person affected. It also provides: “If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day to day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”[37]Paragraph 5 of Schedule 1 relates to the effect of medical treatment. It provides: “(1) 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 treat or correct it, and but for that, it would be likely to have that effect. (2) “Measures” includes, in particular, medical treatment and the use of prosthesis or other aid.”[38]Paragraph 8 of Schedule 1 relates to progressive conditions. It states: “(1) This paragraph applies to a person (P) if –(a) P has a progressive condition,(b) As a result of that condition P has an impairment which has (or had) an effect on P’s ability to carry out normal day-to-day activities, but(c) The effect is not (or was not) a substantial adverse effect. (2) P is to be taken to have an impairment which has a substantial adverse effect if the condition is likely to result in P having such an impairment. (3) Regulations may make provision for a condition of a prescribed description to be treated as being, or as not being, progressive.”[39]“Substantial” is defined in section 212(1) EqA as meaning “more than minor or trivial.”
Conclusions
[40]I conclude that the claimant has a physical impairment, being stage 3 CKD. This is a long term condition, likely to last the rest of her life.[41]I consider first whether the condition of CKD had a substantial adverse impact on her ability to carry out normal day to day activities, even with the medication the claimant was taking.[42]The three activities referred to by the claimant as adversely affected are exercise, housework and shopping.[43]A substantial adverse impact is one that is more than minor or trivial.[44]The claimant relies on tiredness, which she believes is due to CKD, as leading her to stop exercise and to not being able to keep her house as clean and tidy as she would previously have done. She cites tiredness as one of the factors stopping her doing the shopping, although inability to carry heavy bags, due to stenosis, rather than CKD, is the other factor preventing this. I have accepted the claimant’s evidence as to the tiredness she has suffered and the impact on her activities.[45]The NHS website confirms that tiredness can be a symptom of CKD. I consider that spinal stenosis is also likely to contribute to fatigue, but the claimant suffered from fatigue and CKD for some period prior to that condition being diagnosed. I acknowledge that the condition is likely to have existed for some time before diagnosis, but accept the claimant’s evidence that the type of pain associated with the stenosis is of a different nature and more recent than the back pain previously experienced, in the kidney area. I conclude that the claimant’s evidence, supported by the information on the NHS website, is sufficient to establish that it is more likely than not that fatigue suffered by the claimant at relevant times for this claim was attributable to CKD. I conclude that, because of this tiredness, the condition of CKD had, at relevant times (April 2020 onwards), a more than minor or trivial adverse impact on her ability to carry out the normal day to day activities of exercise and housework. I consider the evidence in relation to shopping to be insufficient to find that CKD had a substantial adverse impact on her ability to carry out this normal day to day activity.[46]According to information on the NHS website, high blood pressure and high cholesterol are causes, rather than symptoms of CKD. However, that site also indicates that one of the main treatments for CKD is medicine to control associated problems such as high blood pressure and high cholesterol. I consider, therefore, in accordance with paragraph 5 of schedule 1, I need to consider the impact of the condition of CKD on the claimant’s ability to carry out normal day to day activities if she had not been taking medication for high blood pressure and high cholesterol. I have no medical evidence to assist me in this exercise, but it appears to me to be more likely than not that there would be greater damage to the kidneys if the claimant had not been taking the medication and the impact of CKD on her ability to carry out normal day to day activities would be worse, rather than the same or better. Since I concluded that there was a substantial adverse impact on the claimant’s ability to carry out normal day to day activities, even when taking the medication, it does not matter that I am unable, on the evidence before me, to assess the degree by which the impact would be worsened, if the claimant was not taking medication for high blood pressure and high cholesterol.[47]Because of my conclusion about substantial adverse impact, I do not need to go on to consider whether CKD is a progressive condition. Had I needed to do this, I would not have been persuaded, on the evidence before me, that CKD is a progressive condition. It can be, for a small minority of people, but I do not have medical evidence to assist me in assessing whether or not it is likely to be so for the claimant.[48]I conclude, for these reasons, that the claimant was disabled at relevant times by reason of a physical impairment, being CKD.
Law
[49]Section 26(4) provides that whether conduct has the effect referred to in subsection 1(b), each of the following must be taken into account:a. the perception of B;b. the other circumstances of the case;c. whether it is reasonable for the conduct to have that effect. Thus, the test contains both subjective and objective elements. Conduct is not to be treated as having the effect set out in section 26(1)(b) just because the complainant thinks it does. The Tribunal is required to take into account the Claimant’s perception, the other circumstances of the case, and whether it is conduct which could reasonably be considered as having that effect.[50]A Tribunal should address three elements in a claim of harassment: first, was there unwanted conduct? Second, did it have the purpose or effect of either violating dignity or creating an adverse environment: Third, was that conduct related to the Claimant’s protected characteristic? Direct discrimination[51]Section 39 of the Equality Act 2010 provides that an employer must not discriminate against an employee of his by, amongst other things, subjecting him to a detriment.[52]Section 13 of the Equality Act 2010 sets out the legal test for direct discrimination. A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic (race in this case), A treats B less favourably than A treats or would treat others.[53]In the case of age discrimination, A does not discriminate against B if it can show their treatment was a proportionate means of achieving a legitimate aim, (Section 13(2) ERA). Comparators[54]For the purposes of direct discrimination, section 23 of the Equality Act 2010 provides that on a comparison of cases there must be no material difference between the circumstances relating to each case. In other words, the relevant circumstances of the complainant and the comparator must be either the same or not materially different. Comparison may be made with an actual individual or a hypothetical individual. The circumstances relating to a case include a person’s abilities if on a comparison for the purposes of section 13, the protected characteristic is disability. The burden of proof[55]Section 136 of the Equality Act 2010 sets out the burden of proof that applies in discrimination cases. Subsection (2) provides that if there are facts from which the Tribunal could decide, in the absence of any other explanation, that person (A) has contravened the provisions concerned, the Tribunal must hold that the contravention occurred. However, subsection (2) does not apply if A shows that A did not contravene the provision. Discussion Disability discrimination
Discussion
[56]It was agreed by Irvings that Mrs Owen was disabled within the meaning of section 6 EQA at the relevant time by reason of CKD. This was diagnosed in February 2020 and communicated to Mr Turner by Mrs Owen in March 2020 when she informed Mr Turner of the condition prior to beginning her absence and which then developed into furlough.[57]Accordingly, we accept that not only was Mrs Owen disabled by reason of CKD for the relevant period, but also that Irvings had knowledge of this condition and the relevant impairment, namely her increased vulnerability to Covid from March 2020. Section 15 EQA.[58]The Tribunal accepted that Irvings placed Mrs Owen on furlough shortly after her absence began in late March 2020 following the fit note being provided by her GP. The decision was proposed by Irvings’ accountant and communicated verbally to Mrs Owen at Irving’s premises shortly after the decision was made. There was no consultation or written confirmation with her and the Tribunal noted that Irvings did not dispute this allegation. However, the Tribunal also accepted that this event took place in March 2020 which was before the HM Treasury direction of 15 April 2020 was effective, which required that any placement of an employee on furlough should be explicitly agreed by the employee in writing.[59]The Tribunal takes notice of the fact that SSP would be paid at a lower weekly rate than furlough payments, which would be paid at 80% of Mrs Owen’s salary. While this government backed scheme under the Coronavirus Job Retention Scheme Regulations 2020 may well have also benefitted Irvings in terms of its outlay paid in supporting an absent employee, it produced a favourable outcome for Mrs Owen compared with the alternative of her relying upon SSP. Even though she argued during cross examination that this benefit only amounted to a few pounds, it nonetheless provided better pay. The available evidence did not suggest that at the time, Mrs Owen was unhappy with the decision to place her on furlough, and she appeared to speak positively of it in her letter dated 17 June 2020.[60]On balance, we accepted that although the decision was made by Irvings, it involved a better outcome for Mrs Owens than the alternative where she would receive less pay by claiming SSP. At this stage she was willing to accept this proposal given the outcome, although it was noted that she did not provide her written consent. Nonetheless, at no stage following this decision did she seek to challenge her placement on furlough during the period of the fit note. The outcome ultimately, was more favourable that what she initially intended.[61]Under these circumstances, the Tribunal is unable to see how this treatment was unfavourable as required by section 15 EQA. The Tribunal heard that furlough commenced in early April 2020 and Mrs Owen self certified for the first week of her absence. Furlough was introduced to provide Mrs Owen with more money and Mr Turner gave clear evidence because of that both in his statement and when giving evidence during the hearing. On balance the Tribunal accepts that the decision was therefore not because of something arising from a disability, namely the decision by GP to shield her, but because the SSP that she was receiving was lower than the furlough payments that she could receive if placed on furlough.[62]An added consideration however, relating to this allegation was the second decision by Irvings to impose furlough (or continue with it), following Mrs Owen’s letter dated 17 June 2020 asking to come back to work on 29 June 2020 following the expiry of the fit note. By this stage, she believed that she was fit for work and could return to her job on a full paid basis (or alternatively part time with some furlough payments paid at 80% of the balance not worked). This would of course have involved higher pay for her than remaining on furlough. This was refused by Irvings for the remaining period (which we calculate at 7 weeks), of her employment while they awaited the provision of medical evidence supporting her fitness to return to work.[63]To some extent this could be construed as unfavourable treatment related to her disability. This is because she said she was now fit to return to work and resume her job with full pay. The reason Mr Turner refusing to allow this and to decide to continue with her being furloughed was because of something connected with her disability of CKD, namely a greater vulnerability should she contract Covid and a previous decision of her GP to shield her.[64]However, we noted that while the medical evidence was unavailable (and Mrs Owen failed to provide anything before she resigned), had Irvings refused to place her on furlough (or renew it), her circumstances would have placed her in a situation where she would have been required to claim SSP by obtaining a further sick note from her GP (which in all likelihood would have been granted given their previous decision that she should shield), which was of course less valuable than furlough as described above. Accordingly, we remain of the view that this second decision was not unfavourable treatment either, (albeit related to something arising in consequence of her disability). Indeed, at this time Mrs Owen was still not objecting to furlough per se as payment for absence instead of SSP but because she believed she was fit to return to work.[65]Even if the alleged ‘treatment’ was unfavourable, it was nonetheless carried out by Irvings as a proportionate means of achieving a legitimate aim, namely Mr Turner wanted to treat Mrs Owen fairly as an employee who was unable to work through no fault of her own.[66]It may have felt to Mrs Owen that she was being treated unfairly, but a reasonable employer would not want to have her return to work until satisfied she was fit enough to do so and not more vulnerable than her colleagues. The treatment complained of would have only been imposed as long as the medical evidence was not available. Once available, had it supported Mrs Owen’s return with or without adjustments, we accepted Irving’s evidence that this would have been supported. As it happened, the continued decision to remain on furlough was in the hands of the claimant and her unwillingness to obtain evidence from her GP at this time. Reasonable adjustments ss20 & 21 EQA[67]In terms of the single PCP asserted by Mrs Owens, namely that Irvings did not ensure other staff or customers wore face masks, the Tribunal was acutely aware that the employer needed to take into account the actual circumstances that existed at that time of the first lockdown in 2020 and not allow matters to become tarnished with hindsight or a conflation of later events which arose during the pandemic.[68]We accept that until several months following the introduction of lockdown measures, it was extremely difficult for employers to obtain PPE such as face masks, especially those not involved with the care or emergency services. Moreover, it was not actually compulsory to require employees and customers to wear face coverings in England until 24 July 2020. This was shortly before Mrs Owen resigned and more than a month after she asked to return to work.[69]Mrs Owen claimed she spoke with Mr Turner about making the wearing of masks a requirement of the business on an earlier date during lockdown and provided a couple of samples to show him. However, she failed to assert a precise or approximate date when this took place and Mr Turner was unable to recall the incident in question. On balance, we do not accept that this incident took place as alleged. We did note that this allegation was not supported in any of the documents relied upon by Mrs Owens in the bundle. We also accept that Mr Turner complied with the requirements imposed upon him by the government and also sourced bespoke masks during the summer of 2020 and arranged for socially distanced service for customers in the shop.[70]For there to be negative PCP as alleged by Mrs Owen we would need to be satisfied that there was an actual practice on the part of Mr Turner which actively resisted the wearing of masks in the shop and there was simply no evidence before us to support this argument.[71]This was not a scenario where Mrs Owen was seeking to argue that she could return to work if she was allowed to wear a face mask and instead she was asking that everyone else should wear one instead. Even if the PCP had been in place (which we do not accept), it would only have placed Mrs Owen at a substantial disadvantage had she been prevented herself from wearing a mask.[72]As a consequence, it could not have been a reasonable adjustment to require everyone to wear face masks before 24 July 2020 as an appropriate adjustment would have been for Mrs Owen to be permitted to wear a face mask so she could return to work.[73]However, based upon the evidence before the Tribunal, there nothing which persuaded us that the wearing of face coverings was a declared issue or requirement being advanced by either the Mrs Owen or her GP so as to facilitate a return to work when she requested the same on 17 June 2020. Had the medical evidence requested been provided and it supported such a contention, it may well have been an adjustment that could have been considered, but it related to an allegation where the PCP simply did not exist as alleged. Harassment section 26 EQA[74]We accepted that Mrs Owen was informed by Irvings (Mr Turner) on the business premises that her absence during the lockdown would be treated as furlough and she would be paid on this basis and would not be treated as off sick so as to avoid her claiming SSP which involved less money being paid to her. As discussed above, while she did not confirm her agreement in writing, we accepted that she was happy to accept the decision given that it provided her with more money than her initial intention to claim SSP and as she confirmed in her letter of 17 June 2020[75]We accepted that this conversation took place in March shortly after Mrs Owen’s absence began and took place when she visited Irving’s premises as a customer. She was informed that she would be placed on furlough and she argues this took place in the actual shop, whereas Mr Turner recalls it taking place in a private room upstairs in the building.[76]We were unable to find which of these accounts accurately reflected the location of the conversation based upon the dispute between the two witnesses and the absence of supporting evidence. However, we did accept that it was a legitimate and important conversation to have given its implications. Even if it did take place within the shop, we accepted that it was directed at Mrs Owen personally, intended as a private conversation and Mrs Owen was unable to provide any information concerning the identity of those who might have overheard the conversation and did not provide witness evidence to support this allegation that it was carried out in a public way.[77]The Tribunal could not accept that this conversation amounted to unwanted conduct. Mrs Owen needed to know of her position, Irvings needed to communicate this with her and did so as soon as they saw her. It did however, relate to her disability namely being a way of paying her during her absence which arose from circumstances connected with her disability. There might have been better ways to communicate this information, but we were unable to find that the conduct had the purpose of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. Ultimately, it was a very unusual situation, Irvings as a small employer with limited administrative resources and Mr Turner appeared to the Tribunal to be a reasonable employer trying to protect his employees as far as her was reasonably able to.[78]Mrs Owen says that she felt that the way in which the conversation took place (namely within the shop), had the effect of violating her dignity etc. The problem that we had with this argument was that there was an absence of evidence which suggested she was left hurt or unhappy by what had happened. Instead, she appeared to quietly remain absent on furlough and when she sought to return to work, she did not say anything negative about the furlough decision. No grievance or document purporting to be a grievance was sent to Irvings by her concerning this matter.[79]However, even if she did feel unhappy with the way in which the decision was communicated, there was simply insufficient evidence available to confirm that it was communicated in a public and demeaning way which could reasonably be considered a violation of her dignity. Age discrimination section 13 EQA[80]Mrs Owen was aged over 55 at the relevant time and she compared herself with Rebecca Hartley who was aged under 18 at that time. This was the younger person identified by her as the comparator in the list of issues. There was another girl called Evie who worked for Irvings at the material time and who was under 20, but she was engaged to work in the butchering section (Mrs Owen worked in cooked meats) and she was not named as a comparator. In any event, she did not carry out Mrs Owen’s work.[81]Ms Hartley was already employed by Irvings before Mrs Owen began her period of leave/furlough and for the reasons given in the findings of fact we were unable to see how she was employed by Irvings to replace Mrs Owen. Ms Hartley covered a number of roles, but primarily focused upon the expansion of the home delivery service, but even so, would have helped in the shop where necessary to cover for Mrs Owen who was absent at the time. This is not however, the same as being used to replace her, as an employer quite reasonably has to find ways to ensure that there is sufficient staffing cover while an employee is absent through ill health. The facts on balance of probabilities do not support Mrs Owen’s contention in relation to this allegation.[82]In terms of proving direct discrimination under section 13 EQA, Mrs Owen must persuade the Tribunal that Irvings as her employer, treated her less favourably than a comparable employee who in this case was named as Ms Hartley. As a comparator in an age discrimination complaint, Ms Hartley clearly fell into a much different age group than that occupied by Mrs Owen and to that extent she is an appropriate comparator.[83]However, Mrs Owen is not using Ms Hartley as a comparator to say that she was also shielding but was not subject to what could be called ‘a replacement exercise’ but was instead the subject involved with the alleged unfavourable treatment. Mrs Owen did not refer to a hypothetical comparator, but even if she did (and the list of issues allows for this), she would not persuade the Tribunal that the unfavourable treatment to which she complains actually took place.[84]Under these circumstances we were unable to accept that Ms Hartley was engaged as a replacement for Mrs Owen during her absence. As a consequence, the complaint of direct age discrimination must fail. Time limits section 123 EQA[85]The claim was presented on 4 August 2020, but ACAS was notified of a potential claim on 3 August 2020 and in accordance with section 123 EQA, all alleged acts of discrimination which took place before 4 May 2020 were presented out of time.[86]In terms of the claim, this potentially affects the allegations relating to Mrs Owen being placed on furlough under sections 15 and 26 EQA as on balance we found that she was notified of the proposal to place her on furlough in March 2020, (furlough began at the very of April 2020 after all). The allegations relate to the actual decision to place her on furlough or the way in which it was communicated to her and therefore we are unable to accept that it formed part of a series of continuing acts in respect of every subsequent date that furlough took place (described as the ‘state of furlough in the list of issues’). The decision was communicated and made in March 2020 and Mrs Owen either agreed, accepted to acquiesced to the decision[87]Accordingly, the initial section 15 and section 26 harassment allegations relating to the conversation in March 2020 was out of time in accordance with section 123 EQA.[88]However, in relation to the section 15 EQA allegation, furlough was initially offered to cover the period of the fit note, which ran from 26 March to 25 June 2020. After this date, (or following the letter requesting return to work, dated 17 June 2020), Irvings were put in a place where they were being asked to remove furlough so she could return to work. They decided to continue with furlough until it was satisfied medical evidence supported a return to work. This was a fresh allegation (and effectively a second allegation under section15) and clearly within time.[89]The Tribunal did consider the question of whether it was just and equitable to extend time in relation to the allegation of harassment under section 26 EQA and the first part of the allegation of unfavourable treatment under section 15 EQA. We took account of the evidence which Mrs Owen gave concerning the date when she decided to present her claim and we took into account that she was unrepresented and not legally qualified. We also noted that the case involved a relatively short period of time with allegations beginning in March 2020 and ending in August 2020 when Mrs Owen resigned. However, we heard no evidence to suggest that Mrs Owen was ignorant of the right to pursue employment claims in the Tribunal and that even if she was unaware of the mechanism of bringing such a claim, she did not provide any evidence that she could not have made enquiries into how she might pursue such a claim until she notified ACAS in August 2020. The original decision concerning furlough did not appear to be an issue for her when it was communicated to her and only became relevant in June 2020, when she was prevented by Irvings from returning to work until they were satisfied she had medical evidence confirming she was fit to do so.[90]In considering the question of just and equitable extensions under section 123 EQA, the Tribunal took into account the principles expressed in Robertson v Bexley Community Centre (see above). This case reminded Tribunals that there is no presumption that time should be extended unless they considered it just and equitable in the circumstances to do so. On balance, we were simply not persuaded that it was just and equitable to extend time and the relevant allegations/complaints are therefore out of time.[91]However, whatever our decision was in relation to section 123 EQA, it would not have made a material impact upon our overall decision in relation to the substance of the complaints of discrimination brought in these proceedings.
Conclusion
[92]Accordingly, for the reasons given above, the Tribunal must conclude: a) The complaint of disability discrimination is not well founded which means it is unsuccessful. b) The complaint of age discrimination is not well founded which means it is unsuccessful.