Mr P Blackburn v HM Revenue & Customs: 2500011/2017

EMPLOYMENT TRIBUNALS

Case No 2500011/2017

Venue NORTH SHIELDS

Hearing 21 April 2017

Between

Mr P BlackburnClaimant

HMRCRespondent

Before

Employment Judge Shepherd

Mr Mugliston for claimant

Ms Callan for respondent

Date 26 April 2017

JUDGMENT

The complaint of Age Discrimination is dismissed following a withdrawal by the claimant. The claimant’s remaining claim(s) will proceed to hearing on 6 - 14 July 2017. JUDGMENT OF THE EMPLOYMENT TRIBUNAL PUBLIC PRELIMINARY HEARING HELD AT NORTH SHIELDS ON 21 April 2017 EMPLOYMENT JUDGE Shepherd Appearances For the Claimant: Mr Mugliston For the Respondent: Ms Callan JUDGMENT

[1]The respondent’s application for a deposit order to be made requiring the claimant to pay a deposit pursuant to 39 of the Employment Tribunal’s (constitution and rules of procedure) Regulations 2013 is refused.

[2]The application that the claim or any part of the claim is struck out on the basis that the Tribunal does not have jurisdiction to hear it is refused. ORDERS Made pursuant to the Employment Tribunal Rules 2013

[1]The claimant’s application to amend the claim to include an allegation that the matters referred to in paragraph 23 to 24 in the attachment to the ET1 claim form amount to an act of harassment is allowed without the need for further service.

[2]The substantive hearing remains listed for seven days at the North Shields Hearing Centre commencing Thursday, 6 July 2017 to Friday, 14 July 2017 as provided for in the orders sent to the parties on 3 March 2017. The first day will be a reading day and the parties’ representatives should ensure that the bundle of documents and witness statements are available for the Tribunal to read by 9:30am on 6 July 2017 together with the agreed chronology and a suggested reading list.

REASONS

[1]The claimant was represented by Mr Mugliston and the respondent was represented by Ms Callan.

[2]This Public Preliminary Hearing was listed to consider whether all or any part of the claimant’s claim should be struck out as having no reasonable prospect of success and, in the alternative, whether the claimant should be ordered to pay a deposit as a condition of continuing the claim on the grounds that there is little reasonable prospect of success. Also, whether the claim or any part of the claim has been presented out of time meaning that the Tribunal has no jurisdiction to hear it unless it is considered just and equitable to extend time.

[3]I heard evidence from Peter Blackburn, the claimant and I had sight of a preliminary hearing bundle consisting of 25 pages.

[4]The pleadings in this matter have evolved over time and were still not entirely clear. Mr Mugliston took instructions from the claimant and provided a list of allegations. The position was still not entirely clear at this stage. In particular, the allegations which were contained within paragraphs 23 and 24 in the attachment to the ET1. These had been included by the claimant when he was not represented. There had then been a request for further information and the claimant had obtained legal representation and, in the response to the request for further information it had been indicated that the claimant did not allege that the allegations amounted to discrimination. This was with regard to the response to a freedom of information request which had been alleged to be a deliberate omission and discriminatory.

[5]The claimant was wholly unable to explain why his solicitors, acting under his instructions, had withdrawn those alleged acts of discrimination. He had now instructed Mr Mugliston to include them within the list of allegations. As they had been withdrawn in the response to the request for further and better particulars, it was necessary to consider this as an application to amend. I considered the factors set out in the case of Selkent Bus Company v Moore

1996 ICR 836

in this regard. I have considered the balancing exercise. The nature of the allegations were already known to the respondent and the balance of hardship and injustice would be greater to the claimant than the respondent. There was little prejudice to the respondent as the allegation had already been pleaded earlier.

[6]Both parties agreed that any claims in relation to acts or omissions prior to 18 September 2016 are potentially out of time unless the claimant can demonstrate that they constitute acts/omissions continuing as an act extending over a period including an act on or after 18 September 2016. It was alleged that the acts of discrimination were ongoing. However, the only act or omission stated to have occurred after 18 September 2016 was the deliberate withholding of documents following a Subject Access Request in October 2016. In those circumstances, I am satisfied that it is just and equitable to allow the amendment to include that allegation.

[7]In accordance with the principles set out by the Court of Appeal in the case of Commissioner of Police of the Metropolis v Hendricks

2003 ICR 530

, it is arguable that the allegations made by the claimant are acts of continuing discrimination as distinct from a succession of unconnected acts and, in those circumstances, I do not find that the tribunal has no jurisdiction to hear all or part of the claims of discrimination. That will now be a matter for the Tribunal at the substantive hearing together with any consideration of an extension of time on just and equitable grounds in respect of any of the claims which may be out of time.

[8]With regard to the applications in respect of the prospects of success, Ms Callan, on behalf of the respondent, made it clear that the application to strike out pursuant to rule 37 of the Employment Tribunals (constitution and rules of procedure) Regulations 2013 was not pursued. Therefore, the issue I had to consider was whether there was little reasonable prospect of success and whether the claimant should be ordered to pay deposit as a condition of continuing with the claim or part of the claim.

[9]The claimant was employed by the respondent from 19 July 1999. He remains in employment as an Administrative Officer. He moved from the Debt Management and Banking Department to the Child Benefits Office on 14 September 2015. He was on annual leave that time and commenced work in the new department on 12 October 2015.

[10]The claimant has a chronic back condition and the respondent accepts that this constituted disability pursuant to section 6 of the Equality Act 2010.

[11]The respondent alleges that the claimant was provided with reasonable adjustments in the form of specialist equipment and an arrangement for regular breaks before the transfer and these remained in place after the transfer.

[12]The claimant alleges that there was a refusal to enter into a dialogue regarding reasonable adjustments and he provided further allegations in respect of a number of failures to make reasonable adjustments, harassment and victimisation.

[13]The claimant remains in the respondent’s employment. He has been off sick since July 2016.

[14]The particulars of claim are confusing and the position has not been entirely clarified by the reply to the request for further and better particulars. Mr Mugliston has provided a further list of allegations following instructions from the claimant. However, the issues remain confusing.

[15]As stated above, the claimant was wholly unable to explain why some allegations had been withdrawn in the reply to request a further and better particulars but had now reappeared in the allegations listed today. The claimant’s evidence was vague. He had difficulty explaining the nature of some of his claims. At times it was clear that he did not follow questions that were asked of him and his evidence was, on occasion, incoherent.

[16]This is a claim of disability discrimination. It is fact sensitive. It was clear at this hearing that the claimant had raised a total of around 24 allegations of failure to make adjustments, harassment and victimisation. There will be significant disputes with regard to issues of fact. The claimant has indicated that the effects of his medication which he takes to manage his back problem are that he suffers from memory problems and high levels of fatigue which affects his ability to concentrate. This was apparent during this preliminary hearing, particularly, towards the end of his evidence, the claimant was unable to concentrate and provide coherent answers.

[17]There are numerous allegations, there will be central facts in dispute. The case is fact sensitive and requires a full examination in order that a Tribunal can determine the case. I am not satisfied that there is little reasonable prospect of the claims succeeding and I make no order that the claimant should pay a deposit.

[18]I note that Mr Mugliston, on behalf of the claimant has conceded that the allegations contained within paragraph 3 and 13 are no longer pursued as acts of discrimination.

[19]There is an order that the parties should provide an agreed list of issues to the Tribunal by 5 May 2017 and it is essential this is done.

[20]In the circumstances, the respondent’s application for a deposit order is refused and it has not been established that the Tribunal lacks jurisdiction to hear the claim or any part of the claim as being out of time.

The law

[21]The claimant also complains about the handover between his previous and new Managers before and after the transfer in October 2015. The Tribunal has accepted the evidence of Ms Jameson, however, that Ms Alderslade came to see her after she had held the mid-year review with the claimant on 15 October 2015. She made Ms Jameson aware of the “needs improvement” rating, and mentioned the other matters referred to above. The Tribunal has also accepted that Ms Robson had made Ms Jameson aware of the other issues relating to the claimant’s disability and the adjustments that were in place in respect of his disability that are also referred to above.

[22]Thus the Tribunal is not satisfied that the claimant’s complaint regarding there being no handover between his Managers is well made out and specifically, regarding issue 4(iii) in the List of Issues, is satisfied that the new Managers in the shape of Ms Jameson and Ms Robson were aware of the claimant’s disability and the reasonable adjustments that were in place in respect of that. Importantly, it is agreed between the parties that those adjustments continued after the transfer without interruption.

[23]As found above, the claimant did benefit from the “provision of appropriate training on a 1:1 basis”: first, during the initial training period at the end of 2015 when such training was provided to him by Mr O’Brien and others, albeit then within the resources available to the respondent; secondly, when Ms Bell was appointed as the claimant’s mentor, which function she continued to perform until June 2016 when she became his ‘buddy’.

[24]The Tribunal is also satisfied that during the training period at the end of 2015, all the trainees followed a structure that had been established by the providers of the training in respect of which they were each provided with a period of training followed by a period of consolidation. Thus the Tribunal is satisfied (adverting to the List of Issues) that the claimant was provided with “a structured training plan”

[25]The claimant also raises the provision of a mentor. As found above, during the initial training period, experienced staff were introduced to sit with the trainees, including the claimant, so as to provide them with help and assistance. Debbie was one such person who, during this time, sat next to the claimant and was a source of additional support to him albeit not being formally designated a mentor in the strict sense of that word. We repeat that after the initial training period, Ms Bell was appointed as the claimant’s mentor to support him on a one-to-one basis from 18 January 2016 until 8 June, during which she recommend “full blown” training for the claimant, which was provided, and checked 100% of his work. Additionally, if Ms Bell was not available to the claimant, he had the support of Norma, an established, experienced employee. Further, even when Ms Bell stood down from that formal position of mentor she continued as the claimant’s ‘buddy’. For these reasons, the Tribunal is satisfied that the respondent did take such steps as it was reasonable for it to take with regard to the provision of, and support to the claimant initially through an experienced employee and then, more formally, by a mentor.

[26]The claimant suggests that putting in place a PMR would have been a reasonable step. As found above, the Tribunal is satisfied that a PMR was in place for the claimant. Ms Robson had sent a generic PMR to each of the training employees on 24 November 2015, which contained a section relating to Development Needs. The Tribunal has accepted Ms Robson’s explanation as to why, in the circumstances of this group of employees having transferred to new work in relation to which they were undertaking training, it was sensible to issue a generic PMR. In this respect the claimant is strictly right when he says that he did not formally agree the PMR but neither did he object to the PMR that was issued to him and all his colleagues in the same situation. Furthermore, the claimant has not established how a bespoke PMR would have overcome the alleged disadvantage that he says he suffered.

[27]In this connection it is also suggested that being given a needs improvement marking was a disadvantage. The Tribunal does not accept that. Although that could be a reaction amongst employees we accept that, on the contrary, the PMR should lead to a PDP through which an employee can improve so as to achieve what is expected of him or her. We acknowledge that in this case a PDP was not put in place but, first, the claimant has not suggested that that was a disadvantage and, secondly, as indicated above, the support that the PDP might have brought to him was more than being provided through the PIP and Ms Owens. More specifically, as also indicated above, the Tribunal has accepted the opinions of Ms Jameson and Ms Pizzey that that “must improve” rating was an appropriate PMR box marking to give to the claimant given that despite the respondent’s significant input into his training for his new role (including one-toone training from his mentor during 2016), he was not making any progress. We repeat that Ms Jameson’s “justification” for this rating includes, “Not achieving any of the average KPIs for this group of Trainees”. The next category of rating in the PMR scheme is “achieved” and even the claimant did not suggest that he met that threshold. Rather, the focus of his appeal against his marking and his evidence before the Tribunal was more on his allegation that the respondent had failed to apply the process properly rather than on the substantive issue of the actual marking. We also repeat that when the claimant was told that he was to be given a “must improve” rating he expressed surprise but that surprise related to the fact that he had not received a PMR or his development needs. He did not express surprise at the rating itself, which might be explained by the fact that at the mid-year review that had been carried out by Ms Alderslade in October 2015, he had been given a “needs improvement” rating (which was the old nomenclature for a “must improve” rating) and at the end of the previous year, 2014/15, he had also been given a “needs improvement” rating.

[28]The claimant also suggests that it would have been a reasonable step for a PDP to have been put in place in respect of him. The Tribunal has accepted, however, that it is initially for an employee to take the initiative in developing a PDP to meet his or her needs and future aspirations albeit that there is an exception in that if a “must improve” rating is given to an employee a PDP should be put in place. The claimant did not take any such initiative. In any event such matters were being addressed by the PIP and the Tribunal does not accept that a separate PDP would have avoided the alleged disadvantage suffered by the claimant.

[29]It is suggested that the claimant was put at a disadvantage by being placed on a PIP. To the contrary, the Tribunal has found that this process, connected with the PIP, was detailed and supportive and was to his advantage rather than to his disadvantage as indeed is to be inferred from the claimant’s recorded comments on the PIP form. Importantly, we repeat that the claimant accepted both at the time and at the hearing that the PIP process was positive and supportive and remedied what he perceived had been the previous inadequacy in his training.

[30]As to the suggestion that allowing the claimant further time to complete tasks would have been a reasonable step, the Tribunal is satisfied that such an adjustment was made in the sense that the claimant was allowed all the time he needed to do his work both during the training period in 2015 and during the period when he was being mentored in 2016. The suggestion that the adjustment of the targets set for the claimant to reflect his need for more time to carry out tasks has been dealt with above: no targets were set for the claimant until, with his agreement, 16 June 2016 but they were never applied to him in practice.

[31]Turning to the provision of help cards/aide memoirs, which it is suggested by the claimant might have been a reasonable step, the Tribunal has accepted above the evidence of Mr O’Brien and others that he was provided with such training aids, including Mr O’Brien producing a folder of hard-copy documents for the use of the claimant and others.

[32]As to the respondent’s ‘clocking’ procedure, the disadvantage is said to be the claimant being required “to clock out within 1 minute of finishing work”. There is no evidence whatsoever to support the contention that that requirement was made of the claimant.

[33]In this connection the reasonable adjustment suggested by the claimant is that he should have been permitted to adjust his flexi-time records to deduct time over the six hours spent at his workplace. The Tribunal finds that there are a number of answers to this suggestion. First, for a considerable period the claimant was in fact permitted to make such adjustments, albeit that this was a concession by his Managers who did not accept that the formal procedure required adjustment or should be adjusted and reminded the claimant on a number of occasions that he should be careful about his timekeeping. The principal reason for this adherence to the respondent’s procedure in this regard was, most importantly, that the claimant was given the benefit of an adjustment to close down his work station sufficiently early to get to the keying out point in time to key out at the expiry of his six-hour working period. The Tribunal is satisfied that this adjustment comprises the second answer to this suggestion by the claimant. The Tribunal is further satisfied that this adjustment addressed this issue whereafter the clocking out process did not place the claimant at a substantial disadvantage. Thirdly, Ms Measor at the informal grievance meeting assured the claimant that she would investigate this issue with his manager and was sure that it could be easily resolved. In the event, the fact that the claimant raised a formal grievance rather than accept what had been offered to him by Ms Measor as a resolution of the informal grievance resulted in her investigation of this issue that she had proposed not being pursued. Fourthly, the claimant had the option of taking a break of 20 minutes during his six-hour working period, which would have introduced greater flexibility and enabled him to build up flexi-time to be taken as leave but he did not wish to do that.

[34]In conclusion of the aspect of the claimant’s claim relating to reasonable adjustments, the Tribunal is satisfied that each of the potential disadvantages and the steps mentioned in the agreed List of Issues was appropriately addressed by the respondent and that, for the most part, they were introduced on the respondent’s initiative rather than being requested by the claimant albeit that all such adjustments were then made the subject of discussion between the claimant’s Managers and him. Harassment

[35]We now turn to the claim of harassment. As indicated above, claimant has relied on nine instances of conduct that he maintains were unwanted. The Tribunal has already addressed the majority being all those nine instances apart from two, which are the alleged failure to respond to e-mails and withholding documents from a SAR. As to that majority the Tribunal is satisfied that most of the alleged acts or omissions did not occur at all, for example:35.1 Failing to discuss his regular breaks with him. The Tribunal has found that the breaks were discussed

35.2 Refusing to enter into dialogue regarding the claimant’s disability etc. the Tribunal has found that there was such dialogue, particularly on the part of Ms Owens.

35.3 Stating that he was working too slowly. The Tribunal has found that this was not stated to the claimant.

35.4 Ignoring concerns regarding the “must improve” mark. The Tribunal has found that the claimant’s concerns were not ignored and that his appeal in this respect was appropriately dealt with. 35.6 Providing an incomplete PMR. The PMR that was issued to the claimant by Ms Robson was as complete as it could be at that time of issue (given its generic nature) and could not include the section headed “End-of-year performance review” until, obviously, the employees’ performance had been reviewed at the end of the year. Once that section had been completed, the amended PMR was then issued to the claimant under cover of an e-mail from Ms Jameson. 35.7 Referring to occupational health with allegedly no information as to why the referral was being made. The Tribunal is satisfied that the claimant was informed of the reason why the referrals were made first by Ms Owens and then by Ms Cochrane. In this respect it is right, as the claimant has asserted, that neither of these individuals showed the claimant a copy of the occupational health referral but that is not a requirement of the respondent’s procedure.

[36]As to the conduct said in the List of Issues to be “marking C as “must improve” in his End of Year Review”. Whilst from a personal perspective the claimant might not have wanted to have that rating, as already explained, the Tribunal is satisfied that it was reasonable and appropriate that that rating should be given to him.

[37]In respect of the allegation of failing to respond to two e-mails of 25 May and 6 June 2016, the Tribunal has found above that both were replied to and that, although a fuller response could have been given, the respondent’s Managers followed the correct process of requiring the appeal form to be completed and submitted by the claimant and not entering into discussions, outside the appeal process, in respect of the other issues that he had raised.

[38]In short, the respondent’s Managers did not fail to respond to the two e-mails although it is right that they did not enter into discussion of the issues outside the appeal process, which the Tribunal is satisfied would have been inappropriate.

[39]Finally in respect of the claim of harassment there is the allegation of the respondent’s Managers, “withholding documents deliberately from his Subject Access Request”. The key word in this allegation is “deliberately”. The Tribunal is satisfied that any documents that were not included in the initial response to the claimant’s SAR request were not withheld deliberately but by reason of the circumstances of Ms Robson not being experienced in such matters and not being aware of the existence of certain documents. That was then compounded by Ms Pizzey, who it had been intended would check Ms Robson’s response, being unfortunately absent from work due to ill health when the deadline for delivering the documents was reached. She did her best in the circumstances by telephoning Ms Robson to confirm that everything was in order and then authorising the despatch of the documents. In any event, a second, complete bundle of documents was then sent to the claimant on 24 October. In this regard we note that the claimant’s representative’s remark that if the withholding of the documents was “due to incompetence” he accepted that he faced an “uphill struggle”.

[40]Thus, in respect of each of these instances of conduct relied upon by the claimant (being the majority referred to above and the two issues of the e-mails allegedly not being replied to and the SAR response being incomplete), the Tribunal is satisfied that the conduct complained of, if it occurred at all, was not related to the claimant’s disability, did not have the purpose of violating his dignity or creating an intimidating etc environment for him and cannot be said to have had the effect of either violating his dignity or creating an intimidating etc environment for him; in the latter respect taking account of the claimant’s perception, the other circumstances of the case and whether it was reasonable for the alleged conduct to have that effect. Victimisation

[41]Next there is the claim of victimisation. In this respect the Tribunal has found that the claimant did allege that a person had breached the Equality Act in his appeal that he lodged on 23 May 2016 in which he refers to “disability discrimination” and “disability and age discrimination” and to “reasonable adjustment”.

[42]In the agreed list of detriments, only those relating to the alleged change in practice regarding the treatment of the claimant’s flexi-time records in or about early June 2016 (which the claimant’s representative referred to as the best example of victimisation) and allegedly withholding documents deliberately from the claimant’s SAR request were pursued to the end of the hearing. The Tribunal has found that the treatment of the claimant’s flexi-time records did not actually change whether in June 2016 or at any other time. As to the detriment of withholding documents deliberately from the SAR request, we have already found above that there was no deliberate withholding of documents.

[43]Fundamentally, in any event, the Tribunal is not satisfied that any of the detriments the claimant alleges occurred because he did a protected act.

[44]In summary thus far, the Tribunal is unanimous in finding that none of the complaints advanced by the claimant in these proceedings is well-founded: the respondent did not fail to comply with its duty to make reasonable adjustments under section 20 of the Act and thus did not subject the claimant to a detriment contrary to section 39(2)(d) of the Act; the respondent did not harass the claimant and, therefore, was not in breach of section 40(1)(a) of the Act; the respondent did not victimise the claimant contrary to section 27 of the Act. The Statutory Defence and Time/Limitation Issues

[45]In the agreed List of Issues, reference is made to the “Statutory Defence” and to “Time/Limitation Issues”. In light of our decisions in relation to the claimant’s complaints as summarised above, it is not necessary for us to consider either of those issues. We do so for completeness, however, given that they are issues in the agreed List.

[46]As to the statutory defence, the Tribunal is satisfied that the respondent did take such steps as were reasonably practicable to prevent any discrimination in the circumstances of this case. We repeat that that is not to suggest that the Tribunal considers that there was discrimination in this case.

[47]As to the issues of time/limitation. It is agreed that the ‘normal period’ in this regard commenced on 18 September 2016. Potentially, matters, whether acts or omissions, before that date cannot be relied upon by the claimant. There are, however, two exceptions to that approach. First, such matters can be relied upon if they can be linked to those after that date as being a continuous act over a period, which therefore comes to an end at the end of that period. Secondly, even if that does not apply the Tribunal has a discretion to allow the claimant to rely on those acts that are potentially out of time on the basis that it is just and equitable so to do.

[48]The Tribunal is not satisfied that either exception applies in this case. The complaint relied upon by the claimant as occurring within the primary time limit is the deliberate withholding of documents from the initial SAR response that was sent on 7 October 2016. The Tribunal has already found that that did not occur. It follows that the alleged acts or omissions before 18 September 2016 cannot be linked to that alleged act so as to provide a continuing act. Neither are we satisfied that the other matters raised by the claimant constitute a continuing state of affairs linking with any other matters occurring after that key date of 18 September 2016.

[49]The just and equitable exception is just that: an exception rather than the rule. The Tribunal does not exercise its discretion in this case for several reasons including, in no particular order:49.1 The claimant has clearly been well equipped to deal with his matters of concern at the relevant time (for example he attended meetings and submitted his detailed appeal) and we are satisfied that he could have presented a complaint to the Employment Tribunal at the appropriate time.

49.2 The claimant had access to and took advice from his trade union throughout.

49.3 Any alleged lack of knowledge is not an excuse for ignorance of the law.

49.4 Similarly, the claimant’s suggestion that he did not and could not present his complaint to the Tribunal as he was pursuing an internal grievance does not warrant the exercise of the just and equitable exception.

49.5 Finally and importantly, when the claimant submitted his grievance on 2 September 2016 he stated in his covering e-mail “I have completed this document because of the three month timescale, the last disability discrimination being early June” (page 211).

Conclusion

[50]In all of the above circumstances, the unanimous judgment of the Tribunal is as follows:50.1 The claimant’s complaint that, contrary to section 21 of the Act, the respondent failed to comply with its duty to make reasonable adjustments under section 20 of the Act and thus subjected the claimant to a detriment contrary to section 39(2)(d) of the Act is not well-founded and is dismissed.

50.2 The claimant’s complaint that the respondent harassed him as defined and explained in section 26 of the Act and therefore was in breach of section 40(1)(a) of the Act is not well-founded and is dismissed.

50.3 The claimant’s complaint that the respondent victimised him as defined and explained in section 27 of the Act is not well-founded and is dismissed.

[51]For completeness, as explained above the Tribunal is further satisfied that: 51.1 The respondent took all reasonable steps to prevent its employees from doing or omitting to do the alleged acts and omissions or anything of that description and therefore, had any of the above claims been well-founded, the defence provided to employers in section 109(4) of the Act would have applied to this case. 52.2 The vast majority of the alleged acts of discrimination occurred prior to 18 September 2016 and were therefore outwith the primary time limit period for the presentation of a complaint to the Employment Tribunal. Furthermore, they do not constitute continuing acts with any acts or omissions in that period and it is not just and equitable to extend that period. EMPLOYMENT JUDGE MORRIS