Miss B G KirbyMr T A DenholmMr N McDermott for claimantDate 8 December 2017
JUDGMENT
[1]The Claimant’s claims for Unfair dismissal Discrimination arising from disability (section 15 Equality Act 2010) Harassment relating to disability (section 26 Equality Act 2010) Succeed to the extent set out in the reasons and a remedies hearing will be convened but are otherwise dismissed;[2]The application of the Claimant to amend is granted as set out below;[3]The application of the Respondent to amend is refused as set out below.
REASONS
[1]By a claim form presented on 31 May 2017 the Claimant brought complaints of disability discrimination, unfair dismissal, breach of contract in respect of the correct notice pay and outstanding annual leave.[2]The Claimant suffers from anxiety and depression. This is conceded by the respondent. Originally there was a claim for direct disability discrimination, but this was withdrawn by the Claimant.[3]The issues before this tribunal related to claims for discrimination arising from disability (section 15 Equality Act (EqA) 2010). At the start of the hearing the Claimant applied for and was granted permission to amend her claim to include claims for harassment under section 26 of the EqA 2010.[4]The issues were defined at a case management telephone preliminary hearing on 19 June 2017 (EJ Shepherd) as follows, in addition to the claims under section 15 EqA 2010:a. Unfair Dismissal –whether there was a genuine redundancy situation and, if so, was that the reason for the Claimant’s dismissal. If that is the case then did the respondent establish a pool for selection?b. Was the dismissal fair in all the circumstances including whether there were fair criteria objectively applied.c. Was there fair consideration of alternative employment.d. Did the respondent act reasonably or unreasonably in treating the reason as sufficient to dismiss the Claimant.e. What was the percentage chance that the Claimant’s dismissal would have happened in any event, had a fair procedure been followed?f. Notice pay and accrued holiday pay – was the Claimant provided with her entitlement to notice pay and outstanding holiday pay?g. The matters of dismissal and detriment under section 15.[5]The usual orders were made as to disclosure of documents by both sides and in relation to exchange of witness statements.[6]We heard from the Claimant, Leanne Nash (the Respondent’s HR officer) and Ashleigh Wood (also of the Respondent’s HR). We looked at Dawn Watson’s witness statement but the Claimant did not have the opportunity to cross examine her, put her version of events or challenge the contents of that witness statement as Ms Watson did not attend the hearing. We were told that she was not present due to a sudden special holiday. However no application for an adjournment was made (despite the respondent being given the opportunity to apply for one). We therefore placed very little weight on her statement (which lacked sufficient detail to be of much assistance as a statement of evidence), and where the Claimant’s evidence contradicted that statement we preferred the evidence of the Claimant (who was cross examined on her evidence).[7]We received written submissions from both parties and we read those along with the oral submissions both representatives made to us. We are grateful for the assistance which the parties gave to the tribunal. Claimant’s application to amend[8]On 4 August 2017 the Claimant’s representative, Mr McDermott, sent an email to the Tribunal containing what purported to be details of the further allegations of the treatment of the Claimant. At the hearing on 19 June 2017 before Employment Judge Shepherd the Claimant had been ordered to provide further particulars of the unfavourable treatment other than dismissal to the respondent and the Tribunal so as to arrive on or before 21 August 2017.[9]The Claimant set out the following:- “1 The refusal of the respondent to pay the correct amount of notice pay, instead only paying an amount based on the 25 hours the Claimant was working temporarily on a phased return … referred to in the details of claim at paragraphs 11, 12, 19 and 23. 2 The statement in the respondent’s letter dated 25 October 2016 that the Claimant’s attendance levels were not meeting the standards required and were having a huge financial and organisation impact on the hospice … referred in the details of claim at paragraph 2. 3 The statement of the respondent’s letter dated 24 November that a possible consequence of the meeting was that the Claimant may receive a warning about her attendance … referred to in the details of claim at paragraph 5. 4 The statement in the respondent’s letter dated 1 December 2016 that in future the Claimant had to contact the respondent directly instead of her treatment team contacting the respondent on her behalf … referred to in the details of claim at paragraph 7”.[10]The letter also contained certain matters that were not referred to in the details of claim as follows:- “5 The statement in the respondent’s letter dated 9 January 2016” (this should be 2017) “which said ‘I explained how your absence has had financial implications for the hospice. There have been tens of thousands of pounds associated costs from your episodes of sickness.” … Not referred to in the details of claim. 6 The statement in the respondent’s letter dated 9 January 2016 that as her line manager, Dawn will have to make difficult decisions at times in the interests of the department and her team and you (the Claimant) need to be able to accept and understand this … Not referred to in the details of claim.”[11]The letter then went on:- “Further on reflection it may be more appropriate for the above details as described in paragraphs 2 to 6 to fall under the category of harassment, section 18 Equality Act 2010” (this should have been section 26) “and therefore it is respectfully requested that the ET1 be amended to include the claim of section 18 discrimination.”[12]The respondent, on 8 August 2017, by e-mail from Leanne Nash opposed the application for an amendment. The respondent stated:- “The Claimant is making two requests to amend her ET1, paragraphs 5 and 6 of the Claimant’s letter of fresh allegations not raised in the Claimant’s ET1. The Claimant also asks to add complaints regarding harassment pursuant to section 18 Equality Act 2010. We object to the application to amend the claim form. The Claimant’s ET1 was extensive, with 25 paragraphs of detailed claims. The Claimant has had every opportunity to put forward a claim for harassment in her ET1 and to detail the incidents now set out in numbered paragraphs 5 and 6 of her letter but failed to do so. To attempt to bring a new course of action and add fresh issues now, some six months after the Claimant left the respondent’s employment, is unfair and allowing fresh claims such as this would effectively be allowing the Claimant a “second bite of the cherry” out of time which is unjust and prejudicial to the respondent”.[13]On the first day of the hearing before this Tribunal it was apparent that the application for amendment had not been determined and the Tribunal heard application to amend.[14]Mr McDermott recognised that the application might raise a question of whether there were new causes of action being added to the Claimant’s claim outside the applicable time limit and he argued that it was just and equitable to extend the time limit.[15]The Tribunal raised the question of whether a further early conciliation certificate would be required in these circumstances but in the light of the case of Science Warehouse Limited v Mills UKEAT/0224/15 we are satisfied that section 18A of the Employment Tribunals Act 1996 does not require that the early conciliation process be undertaken in respect of each claim if it has been undertaken in respect of the matter before the Tribunal. We are satisfied that the matter before the Tribunal included discrimination and that the facts properly raise an arguable case of harassment. The requirement to notify ACAS falls on a prospective rather than an existing Claimant and where the Claimant has previously lodged a valid Employment Tribunal claim and is applying to amend to add a new but related claim it is a matter for our general case management powers under rule 29 of the Employment Tribunal Rules 2013.[16]In reply the respondent very fairly recognised that paragraphs 1-4 in the letter of 4 August 2017 were details which were available from the ET1. However the respondent pointed out that paragraphs 5 and 6 were fresh claims and that no application had been made previously in respect of those matters and certainly not in respect of them as claims of harassment.[17]The respondent argued that the Claimant had had the opportunity to put forward her claim and this was not done until August. Given the effective date of dismissal was 10 February 2017 the application was being made substantially out of time. The respondent argued also that it was not just and equitable to extend time because the Claimant had been represented throughout and had been through the ACAS early conciliation procedure giving her the opportunity to discuss her case in full and formulate her claims for discrimination.[18]The respondent did accept that in respect of paragraphs 1-4 the amendment was a matter of relabeling existing facts which were either in the particulars explicitly or now had been given proper particulars in the letter of 4 August. The Tribunal noted that the Claimant had been represented by the same representative throughout these proceedings.[19]The respondent accepted that the letter referred to in paragraphs 5 and 6 of the 4 August letter existed and that its contents were accurately quoted in those paragraphs. However the respondent denies that the sending of the letter, the contents of the letter or any other aspects of the letter amounts to harassment within the meaning of section 26 of the Equality Act 2010. Principles[20]The Tribunal must have regard to the overriding objective set out in rule 2 to deal with cases fairly and justly. This includes ensuring the parties are on an equal footing and dealing with cases in a way which is proportionate to the complexity and importance of the issues whilst avoiding unnecessary formality and seeking to be flexible in the proceedings. We also seek to avoid delay so far as is compatible with proper consideration of the issues and also seek to save expenses.[21]When an application to amend is made to the Tribunal we have regard to all the circumstances of the case and in particular we consider any injustice or hardship which might be caused to any of the parties if the proposed amendment were allowed or as the case may be refused.[22]We take into account the nature of the amendment, the applicability of time limits and the timing and manner of the application for amendment which has been set out above. We recognise that taking account of all the circumstances as noted above does not resolve into a checklist of matters.[23]It is convenient however to consider the nature of the amendment. We note the Presidential Guidance that a distinction should be drawn between amendments that seek to add or substitute a new claim arising out of the same facts as the original claim and those that add a new claim which is entirely unconnected with the original claim.[24]In respect of new claims unconnected to the original claim we note that the focus of the Tribunal should be on whether the essential matters were going to be common to the claim of discrimination as originally pleaded and the claim of harassment as particularised and under the amendment.[25]If an application seeks to include a new cause of action we must consider whether that complaint is out of time and if so whether the time limit should be extended. So we have considered the question of whether the paragraphs (5 and 6) would be out of time when presented and if so whether time should be extended on the basis that it would be just and equitable to do so.
Discussion and conclusions
[26]In respect of paragraphs 1-4 of the letter of 4 August 2017 we consider that these are further particulars and that what is being sought is a relabelling of the facts set out in the ET1 so as to lead to a different legal conclusion. The claim for discrimination is already before the Tribunal and therefore we consider that it would be appropriate to grant that amendment. However, in any event, even if these were adding new claims we would consider it to be just and equitable to extend time to hear the claims under section 26 of the Equality Act 2010. Therefore insofar as it is necessary we grant the amendment sought.[27]In respect of paragraphs 5 and 6 the matter is slightly different. Although the letter of 9 January 2017 is mentioned in the ET1 at paragraph 12 the amendment involves new facts which were not previously pleaded. The amendment is also sought outside the time limit.[28]In respect of these paragraphs of the letter the Tribunal considers that the matter was finely balanced but we were just persuaded that the amendment should be granted although it was made outside the time limit for the following reasons. Although there had been a delay it was not a significant delay. The evidence on the costs remarks will be heard by the Tribunal in any event and the letter of 9 January will be considered by the Tribunal. Further the respondent does not contest that the 9 January 2017 letter was sent or as to its contents and the only disagreement is over whether that information constitutes harassment.[29]Plainly the matters pleaded in the amendment could constitute harassment. We also consider that there was not much prejudice to the respondent albeit the limitation defence was being lost. There is no indication in the short space of time that memories of these events will have faded. The matter is largely documented and it is simply a matter of applying the correct legal analysis to the sending of that document and to any evidence which the Claimant gives concerning its impact.[30]We noted that the application was being made outside the time limit and that this meant that if the time limit was extended the respondent will lose the limitation defence. We also consider that the Claimant’s advisor should have spotted this cause of action earlier. However those factors do not outweigh the need to ensure that the case is properly tried and on balance we consider that it would be just and equitable to extend time and for these reasons we grant the application to amend the ET1 to incorporate the matters set out in numbered paragraphs 1-6 of the Claimant’s letter in the e-mail of 4 August 2017 at 09:16 hours (pages 61 and 62 in the bundle). The Respondent’s application to amend[31]Having started closing submissions in this case (on day three of the hearing) the Respondent applied to amend its grounds of resistance to include the defence under section 15(2) of the Equality Act 2010.[32]The application was made on the basis that the Claimant had sought on 4 August 2017 in an email (page 61 of the bundle) to amend her claim to include certain claims. The Respondent pointed out that it had opposed the application to amend and that the Claimant had noted in its application to amend that the Respondent might be allowed the opportunity to amend its grounds of resistance. The Claimant urged this as a reason why the amendment should be granted. The Respondent pointed out that the tribunal had not responded to either the Claimant's application for amendment and hence it had not had the opportunity to amend to include the defence it now sought to pursue.[33]In reply to the application the Claimant made the point that the email of 4 August 2017 had in fact supplied further particulars of the claim for discrimination arising from disability under section 15. There had not been an application to amend in relation to section 15. Instead the application had been to amend to include or relabel existing particulars as harassment claims under section 26 of the Equality Act 2010.[34]The tribunal considered that(a) the application was made extremely late in the hearing process(b) the Respondent had not led any evidence concerning its state of knowledge of the Claimant's disability (although originally it had denied that the Claimant was covered by the Equality Act 2010);(c) nothing had been said in the course of the case which might form the basis for this defence;(d) hence if the amendment was granted it would have been necessary for the Respondent to lead evidence concerning its state of knowledge;(e) this would be unfair to the Claimant who would need to cross examine and to prepare and produce evidence demonstrating either that the Respondent did know that she was a disabled person or that the Respondent ought to have known that she was.[35]The tribunal also considered that granting the application to amend would not in any way assist the overriding objective. It notes that the Respondent had not made the application even at the start of the hearing, and thus had not attempted to further the overriding objective.[36]Even if, as was at one point submitted, the Respondent had thought that it would be permissible simply to raise its alleged lack of knowledge in submissions, there was simply no evidence which would have supported that claim.[37]In those circumstances the Respondent's application to amend was refused.
The Facts
[38]Having dealt with those applications we now turn to our findings of fact in this case.[39]The Claimant worked for the Respondent from 4 December 2006 in its Lottery Department. She is a person with a disability who qualifies under the Equality Act 2010 as having the characteristic of disability having had the impairment of anxiety and depression from the late part of 2014. The impairment caused her to take time off work. The first such occasion was on 23/10/14 to 26/1/15 and the second from 7/4/15 - 8/5/15.[40]She experienced what she described as a relapse in early 2016. Dawn Watson, her manager, did not attend the tribunal to give evidence although a witness statement in her name formed part of the material put before the tribunal by the Respondent. We accept the Claimant’s evidence that she had a poor relationship with Dawn Watson who was not supportive of the Claimant despite being told that the Claimant was not managing well. This lack of sympathy, we were told and accept, increased the Claimant’s anxiety on the occasions she needed to ask for time off to attend appointments.[41]As a result of her impairment the Claimant was absent sick on Thursday 21/7/16. On 22/7/16 the Claimant sent a text message informing her manager that she would not be able to come in for a few days. Unsurprisingly her manager did not contact her until it became apparent that the absence was going to be more than a few days. Her manager acknowledged her sick note on 28/7/16 and we find nothing untoward in that.[42]The Claimant and her co-worker Nicola were in contact via text until the Claimant noticed a dropping of contact from about 24/9/16 after which there was no more contact.[43]The Claimant was invited to an Absence Review Meeting (originally to be held on 7/9/16) but brought forward to 6/9/17 so that the Claimant’s care coordinator Lynne Webb could attend. During this meeting we find that the Claimant’s manager suggested that the Claimant should take a reduction in both responsibilities and hours.[44]We note that at this point there was no evidence of any potential redundancy situation. It appears that the suggestion was being made for other reasons. There was evidence that the Respondent was looking for cuts in expenditure across its operation.[45]The Claimant subsequently received the letter dated 7/9/16 which is at p102 – 103 of the bundle. This was entitled: “RE: Absence Review Meeting Outcome”. This notes of the Claimant “you find it hard being at work and that there are a combination of factors that make it hard including work relationships with some staff members. You were unwilling to elaborate further on this.”. The question of reasonable adjustments was discussed, and the Respondent stated that it would be happy to put in place a phased return to work once a prospective return to work was known.[46]However the letter went on to say: “Whilst we are not questioning the genuineness of your absence, due to your attendance levels being below the required standard, it is deemed appropriate to monitor your attendance for a period of 12 months and the following criteria has been put In place to monitor your absence No more than 2 occasions of absence totalling 6 days over the next 12 months; As discussed during the meeting, due to you currently being absent, this period of absence will not trigger a breach in criteria. However, should you go off sick following this occasion, this will count towards the criteria put in place. “Should your attendance deteriorate and you be in breach of the criteria put in place, there are a number of options available depending on the reason for the absence, we could extend the review period, take no further action, or as a last resort, take formal action if we are not satisfied with the reasons put forward or if absence levels were too high and could not be supported.”[47]Naturally the Claimant wished to plan for future financial difficulties that her sickness absence might cause her and she made an email inquiry (p104-5).[48]On 25/10/17 Leanne Nash HR Manager wrote to her stating that she was to be referred to Occupational Health and stating: “Your attendance levels are not meeting the standards required and have had a huge financial and organisational impact on the Hospice. Over recent months the department has been struggling to cover work demands. As a result, we have now taken on a bank member of staff to cover your absence temporarily. This is not considered a long-term solution and we need to plan for the future of the department. As such, following your meeting with Occupational Health, I will arrange a meeting for us to discuss your likely prognosis, capability to continue in your role and what adjustments may be needed to support you.” (p106 -107)[49]Understandably this caused the Claimant enormous anxiety, stress and guilt. She felt she was being blamed for causing problems by being ill. The Respondent did not challenge her evidence in this respect which the tribunal accepts in any event as it would have been a distressing letter to receive for anyone in the Claimant’s circumstances. The Tribunal notes that the Respondent appeared to place capability to continue in role before the question of the adjustments that might be needed to support the Claimant in her role in this letter. Of course the Claimant’s capability to continue in her role could only be considered in the light of the adjustments that the Respondent could make to the job. The wording of the letter was unfortunate therefore.[50]The Occupational Health referral (p 190 – 193) was based on information about absences and timekeeping (and other matters) which Dawn Watson had in part or in whole supplied to Leanne Nash. It was plainly inaccurate and made criticisms of the Claimant’s time keeping which were not reflected in any documentation which the tribunal was shown. It appears that there was nothing (drawn to our attention) in the Claimant’s former appraisals which would have warranted an adverse comment on time keeping. The Claimant did not accept that these comments were true and Dawn Watson did not appear in order to be cross examined on this point. We also note that the way in which the Claimant’s absence was characterised by Leanne Nash was confusing. Ms Nash’s witness statement gave the impression that the Respondent’s concern was that the Claimant had been exhausting her sick pay entitlement within each year. In fact the absence calculation was based on a rolling period of 12 months, so that even a short period of absence might take the Claimant to the maximum period of absence permitted, we were told, under the sickness absence policy (which was not shown to us).[51]The Occupational Health assessment took place on the 10/11/16 and the OH report is at pages 194 - 196 dated 18/11/16. This stated: “It appears that her conditions are at least aggravated by aspects of her work. It may be necessary for these issues to be addressed before she is able to recover well enough to return to work though, according to the letter from her specialist and my own observations, she will find this difficult to discuss.” And “It is likely that she will be able to return to less demanding duties in a quiet environment before she is able to return to her full usual role. In addition, when she does return, she would benefit from a phased return with reduced hours temporarily in order [to] enable support from secondary care services and to allow her to regain confidence and stamina in the work situation.” And “I would be hopeful that these modifications would be temporary rather than permanent.”[52]The Claimant then received a letter dated 24 November 2016 (p 197) from Leanne Nash to discuss ‘your attendance and capability to work as Administrator…’. The meeting was scheduled for Thursday 1/12/16 but the Claimant’s support workers could not attend and so rang the Respondent to rearrange the meeting (108 – 109). The letter itself mentioned return to work, but also made clear that a possible outcome could be a warning relating to the Claimant’s capability.[53]Leanne Nash sent a further letter (p 113) on 1/12/16. This stated: “…we ask that you contact us directly in future as your treatment team are putting us in a difficult position wanting to discuss confidential issues as we strictly cannot give Information to third parties.”. In fact, we find, no confidential issues had been raised. We also find however that Leanne Nash was concerned with questions of data protection and this was her motive for making this point. Undoubtedly however the letter distressed the Claimant greatly. In the circumstances we considered that this was unfavourable treatment of the Claimant. We did not consider that it was a proportionate response to the Claimant’s use of her treatment team in the circumstances which were fully known to Leanne Nash.[54]Due to her anxiety over the situation the Claimant opted (as the letter permitted) to reply in writing to written questions which the Respondent would put to her in place of having a meeting.[55]The questions are dated 2/12/16. The questions appear at page 203 to 204. The replies are at 208-9. When asked about difficulties with Dawn Watson, the Claimant said “For reasons unknown to myself working relations with my Line Manager were very strained, I was not being treated as an equal member of the team Unsupportive of my trying to stay well and engage with mental health support i.e. I was told unable Not been informed of holidays until the morn of last working day I had an exceptionally poor and distressing IDR which became a significant trigger in my mental health decline Not being kept informed on changes in working process’s i.e. Direct debits/LFS Shown no compassion in my increasing deterioration”[56]The Respondent asked: “Would changes at work help you to return sooner such as reducing your working hours etc.? What do you feel would help you?” She replied that she would benefit from an initial phased return “moving on from this it may be a reasonable adjustment that I temporarily reduce my contracted hours as this would enable me to positively progress back into my role”[57]The Respondent asked the question: “You were previously part time. Did you find this less stressful? If so, if it would help, would you be happy to reduce your hours again?” to which the Claimant replied: “I would only wish to temporarily reduce my contracted hours till well-being, stamina and / confidence is regained”[58]It was quite clear from that exchange that the Claimant was not seeking a permanent variation in her contract, but that the temporary reduction was being sought as a reasonable adjustment.[59]The Claimant gave evidence that the timescales and tone of the letters were causing her to panic at this point.[60]On 15/12/16 the Respondent emailed the Claimant (p210 – 211). The Respondent said “You have indicated, and Occupation Health have suggested it would be helpful that a temporary reduction in contracted hours would assist with your return to work. Can you indicate how many days/hours you would like to work and how long you would like to continue on these hours?”[61]To this the Claimant replied on 19/12/16 that she was seeking a temporary reduction in hours to 25 per week and an initial phased return (p212).[62]On 20/12/16 the Claimant received an email and letter outlining what would happen on her return to work. There was to be a two-day phased return and confirmation of reduced working hours to 25 starting 9/1/17 with a review one month later in the week of 6/2/17.[63]Although this letter stated that it enclosed a contract, the Claimant’s evidence was that no such contract was enclosed in either email or letter (p213 and 214). We accept the Claimant’s evidence on this point. It was clear that she was seeking a reasonable adjustment of temporarily reduced hours. (She would in the circumstances have been entitled to such a reasonable adjustment on the basis of the occupational health report which the respondent had).[64]In any event we reject the Respondent’s evidence that the Claimant had agreed permanently to vary her contract of employment. We find that she sought a temporary change to her hours as a reasonable adjustment until such time as she would be in a position to resume full hours. In any event, even if there had been a variation of the contract, we find that the Respondent also promised to review the hours and broke that part of the agreement. It cannot therefore rely on its own breach of contract to assert that the Claimant should only be paid on the reduced hours in respect of her notice, or for the purposes of calculating compensation.[65]There was a return to work meeting on 5/1/17. The notes at p139 -143 reflect that the Claimant’s request was for a temporary change of hours, and that it was recognised that there would be a period of temporary hours. In the contract shown to the tribunal there was no mention of a period after which the temporary hours would end (or of the review which had been promised).[66]At that meeting we find that Ashleigh Wood told the Claimant that the reduction could be made permanent. The Claimant declined that offer. It is plain therefore that the reduction in hours was never intended to be a permanent variation of the contract and confirms us in our finding that it was a temporary reasonable adjustment. Plainly, if the Claimant was able to, the intention was that she would resume 35 hours as a working week.[67]However Ashleigh Wood also stated: “her latest episode of sickness has cost the organisation thousands of pounds, and there have been tens of thousands of pounds of associated costs from previous episodes. Those sorts of costs cannot be covered on an on-going basis.” This was an unfortunate meeting as it appeared to try to cover the return to work, and several other issues. However plainly that type of language was bound to make the Claimant feel guilty about having a mental illness and taking absence.[68]We find that the Respondent’s witnesses felt under pressure to secure a reduction in costs in relation to the Claimant in particular because she had taken disability related absence which was costing the respondent.[69]The relationship with Dawn Watson was also raised during this meeting (at which Dawn Watson was also present). At the meeting the Claimant said that “she wants things to go back to how they used to be”.[70]Ashleigh Wood asked the Claimant about some of the issues she raised about Dawn Watson, her line manager. We accept the Claimant’s evidence that in the meeting Dawn repeatedly told her that she must be confused. We also accept that Dawn Watson called the Claimant a liar during that meeting over her recollections. Unsurprisingly the Claimant felt thereafter that Dawn Watson would not be supportive of her returning to work and would treat her with hostility. The Claimant’s evidence demonstrates that this was the case. We note that the Claimant’s line manager appears to have supplied inaccurate information concerning the Claimant’s previous absences when the respondent was preparing information for the occupational health report. We also note the behaviour of the Claimant’s line manager after her return to work, which was not supportive and we infer from that that the line manager was in fact hostile towards her.[71]On the Claimant’s return she was told that she had to work with her colleague Nicola. This was to ensure that the Claimant was introduced to the changes which had occurred. However Ms Watson informed the Claimant that her work position had been moved. In fact she was sitting with her back facing to her line manager’s office and that her line manager could watch what she was doing at all times. The settings on the Claimant’s computer had been increased to large. The reason for this is unclear but the Claimant thought that it was done deliberately for her manager to observe her closely. The Claimant also noticed a change in her work colleague, Nicola’s, attitude.[72]The week following the Claimant’s return in any event Nicola was on leave. The Claimant’s manager sat and helped with the workload but after the first day left the Claimant to get on alone. Her manager required her to again check with Nicola before the Claimant could do any calculations. The Claimant found this demeaning. Although at the start of the Claimant’s shift, work was put on the Claimant’s desk by Dawn Watson, she did not give the Claimant her filing cabinet keys. This, again made the Claimant’s life more difficult and we accept that this created an uncomfortable and unsupportive atmosphere for the Claimant. We accept that her line manager made no effort to support her, save on the first day of Nicola’s leave. In those circumstances it is no surprise that the Claimant was looking for alternative work. We note that the Claimant did not raise the fact that she felt that she was being punished and that the Respondent wanted her to leave, but in the circumstances of being confronted with Ms Watson in the way she was at the return to work meeting, this was hardly surprising.[73]On 19/1/17 there appears to have been a meeting between Ms Nash and Ms Watson. This was minuted. We are surprised that so little of the decision making was recorded in this way. The only document which the respondent produced dealing with anything like a rationale for the redundancy in the Lottery department was p 151. It states: “DW advised that there is no need In the Department for so many hours. Old contracts 51 hours for Admin in the Department. DW advised the work can easily be done on 42 hours and cover is only required in the office from 9am – 4:30pm Monday to Friday. The proposed change in hours is for 2 roles of 21 hours totalling 42 hours across the Department working 3 days per week. 7 hours per day X 3 = 21 staff to work alternating weeks so both know all jobs i.e. one works Monday, Tuesday & Wednesday and the other works Wednesday, Thursday and Friday and alternates weekly.[74]The document had an “Action Plan”. It consisted of headlines including “Alternative employment/expression of interest”. We find that there was no effort by the Respondent to look for alternatives other than offering the new contract on 21 hours. Nonetheless the respondent purported to be following a system under which alternative employment would be considered.[75]Leanne Nash stated in evidence that the system for looking for alternative employment was that informally the Respondent would give preference to anyone who is being displaced presumably when a vacancy had come up. However she went on to accept that the respondent did not draw any vacancies to the attention of the Claimant. She said that the respondent would use what she described as a whiteboard and paper application process. However she was unable to point to any documentation to support a system of offering alternative employment or to point to information as to whether there were any vacancies at that time. We find that surprising particularly in the context of page 151. It appears to us on a balance of probabilities that the respondent made no attempt to look for alternative employment for the Claimant. We also cannot say what would have happened if the Respondent had looked for alternative employment as it appears that no records have been kept by the Respondent of its efforts to find alternative employment (even to the extent of saying that a search had been made and no vacancies found). Ms Nash in her witness statement referred only to “the alternative” and did not deal with any attempts to look for other work (or to assert that there was none available).[76]The Claimant and Nicola were asked to go into Dawn’s office and were given warning of a potential redundancy situation affecting their two positions alone.[77]They were told that their (respective) 35hr & 16hr posts would now be replaced by two 21hr posts.[78]The Claimant was given a letter (p220-221) confirming the situation. Dawn Watson continued to be unsupportive of the Claimant and following the meeting did not speak to the Claimant about the redundancy, or give any indication that the Claimant should apply for one of the two new positios. The letter said[79]“Unfortunately, due to the fact we have less cash collections now and more people pay by card, online or by direct debit, the process is much quicker and workloads are reducing this, combined with the need to make costs savings across the organisation means we have had to look at measures to reduce our costs and in turn increase our profits.”[80]“We have made the difficult decision to reduce hours in the Lottery Department.”[81]The new jobs were put forward as “the alternative roles”. Against that the Claimant was told that if she did not express an interest in the roles the likelihood is that the Respondent would make compulsory redundancies.[82]There was a meeting on 25/01/17. The Claimant was caused further distress by the fact that her line manager did not communicate basic information to her about this meeting such as where it was, with whom (and this material was not in the letter she had been handed).[83]At this meeting the Claimant suggested a reduction to both her and Nicola’s hours of 5 hours. She was told that this had been looked into. There was no evidence that this was the case before the tribunal and no documents were brought to our attention to suggest that this was what had already happened. Ms Wood stated that the reason it was not suitable was because sufficient cover would not be provided should one or other be on annual leave.[84]The Claimant’s transcript of this meeting is of course fuller than the Respondent’s note which appears at page 222. Her transcript of the (authorised) recording is several pages long (p154a-g). During that meeting the reason for rejection of the 5 hour cut was given by Ms Watson, and was set out as follows: [Dawn Watson:] “It’s continuity really, it’s so that there’s no erm superiority between the two roles because the roles are exactly the same and it will work better working 3 days each it’s purely for the job. “AW[Ashleigh Wood]: It’s to manage the workloads as well coz if you’ve got someone who does more say if one was more hours that the other and say you took that role and yours was more than Nicolas and you go on holiday it’s then from a business prospective and a salary prospective “DW: Costs”[85]It is clear that two rationales were being put forward and there is no evidence that the Respondent had thought through any reason for not simply cutting the hours by 5 prior to that meeting. In particular the assertion that the reason it could not be done was “costs” was not supported by any documentation. It is also clear that the need for the number of employees that the respondent required had not diminished, nor had the need of the respondent for employees to do work of a particular type ceased or diminished. What the respondent was seeking to do was to have a cut in the number of hours and to require the Claimant to accept that reduction or face dismissal.[86]There is no evidence that during the consideration of the proposal on page 151 there was any consideration of whether redundancies could be avoided by both employees in the department taking a 5 hour cut. There was also no evidence that the Respondent considered any other alternative proportionate cuts in hours, such as reducing the Claimant’s hours by one figure and Nicola’s by another in proportion to their existing working hours.[87]The following day 26/2/17 the Claimant emailed the Respondent asking for details of the Redundancy payment that might be on offer (p223). The Respondent’s response (p224-227) set out details of redundancy and outstanding holidays. However this set out her entitlement on the basis of 25 hours not 35 hours per week save that (as it claimed a gesture of good will) the Respondent would calculate redundancy on the basis of 35 hours.[88]The Claimant was told she was not to receive any extra payment for accrued holiday entitlement as this would be included in her notice payment because the Respondent would require any unused holidays to be used up in the notice period. The Respondent also proposed to pay based on the reduced hours of 25 hours per week.[89]The Claimant asked her line manager if she would be allowed to return to 35 hours. She said that she had had proved her competence in doing the work whilst lone working. We accept the Claimant’s evidence that her line manager’s response to this was simply to shrug her shoulders and tell the Claimant that she would have to speak with Human Resources. We find that the Claimant would at this point have tried to work full hours, although she accepted that she might not have been able to do so immediately. However we find that this was the point of making reasonable adjustments in this case. She was entitled as a matter of the Respondent’s duty to make reasonable adjustments to work on the reduced hours, until she was able to work full hours.[90]The Claimant raised a written grievance on 2/2/17 (p229) to the effect that she had been treated as she had due to her ill health absence from work. She also raised the fact that she had raised concerns about and with her line manager. Her grievance was not dealt with by the respondent.[91]The Respondent’s response was dated 6/2/17 and invited the Claimant to a further meeting on 8/2/17, but this meeting concerned redundancy so it was not a response to the grievance. The Respondent’s letter, on page 230, said that her request for a review was being denied because of the “current situation”. It is plain therefore that the reason for the refusal to review the hours was not because it was felt by the Respondent that the Claimant was not capable, but that the Respondent was refusing to review the hours because the Claimant was being made “redundant”. Ashley Wood accepted in response to questioning before us that the reduction in hours was to be a temporary measure. She told us that she could not review the hours because they had to make cuts as soon as possible and she wanted the situation with the Claimant to be solved. She told us that there had been a need for cuts to be made since September of 2016.[92]The Claimant was then on 8/2/17 brought to a meeting at which she informed the Respondent that she would have to accept the redundancy. We find that she made it clear that she was doing so under protest because she was left with no viable option. We accept that she could not sustain a drop from 35 hours down to 21 hours.[93]During the meeting on 8/2/17 Ms Wood spoke to the Claimant about the option of Pay in Lieu of Notice (PILON). Under the contract of employment the Claimant was entitled to receive a payment in lieu of notice (page 79), and we find that the contract made provision that where the best interests of the employer and or employee were served by the employee not working the notice period, then that payment would be made. We find that it was not in the Claimant’s best interests at that point to work the notice period, nor was the Respondent seeking to have the Claimant work the whole of the notice period.[94]The contractual entitlement of the employer was to make a payment in lieu of notice, and not any period short of notice. The Respondent could not without the Claimant’s express agreement pay anything short of the entitlement for the notice period.[95]The respondent made clear at the meeting that it was in everyone’s interest for such a payment to be made. Although the Claimant said, in her witness statement that the minutes at page 231 were exaggerated it is clear that they reflect the fact that she only “volunteered” under protest.[96]At the meeting the Claimant appears to have agreed to the Respondent taking her holiday entitlement out of her payment in lieu of notice. However we are satisfied that the proposal was one to which she did not in fact agree. She made this clear once she had been given (what she was not given at that meeting) time to think about what the respondent was doing.[97]The decision was communicated to the Claimant by letter on 9/2/17 (p232 - 233). The letter stated that the Claimant’s notice money would be based on 25 hours per week. The letter stated that her accrued holidays would be included in the notice pay (also calculated at 25 hours) and not paid separately. She replied to that letter stating that she did not accept this way of paying her. Her letter is dated 21/2/17 and is at p 253. She said in that letter that she had taken legal advice and that she did not accept the proposal to include leave within the pay in lieu of notice payment.[98]We note that the Respondent’s proposal would have had the effect of contracting the Claimant out of her rights to paid holiday and to the pay in lieu of notice which the contract permitted.[99]The Respondent replied on 23 February 2017 (p236 - 237). The letter states that the Respondent used the Claimant’s outstanding annual leave to cover part of the notice period asserting that they were entitled to do this. The letter misunderstands the circumstances under which a PILON payment might be made in the context of this contract and misunderstands the rights of the Respondent to roll up holiday entitlement into the contractual payment in the context of this contract.
The Law
[100]The Claims are brought under sections 15, and 26 and 39 of the EqA 2010, and under section 95, and 98 of the Employment Rights Act 1996. The Claimant also claims unlawful deductions from her wages (sections 13 & 23 Employment Rights Act 1996) and or breach of contract damages.[101]We will not lengthen this judgment by setting out these provisions. Conclusions on liability[102]In relation to the Claimant’s dismissal we find that the dismissal was an act of unfavourable treatment under section 15 which was because of the absence of the Claimant and that was something arising from the Claimant’s disability which is anxiety and depression. We find that the absence was an operative cause of the dismissal although not the only cause of the dismissal. The ostensible reason for dismissal (looking for cuts in the Lottery department) was essentially made to fit around the Claimant. This was as a result in part of the amount of money that the sickness absence was causing the respondent to lose. Dawn Watson in September 2016, and certainly while the Claimant was absent, was already suggesting that there should be a reduction in the Claimant’s hours and we have no evidence to suggest that at that time there was any consideration of any potential redundancies. Therefore we find that, even if there was a redundancy or even if there was some other substantial reason for dismissal this arose out of the Respondent’s desire to avoid what it perceived, without considering adjustments that could be made in future, to be the risk of future absences and ongoing costs of the Claimant’s sickness absence. We find that the Respondent was concerned at the amount of money the Claimant’s absences were costing it and hence part of the reason for dismissal, and clearly an operative cause of the dismissal, was something arising out of disability. The Respondent appears to have used the substantial reason of wanting to seek cuts in hours in the department as a reason for putting the Claimant into a position in which she would not be able to continue working for the Respondent due to the disproportionate cut in her hours (which she could not sustain).[103]There was therefore unfavourable treatment (dismissal). It was caused by something arising out of the Claimant’s disability (the absences due to her disability and attendant costs). We find that this was an operative cause of the dismissal. The Respondent did not set out any details of any justifcation for this treatment of the Claimant. However it is clear that the Claimant was dismissed because the Respondent wanted to avoid the costs associated with her absence.[104]On those grounds and because the respondent has not pleaded any defence in terms of a justification we find that there was a breach of section 15 of the Equality Act, that this was discrimination arising from disability. Even if the Respondent had sought to plead justification for the dismissal on the basis of the apparent need for cuts in hours in the department, although this would be a legitimate aim, we consider that the pursuit of it was disproportionate, given what was have found in relation to unfair dismissal.[105]We considered the question of unfair dismissal under seciton 98 of the Employment Rights Act 1996. We accept that the reason for dismissal was either redundancy or some other substantial reason, namely some form of reorganisation. Those are both potentially fair reasons for dismissal and we remind ourselves that the reason for dismissal is a set of facts or circumstances or the beliefs in the mind of the employer. We have also found that the Respondent’s decision was caused in an operative way by something arising from the Claimant’s disability. We therefore considered whether it was reasonable of the respondent to treat one or other or both of those potentially fair reasons as a sufficient reason for dismissal and we find that the respondent did not act reasonably in treating those reasons or that reason as a sufficient reason for dismissal for the following reasons.[106]First of all the Claimant was not given any sufficient information as to the reorganisation so as to be able to engage properly with the proposed reorganisation of which in any event there was very little evidence supplied. We accept there was some evidence of a reason to reorganise, namely some financial difficulties. However it did not follow at all that there was a business case for the particular reorganisation undertaken by the respondent and no evidence was offered as to why the hours of Nicola should increase dramatically whereas those of the Claimant should decrease dramatically and there was no evidence of any alternative being considered in the formulation of what reorganisation would meet the needs of the business. We believe that a rough and ready approach was adopted to creating this re-organisation, in part with a view to shedding the risk of future absences by the Claimant by making her take fewer hours and increasing those of Nicola.[107]Secondly there was no reasonable consideration for the alternative put forward by the Claimant (or indeed anything similar). The respondent failed to provide any evidence that there was any genuine consideration of the proposal that hours in the department should be cut by 5 and there appears to us to have been no real consideration of how that proposal might or indeed might not have worked in the context of that department. There was no evidence either that there was any consideration of any variant on the proposal for a cut in hours. We recognise that the respondent was somewhat hampered in the presentation of their case in this respondent by the fact that Dawn Watson was not present to give evidence. She appears to us to have been the person who made the only relevant decisions in relation to the reorganisation.[108]Third, even if there had been proper consideration of alternatives to the reorganisation put forward, there was no other alternative employment sought or put forward or at the very least the Claimant was not told of any method of finding vacancies within the organisation and we find it quite extraordinary that the respondent appears not to have told the Claimant how to go about identifying alternative vacancies or what their system was. We note in passing that the respondent has not provided any documents containing any redundancy (or other employment) policy.[109]Finally on that point we find that there was insufficient genuine consultation. We do not consider that the consultation was genuine. The Claimant’s line manager was clearly not trying to encourage the Claimant to remain, and did not engage with her in proper consultation on the reorganisation, the different ways in which the Respondent’s aims of cuts could be achieved in her case or in relation to her individual situation. We were asked to consider whether the respondent had established a pool for selection during this redundancy/quasi-redundancy and as no challenge appears to have been made to the reasonableness of the pool we find that the respondent did establish a pool for selection namely the Lottery Department. However we did not hear from the decision maker who appears to have been Dawn Watson and again the respondent’s presentation of their case was somewhat hampered by that fact.[110]Turning next to the issue relating to notice. We considered this as an act of disability discrimination (see below) and in terms of a breach of contract/unlawful deduction from wages.[111]The Respondent had, we find, not varied the contract from 35 hours to a lower figure.[112]We find that the variation in hours that occurred was sought as a reasonable adjustment and we find was given as a reasonable adjustment. There was no suggestion at any point that the contract was to be varied and if there was such a suggestion all the evidence including that of Ashleigh Woods points to the fact that it was to be a temporary change which would need to be converted if the Claimant wished it to be converted to a permanent alteration to her hours.[113]However, if contrary to that finding, there was a variation of the contract the Respondent had failed to carry out any review of the hours. It had as part of the variation agreed that there would be such a review. It was therefore in breach of its contractual obligation in this respect. It is not entitled to rely on its own breach of the contract to insist on payment at the lower rate. Ashleigh Woods’ evidence was that this variation was not carried out due to the situation at the time. An alternative suggestion was put forward during the course of the case that the variation was based on how well the Claimant was doing and that the respondent in some way would be able to judge whether the Claimant was well enough to resume full time hours. But we reject that as the true basis on which the variation, if it was a variation, was made and we point out that the respondent (by refusing to carry out the review) effectively frustrated any reasonable consideration of the restoration of the full time hours. So in short, even if the Respondents are right and there was a variation of the contract they then breached it and cannot now rely on their own breach of contract in order to frustrate the Claimant’s claim for proper notice money.[114]We find that the Claimant was not provided with her proper entitlement to notice money. That provision should have been based on 35 hours rather than any lesser figure.[115]We conclude that she is owed the outstanding holiday pay. We do not accept that any holidays should have been offset against the pay in lieu of notice.[116]Our first reason is that contract made a provision for pay in lieu of notice and did not permit any set off of holiday when a payment in lieu of notice was to be made. It should be recalled that the payment was in lieu of the notice rights. It was not a payment as damages for breach of contract. It was payment of a liquidated sum based on the notice entitlement accrued at the point that the trigger circumstances set out in the contract had occurred.[117]Secondly, we do not accept that there is any evidence of a consensus or agreement that this should be the process followed when the Claimant was being made redundant and we find that it was wholly insufficient for the respondent to seek to rely on a chance remark by the Claimant which did not in all the circumstances indicate any genuine agreement. When one looks at the entirety of the evidence as to whether or not there is an agreement on this point it is perfectly clear that there was no such agreement. Claims under the Equality Act 2010[118]That leaves the questions relating to discrete items under section 15 of the Equality Act and section 26 of the Equality Act 2010.[119]We propose to deal with these by reference to the way matters are set out on page 61 of the trial bundle in the e-mail of 4 August 2017. We will first deal with the claims under section 15. In each case because the respondent has offered no defence in terms of justification, the tribunal has made findings on whether there was unfavourable treatment and whether that treatment was arising from something in consequence of the Claimant’s disability:- Item 1 - The refusal of the respondent to pay the correct amount of notice pay instead only paying an amount on the 25 hours the Claimant was working temporarily on a phased return:a. We find that this was unfavourable treatment and we find that it was because of something arising in consequence of the Claimant’s disability namely her absences from work and the measures taken to make adjustments for her return to work. So the Claimant’s claim succeeds on that point. One consequence of this finding is that the Claimant can claim the difference between the payments actually made to her and the notice pay based on 35 hours as damages for discrimination (in the alternative to the independent contractual claim or claim for unlawful deductions). Item 2 - The statement in the respondent’s letter dated 25 October that the Claimant’s attendance levels were not meeting the standards required and were having a huge financial and organisational impact on the hospice:b. We find that this was unfavourable treatment and again we find that it was because of something arising in consequence of the Claimant’s disability namely, again, her absence from work due to that disability. In particular the characterisation of the financial and organisational impact as “huge” was not aimed at being objective, but was the language of a person seeking to place pressure on another person, and hence was unfavourable because it disclosed the Respondent’s negative attitude towards the absences and their impact. Item 3 - The statement in the respondent’s letter dated 24 November 2016 that a possible consequence of the meeting was that the Claimant may receive a warning about her attendance:c. We find that this was unfavourable treatment and, again, that it was because of something arising in consequence of the Claimant’s disability namely her absence. This is because it was known that the Claimant had a disability and any employee receiving this letter would have considered that she was being treated unfavourably in the circumstances of her disability and of the lack of more than formalistic sympathy being shown to her situation. Item 4 - The statement in the respondent’s letter dated 1 December that in future the Claimant had to contact the respondent directly instead of her treatment team contacting the respondent on her behalf:d. We find that this was unfavourable treatment and that it was because of something arising in consequence of the Claimant’s disability namely her absences from work and the fact that she required support from her treatment team. The evidence demonstrates that the Respondent had been prepared to talk to the Claimant’s treatment team, and that in fact no confidential information had been sought or given. Whilst we understand the Respondent’s concerns over data protection issues and that there had been perhaps an over reaction to an earlier concern about data safety and confidentiality, the Claimant’s disability was known to the Respondent and they did not need to impose this restriction on comparatively trivial contact. On the other hand the Claimant’s disability meant that the Respondent’s behaviour simply increased her anxiety. In those circumstances we considered it to be unfavourable treatment. Item 5 - The statement in the respondent’s letter dated 9 January [should be 2017 rather than 2016 as on page 61]. This said, “I explained how your absence has had financial implications to the hospice. There have been tens of thousands of pounds associated costs from your episodes of sickness”:e. We find that this was unfavourable treatment and that it was because of something arising in consequence of the Claimant’s disability namely her absences. This was unfavourable treatment, again because of the way in which the impact was being characterised. Instead of any attempt at objectivity in the statement of its impact the Respondent chose language which could not have failed to imply a vague but very serious impact. The Respondent produced no evidence of what the impact of the Claimant’s absences had been in terms of increased costs. The letter therefore gave the impression of the Claimant being responsible for tens of thousands of pounds loss to the Respondent. The tone of the letter was therefore unfavourable treatment of the Claimant. It was plainly associated with her absences which arise from her disability. Item 6 - The statement in the respondent’s letter dated 9 January 2017 that as her line manager Dawn will have to make difficult decisions at times in the interests of the department and her team and you, the Claimant, need to be able to accept and understand this:f. We find that this was not unfavourable treatment and we find that because of the very indirect link to the Claimant’s absences that it was not because of something arising in consequence of the Claimant’s disability. Any employee seeing this statement would have acknowledged the general truth of the proposition and it could not be viewed objectively as unfavourable treatment. Accordingly in relation to item 6 the Claimant’s claim fails.[120]Next and finally we turn to those same matters regarded as breaches of section 26 and in respect of each of those we have three questions to ask, it is in relation to items 2 through to 6 that this applies. We have three questions to ask.(i) in each case was the treatment already mentioned, unwanted treatment. In relation to items 2 through to 6 we find that it was unwanted treatment. This is because it was manifestly unwanted treatment or in the case of the letters, that in the circumstances of this case the treatment was unwanted treatment.(ii) whether the unwanted conduct is related to disability? In relation to items 2 through to 5 we find that it was so related. In relation to item 6 we find that it is not sufficiently closely related to disability to satisfy the statutory test.(iii) (items 2 to 5 but not item 6) whether the effect was to create an intimidating, hostile, degrading, humiliating or offensive environment hostile environment and whether, having regard to all of the circumstances including the Claimant’s perception, the perception was a reasonable one.[121]We find in relation to items 2 through to 5 that the effect was to create a hostile environment and that the Claimant’s perception was in all the circumstances of the case a reasonable one to have.[122]Looking at all the incidents of discrimination which we have found we consider that they form a continuing state of affairs up to the date of dismissal.[123]We will hear further argument concerning the question of Polkey reduction at the remedies hearing.[124]We do hope that the parties can now nonetheless talk to one another and try to achieve agreement as to the remedy that is to be given in this case. The services of ACAS are always available if the parties do want to try to reach an agreement. We urge them to seek agreement on some or all of the heads of loss in this case.[125]It would be of great assistance to the tribunal, at the remedies hearing, to have both the Claimant’s schedule of loss, but also the respondent’s counter schedule. If possible this should be exchanged at least a week before the remedies hearing so that the parties can move towards agreement on the sums involved for some if not all of the compensation in this case.