Miss C Bage v Valuation Office Agency: 2500748/2020
EMPLOYMENT TRIBUNALS
Case No 2500748/2020
Between
Miss C BageClaimantValuation Office AgencyRespondent
Before
Employment Judge BeeverIn person for claimantMr Maxwell (instructed by Counsel) for respondentDate 8 February 2022
REASONS
[1]This Preliminary Hearing was listed to deal with the preliminary issue of disability pursuant to paragraph 1 of the order of EJ Shore on 12 February 2021. It is common ground that if the claimant is found to be a “disabled person”, the Page 1 of 12 tribunal will go on to make case management orders for the final hearing. Conversely, if the claimant is found not to be a “disabled person”, the claimant’s claims could not proceed and would fall to be dismissed.[2]The hearing took place as a video hearing which the parties consented to and was necessary as it was not practicable to hold an in-person hearing. In the event, the majority of the time was spent with cross examination of the claimant and there was insufficient time to provide an oral decision at the hearing. Judgment was reserved. Scope of Determination[3]The tribunal is being asked to determine whether the claimant is a disabled person. She claims to be so by reason of Hypermobility connective disorder, Premenstrual syndrome and Anxiety and depression.
Evidence
[4]The Grounds of Claim (GoC) recite events during the claimant’s employment between 15 June 2019 and 4 February 2020. The case Management order of EJ Morris dated 11 August 2020 set out the issues of discrimination that a final hearing panel would determine. These relate to matters occurring during the claimant’s employment including the decision to dismiss the claimant which occurred at a decision-maker’s meeting on 31 January 2020. The claimant’s effective date of termination was 4 February 2020.[5]The question that the tribunal is to determine is whether the claimant was a disabled person at the material times identified in the GoC, being the dates of the acts complained of. In this case, without making specific findings about any allegation or timing of any allegation, they relate to date(s) between 15 June 2019 and 4 February 2020.[6]The tribunal concluded that it should determine the question: whether the claimant was a disabled person by 15 June 2019 and if not, whether at any point prior to the claimant’s dismissal on 4 February 2020 was the claimant disabled within the meaning of the Equality Act 2010 (EqA).
The Law
[7]Section 6 of EqA provides that a person has a disability if he or she “has a physical or mental impairment and the impairment has a substantial and long term adverse effect on his/her ability to carry out normal day to day activities”.[8]In J v DLA Piper [2010] ICR 1052, the EAT approved the 4 “step” sequential approach in Goodwin v Patent Office [1999] ICR 302:(i) did the claimant have a mental and/or physical impairment? (the “impairment condition”);(ii) did the impairment affects the claimant’s ability to carry out normal day-to-day activities? (the “adverse effect condition”);(iii) was the adverse condition substantial? ( the Page 2 of 12 “substantial condition”),(iv) was the adverse condition long term? (the “long-term condition”).[9]The case of MOD v Hay [2008] IRLR 928 EAT dealt with what amounts to an impairment, which is to be regarded as a functional concept: Langstaff J said that the observations in MacNicol v Balfour Beatty [2002] ICR 1498 were “plainly right” which was that “the term “impairment” bears its ordinary and natural meaning. It may be an illness. It may result from an illness. It is not necessary to consider the cause of it.”. Given Langstaff J’s words of approval, this tribunal reminds itself of the observations of Mummery LJ (see para 38 of Hay): “38. In McNicol v Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498, para 19, Mummery LJ observed: “The essential question in each case is whether, on sensible interpretation of the relevant evidence, including the expert medical evidence and reasonable inferences which can be made from all the evidence, the applicant can fairly be described as having a physical or mental impairment. The ordinary meaning of the statutory language and of the Guidance issued by the Secretary of State under section 3(1) is sufficiently clear to enable the tribunal to answer the question on the basis of the evidence.”[10]Referring to the Guidance on Disability, at paragraphs A6-A7, it may not always be possible, nor is it necessary, to categorise a condition either as a physical or mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore effects of the mainly physical nature may stem from an underlying mental impairment and vice versa. It is not necessary to consider how an impairment is caused.[11]As to substantial effect, in Aderemi v London and South Eastern Railway Ltd [2013] ICR 591 guidance is given on what might be termed “substantial” (para 14): “…. Once [a claimant] has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-to-day activities, a tribunal has then to assess whether that is or is not substantial. Here, however, it is to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly a substantial effect those matters which are clearly trivial. It provides for a bifurcation: unless a matter can be classified as within the heading “trivial”” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other”. See also the Guidance on disability paragraph B1. Page 3 of 12[12]In addition to section 6 of the Act, Schedule 1 provides further relevant provisions: Paragraph 2 provides that an impairment is long-term if:(a) it has lasted for at least 12 months(b) it is likely to last for at least 12 months, or …….. Paragraph 2(2) provides that if an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities it is to be treated as continuing to have that effect if that effect is likely to recur. Paragraph 5 provides that an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect.[13]The question of disability must be determined as at the date of the alleged discriminatory act, not at a later point including the date of hearing. Insofar as there is a predictive exercise as to whether an effect is “likely”, this is to be interpreted as “could well happen” – SCA Packaging v Boyle [2009] UKHL 37, a threshold which is lower than the balance of probabilities test applied in other situations. The question for the tribunal is whether the claimant was disabled at the relevant time, and that the focus is on the relevant time and it is not permissible to look at evidence which postdates that relevant time. See McDougall v Richmond Adult Community College [2008] IRLR 227. The tribunal re-inforced this point in the course of the hearing as the claimant did raise evidence about events and diagnoses that occurred post-employment. The tribunal did not take those into account.[14]Tying these various elements together, the tribunal’s task is to assess whether an impairment has an adverse effect which has been established by a claimant as substantial. If it is, whether that substantial effect is long-term either in the sense that it has(i) lasted 12 months,(ii) is likely to last 12 months or(iii) if not, whether it is likely to recur.[15]The tribunal has also considered the Equality Act guidance on matters to be taken into account in determining questions relating to the definition of disability. It reminds itself that at all times the focus is on what the claimant cannot do, rather than what she is able to do.
The evidence
[16]The tribunal was provided with an electronic bundle of documents of 240 pages. The claimant gave oral evidence and she relied upon an impact statement [64] served in consequence of the order of EJ Morris. The claimant’s father, Ian Bage, Page 4 of 12 affirmed the truth of his witness statement and he was not asked any questions in cross examination. MK, a former co-worker of the claimant, gave evidence on behalf of the respondent and was cross examined by the claimant. Mr Maxwell provided very useful written submissions and supplemented those with oral submissions as to the facts. The claimant made oral closing submissions. Those submissions have been taken into account even if they are not comprehensively repeated in these reasons.[17]The findings of fact made by the tribunal are made on the balance of probabilities having heard the witnesses’ evidence and upon consideration of the documentation. The tribunal has not made reference to all facts adduced in evidence and instead has concentrated upon findings of fact that are relevant to the determination required for the purposes of this preliminary hearing.
Findings of Fact
[18]First, the claimant has a physical condition arising from the flexibility of her joints. This is a condition that she has had from being a child. The tribunal understands that it is might colloquially be referred to as being double-jointed. The result is that the claimant’s joints may over-extend. Far from merely being flexible as a result, the frequent consequence of such over-extension is pain and stiffness in joints and muscles with consequent tiredness and fatigue. Hypermobility syndrome is a generally recognised umbrella term for the potentially complex disorders that may arise. The claimant in the present case contends that she has a condition called “Hypermobility Connective Disorder” which for present purposes might sufficiently be interchangeable with “JHS” or Joint Hypermobility Syndrome. The claimant was assessed in January 2020 [228] by Nicola Urquhart, at the Durham musculoskeletal service, who, following examination, had “explained assessment findings of JHS”. One objective measure of assessment is the Beighton Score [240] where a finding of between 5-9 indicates a positive finding. The claimant’s score was 6.[19]The claimant describes in her witness statement waking each morning feeling fatigued, aching and exhausted. She has pain and stiffness across her upper body resulting from the fact that her joints, such as shoulder blades elbows back and neck, overextend and may lie in a fixed position for a period of time during sleep. The stiffness and restriction in movement is something that she would need to walk off over the first few hours of waking up. Carrying out certain domestic tasks, such as carrying a washing basket, may result in overextension of her fingers causing significant pain. The claimant struggles to wash her hair which she now limits to once a week. She finds it difficult to bend to put on jeans or to wash her feet. The claimant describes this in her impact statement as meaning that she has, “spent my whole life in daily pain”. The statement says that, “during my employment period of time, the symptoms were the same”. Walking any significant distance gives her hip, pelvis, back and arm pain. The effect of such pain causes fatigue. The claimant was late into work on numerous Page 5 of 12 occasions due to pain and fatigue and the consequent extra time required to get ready and travel to work.[20]Secondly, the claimant has engaged with mental health services on and off since her teenage years. The GP records identify numerous occasions up to 2014 making reference to anxiety and depression. The claimant has since September 2018 been prescribed a regular prescription of lamotrigine which is a mood stabiliser. These two features the tribunal finds persuasive evidence that the claimant has endured mental illness over a significant period of time and has received support over the period of time, including in particular 2018 onwards, from her GP in respect of her mental health. The respondent challenged the lack of express reference to anxiety consultations with the GP in the period since 2014. Notwithstanding that, the tribunal finds that the claimant has in fact continued to have the support of her GP, as set out above, and that she has been treated by psychiatrists and had callouts from mental health services. She could not account for why this medical information is not noted in the disclosed evidence. The tribunal throughout this case is alive to the absence of express expert diagnoses and takes full account of that in its decision-making. That said, the ongoing prescription of lamotragine is in itself indicative of ongoing GP support that the claimant was receiving.[21]In her impact statement, the claimant describes frequent panic attacks, and being of low self-esteem. She said that, “I do not socialise any more, and do not see anybody other than my son my father or my boyfriend. If I do try to socialise, have drank far too much alcohol, and this has resulted in self harm behaviours”. The claimant says that, “I do not use public transport and on my last attempt I had a huge panic attacked and left the bus”. The claimant describes becoming easily upset, frustrated and not coping well with change. She describes spells of crying and feeling suicidal, lacking motivation and feeling tired. She describes only being able to, “hold a telephone call down when something literally depends on it or it is extremely quick”.[22]Thirdly, the claimant’s impact statement refers to “Premenstrual Syndrome”. The tribunal takes note of the fact that there is no express reference in the GP disclosure nor any expert evidence. The claimant stated that this was likely to be because it was simply a fact of life that she would “just deal with” and she would not have likely raised it with her GP as all they might say is “nothing we can do”. The tribunal understands that Premenstrual syndrome is again an umbrella term for symptoms which may vary but which are experienced by women in the weeks before their period, such symptoms might be emotional or physical including tiredness, physical tenderness, headaches, pain and discomfort.[23]The variety of such symptoms is illustrated by the claimant’s description in her impact statement at [66] of physical symptoms of bloating, swelling and severe shooting pains and back pain, together with emotional symptoms such as paranoid thoughts irritability and snappy mood. She described the symptoms of Page 6 of 12 exhaustion somewhat descriptively as occurring “to point that I can fall asleep standing up”.[24]The respondent suggested that the combination of these physical and mental health symptoms that the claimant had described were inconsistent with the fact that she was consistently able to attend work (her hours of work 08.15hrs16.15hrs). The claimant recognised that point of view but maintained that her ability to carry out a job was impacted and that she had constant pain at work as a result of her chronic pain and she did her best to mask her symptoms. It was her evidence that she made every effort to keep up with the expected workload notwithstanding that the frequency of her coming to work late increased such that she took her entire year’s holiday entitlement in the space of a few months albeit she was sick. This was to avoid increasing her existing absence levels. On several occasions she would ask to take a part day’s holiday in order to go home early. That evidence was not challenged.[25]The respondent referred to its KIT notes which suggested that there were a number of occasions in which the claimant had provided practical reasons (e.g. the bus was late) for her late arrival at work. The claimant acknowledged that but said that there were other times which related to her symptoms for example the reason that she may have missed the bus was through anxiety. There are a number of occasions of lateness that do not state any explanation.[26]Respondent understandably challenges the claimant because her GP evidence shows no consultations in connection with her anxiety for a period of at least four years prior to her employment. The claimant referred to the fact that she was regularly prescribed Codeine as well as Lamotrigine as indicative of GP involvement even if not evidenced in the papers in front of the tribunal. She described Lamotrigine as a strong mood stabiliser given to her as a result of conversations with her GP about her mental health and this prescription commenced in September 2018.[27]When the claimant started employment, she signed a health declaration [141] and failed to declare the extent of her symptoms. She frankly stated in response to Mr Maxwell’s questions that, “I agree, it’s inconsistent” and she explained that she did not want to jeopardise the chances of getting employment. In her words it was, “not a lie as much as masking her situation”. The claimant did disclose that she had underlying medical conditions in a workplace assessment on 16 July 2019. The respondent placed emphasis on the comment that the claimant would, “experience discomfort to some degree” as a statement of modest symptoms which were alleged to be inconsistent with what she claims to be her true level of symptoms. This “pattern of inconsistency” as it was described by Mr Maxwell was said to be evident in the suggestion that the claimant could barely “hold down” a telephone call. The claimant in response stood by her statement and asserted that her job in fact depended on her taking phone calls, “I did the job and it made me poorly mentally”. Page 7 of 12[28]Claimant relied upon the evidence of MK, a co-worker, who did not witness any physical indicators of the claimant’s pain. He did however acknowledge that there were occasions when the claimant would disclose that she was aching and in discomfort. He had other personal experience of hypermobility and he acknowledged and did not contest the fact that the claimant was suffering from hypermobility.[29]There were a series of short term absences which are recorded in the preliminary bundle in return to work forms. In many albeit not all, reference is made to symptoms which are consistent with the claimant’s case today. In August 2019, [147], the claimant complained of hip pain. She declined an offer of OH. She told the tribunal that she did so because she was not wanting to cause a fuss and more particularly felt that she simply had to live with and deal with what she had done throughout her life. Symptoms in September 2019 [149] referred to PMT. There is no reference to PMT or similar in any GP notes – the claimant was challenged repeatedly about this and she said that there would have been some telephone conversations with her GP but in the main during her employment it was impossible to make appointment which she attributed in large measure to not being allowed a personal telephone at her desk (to make or to receive GP calls) and not being allowed time off to visit the GP.[30]The respondent did in fact obtain an OH report on 10 November 2019 [159]. The report recounts the claimant advising that she had multiple conditions – Hypermobility syndrome, PMS, anxiety and depression. The OH adviser said that it was, “not possible to explore and advise on all these conditions in one appointment. I will therefore advise on the symptoms mostly affecting at this time”. Those symptoms were described [160] as, “fatigue, anxiety and generalised pain. Feeling low and has problems with concentration, at times she feels physically and mentally exhausted. She has pain all time in her joints and muscles”. Claimant said that she did not know what would help in work and that when her symptoms were bad she found it difficult to leave the house and has exhaustion blurred vision significant pain and needs to sleep. The OH advice [162] was that, “the symptoms of her underlying condition do appear to impact on each other” and that these are likely to have repeated symptoms on a regular basis. The OH recommended postural changes and a workstation assessment. It also recommended flexible work hours and paced workload.[31]The claimant was absent from work for 1½ days on 5-6 December 2019. She arrived at work at 1:15 PM on 6 December. Notwithstanding apparently significant symptoms, the claimant was able later on that day to attend the Christmas outing. A social media posting established that she was well enough to attend the outing. MK suggested that she played a full part in the evening. The claimant said that she was still unwell but went out because she felt under pressure to be part of the team and in addition wanted to “push herself to go as she had not been socialising didn’t want to be seen as avoiding people”. She Page 8 of 12 dressed for the outing at the end of the shift along with a number of colleagues. She accepted that her written statement that she “did not socialise” was not right in that she made an effort at least once a month but her socialising in employment was very rare. The statement of the claimant’s father reinforces this picture of feeling under pressure and obligation to attend. Mr Bage gives descriptive evidence of having to go to the claimant’s house on 6 December 2019, “to help with her pain, and get into work as she felt under pressure and an obligation to attend”.[32]The claimant was dismissed following a Formal meeting which took place on 31 January 2020. The reason for dismissal is said to be related to her absences. The hearing noted that the OH report was “very generic and that the [decisionmaker] is considering a further referral”. In her statement for that hearing [180], the claimant had described her mood stabilising medication for her anxiety as well as her Hypermobility Disorder in which she describes herself as “always in discomfort to some degree”. In the course of the meeting the claimant described how her anxiety interacted with her mood and contributed to an increase in pain.[33]The claimant’s dismissal took effect on 4 February 2020 Discussion and Conclusions[34]Having established those facts the tribunal turned to its conclusions. It took into account the guidance of the Piper case and in particular to pay attention to the dangers of applying labels to situations where there may be difficult distinctions to apply. It also found great assistance could be gained from the MOD v Hay case as well as the statutory Guidance on disability. Throughout its deliberation, the tribunal remained cautious given the absence of any expert medical diagnosis and a surprising absence of GP records since 2014 notwithstanding its finding above that the claimant had been receiving support from her GP.[35]In this case the approach referred to by the MOD v Hay case has some relevance. The term “impairment” should bear its ordinary and natural meaning so that it could be an illness or result from an illness and it was not necessary to consider its cause: the question of impairment is, as Mr Maxwell correctly identifies, a functional one, what the claimant cannot do practically. Fundamentally what is at issue is whether the claimant is suffering adverse effects of a degree sufficient to meet the definition of the Equality Act (Guidance A6-A7).[36]Mr Maxwell described the claimant’s evidence as a “statement of absolutes” in that the claimant refers to her symptoms as happening “every” day or that she is “unable to….” as opposed to “on this day, I find it difficult” or “I can do it once a fortnight perhaps..”. A statement of absolutes cannot it is said reflect the reality of the situation and must in addition be manifestly inconsistent with the claimant’s regular attendance at work. He submits that the tribunal is therefore placed in an Page 9 of 12 invidious position of having to guess at the true position. For example, the claimant suggests that she does not socialise at all and yet the Christmas outing of 6 December 2019 plainly disproves that: the same can be said of her statement that she does not use public transport.[37]Mr Maxwell also criticised the inadequacy of the medical records and the lack of expert evidence on the medical position which he submits means simply that the tribunal cannot properly reach appropriate findings of fact in support of the claimant’s case.[38]The tribunal agrees that elements of the claimant’s statement are not wholly consistent with the position as it in fact was at the time of her employment. The claimant did travel on public transport and the claimant did socialise. But in each of these two examples the claimant explained in evidence that it was rare and when it happened it was accompanied by serious side effects. The tribunal accepts her evidence that her socialising was infrequent and that that was because of a combination of her fatigue and her anxiety. It is wholly consistent that she should attend work on the afternoon of 6 December 2019 (with the help of her father) despite being unwell and then attend the Christmas outing from a sense of pressure and obligation. The claimant can socialise and can travel on public transport but the correct focus is on what the claimant cannot do. Her impact statement is simply a genuine attempt to explain how she perceives her ability to undertake those activities. The tribunal’s conclusion is that the claimant is unable regularly to do either. She is significantly hampered by a combination of both physical and mental effects.[39]The evidence of the claimant being at the Christmas outing and also the evidence of MK who did not witness the claimant’s physical discomfort at work is to be treated with caution. The tribunal recognises and accepts the claimant’s evidence that she had sought to mask her symptoms so that it would not necessarily be obvious (or even at times visible) at work and that was because during her time in employment “she wanted to make a good impression”. That much is supported by the fact that the claimant used her entire holiday entitlement in a short space of time so as to avoid further increasing her recorded sickness absence. She did have a number of sickness absences after which she disclosed symptoms that are consistent with what she says in her impact statement.[40]The respondent has identified examples of where the claimant has exaggerated the position. It has caused the tribunal to consider the effect of that exaggeration. It does not negate the fact that the claimant has suffered a physical condition from being a child and it does not negate the fact that she has had physical symptoms of pain and consequent fatigue as a result. The tribunal accepts the graphic illustrations given in her impact statement that she struggles with a number of daily tasks such as washing her hair; tending to her feet; climbing out of the bath; carrying a washing basket. The tribunal noted the specific reference in her impact statement to that fact that, “even typing this document, my fingers Page 10 of 12 are very painful due to the bending joints”. The claimant specifically said that during her employment these symptoms were the same.[41]The fact that the claimant’s case cannot reliably be described in absolute does not mean that the claimant has not symptoms at all. That would, to coin a phrase, be to throw the baby out with the bath water. The tribunal accepts that the claimant has had a lifetime of pain and fatigue as a result of her joint overflexbility and tendency to overextend. The tribunal accepts that the claimant consistently suffers pain and consequent fatigue and exhaustion as a result. The claimant’s engagement with mental health services over the years has exacerbated her situation significantly. The tribunal agrees with the OH advice in November 2019 that the claimant has symptoms of her underlying conditions that appear to impact on each other.[42]The claimant contends that she has multiple conditions of hypermobility syndrome, PMS and anxiety and depression. The tribunal however does not have medical expertise and must reach its findings on the evidence available to it at the hearing. There is no clinical evidence of a diagnosis of Hypermobility syndrome albeit that the physiotherapist evidence is consistent with such a finding. Nor is there medical evidence that the claimant is in fact suffering for Premenstrual syndrome albeit that the claimant’s evidence (which the tribunal accepts) is that she consistently suffers physical and emotional symptoms at the time of her periods. There is no clinical diagnosis of anxiety and depression.[43]The tribunal is not able to conclude that the claimant does in fact have the condition of Hypermobility syndrome or Premenstrual syndrome. It may be that she does or indeed it may be that she does not. Each syndrome is not capable reliable analysis by a tribunal which does not have medical expertise and has not been presented with expert medical evidence.[44]If it were necessary for the claimant to establish the fact of her diagnosis, then she may well be in some difficulties. In that respect, the respondent is right to submit that the tribunal would be in an invidious position. That is, however, not the end of the matter as the tribunal has concluded that the combined effect of the claimant’s pain, fatigue and exhaustion together with her anxiety are adverse effects of both a physical and mental nature which amount to an impairment. The question of an impairment is a functional one and it is not necessary to consider how an impairment is caused. It is not necessary for the claimant to prove that she has the alleged conditions. See Guidance A7 and MOD v Hay.[45]The claimant’s impairment plainly has had an adverse effect which can properly be described as substantial and she has endured those effects for a significant period of time prior to the commencement of her employment. The tribunal accepts the claimant’s evidence that she experiences fatigue, anxiety and generalised pain together with feelings of low mood and problems with concentration such that at times she is both physically and mentally exhausted Page 11 of 12 and consistently, if not all the time, enduring a substantial level of pain in her joints and muscles. In terms of the Aderemi test, the claimant’s symptoms are plainly more than trivial.[46]These symptoms have been endured by the claimant for many years and in some respects for a lifetime. They may well have been exacerbated during employment (in respect of which the tribunal makes no findings) but the fact remains that by the time she commenced her employment in June 2019 she had already endured those symptoms many years. By June 2019, the substantial adverse effect was long-term in that it had already existed for a period in excess of 12 months. Without doubt, it was also likely that such symptoms would recur and would last for the foreseeable future. The claimant’s pain referable to her overextended joints is a lifetime condition for which there is no cure but only amelioration in the form of exercise in strengthening of muscles.[47]In summary, the tribunal concludes that the claimant has met the definition of disability for the purposes of section 6 the Equality Act 2010 because her impairment of pain, fatigue and exhaustion, and anxiety amount to an impairment which had a substantial effect on her ability to carry out normal day-to-day activities and did so at all material times during her employment between 15 June 2019 and 4 February 2020.[48]The claimant’s case will proceed to a final hearing which is listed to be heard in November 2021. The parties have already received a Notice of Hearing. As was agreed at the video hearing, the tribunal will (by way of separate Order) issue case management directions for the purpose of preparation toward that hearing. The parties should, in accordance with that Order respond to the tribunal to the extent they would wish to apply to vary the proposed directions made. EMPLOYMENT JUDGE BEEVER[1]By a claim presented on 24 April 2020 the claimant complains of disability discrimination.[2]At a Preliminary Hearing held on 25 June 2021, EJ Beever determined that all material times, the claimant was disabled person within the meaning of section 6 Equality Act 2010 by virtue of: ‘pain, fatigue, exhaustion and anxiety’. Page 1 of 21[3]The issues were refined at the outset of this hearing and are broadly as follows: Knowledgea. Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? The respondent accepts it acquired knowledge of the disability on 20 November 2019. Reasonable Adjustmentsb. Did the respondent have a PCP in that it required employees to take annual leave or be treated as having taken unauthorised leave in order to attend GP appointments in person during office hours?c. Did that PCP put the claimant at a substantial disadvantage compared to persons who are not disabled, in the following ways: i. She had to take annual leave to attend appointments with her GP (not having been offered the DAL) and attempt to make and answer telephone GP appointments during breaks or, inappropriately, in public areas; she also missed telephone appointments from her GP due to being on a call at work? ii. She was unable to see her GP face to face for fear of losing her job; thus her diagnosis and treatment were delayed? iii. Being thus unable to obtain diagnoses and a pain management plan meant that she was not provided with reasonable support by the respondent in respect of a severe impairment? iv. The effect of this took a huge toll on her mental health therefore making her fatigue, pain and exhaustion worse? v. She became subject to the respondent’s sickness absence procedure as contained in its Probation Policy? vi. She was dismissed in accordance with that Policy as she had failed to maintain an acceptable level of attendance?d. Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?e. Did a physical feature, namely the workstation provided by the respondent for the claimant (i.e. desk, chair, footrest), put the claimant at a substantial disadvantage compared to persons who are not disabled, in that it did not address the discomfort Page 2 of 21 that she suffered as a consequence of her impairments. In the alternative, but for the provision of the auxiliary aids of a chair, desk and footrest, would a requirement of the respondent have put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled?f. The substantial disadvantage in either case is: discomfort.g. Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?h. What steps would be reasonable to avoid the disadvantage? The claimant suggests as follows:i. In relation to the PCP – allowing the claimant to attend her GP for disability related matters during her office hours and without being required to make up missed working time ii. In relation to the physical feature / auxiliary aid – replace the end desk, foot rest and chair and not be required to hot desk. Discrimination Arising in Consequence of Disability i. Was the claimant’s dismissal, which the respondent accepts amounts to unfavourable treatment, because of the claimant’s sickness absences, and if so do those absences arise in consequence of her disability?j. Was the respondent’s aim, i.e. ensuring staff maintain an acceptable level of attendance to ensure the business can provide a satisfactory standard of service to its customers, legitimate? If so was dismissal a proportionate means of achieving that aim? Time Limitsk. Were the complaints made within the time limit set by s.123 Equality Act 2010? Evidence[4]We heard from the claimant, and for the respondent, Lynn Johnson (line manager, since retired), Sarah Carson (dismissing officer and lead for the Local Gateway Authority) and we read the statement of Jade Markwell (appeal officer, Team Manager).[5]We had regard to a file of documents consisting of 475 pages. Page 3 of 21[6]Insofar as it is relevant to our findings, we did not find the claimant to be a reliable witness of fact; her answers were inconsistent often framed as counter arguments with answers given after careful study of the documents. We agree with the submission of Mr Smith that the basis of her case shifted significantly throughout the litigation and during the hearing.
Findings of Fact
[7]The claimant was employed as an administrative officer from 15 July 2019 until her dismissal on 4 February 2020, at the respondent’s Customer Service Centre in Durham. During this time, the claimant’s employment was subject to a probationary period of eight months duration, which was due to expire on 15 March 2020. The role involved taking calls from customers and assisting with their enquiries.[8]The claimant was employed on a full-time basis of 7.5 hours per day totalling 37 hours per week. She was able to select between two shift times. She could elect to work the early shift (which commenced at 8am but in fact allowed the claimant to begin at any point until 9am) or the late shift which commenced at 9am. Shifts could be swapped as between peers; where that was not possible an employee with a legitimate reason was able to discuss this with the Line Manager. At the end of a week, an employee working full shifts would have worked 30 minutes in excess of their contracted 37 hours; that additional time could be taken as an early finish.[9]The claimant was based at a customer service centre, which responds to customer enquiries via telephone, letter or email. The respondent is required to meet targets within which to reply to customers, as provided for in its service level agreement so as to ensure a quality service to customers. Staffing is planned to meet the demands of projected peaks in workload in certain teams. Employees are arranged in teams, which include teams working on telephones, letters and emails. Absence from one team requires reallocation of an employee from one team to another at short notice. That requires an assessment of a person’s skills knowledge and experience to step into the gap created by a sudden absence, and the ability of their team to tolerate their own shortage taking into account such matters as planned absences in that team, and the impact that their shortage will have on their ability to meet their own teams service level targets. Page 4 of 21[10]The respondent’s policy applicable to the claimant on attending medical appointments is as follows: “where possible, employees should attend al medical appointments in their own time. If they are unable to do so they should try to minimise any disruption tot the business, for example by attending appointments at the beginning or end of the day. The employee should give their requires employees, to attend medical appointments in their own time, where possible”.[11]Non-routine medical appointments, such as hospital appointments, are treated differently, in recognition of the fact that the need to attend an appointment may be more urgent and appointments less amenable to flexibility.[12]The respondent has a policy for the provision of adjusted leave in respect of disability. Its aim is to allow people with a disability to take reasonable absences during work time the medical treatment, assessment of the medical condition and assessment of any adjustments required. The policy permits disability adjusted leave (‘DAL’) in circumstances were the employee requires “treatment/training to help manage the effects of the disabling condition (for example medical appointments, short-term hospital treatment, training to user guide dog), which cannot be arranged outside normal working hours”. (emphasis applied)[13]The attendance policy applicable to the claimant was the “Probation and unsatisfactory attendance-short-term absences” policy. It provides that there shall be a review point for an individual who works full-time at six days or three spells during an eight-month probationary period. In the event that either trigger point is met or exceeded, and after discussion about the causes of or mitigation for an employee’s attendance, at Stage 1, a manager may give a written warning requiring improved attendance comprising of two days absence during an improvement period of two months. Reaching or exceeding that review point will require a manager to consider whether to refer the matter to Stage 2 of the formal process. At a Stage 2 meeting, the manager reviews and discusses with the employee the reasons for their attendance; dismissal will be the normal course of action. The policy specifically reminds managers to consider making reasonable adjustments to the policy for disabled employees; the workplace adjustment policy reminds managers that the duty applies to any formal or informal policy or practice. Page 5 of 21[14]On commencement, the claimant’s line manager was Kim Percival (‘KP’). On 16 July 2019, the claimant undertook an Occupational Health (‘OH’) assessment which certified her fit to work but continued: ‘this lady has given her consent for me to disclose that she has underlying medical conditions that are likely to be covered by the Equality Act 2010. I would recommend a DSE assessment is completed but currently no further adjustments are required. Once you have completed an in-house DSE, and if there is persisting doubt as to whether the job role has been made as comfortable as possible (mindful that she will experience discomfort to some degree irrespective of the workstation setup), then I would advise that she is referred to an external workstation assessment using the relevant referral form’.[15]On the same day, DSE (Display Screen Equipment) took place. In the assessment, the claimant confirmed that the chair provided was comfortable, whilst her feet did not rest on the floor, she had been provided with a footrest and the desk caused her no other problems.[16]The claimant was recorded to have stated “I have hypermobility connectivity disorder so my lower back can get a bit stiff. However now I’m sat at my chair it feels okay. I think the most important one is getting a footrest. I have Raynaud’s and poor circulation to my legs (for whatever reason!) So feel better with my feet elevated wherever possible”.[17]The claimant told Lynn Johnson (‘LJ’) that she suffered from hypermobility in that her back could get a bit stiff and that the main thing she required was a footrest due to her Reynaud’s disease. LJ arranged for a work area assessment.[18]The assessor carried out a workstation evaluation out on 24 July 2019. He recommended a footrest of extra height, together with an inflatable lumbar support. Both were provided to the claimant. Frequent breaks from the screen were advised, to encourage muscle movement.[19]On 19 and 20 August 2019, the claimant was absent from work for two days due to sickness and diarrhoea. The claimant declined the offer made by KP of a referral to OH.[20]On 23, 24, 25, on 26 September 2019 the claimant was out of work for five days due to a closed throat, flulike symptoms, vomiting and severe PMS (premenstrual Page 6 of 21 syndrome). The claimant told KP that she had discussed her PMS with her GP and that she would be making a further appointment. She agreed to a referral to OH.[21]KP wrote to the claimant, to invite her to a review meeting, after her appointment with OH. In the letter, the claimant was told that she had exceeded her review point of six days over three instances and was provided with a link to the Internet at which she could access the respondent’s attendance management procedure. The claimant was informed by KP that she was ‘not on track’ to successfully complete her probation.[22]The appointment with OH did not proceed on 7 October as planned; the explanation the claimant gave was variously that the electrics in her house had stopped functioning or that she had a sore throat and was too unwell to talk. The appointment was rearranged.[23]In the meantime, the claimant off work for 4 days between 31 October and 4 November due to pain and fatigue associated with hypermobility. By now, due to the absence of KP, line management responsibility of the claimant had passed to LJ. LJ erroneously recorded the absence as being 6 days, rather than 4. The error was not identified and corrected until identified by Sarah Carson at the formal Stage 2 hearing; it is immaterial our findings.[24]On 5 November 2019 the claimant was to attend her OH appointment. It was not until 6 November 2019, when LJ called the claimant back about a message that the claimant needed to take emergency (or special) leave on that same day, that the claimant told her that she had not completed her appointment with OH on 5 November 2019 due to her phone running out of battery charge.[25]On 7 November 2019, at her return to work interview, the claimant told LJ that she had been taking annual leave when she had been poorly or in pain, during which time she ‘self-medicated with her prescribed medication’. LJ asked the claimant whether she had been to see her GP. The claimant replied that her GP had ‘been on leave and it was normally a two-week wait for appointments unless you phoned up on the day and were lucky enough to get one’. She was, as was regularly the case, encouraged to see her GP. The claimant knew that she had hit the absence review trigger points. When asked what could be done to assist her to achieve an acceptable level of attendance, the claimant said she did not think there was anything. The claimant was Page 7 of 21 informed of the effect that taking last minute special leave in cases that did not appear to be an emergency had on the respondent’s ability to manage in her absence.[26]About now, and for the first time, the claimant said she was using her annual leave ‘on a few occasions now’ instead of taking sick leave. LJ told her that she should not do this as it would have the effect of masking the true extent of her sickness absences. For the avoidance of doubt and addressing some aspects of the claimant’s allegations made during the hearing, we find that at no stage did the claimant tell LJ that she was having difficulty obtaining an appointment to see her GP because of the respondent’s policy requiring employees to see their GP outside of office hours where possible; on numerous occasions she told her that she either had seen or was due to see her GP. LJ had been advising the claimant in accordance with the policy on attending medical appointments. She did not tell LJ that she was taking annual leave so as to enable her to see her GP, or that she believed that the respondent’s policy was such that it gave her no option but to take annual leave. Her case that she could not plan to see her GP, but instead call in the morning in the hope of obtaining an appointment at any point in the day is undermined by what she told LJ about a ‘two week wait’ on 7 November 2019 and which accords with the claimant’s own evidence that she preferred to see her own GP who worked only one day (a Monday) per fortnight. It is further undermined by the evidence that she sought permission to take annual leave in advance of the day in question and the fact that her surgery enables patients to book their appointments by telephone, online or in person. Her GP’s surgery is part of a group of surgeries offering evening and weekend appointments. The claimant had only taken two Mondays off on annual leave (as individual days) before November 2019. LJ did not at any stage refuse to allow the claimant to attend her GP’s surgery for an appointment and she had no conversation with the claimant in which she disallowed her to attend an appointment via telephone during office hours. We are not satisfied that the claimant ever faced any significant difficulty obtaining or attending a GP appointment, other than that caused by her desire to see her own GP.[27]LJ arranged for a third OH appointment. As before, a private room was arranged for the claimant’s use, and on this occasion LJ ensured that the room had a landline from which the claimant could call the OH assessor. The next day the claimant asked LJ to ask OH to provide them with copies of the initial fitness to work assessment. This was the first that LJ knew of that assessment. Page 8 of 21[28]The sickness absence review meeting on 19 November 2019 proceeded in the absence of a report from OH. At this stage, LJ genuinely but erroneously believed the claimant had taken 13 days of sick leave. In fact, the claimant had been absent on sick leave on 11 days over a period of 3.5 months as against the attendance policy which allows for 8 days absence across 8 months.[29]The claimant attended with her trade union representative. The claimant confirmed that she had made a doctor’s appointment though she was ‘not 100% sure when this is’. She confirmed that she was always in some sort of fluctuating pain and did not feel that much could be done. She said she still had the back support and footrest assessed for her in July and that they helped her. She did not want to use an electric rise and fall desk, which had been made available for her use since early October. She could not think of any other measure that would assist her level of attendance or make it easier to work; she said that she did not think that extra breaks i.e. in addition to those hourly breaks that she was already afforded - would help and that nothing work related at that moment was affecting her being in work. She said that she felt worried about taking time off for hospital and doctor appointments and said she wanted to change her doctor because she felt that the service provided was inadequate.[30]In a report dated 10 November 2019, OH stated that the claimant had symptoms of premenstrual syndrome It stated that symptoms of PMS different between persons and from month to month, before listing typical symptoms which included mood swings, feeling used, anxious or irritable, tiredness or trouble sleeping, bloating or tummy pain, feeling tenderness, headache and skin and hair complaints.[31]The report stated the claimant had been diagnosed ‘earlier this year’ with hypermobility syndrome, having suffered for symptoms for many years. It stated that the claimant suffered fatigue, anxiety and generalised pain. She felt low and had problems with concentration, at times feeling both physically and mentally exhausted. The report said that the claimant experienced pain all the time with her joints and muscles. It stated that the claimant was able to sit at her desk for around an hour but needs to change position and posture frequently and that she is able to walk distances but has constant pain especially in her hip and back. The report stated that the claimant ‘says she does not know what would help with work – when her symptoms are bad she finds it difficult to leave the house and has exhaustion, blurred vision significant pain and needs to sleep’. Page 9 of 21[32]In relation to the future, the report stated: ‘the condition may trigger absences in the event of acute flare ups, attending medical appointments or if establishing on [sic] suitable treatment’.[33]The report confirmed that the claimant was fit to work, subject to adjustments that were described as follows: that she should be able to adjust her posture every 30 minutes and have periodic breaks for 5-10 minutes per hour doing alternative duties; that the claimant be allowed to work flexible hours and that a workstation assessment be undertaken to ensure that it is correctly set up and to assess the need for specialist equipment; job stress should be reduced, and a stress assessment / reduction plan should be implemented.[34]LJ met with the claimant on 22 November to complete a ‘Workplace Adjustment Passport’. The claimant was, like all colleagues, required to take a break for 5 minutes every hour and her job did not require her to remain at her desk; she was able to move away from her desk whenever she needed to do so to stretch and ease pain. In light of the contents of the OH report, however, LJ further encouraged the claimant to take breaks by moving away from her desk. LJ did not, at this or any stage, as the claimant subsequently suggested at her appeal hearing, inform the claimant that any breaks she took would be unpaid. LJ did not offer the claimant flexible working hours on the basis that her job already carried with it a choice of shift pattern and an early finish. LJ recorded the fact that a DSE and work area assessment was carried out in July and that the lumbar support and footrest helped the claimant as well as her own suggestion that the claimant uses an electric rise and fall desk to give her additional postural support. The claimant declined a stress risk assessment; LJ reiterated previous advice that the claimant could access the respondent’s Employee Assistance Programme. The exchange was documented in a Workplace Passport which was signed by both LJ and the claimant.[35]On 22 November 2019 LJ issued the claimant with a written warning that she must improve her attendance levels. The policy allowed for 2 days or two spells of absence in 2 months; LJ increased that to 3 days of absence or two spells in the period 22 November 2019 to 23 January 2020. In cross examination, the claimant in evidence accepted that a 50% adjustment in order to account for absenteeism related to her disability was ‘about right’. For the second time since she started, the claimant was told that her probation was ‘not on track’. The claimant did not exercise her right to appeal. Page 10 of 21[36]On 5 December and the morning of 6 December, the claimant was off work sick with severe cough and exhaustion and PMS. She attended work on the afternoon of 6 December and was able to attend her works Christmas event that evening. At her return to work meeting on 9 December 2019 the claimant argued that 6 December ought not to be counted, since she attended the Accident and Emergency department on that day and that her absence was therefore was akin to being absent due to having to attend a hospital appointment. LJ disagreed and warned her that one further absence before 23 January 2020 would trigger the next stage of the absence management procedure.[37]Soon thereafter, LJ became aware that the claimant was emailing another manager about the prospect of taking time off in February 2020 to undergo a ‘tummy tuck’ cosmetic surgical procedure in Poland and in respect of which the recovery time was up to 6 weeks. LJ called her to a meeting on 10 December; the claimant gave her a very different account about her GP’s knowledge of her plans to that which she written to the other manager. She claimed to be unaware of the fact that she had been marked as ‘not on track’ and that she was concerned for her job, so LJ agreed with her that she should speak to her GP and be referred to OH before any cosmetic surgery was booked so as to not jeopardise her probationary period further.[38]On Thursday 2 and Friday 3 January the claimant was off work. She said she had childcare problems. LJ was concerned by coincidence of the claimant’s absence on these days, given that she had asked, and been declined annual leave on these dates, in circumstances where the claimant said she had already booked a hotel.[39]The following week, on Monday 6, the morning of Tuesday 7, and on Wednesday 8 January 2020, the claimant was off work. She attended work on the afternoon of Tuesday 7 January. The claimant said she had been unable to obtain a GP appointment and so had attended hospital instead about her back pain. The claimant’s messages to LJ throughout this period, as to the cause of absence was inconsistent and unclear.[40]On 9 January 2020, LJ conducted a return to work meeting. On identifying that the claimant’s absence earlier in the week was due to back pain, LJ marked them as being sickness absences. Page 11 of 21[41]On 16 January 20, LJ wrote to the claimant to her that because the claimant had exceeded the trigger point of three days, the case would be reviewed at Stage II of the probation absence procedure by Sarah Carson (‘SC’).[42]SC invited the claimant to a formal meeting in accordance with the respondent’s Probation and Unsatisfactory Attendance Policy. She was informed the meeting would take place on 30 January 2020 and that dismissal was a possible outcome of the meeting.[43]The claimant produced a supporting statement at the meeting. In it, the claimant said that she had the following conditions: anxiety and depression; hypermobility connectivity disorder; Raynaud’s disease (which she said did not impact on her employment); PMS. She said she had chronic pain fatigue had numerous hospital visits over the years due to her joint pain and was being assessed for fibromyalgia. She said she was suffering severe financial difficulties which was the source of a considerable cause of stress and consequent pain. The financial issues had now resolved, she said. The claimant said that her leave had been ‘greatly influenced’ by the lack of medical help, diagnosis, pain relief or long-term plan, notwithstanding that she had been actively and assertive in ‘pushing for this’ for a number of years. She described her GP as unreliable, practice and only one GP, that she had been ‘very assertive’ her their attempts to obtain an MRI scan and that she had advised her GP that could not tolerate continued inaction.[44]At the meeting, the claimant was accompanied by her trade union representative. She told SC that she thought that her absences were “all connected” and that her back pain was one of the main symptoms. SC reiterated that the claimant could take breaks every 30 minutes in addition to her allocated five minutes per hour. The claimant told SC that she was struggling to get an appointment with her GP or hospital to escalate matters; she was waiting for a diagnosis or a referral for an MRI scan, or a referral to a pain clinic, that she had not seen a physiologist and that her GP had told her that there was nothing that could be done about her condition and she would just have undertake exercises at home. She said she been for a few weeks taking gabapentin, a drug which was making her feel much better but had not been prescribed by her GP but that she was taking nonetheless because her GP was not providing her with the correct pain relief. Page 12 of 21[45]The claimant told SC that she had been taking annual leave when she was too ill to attend work. She did not suggest that that was because of the impact of the respondent’s policy on her ability to attend appointments with her GP.[46]The claimant told SC that the previous day she had sat in Stephen’s chair. It had been assessed for him so that it was adjusted for his back; she said she thought seemed to help her and therefore she said she thought a new chair would be beneficial. SC thought that mention of Stephen’s chair was a late attempt to secure a reprieve. We are inclined to agree; we are not persuaded of the truth of that account and in any event, we are not persuaded that a chair adjusted for another was likely to bring any medium or long term benefits to the claimant as opposed to being, at best, be neutral.[47]She said she didn’t need a stress reduction plan arranging.[48]In response to a direct question, the claimant said that there was nothing else that she felt could be done to support her and that there were no other matters to take into account.[49]SC contacted OH for clarity about aspects of its report in particular relating to future absences. She was told that the report could not be revisited and that a further referral was pointless unless there had been a change in circumstances, such as a new diagnosis, further treatment or other change in condition.[50]SC decided to dismiss the claimant. The historic absences were significantly high. She concluded that it was unlikely that the claimant would find out more about her disability, for example, by obtaining a diagnosis within a reasonable period and that she was therefore not satisfied that there would be any change in circumstances in the foreseeable future that would lead to an improvement in attendance within a satisfactory timeframe. The claimant’s use of unprescribed medication was a cause of concern; either the claimant had not been seeing her GP, or she had, and was ignoring advice.[51]SC wrote to the claimant confirming her decision to dismiss on 4 February 2020.[52]The claimant appealed her dismissal. The letter contained a detailed analysis of where and how she disagreed with the respondent’s notes of her meeting with SC. She severely criticised her GP for what she described as long-standing ‘incompetency’. Page 13 of 21[53]The appeal hearing took place on 21 February 2020. It was chaired by Jade Markwell (‘JM’). The claimant was accompanied by her trade union representative.[54]In that hearing, the claimant said that she was taking codeine and herbal tablets which was helping with her PMS and allowing her to sleep better, that she had ‘pushed and pushed’ her GP who she described as ‘useless’. She said a further DSE assessment or external assessment would have helped her and that a different chair and longer breaks – albeit later she said she was afforded no breaks at all – would assist. She said she could not predict her pain, but that she wished to ‘move forward with little adjustments to her chair’.[55]JM rejected the claimant’s appeal that a DSE assessment should have been carried out: she found that on 19 November 2020, the claimant informed LJ that her work equipment was helping her; that there had been no point at which the claimant had raised an issue about her work equipment; that she had been encouraged to take breaks; that a number of her absences appeared to be unrelated to her workstation, e.g. cough, flu, closed throat, vomiting and diarrhoea, PMS.[56]JM rejected the claimant’s appeal that a stress risk assessment had not been completed: she found that the claimant was inconsistent about whether stress played a role in the pain she experienced; she had declined the opportunity to carry out an assessment which suggested that she did not think it would be beneficial to her.[57]JM rejected the claimant’s appeal on the ground that she had not been allowed to take extra breaks, on the basis that there was documentary evidence in the form of the Workplace Adjustment Passport that the claimant had signed containing encouragement from LJ.[58]She told the claimant that she would consider whether DAL should have been made available to her when the claimant said that LJ had refused to allow her to attend her GP during office hours. She subsequently noted that OH had not made any such recommendation, that the notes of the meeting on 19 November suggested that LJ had given the claimant an accurate account of the respondent’s policy and that the LJ had encouraged the claimant to attend her GP. There was evidence to suggest that the claimant had told LJ she was attending her GP and no evidence that the claimant had taken annual leave to attend. That ground, too, was rejected. Page 14 of 21[59]JM noted that the claimant had no evidence of the claimant ‘finally’ having an MRI scan, but she did invite the claimant to let her know when her pain clinic appointment was. The claimant later informed JM that it was not for another 4 weeks.[60]As did SC, JM observed that the claimant’s absences were well in excess of the level of sickness that was acceptable under the respondent’s policy.[61]In a letter dated 25 February 2020, JM confirmed that she was satisfied that the original decision was sound and that her appeal was dismissed. The Law Knowledge of Disability
The Law
[62]The Tribunal is required to take into account the EHRC Code of Practice on Employment where it appears relevant. Paragraphs 5.14 and 5.15 provide that an employer must show that they could not reasonably have been expected to know about disability and that they must do all they can reasonably be expected to do to find out if an employee of the disability; what is reasonable in the circumstances.[63]What is required is knowledge (actual or constructive) of the facts constituting the disability; knowledge of the diagnosis is not necessary. Where the Tribunal finds that the respondent could reasonably have been expected to take further steps to find out if the claimant had a disability, it must then consider whether as a result, it could then have reasonable have been expected to know of the disability: A Ltd v Z [2020] ICR 1999. Discrimination Arising in Consequence of Disability[64]Section 15(1) of the Equality Act provides that a person discriminates against another where that person treats the other unfavourably because of something arising in consequence of B's disability, and they cannot show that the treatment is a proportionate means of achieving a legitimate aim. Page 15 of 21[65]A respondent may objectively justify unfavourable treatment if it can establish that the treatment was a proportionate means of achieving a legitimate aim. To be proportionate, the treatment must be an appropriate means of achieving a legitimate aim and also reasonably necessary in order to do so: Homer v Chief Constable of West Yorkshire [2012] UKSC 15 at [20-25].[66]The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. It is for the Tribunal to conduct that balancing exercise and make its own assessment of whether the latter outweighs the former; there is no range of reasonable responses test. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys and Hansons plc v Lax [2005] EWCA Civ 846 Pill LJ at [19-34]. The Duty to Make Reasonable Adjustments[67]Section 20 of the EqA 2010 provides as follows: 20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. . . . (10) A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to— . . . Page 16 of 21 (c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or[68]Schedule 8 Part 3 of the Act provides that an employer is not subject to the duty to make reasonable adjustments if it does not know and could not reasonably be expected to know that the employee has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement at s.20.[69]The provision of furniture, furnishings and equipment also amounts to an auxiliary aid: Equality Act 2010 (Disability) Regulations 2010 Part 3 paragraph 8.[70]We have had regard to the provisions of s.20 and 21 of the Equality Act 2010 as well as the correct approach to their interpretation as set out in Environment Agency v Rowan [2008] IRLR 20 EAT.[71]Consultation or assessment may be a precursor to the taking of a step under s.20, but it is not a step itself, for it does not remove a disadvantage: Watkins v HSBC Bank plc [2015] IRLR 1015, EAT at para 30.
Discussion and Conclusions
[72]We have no reason to disbelieve LJ when she states that she did received until early November 2019 and that KP had not received at all, the original fitness assessment from OH in July 2019. But both the pre-employment assessment as well as references to hypermobility and Reynaud’s disease, at the DSE assessment in July put the respondent on notice of the possibility of a disability. The respondent was under a duty to take reasonable steps to find out if the claimant had a disability, for example by asking the claimant for further details and/or referring her to OH for a specific assessment. Taking into account the claimant’s evident reluctance to undergo medical scrutiny, and doing the best on the facts before us, we find that the respondent, had it taken further steps to find out if the claimant had a disability, would be expected to know of the disability by end September 2019. Reasonable Adjustments - PCP – requirement to take annual leave to attend GP appointment[73]The respondent operates no such PCP. Its policy is to require employees to attend out of hours where possible, alternatively to seek appointments that would minimise Page 17 of 21 disruption to the business. There is no evidence that the respondent, or LJ, ever departed from the published policy.[74]Were the PCP to exist, the claimant was not put to any substantial disadvantage claimed. She did not take leave to attend her GP.[75]The respondent could not reasonably be expected to know that the claimant was being put to any of the substantial disadvantages claimed. LJ was being told by the claimant on a number of occasions that she was seeing her GP, or that she was soon to attend an appointment. Her position throughout her employment, put in increasingly vehement terms, was that she was seeing her GP and that her GP was giving her poor medical advice. The claimant regularly asked LJ for other types of leave (annual, special/emergency). LJ encouraged the claimant to visit her GP to get further information about her condition. The clamant did not tell LJ that she was having any difficulty seeing her GP at all. Reasonable Adjustments - Physical Feature / Auxiliary Aid – provision of a workstation (i.e. desk, footrest, chair with lumbar support)[76]We are not satisfied that the workstation as adjusted to the claimant’s requirements put the claimant to any substantial disadvantage or, in the alternative would, but for the provision of the workstation, put her to the same. The claimant’s workstation was assessed and approved as being suitable for her in July 2019. The claimant’s condition was such that she would always have some degree of discomfort. That is why she was encouraged to take breaks. At no stage did she complain that the workstation was no longer suitable and indeed, on 19 and 22 November – after she had spoken to OH – she confirmed to LJ and later to SC that the individual components of her workstation were helping her and that northing further could be done.[77]We are not satisfied that the physical feature (or lack of auxiliary aid) puts her at a substantial disadvantage when compared with persons who are not disabled. The provision of the workstation was to reduce the discomfort (and not eliminate it).[78]For the reasons above, the respondent did not have actual or constructive knowledge of the substantial disadvantage. Page 18 of 21 Discrimination Arising in Consequence of Disability - Dismissal[79]The respondent accepts it had knowledge of the disability by the time of the claimant’s dismissal and it accepts that its decision to dismiss amounted to unfavourable treatment because of something (absenteeism) arising in consequence of the disability. It is therefore the respondent who bears the burden of proving that its treatment was objectively justifiable.[80]We accept that requiring the maintenance of an acceptable level of attendance in order to ensure that the respondent can operate effectively to provide a satisfactory standard of customer services is a legitimate aim. The respondent plainly needs to be able to plan its staffing resources in a way that is not only efficient, but also effective to deliver its services within the targets agreed.[81]The dismissal would be capable of achieving the aim; we accept that the claimant’s dismissal would enable to respondent to better plan and manage its staff resources in order to function as a customer services provider and meet its service level agreement.[82]We turn to the objective balancing exercise between, on the one hand, the reasonable needs of the respondent and on the other, the discriminatory effect of the dismissal.[83]Dismissal is self-evidently the step that causes the most severe impact on the claimant; the respondent must adduce cogent evidence of its justification.[84]The claimant absences were significant in number of absences over a short, probationary period. As against an acceptable level of 8 days’ absence over a probation period of 8 months, the claimant had been absence for 15 days in 5.5 months i.e. just short of twice the acceptable level, unadjusted.[85]It is not possible to identify with precision what proportion of the absences were disability related; since the majority of them cite numerous symptoms. Plainly a significant number of absences were disability related, but many symptoms are not: there is no evidence that, e.g. sickness, diarrhoea, closed throat and flu like symptoms, were, or could be, disability related symptoms.[86]The disability related symptoms that the claimant suffered were varied in nature and severity and unpredictable. No diagnosis, or treatment plan or any other medical step was likely to take place in the foreseeable future, which might assist the parties to Page 19 of 21 better manage the claimant’s absence and therefore the respondent’s ability to manage its staffing resources.[87]To both LJ and SC at the Stage 2 hearing, the claimant said that there was nothing more that the respondent could do. The claimant told OH, and OH did not disagree, that nothing could be done to assist the claimant further. Even at the Preliminary Hearing in July 2021, the claimant had not obtained a diagnosis of her condition/s. We have no reason to believe that when the claimant told the respondent that there was nothing more that could be done, she did so from an informed position.[88]The adjustments (as opposed to assessments) recommended by OH had suggested, had all had been implemented from the outset of the claimant’s employment. Of the recommendation that the respondent permit flexible working, we agree that the claimant already had a degree of flexibility in her start and finish times, that it is not obvious from the report why that adjustment might have any impact on the claimant health or ability to attend work, the respondent sought, but was denied any further clarity on the contents of the report, and the claimant in discussion did not seek it. We are not satisfied that any further flexibility than that which she already had would give rise to any change in the claimant’s ability to attend work.[89]The DSE assessment had taken place less than 6 months before the decision to dismiss, there had been no material change in circumstances since. An unavoidable symptom was constant hip and back pain. There is no evidence before us to conclude that a further assessment would have elicited any different response than that in July 2019, given that the claimant had been suffering from symptoms for years.[90]A stress risk assessment was declined by the claimant and there is nothing to suggest any concrete adjustment that might have arisen from that, much less how or why that might improve the claimant’s attendance: OH did not explain as much it the report and they declined to provide SC with any further detail.[91]The respondent did not adjust the claimant’s leave pursuant to the DAL policy; on the evidence before them and on our own findings, the claimant had no difficulties attending her GP. Indeed, if taken at face value, her evidence tends to suggest that her true sick leave days were in excess of those identified by the respondent. Page 20 of 21[92]The claimant had access to the respondent’s sickness absence policies and was reminded of their effect at regular intervals by LJ; she was warned at an early stage that she was ‘not on track’ to pass her probationary period.[93]Balancing the severity of the decision to dismiss, against the lack of evidence before us that there are any other steps that could realistically be taken that would have the likely effect of improving the claimant’s attendance record in the foreseeable future, we find that there no less discriminatory means by which the respondent could achieve the objective of maintaining staff attendance levels to enable the provision of a satisfactory standard of service; the dismissal was reasonably necessary to achieve the aim.[94]The defence succeeds and therefore the claim is not well founded.