Mr R Wilson v HM Revenue and Customs: 2503179/2018
EMPLOYMENT TRIBUNALS
Case No 2503179/2018
Between
Mr R WilsonClaimantHM Revenue and CustomsRespondent
Before
Employment Judge MartinIn person for claimantMr D Bayne (instructed by Counsel) for respondentMr C Henshall (instructed by Solicitor) for claimantDate 7 September 2019
JUDGMENT
The claimant’s complaints of disability discrimination pursuant to sections 13 and 19 of the Equality Act 2010 are dismissed upon withdrawal. EMPLOYMENT JUDGE Martin JUDGMENT SIGNED BY JUDGMENT OF THE TRIBUNAL Heard at: North Shields On: 15-17 and 20-22 May 2019 Deliberations: 1 August 2019 Before: Employment Judge A M Buchanan Non-Legal Members: Mr S Hunter and Ms P Wright Appearances For the Claimant: In person For the Respondent: Mr D Bayne of Counsel JUDGMENT It is the unanimous Judgment of the Tribunal that:[1]The claim of disability discrimination by failure to make reasonable adjustments advanced pursuant to sections 20/21 and Schedule 8 of the Equality Act 2010 is not well-founded and is dismissed.[2]The claim of discrimination arising from disability advanced pursuant to section 15 of the Equality Act 2010 is not well-founded and is dismissed.[3]The claim of unfair dismissal advanced pursuant to sections 94/98 of the Employment Rights Act 1996 is not well-founded and is dismissed.
REASONS
1.1 The claimant instituted proceedings on 24 September 2018 supported by an early conciliation certificate on which Day A was shown as 28 August 2018 and Day B as 12 September 2018. A response was filed on 13 November 2018 in which the respondent denied all liability to the claimant. RESERVED JUDGMENT Case Number: 2503179/20181.2 At a private preliminary hearing before Employment Judge Martin on 11 December 2018, the various claims advanced and the issues arising for determination were defined and case management orders were made. A Judgment was issued on 21 December 2018 whereby the claims of direct and indirect disability discrimination advanced pursuant to sections 13 and 19 of the Equality Act 2010 (“the 2010 Act) were dismissed on withdrawal by the claimant.1.3 The matter came before this Tribunal as set out above. Reasonable adjustments were made to the conduct of the hearing to accommodate the disability of the claimant taking account of the guidance from the Equal Treatment Handbook of February 2018. Regular breaks were taken throughout the hearing in particular during the time the claimant was giving evidence. The claimant was allowed to enter the Tribunal room first and make himself comfortable before the respondent and its witnesses entered. Changes to the seating arrangements in the Tribunal room were made and arrangements were made for the claimant to urgently notify the Tribunal if he felt the need for a break. The lighting in the Tribunal room was adjusted so far as it was possible to do so, a timetable for the hearing and an order of witnesses was agreed at the outset and adhered to, the claimant was allowed to give evidence from his normal seat in the Tribunal and it was agreed that the witnesses for the respondent should give evidence first. In the event the claimant represented himself competently and without any apparent difficulty. The claimant expressed himself entirely satisfied with the adjustments made by the Tribunal. Certain of the witnesses for the respondent were vulnerable and arrangements were made for them to have access to a designated waiting room whilst attending the Tribunal. Similar provision was made for the claimant and his partner.1.4 There was insufficient time for the Tribunal to deliberate at the end of the hearing on 22 May 2019 and the Tribunal set a date to deliberate in Chambers. Unfortunately, the earliest date for those deliberations was 1 August 2019.1.5 The Tribunal met in Chambers on 1 August 2019 to complete its deliberations and this Judgment is issued with full reasons in order to comply with Rule 62 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.
The claims
[2]The claimant advanced the following claims to the Tribunal:-2.1 A claim of disability discrimination by an alleged failure to make reasonable adjustments relying on the provisions of sections 6, 20/21, 39 and Schedule 8 of the 2010 Act.2.2 A claim of discrimination arising from disability relying on the provisions of sections 6, 15 and 39(2)(c) and (d) of 2010 Act.2.3 A claim of ordinary unfair dismissal relying on the provisions of sections 94/98 of the Employment Rights Act 1996 (“the 1996 Act”).[3]The Issues The issues in the various claims advanced to the Tribunal were refined at the outset of the hearing and were as follows: The claim of failure to make reasonable adjustments3.1 Did the respondent apply a provision criterion or practice (PCP) on employees:3.1.1 to attend work and/or3.1.2 to achieve a certain level of attendance at work to avoid disciplinary sanction and/or3.1.3 to work flexibly and have many different skill sets in different roles.3.2 if so, did any of those PCPs put the claimant at a substantial disadvantage in comparison with a nondisabled person?3.3 If so would any of the following have been reasonable adjustments3.3.1 to adjust the attendance policy to exempt disciplinary sanction for disability related sickness including the sanction of dismissal3.3.2 to adjust the duties and requirements of the claimant so as to avoid repeated changes of duties and office and managers3.4 Would those steps have been reasonable to take and would those steps have avoided the alleged disadvantage?3.5 Are there any time issues in relation to any of the claims advanced? If so, should time be extended pursuant to section 123 of the 2010 Act? The claim of discrimination arising from disability3.6 Did the respondent treat the claimant unfavourably:3.6.1 by repeatedly moving the claimant to other offices and roles and by changing managers?3.6.2 by suspending him from work on two occasions?3.6.3 by dismissing him?3.7 What was the something arising from the disability? Was it3.7.1 the respondent’s belief that the claimant posed a risk to himself and others3.7.2 the exacerbation of his condition in the event of being uprooted and moved and subjected to changes in his routine3.7.3 his disability related sickness absence?3.8 Was the claimant treated in that way by the respondent because of something arising from his disability?3.9 If so, did the respondent follow a legitimate aim in treating the claimant in that way? Did the respondent act proportionately in pursuance of such aim in treating the claimant in that way?[4]Witnesses In the course of the hearing, the Tribunal heard from the following witnesses: Claimant4.1 The claimant gave evidence and called no other witnesses. Respondent4.2 For the respondent evidence was heard from:4.2.1 Julie Morgan (“JM”) who was the line manager of the claimant from 11 January 2016 when he worked in the section known as “Large Business”.4.2.2 Sam Hill (“SH”) who was the line manager of the witness JM.4.2.3 Paula Elliott (“PE”) who was a manager in Large Business and was the line manager of JM and was herself line managed by SH.4.2.4 Beverley Brewis (“BB”) who was the line manager of the claimant from 2017 onwards in the Risk and Intelligence Service (“RIS”) of the respondent.4.2.5 Sharon Sheldon (“SS”) who worked in RIS in Manchester and was the officer who dismissed the claimant. She was the officer who decided to dismiss the claimant.4.2.6 Kirsty Telford (“KT”) who is the assistant director of RIS based in Manchester and the officer who dealt with the claimant’s appeal from dismissal.[5]Documents We had an agreed bundle comprising three lever arch files before us running to some 1222 pages. Some pages were added during the hearing. Any reference to a page number in this Judgment is a reference to the corresponding page in the agreed trial bundle.
Findings of Fact
[6]Having considered all the evidence both oral and documentary placed before us and in particular the way the oral evidence was given, we make the following findings of fact on the balance of probabilities:6.1 The claimant was born on 25 February 1974. He began work for the respondent on 17 April 2001 and was dismissed effective from 31 May 2018. At the time of his dismissal the claimant worked for the respondent as a data analyst. With effect from 1 January 2015 the claimant worked eight hours per day on three days each week usually Wednesday Thursday and Friday. The claimant suffers from autism and received a formal diagnosis of that condition in April 2017. However, as long ago as 2013 the claimant advised the respondent that he thought he suffered from Asperger’s syndrome and the respondent accepts that it had constructive knowledge of autism since early 2013. By June 2016 the respondent treated the claimant as a disabled person for the purposes of section 6 of the 2010 Act. For all purposes connected with litigation, the respondent accepts that the claimant was a disabled person by reason of autism and that it had knowledge of that disability.6.2 The respondent is a public body with vast administrative resources and over 28,000 employees. The respondent has a large site at Benton Park Newcastle upon Tyne where over 4000 employees work and this is where the claimant and all relevant employees of the respondent worked at all material times for the purposes of this litigation. The respondent has different buildings on the site which are, in the main, mirror images of each other. The respondent divides its workforce between different directorates and departments. In 2013 the claimant was working in the section known as “Large Business” and subsequently moved to work in the section known as “RIS”.6.3 The claimant made a request to reduce from full time hours to part-time hours on 12 December 2014 (page 52) and gave the reason to enable him to provide care for his children and to enable both himself and his partner to remain in employment. The request was approved and was to be effective from 1 January 2015.[7]We received detailed written submissions from the representative of the respondent which were supplemented by oral submissions and these are summarised. The claimant made oral submissions and these are summarised. As an adjustment to the proceedings, Mr Bain for the respondent made submissions first and the claimant spoke last. Respondent7.1 The law in respect unfair dismissal was set out and it was submitted that the Tribunal should examine the reasoning of the person deputed to decide whether or not the claimant should be dismissed in order to determine the reason for the dismissal. Reference was made to section 98(4) of the 1996 Act and to the question referred to in Spencer-v- Paragon Wallpapers Limited 1976 IRLR 373 namely whether the respondent could be expected to wait any longer when it decided to move to dismiss the claimant. If the respondent has caused the sickness absence (which is not accepted in this case) there is a requirement for the respondent to “go the extra mile” McAdie -v- RBS 2008 ICR 1087. An employer should take steps to discover the medical condition of an employee but only need take such steps as are sensible according to the circumstances.7.2 The law in respect of the discrimination claims advanced was set out. Unfavourable treatment because of something arising in consequence of disability is prohibited conduct unless the treatment is a proportionate means of achieving a legitimate aim. There are two separate steps – the Tribunal must identify the “something” and secondly another causative link because the “something” must arise in consequence of the claimant’s disability. Reference was made to various authorities in respect of objective justification namely Islam -v- Abertawe Bro Morgannwg Local Health Board EAT 0200/2013, R(Elias) -v- Secretary of State for Defence 2006 EWCA Civ 1293, Buchanan -v- Commissioner of Police of the Metropolis 2016 IRLR 918 and O’Brien -v- Bolton St Catherine’s Academy 2017 ICR 737 where Underhill LJ made it clear that where a capability dismissal is fair, it will usually be objectively justified.7.3 In respect of the reasonable adjustment claims, it was submitted that the PCP must be identified and then the identity of the non-disabled comparators (where appropriate) and then the nature and extent of any substantial disadvantage. Only then is it possible to determine whether there are any practical steps that can be taken to ameliorate the disadvantage. The focus on adjustments should be on the practical result of the measures to be taken – as the function of the 2010 Act is to get employees back to work.7.4 In respect of the time limit for claims, it was submitted by reference to Hendricks -v- Metropolitan Police Commissioner 2002 EWCA Civ 1686 that to find “an act extending over a period” it was for the claimant to show that the incidents complained of were linked to each other and evidence of a continuing discriminatory state of affairs. Reference was made to the decision in Abertawe Bro Morannwg University -v- Morgan 2018 EWCA Civ 640.[8]The Law The meaning of Disability within section 6 of the 2010 Act 8.1 The Tribunal reminded itself of the meaning of disability and in particular Section 6 of the 2010 Act which provides: (1) A person (P) has a disability if-- (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.
Discussion and Conclusions
[9]We approach our conclusions by dealing with the various claims advanced and issues arising in the following order:9.1 The claim in respect of alleged failures to make reasonable adjustments.9.2 The claim in respect of discrimination arising from disability.9.3 The claim in respect of ordinary unfair dismissal. The claim of failure to make reasonable adjustments[10]We deal with the various claims of failure to make reasonable adjustments in turn. We note that there are time issues in respect of several of these claims.[11]We turn to deal with the matters set out at items 3.1-3.5 in the list of issues above.[12]We turn to deal with the claims advanced under section 15 of the 2010 Act which are in fact the principal claims advanced by the claimant in this matter. We deal with the issues set out at paragraphs 3.6 -3.10 above.12.1 We have first considered whether the respondent treated the claimant unfavourably in any of the three ways asserted by the claimant. We have considered each in turn. Moving the claimant to other offices and roles and by changing managers12.2 Whilst moving the claimant to other offices and roles was pleaded as part of the allegations of unfavourable treatment, changes in line managers were not pleaded. At the outset of the hearing the claimant indicated that he wished to add the change of managers as an issue for consideration and the Tribunal considered it appropriate to do so given that the respondent was able to deal with the allegation through the witnesses who were to give evidence to deal with other pleaded issues.[13]We turn to deal with the claim of ordinary unfair dismissal.