Miss Rachel Brook v Tyneside Cinema Ltd: 2503600/2018

EMPLOYMENT TRIBUNALS

Case No 2503600/2018

Between

Miss Rachel BrookClaimant

Tyneside Cinema LtdRespondent

Before

Employment Judge Arullendran

Members

Ms D Winship

Mr G Gallagher

In person for claimant

Mr A Scott (instructed by counsel) for respondent

Date 11 November 2019

JUDGMENT

The unanimous Judgment of the Employment Tribunal is as follows:

[1]The claimant’s claim for discrimination pursuant to section 15 of the Equality Act 2010 is well-founded and succeeds.

[2]The claimant’s claim for the failure to make reasonable adjustments pursuant to section 20 and 21 of the Equality Act 2010 is well-founded and succeeds.

[3]The claimant’s claim for victimisation pursuant to section 27 of the Equality Act 2010 is not well-founded and is dismissed.

REASONS

Conclusions

[1]The issues to be determined by the Employment Tribunal were provisionally set out by the respondent in the document entitled “list of issues” which can be seen at pages a to c of the Tribunal bundle. However, these issues had not been agreed between the parties and the claimant did not have copy of this document in her Tribunal bundle. The Tribunal advised the parties that the list of issues, as drawn, appears to be deficient in identifying the “something” arising from the disability and in the identification of the PCPs and, as the claimant was in person and was not in a position to deal with these matters at the beginning of the hearing, it was agreed that the Tribunal would make their findings on the correct formulation of the issues and the relevant points once of the evidence had been heard.

[2]The issues to be determined by the Employment Tribunal, as set out by the respondent at pages a to c of the bundle are as follows:2.1 Did the respondent fail to respond, whether adequately or at all, to the claimant’s local resolution request of 9 April 2018?

2.2 Did the respondent, in relation to the recommendations from the occupational health assessment:2.2.1 fail to implement all reasonable adjustments?

2.2.2 fail to carry out a risk assessment?

2.2.3 fail to carry out an ergonomic risk assessment?

2.2.4 place the claimant at risk of redundancy in June 2018?

2.2.5 fail to support the claimant during the consultation process?

2.2.6 fail to follow a request by the claimant to allow a three-day period focusing on work on 8 August 2018?

2.2.7 fail to allow the claimant to attend work for 2 ½ weeks in August 2018?

2.2.8 dismiss the claimant?

2.3 If so, was the treatment unfavourable?

2.4 Was the local resolution request or need for reasonable adjustments “something arising from” the claimant’s disability?

2.5 Was the treatment because of “something arising from” the claimant’s disability?

2.6 Was the alleged treatment in pursuit of a legitimate aim?

2.7 Was the alleged unfavourable treatment a proportionate means of achieving the legitimate aim?

2.8 Were any of the following a provision, criterion or practice (PCP) deployed by the respondent:2.8.1 not properly, if at all, implementing all the recommendations of the occupational health?

2.8.2 not properly, if at all, responding to local resolution request?

2.8.3 not making adjustments to the type of role carried out?

2.9 Did any of the PCPs by the claimant at a substantial disadvantage in comparison with nondisabled employees?

2.10 Did the respondent know, or ought reasonably to have known, that the claimant was put to said substantial disadvantage?

2.11 Has the claimant established that any of the following alleged adjustments were reasonable and that the respondent failed to take the steps:2.11.1 implement all occupational health recommendations?

2.11.2 permit adjustments to the type of role and working arrangement?

2.11.3 introduce, implement and comply with the policy relating to local resolution request?

2.12 Was the claimant’s local resolution request of 9 April 2018 a protected act the purposes of section 27 (2) of the Equality Act 2010?

2.13 Was local resolution request made in good faith?

2.14 Was the claimant subjected to a detriment by being placed at risk of redundancy and/or being dismissed?

2.15 Did the respondent subject the claimant to the aforementioned alleged detriment because of the alleged protected act?

[3]We heard witness evidence from the claimant, Holli Keeble (CEO), Sharon Coull (former director of finance) and Lucy Smyth (former director of finance). We were provided with a joint bundle of documents consisting of 307 pages, the majority of which were not referred to by the parties.

The Hearing

[4]The claimant explained to the Tribunal the effects she experienced from narcolepsy, cataplexy and depression and requested that she be allowed to take breaks during the hearing as a result of her disability. The Tribunal agreed that the claimant could request as many breaks as she wished and we advise the claimant to inform us of any other ways in which we could help her with the process of this hearing. On the second morning of the hearing the claimant was feeling unwell and required a short nap and the Tribunal agreed to postpone the start of the hearing to 11 am so that the claimant could have a rest and so that her medication would have time to work. The claimant informed us that she was sufficiently rested at 11 am in order to continue with the hearing.

[5]Mr Scott advised the Tribunal that, as a diabetic, he required breaks throughout the day and sought permission from the Tribunal to eat sweets during the course of the hearing, which was granted.

The facts

[6]The Tribunal and the claimant found some of the cross examination on the first day of the hearing rather confusing and Mr Scott was asked to modify his questioning to ask simple and short questions, without referring to matters which were external to the facts of the case, such as football analogies. We asked Mr Scott if he was familiar with the Advocates Gateway, which he said he was not. The Judge gave a brief overview of the information available in relation to questioning vulnerable witnesses and Mr Scott was given the opportunity to take a break in order to read the relevant information on the Advocates Gateway prior to continuing with his cross examination on the second day hearing, however he declined stating that he had no need to look at the information.

[7]The claimant complained that Mr Scott entered the room where she had been having a nap, on second morning of the hearing, in order to speak to her and she also complained that Mr Scott was discussing the case in the public waiting area which caused her some distress. Mr Scott said that he was merely enquiring after the claimant’s welfare and the Tribunal asked him to refrain from approaching the claimant directly as communication was being handled through the Tribunal clerk. Mr Scott said that he had not discussed this case in the public waiting area and, as a compromise, the Tribunal made available two private interview rooms for both parties to use for the duration of the hearing, but Mr Scott indicated that he would continue to sit in the public waiting area and only use the interview room if he needed it.

The facts

[8]These findings of fact are made on the balance of probabilities.

[9]The claimant began her employment with the respondent on 14 December 2016 and she was employed as a PA to the chief executive and finance director under the line management of Sharon Coull, who was the finance director at the time. Ms Coull left the respondent organisation in August 2017 and the claimant was then line managed by Holli Keeble, the chief executive. It is common ground that, at this time, the claimant took over the responsibilities for HR administration and new terms and conditions were agreed between the parties in October 2017 for the claimant’s dual roles as PA and HR administrator, as set out at pages 117-8 of the bundle.

[10]The respondent is a registered charity and is a company limited by guarantee. It is an independent cinema which operates in Newcastle upon Tyne and employs approximately 120 people. It is common ground that the respondent did not have a dedicated human resources department at the time the claimant was employed by them, but used the services of an external HR consultant.

[11]It is common ground that the claimant has a number of medical conditions including narcolepsy, cataplexy and depression. The respondent accepts that the claimant was a disabled person throughout her employment with them. Is common ground that the claimant declared her narcolepsy and cataplexy as a disability when she began her employment with the respondent, but she withheld information about her depression as she claims she had been previously discriminated against and did not want to disclose this medical condition to the respondent. The claimant’s uncontested evidence is that, throughout her employment with the respondent, she was upset at work on several occasions and was assisted by her colleagues at her request, such as by telephoning a colleague and asking her to help her to enter the building because she was too upset to enter unaided. It is also the claimant’s uncontested evidence that Ms Keeble spoke to her about her emotional outbursts at work.

[12]The claimant was attending appointments with a clinical psychologist from March 2017 and it is common ground that the claimant attended these appointments every two weeks on Monday mornings. The claimant’s evidence is that she brought the letter at page 104 of the bundle into work and showed it to Sharon Coull and Ms Coull accepted in crossexamination that the claimant was attending the appointments with the psychologist every other Monday, however she says that it was agreed between her and the claimant that she would not disclose this information to anybody else as the claimant wanted it to be kept confidential. The claimant placed a copy of the appointment letter in her personnel file as she was the HR administrator and it was her job to collate these documents. The claimant says that when Holli Keeble took over as her line manager in August 2018 she had to explain that she could not attend Monday morning meetings at work because she was attending appointments with the psychologist every fortnight. Ms Keeble’s evidence is that, although she knew the claimant was attending the appointments with the psychologist, she did not know what the appointments were for and she assumed that they were in connection with the narcolepsy.

[13]It is common ground that the claimant’s consultant suggested that the claimant would benefit from a 20-minute power nap at lunchtime to assist with her narcolepsy and she spoke to Ms Keeble about this which resulted in a risk assessment been carried out on 12 October 2017 by the head of operations, Phil Scales. A copy of the completed risk assessment can be seen at page 121 of the bundle. In addition to the matters agreed on the risk assessment, the claimant was allowed to delay a scheduled start work if her sleep was interrupted.

[14]It is common ground that the respondent issued data protection and consent forms to their staff in February 2018. A copy of the claimant’s completed data protection form can be seen at pages 124a-d of the bundle. The claimant indicated on this form that she did not have a disability and she listed narcolepsy and cataplexy as medical conditions. It is common ground that the claimant did not disclose her depression on this document as she did not want to give this information on a formal data capture form.

[15]The claimant completed a medical declaration form for the respondent company on 28 December 2017, a copy of which can be seen at page 271 of the bundle, which lists the claimant medical conditions as narcolepsy, cataplexy, a skin condition, depression and anxiety. This information was collated by the respondent in a separate file so that it could be accessed quickly by first aiders, as and when required. It is common ground that the claimant made up a separate file to keep the medical declaration forms in and she placed her form, along with the others, in that file. The respondent’s evidence is that they did not look at this file and that they only discovered the existence of it and the contents of the file on 14 March 2019 as a result of this litigation.

[16]The claimant stopped attending sessions with her psychologist on 29 January 2018, as set out pages 122-3 of the bundle. The claimant’s evidence is that she showed the letter at pages 122-3 to Ms Keeble before placing it on her personnel file. However, Ms Keeble’s evidence is that she was not shown this letter at all and that it was just placed on the personnel file. We are unable to make any findings whether Ms Keeble was ever shown this letter by the claimant as it is one person’s word against another’s.

[17]It is common ground that the respondent company had accumulated a deficit of £-81,000 as at 31 March 2017, as set out in the reorganisation proposal at page 127 of the bundle, and that the respondent was continuing to make trading losses. As a result of this, Holli Keeble produced a new business plan for the period 2018 to 2022 which was signed off by the governing board in November 2017. It is common ground that the plan recommended a reorganisation which would lead to some redundancies and this is set out at pages 127 to 130 of the bundle. The board approved the restructuring proposal on 9 March 2018 and Ms Keeble had started to draft a new organisational structure in or around December 2017 and January 2018, as set out at page 131a of the bundle. A full list of the proposed redundancies is set out at the document at page 132 of the bundle and this consists of 17 different roles, of which the claimant’s role as PA and HR administrator was one.

[18]On 28 March 2018 the claimant attended a consultation meeting as a note taker for the chief executive in respect of the proposed redundancy of the head of operation. During this meeting, the respondent set out the proposed restructuring which would result in the appointment of the new HR manager. The claimant became distressed and upset after realising this had potential implication for her post. As a result, Ms Keeble agreed that the claimant need not attend as a note taker for any further redundancy consultation meetings.

[19]The following week, on 4 April 2018, Ms Keeble sent to the claimant her appraisal documents, which can be seen at pages 138, including the draft summary and feedback on claimant’s performance from other staff members (pages 152-3). The claimant was unhappy with the appraisal because it refers to her emotional resilience, personal branding and behaviour as she believed these all related to her mental health issues and that it was unfair to mark her performance down on that basis. As a result, the claimant attended a GP appointment that afternoon and sent an email to Ms Keeble to state she was taking 2 and half days off as sick leave for mental health issues triggered by work related stress (pages 154- 5). Ms Keeble emailed the claimant on 9 April 2018 scheduling a return to work interview (page 158) and she asked the claimant to complete a stress at work questionnaire, as set out at page 158 of the bundle.

[20]The claimant completed the stress at work questionnaire and she also submitted a Local Resolution Request on 9 April 2018 (pages 161-3) in which she requested an occupational health assessment so that reasonable adjustments could be made for her mental health. Ms Keeble met with the claimant on 10 April 2018 to discuss the local resolution and it was agreed that a referral would be made to occupational health. Ms Keeble explained that the language used in the appraisal documents was written without the people knowing about the claimant’s mental health.

[21]On 24 April 2018 the claimant attended a meeting with Ms Keeble to discuss the outcome of the stress at work questionnaire, which turned into a very long meeting and they had to reconvene on 21 May in order to finish it. As a result of these meetings, the claimant and respondent agreed 17 actions arising from the occupational health report and the stress questionnaire. A copy of the suggested reasonable adjustments from the occupational health report can be seen at page 173 of the bundle. The claimant accepted in cross examination that all of the reasonable adjustments were implemented by the respondent with the exception of the ergonomic assessment and the risk assessment. The actions following the Local Resolution are set out at pages 179-180 of the bundle.

[22]The claimant and Ms Keeble met on 21 May 2018 to discuss the list of reasonable adjustments and the claimant attended a further occupational health appointment on 4 June 2018.

The Law

[23]On 13 June 2018 Ms Keeble emailed the claimant, as set out at pages 275-6 of the bundle, asking the claimant to attend an at-risk meeting. The claimant replied to Ms Keeble stating that she wanted to discuss the outcome of the occupational health assessment and finalise the local resolution process before commencing the redundancy consultation. Ms Keeble replied that they could use the meeting of 15 June to discuss the occupational health outcome and closing off the local resolution with a view to starting the consultation on 20 June 2018 instead.

[24]The claimant attended the at-risk information meeting on 20 June 2018 and Ms Keeble gave the claimant the handout at page 181 of the bundle explaining the reasons for the restructuring. The parties agreed 2 reasonable adjustments arising from this meeting, i.e. that the claimant would be allowed to take some time out from work and could take up to 2 hours off work, if required.

[25]On 21 June 2018, Ms Keeble and the claimant agreed a set of ground rules for the redundancy consultation, as set out at page 189 of the bundle.

[26]On 22 June Ms Keeble emailed a copy of the proposed HR manager’s job description to the claimant, as set out pages 183-5 of the bundle and the respondent agreed to keep the claimant advised of any vacancies that came up.

[27]On 27 June 2018 the claimant attended her first consultation meeting, the minute of which are at pages 193-5 of the bundle. They discussed the possible expansion of the HR administrator’s role and the claimant indicated she would be applying for other roles. The claimant told the respondent that she was finding the consultation stressful and asked whether it was possible to go straight to the decision rather than have a second consultation meeting. They also discussed strategies for dealing with stress.

Conclusions

[28]The claimant attended a second consultation meeting on 5 July 2018, the minutes of which are at page 200 to 203 of the bundle. The parties discussed alternative roles. The claimant proposed a modified HR administrator’s role to the respondent but the respondent could not make a decision about it as Ms Keeble was due to go on 2 weeks holiday. They therefore decided to wait until Ms Keeble returned from holiday before a decision would be made and that Lucy Smyth would be the claimant’s point of contact in the absence of Ms Keeble. The alternative to this was that the respondent would say no to the claimant’s proposal of a modified HR administrator’s role, so it was agreed that it was better to wait for Ms Keeble to return from holiday before making any decisions.

[29]After the consultation meeting, the claimant emailed a list of questions to the respondent on 17 June 2018, as set out at page 204 of the bundle, asking for information published on the ACAS website, and the external HR consultant replied to the claimant with the information requested on 18 June 2018, as set at page 206.

[30]On 18 July 2018 the claimant spoke to the chair of the board about the proposed new structure and her mental health which she felt might be adversely affected by the redundancy process. She also spoke to Lucy Smyth raising concerns about how her role could be made redundant when the finance department had not been restructured, as set out at page 208.

[31]On 19 June 2018 the claimant was absent from work and submitted a selfcertification, as set out at page 212 of the bundle, stating that the claimant had hyper mania, insomnia, intrusive thoughts and self-harm.

[32]As a result of the claimant approaching Ms Smyth and the chair of the board, on or around 25 June 2018, Ms Keeble telephoned the claimant from Croatia, whilst on holiday, to discuss potential vacancies in the respondent company and the redundancy process.

[33]On 26 July 2018 the claimant sent an email to the respondent (page 215) stating that she was still not well enough to attend work and submitted the self-certification at page 216, which was followed up by a GP fit note for work related stress, which is at page 218, for 1 week. The claimant wanted to return to work before the end of the sick note, however the respondent emailed the claimant (page 222) on 30 July 2018 and advised the claimant to stick to the period of 1-week sickness absence as set out on the sick note.

[34]The claimant was due to return to work on 8 August and emailed the respondent on 8 August 2018 (page 225) asking to complete her normal duties for a few days from 8 August, rather than attending the third consultation meeting. The respondent agreed to this and asked the claimant what she wished to do. The claimant replied on 8 August (page 224) asking for a couple of days to decide whether she wanted a further consultation meeting or a final meeting. At this stage the respondent decided to pause the process and carry out a risk assessment.

[35]On 9 August the claimant was absent from work on sick leave and selfcertified for stress and anxiety due to the consultation, as set out on page 230, and emailed the respondent, as set out at page 229 stating that she did not want to be at home and wanted a period of time and emotional space to get on top of work. Ms Keeble took the decision to give the claimant 2 weeks compassionate leave on full pay in order to reduce her levels of stress and anxiety and the respondent took on a temporary HR manager to undertake the claimant’s duties. The claimant emailed the respondent on 9 August 2018, as set out at page 227, asking the respondent to correspond with Craig Barnes at ACAS and not with her directly.

[36]On 10 August 2018 ACAS emailed the respondent, as set out at page 234, and stated that the claimant felt having a risk assessment and another consultation meeting was not an option at that time and that she wanted a decision about the redundancy.

[37]On 24 August 2018 Ms Keeble decided that the claimant’s role would be made redundant and she sent an email at page 247advising the claimant that her role was redundant and informing her of 2 events coordinator posts which they were recruiting for. The letter of redundancy is at page 248 of the bundle which stated that the claimant was not required to work her notice and her last day of employment would be 24 September 2018. The claimant was given the right of appeal but chose not to do so. Following the redundancy, the respondent recruited a temporary HR officer who was CIPD qualified, which the claimant was not. The respondent made 17 posts redundant in total, with 8 of the individuals being redeployed in alternative roles.

The Law

[38]We refer to section 15 of the Equality Act 2010 which provides:(1) A person (A) discriminates against a disabled person (B) if (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that it was a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[39]We refer to section 20(3) of the Equality Act 2010 with regard to the duty to make reasonable adjustments, which provides the following: 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.

[40]Section 27 of the Equality Act 2010 provides the following: (1) a person (A) victimises another person (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

[41]The Code of Practice on Employment 2011 makes the important point that knowledge of a disability held by an employer’s agent or employee — such as an occupational health adviser, personnel officer or recruitment agent — will usually be imputed to the employer.

[42]In the case of A Ltd v Z EAT 0273/18 it was held that it was incumbent on the employer to make enquiries where an employee had periods of certified sickness absences which should have alerted the employer to nature of the claimant’s illness. However, the Tribunal is also required to take into account what the employer might reasonably be expected to have known about the claimant’s disability had it made those enquiries.

[43]We refer ourselves to Smith v Churchills Stairlifts plc

2006 ICR 524

, CA, in which the Court of Appeal confirmed that the test of reasonableness in the context of what is now S.20 Equality Act 2010 is an objective one, and it is ultimately the Employment Tribunal’s view of what is reasonable that matters. A claim of a failure to make reasonable adjustments may therefore require a Tribunal to take the unusual step of substituting its own view for that of the employer, in marked contrast to the approach taken in respect of unfair dismissal, where such an approach amounts to an error of law.

Conclusions

[44]Applying the law to the facts we find that the claimant was a disabled person throughout her employment with the respondent company. We are satisfied that the claimant disclosed her mental health diagnosis to Sharon Coull in March 2017 when she explained that she would be attending fortnightly appointments with her psychologist. We accept that the claimant asked Ms Coull to keep the details about her mental health confidential, which is consistent with the claimant’s own evidence that she did not disclose the information when she started her employment and she did not disclose it on any data capture forms because she did not want the respondent to know about it. However, applying the guidance from the Code of Practice on Employment, we find that, as the director of finance had this knowledge, it must follow that the respondent company had the knowledge that the claimant had a mental health impairment which qualified as a disability and that they had this knowledge from March 2017. Even if we are wrong about that, we find that the claimant’s uncontested evidence was that it was general knowledge in the workplace that the claimant had difficulties with her emotions and required the help of colleagues and the claimant had to be spoken to about her outbursts in the workplace, all of which should have been sufficient to place the respondent on notice that they needed to make further enquiries into the claimant’s mental health, particularly as she was taking time off work every fortnight to attend appointments with her psychologist. In all the circumstances, we find that the respondent had constructive knowledge of the claimant’s mental health, but if it did not have that knowledge, it was reasonable to expect the respondent to make the necessary enquiries and reasonable to expect this respondent, as a result of those enquiries, to know that the claimant had a mental health illness which constitutes a disability under the Equality Act 2010.

[45]We find that the respondent did not have a set timetable to restructure the claimant’s post and there is no evidence that the respondent needed to start the consultation process when they did in June 2018. The document at page 137 was produced by the respondent and this sets out the proposed new structure of the organisation; the claimant’s position is shown as being potentially redundant with 2 accounts assistants and a finance assistance and the respondent’s evidence was that this was stage 2 of the restructuring/redundancy. However, the respondent’s plan, at page 130 of the bundle, lists the claimant’s post as one of the posts which would be restructured during the stage 1 to achieve the agreed efficiency savings. It is clear that the respondent company was restructuring its business for financial reasons and that the claimant was part of a genuine redundancy exercise, but there was no deadline by which the claimant’s consultation had to begin.

[46]We find that the respondent did adequately support the claimant during the consultation process and did not subject the claimant to a detriment by not allowing her to attend work for two and a half weeks in August 2018 during the period she had a sick note from her GP, particularly as the respondent had a duty of care to the claimant and the rest of the respondent’s staff. We also find that the dismissal was not a detriment or unfavourable treatment as this was a genuine redundancy situation, which the claimant accepted in evidence. We are satisfied that there is sufficient evidence that the respondent dealt with the claimant’s local resolution adequately and implemented the findings from the occupational health assessment, save for the risk assessment and ergonomic assessment. We accept that there was a delay in carrying out the risk assessment, but we find that there is insufficient evidence that the reason for the delay had anything to do with or was connected to the claimant’s mental health. Similarly, there is insufficient evidence that the failure to carry out an ergonomic assessment was connected in any way to the claimant’s mental health and, therefore, we find that the claimant was not subjected to a detriment in respect of these issues. We find that the claimant was not subjected to a detriment at the time of her appraisal as it is permissible for staff to raise genuine concerns about a colleague’s performance and behaviour in the workplace as a part of an appraisal. There is no evidence in front of this Tribunal that those concerns led to any action being taken against the claimant.

[47]We find that putting the claimant through the consultation process was unfavourable treatment. The claimant made demands of the respondent in needing to know what was happening to her post after she found out from the head of operations’ consultation meeting that her post was also at risk of being made redundant and we find that this was something arising in consequence of the claimant’s disability as it was a direct result of her mental health which compelled the claimant to make these demands. Ms Keeble’s evidence to this Tribunal was that she started the redundancy consultation process with the claimant because the claimant was demanding answers and there is no evidence in front of us that it was imperative that this process had to be carried out in June 2018, as submitted by Mr Scott, and we note that this was not the evidence of Ms Keeble.

[48]We find that the redundancy was a legitimate aim of the respondent organisation, particularly as the claimant accepts that it was a genuine redundancy situation. However, we find that beginning the process on 13 or 20 June 2018 was not a proportionate means of achieving that aim as there was no urgency on the part of the respondent to start the consultation in June 2018 and it would have been possible for the respondent to delay the start of the consultation by a short period of time to allow the claimant to improve her mental health. Therefore, we find that the claimant’s claim under Section15 Equality Act 2010 is well founded as she was subjected to a detriment by being placed in the redundancy consultation in June 2018 just because her mental health was such that she felt compelled to ask repeatedly what was happening to her post and it was not proportionate for the respondent to proceed with the process on 13 or 20 June 2018 when it was not imperative to start the consultation at that point and it would have been possible for the respondent to delay the start of the process and, therefore, use a less discriminatory method of commencing the consultation which would have allowed the claimant to start feeling better and be better able to handle the consultation process.

[49]We find that the relevant PCP in this case was the requirement for the consultation process to begin on 13 or 20 June 2018. We find that this requirement placed the claimant at a substantial disadvantage compared with non-disabled people. We find that the respondent knew that the claimant was placed at such a disadvantage as they had an occupational health report and a risk assessment at this point. We find that a reasonable adjustment would have been to delay the start of the consultation process for a short period of time so that she could start feeling better able to deal with the process and this would have avoided the deterioration in the claimant’s mental health which led to her being unable to cope with the consultation process and taking time off sick. Therefore, we find that the claimant’s claim of failure to make reasonable adjustments, pursuant to Sections 20 and 21 of the Equality Act 2010, is well founded.

[50]We find that the raising of the local resolution by the claimant was a protected act as it is essentially an internal grievance. There was no evidence that this was not made in good faith and we accept that it was a genuine complaint of discrimination made by the claimant at a time when she believed she had been treated unfairly because of her mental health. However, we find that the claimant was not placed at risk or dismissed as a detriment for carrying out the protected act, particularly as the claimant accepts that the real reason for her dismissal was redundancy and that the decision to restructure the organisation had been made months before the claimant raised the local resolution. Therefore, we dismiss the victimisation claim, pursuant to Section 27 of the Equality Act 2010, as being not well-founded.

[51]As this is a case where the claimant was dismissed for reasons of redundancy, we must consider the application of the principles in the case of Polkey v AE Dayton Services Ltd

[1988] ICR 142

. We find that there is sufficient evidence that the claimant would have been dismissed as redundant at some point by the respondent even if they had delayed the start of the redundancy consultation process by way of a reasonable adjustment. No evidence was presented that the delay in the consultation would have resulted in the claimant retaining her job or being employed in an alternative position. In fact, the claimant did apply for alternative posts, but was unsuccessful in any of her internal applications. Therefore, in terms of remedy, the Tribunal is concerned with how long the start of the consultation process should have been delayed by way of a reasonable adjustment to allow the claimant enough time to deal with the process with better mental health. There was insufficient evidence on this point at this hearing and, therefore, we are unable to make any findings on the length of the delay at present. The Tribunal shall need to hear evidence on the length of this delay at a remedy hearing in order to determine the loss of earnings for that period of time, along with the evidence on injury to feelings. EMPLOYMENT JUDGE ARULLENDRAN

[1]The respondent is ordered to pay to the claimant the net sum of £244.02 for loss of earnings plus interest in the sum of £14.07.

[2]The respondent is ordered to pay to the claimant the sum of £6,000.00 for injury to feelings plus interest in the sum of £768.97.

[3]The Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply.

[1]The issues to be determined by the Employment Tribunal were set out in the case management summary dated 11 November 2019 as being:1.1 what was the period of time the redundancy consultation should have been delayed by in order to amount to a reasonable adjustment?

1.2 How much compensation should be awarded for injury to feelings?

[2]We were provided with a joint bundle of documents consisting of 151 pages. The respondent referred to 2 documents from the original trial bundle from the merits hearing and they were renumbered and added to the remedy bundle at pages 152 to 153. The claimant requested that a copy of a letter from her psychotherapist be admitted into evidence, which the respondent agreed to, and this was added to the remedy bundle at pages 154 to 155.

[3]We heard witness evidence from the claimant and Holli Keeble, chief executive officer of the respondent.

[4]Both sides made closing submissions with reference to written skeleton arguments, the full contents of which are not reproduced in this judgement but have been considered in their entirety along with the oral submissions made by the claimant and Ms Millns.

[5]Ms Millns told the Tribunal that she was familiar with the information available on the Advocates Gateway and she has refreshed her memory in respect of Toolkit 2 in advance of today’s hearing as suggested by the Tribunal in their letter dated 7 December 2019. The facts

[6]It is common ground that the claimant was employed as a personal assistant and had no previous experience of human resources (HR). The claimant was asked to undertake some HR functions as part of her role in or around October 2017 when the claimant’s previous line manager, Ms Coul, resigned. It is common ground that Ms Coul was responsible for HR within the respondent organisation and the claimant was asked to take over some of these duties when Holli Keeble became her line manager.

[7]The claimant started to experience stress at work as a result of having to undertake additional HR duties as part of her role. It is common ground that the claimant made it clear to the respondent that she had reservations about the breadth of her role and these concerns were discussed between the claimant and her line manager.

[8]It is common ground that the claimant was receiving treatment for her mental health, emanating from childhood trauma, throughout her employment with the respondent and was regularly attending appointments every two weeks on Monday mornings. The claimant attended an appointment with a clinical psychologist on 29 January 2018 where it was agreed that she would take a break from therapy because she was experiencing work related stress which was having a detrimental effect on her ability to take part in the therapy. The claimant’s psychologist wrote to her on 9 February 2018 confirming that she had been discharged and could seek a referral via her GP at a later date to the NTW Specialist Psychotherapy Centre.

[9]In her position as PA to the chief executive, the claimant was aware of plans to restructure the respondent organisation and she knew that this would lead to some redundancies. The claimant learned of the potential effect on her own role on 28 March 2018 and became distressed and upset as a result. The claimant accepted in cross examination that she was always going to be placed under stress because she knew from the meeting in March that there was a potential her job was at risk of being made redundant and that she experienced distress from not knowing what was happening to her job, among other things. The claimant experienced work related stress after receiving her appraisal documents on 4 April 2018 which resulted in her taking 2 ½ days off sick leave. The respondent organised a referral to occupational health and the claimant and the respondent agreed 17 actions arising from the occupational health report which were all implemented, with the exception of two.

[10]The claimant raised a local resolution request with the respondent on 9 April 2018 and it is common ground that this had not been finalised when the claimant was notified on 13 June 2018 of the at-risk redundancy meeting which was scheduled to take place on 15 June 2018. However, the parties did not use the meeting of 15 June for the redundancy consultation, as it was used to discuss the outcome of the occupational health report and to finalise the local resolution. The first consultation meeting for the redundancy process took place on 20 June 2018.

[11]Ms Keeble was absent on annual leave from 16 July 2018 for a period of two weeks and she return to work on 30 July 2018. It is common ground that the claimant was absent from work on sick leave with work related stress whilst Ms Keeble was on holiday. The claimant returned to work on 8 August 2018 but was absent from 9 August 2018 with stress and anxiety due to the consultation process. At this point the respondent gave the claimant two weeks compassionate leave on full pay in order to help reduce her levels of stress and anxiety. At around this time the respondent employed a temporary HR manager to undertake the claimant’s duties. At this time the claimant asked the respondent to correspond with ACAS about the redundancy process and not to contact her directly and she made it clear that she did not want to enter into any further consultation and what she really needed was a decision about the redundancy, implying that it was the uncertainty which was causing the stress and anxiety.

[12]The claimant was informed of her redundancy on 24 August 2018, after nine weeks of consultation, and she was not required to work during her notice but was paid in lieu of her notice which expired on 24 September 2018.

[13]The respondent’s uncontested evidence is that they required a HR manager with CIPD qualifications because there were a number of HR projects and issues which were overdue and required attention. During the claimant’s redundancy consultation and absence, there were a number of urgent HR matters which needed immediate attention and the respondent appointed a temporary HR officer in order to “hold the fort” until it could recruit a long-term HR manager. The temporary HR officer found a number of deficiencies which required urgent attention as some of them had statutory implications, such as right to work checks, DBS checks, GDPR staff consent forms, absence tracking and holiday tracking. Holli Keeble says that the respondent business could have delayed the claimant’s consultation for four weeks without it having a detrimental impact on the HR duties which needed to be undertaken within the business, but a longer delay would have had an impact on the business and would have meant compliance issues deteriorating much further for the organisation.

[14]The claimant was upset at being made redundant on 24 August 2018 and this had an impact on her well-being as she had found the process intense and hard to deal with and she felt defeated. The claimant’s evidence to this Tribunal was that the loss of a job would have a significant impact on any employee.

[15]The claimant had started a mental health awareness course in October 2017, as set out at page 102 of the bundle, for which she was awarded a certificate on 18 February 2019 the claimant says this was approximately a 40-hour course and she completed the course after her redundancy had taken effect. The claimant says that this was not a self-help course but she was educating herself as it looked at different types of mental health in the UK and that it was not the same as undertaking therapy.

[16]The claimant says that if the redundancy consultation had been delayed, she would have been able to re-enter therapy, however the claimant would not have returned to her previous therapist as it was recommended that she should seek a referral through her GP to the NTW Specialist Psychotherapy Centre. The claimant’s evidence is that she has waited approximately 3 ½ months for a referral to specialist services in the past, however sometimes the wait can be as little as a couple of months. The claimant says that she wanted to go back into therapy around July 2018, but this was not possible because of the redundancy consultation, however the claimant did not ask her GP for a referral around July 2018 or before that date. The claimant says that she was not in a fit mental state to have requested such a referral at that time.

[17]The claimant secured temporary employment with Fenwick’s during the Christmas period from around October 2018 to December 2018. The claimant also obtained employment with Northern Creative Solutions form around September 2018 onwards. The claimant also told us that she had been in that paid employment up until last week. Submissions

[18]The respondent submits that the reasonable adjustment to the delay in starting the claimant’s redundancy consultation needs to be determined on the basis of how much time the claimant would have needed in order to have better mental health to deal with the consultation process, given that this Tribunal found that it should have been for a “short period”. The respondent relies on section 124(6) of the Equality Act 2010 and submits that the aim of compensation is to award a sum of money that would put the claimant into the position she would have been had the wrong not taken place. The test as to whether a proposed adjustment is reasonable is an objective test and the respondent submits that there is no duty to take measures that would impose a “disproportionate burden on the employer” and that the practicability of an adjustment is directly relevant to its reasonableness.

[19]The respondent submits that it would have been impractical and therefore unreasonable for the consultation process to be delayed any longer than one month to a maximum period of six weeks and that the claimant’s assertion that it should have commenced on 2 December 2018 (a delay of five months and 12 days) is unreasonable. The respondent submits that allowing a delay of six weeks to start the consultation would take the start date of the consultation to 1 August 2018, following Holli Keeble’s return from holiday and that the overall consultation process would have been concluded within four weeks because the delay in starting the process would have mitigated the need for the claimant to take sick leave during the consultation process and the need for the respondent to give compassionate leave during this period; the employment would have ended on 28 September 2018.

[20]The respondent submits that, although the claimant was successful under two statutory provisions of the Equality Act 2010, the successful claim arose as of a common finding of fact by the Tribunal that the start of the redundancy consultation process ought to have been delayed for a short period on account of the claimant’s disability. The claimant’s feeling of upset cannot be compensated twice simply because two findings of discrimination have been made. The respondent submits that the claimant’s feelings of distress extend substantially beyond the findings of discrimination in the Tribunal’s decision, particularly in respect of her perception of being overworked and that the Tribunal is not to compensate the claimant for those other matters. The respondent submits that the claimant would not have found any consultation process easy and there is no doubt that it would have caused her stress and anxiety and it is inevitable that she would be made redundant and would have become distressed. The respondent submits that the injury to feelings award should fall in the region of £900 for a one-off act of discrimination.

[21]The claimant made submissions with reference to a written closing statement to which she had appended a further page consisting of evidence which she had not referred to in her evidence in chief. The respondent objected to the Tribunal taking into account the second page, as it should have formed part of her witness statement, and the claimant agreed that the Tribunal should not read the second page of the submission.

[22]The claimant submits that the discrimination she was subjected to in June 2018 because of her mental health has had a significant effect on her ability to enter back into full-time employment and she has only been able to work 17.5 hours per week which has had an effect on her self-esteem and has set her back emotionally. The claimant submits that the failure to make reasonable adjustments is still affecting her now and has had a detrimental effect on her professional self-confidence and self-esteem. The claimant submits that it would have been appropriate for the respondent to allow her a four-month period of readjustment after concluding the local resolution which would have meant that her consultation process would have ended at the end of December 2018, at which point she would have been given one months’ notice which would have expired on 31 January 2019. The claimant refers to her schedule of loss which can be seen at pages 55 to 58 of the bundle and claim a partial financial loss of earnings to 31 January 2019 in the sum of £1698.18, injury to feelings for the failure to make reasonable adjustments in the sum of £5500 and injury to feelings for discrimination arising in consequence of the disability in the sum of £12,000. The Law

[23]The onus is on the claimant to establish the nature and extent of any injury to feelings and this must be proved: Ministry of Defence v Cannock and ors

[1994] ICR 918

. However, the claimant does not have to produce medical evidence of injury to feelings.

[24]We are referred to the leading case Vento v Chief Constable of West Yorkshire Police (No. 2)

[2003] ICR 318

in which the Court of Appeal held that “the assessment of compensation for an injury or loss, which is neither physical nor financial, present special problems for the judicial process, which aims to produce results objectively justified by evidence, reason and precedent. Subjective feelings of upsets, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be an artificial exercise … Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are nonetheless real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in calculation of financial loss or compensation for bodily injury.”

[25]In respect to claims presented on or after 6 April 2018, the Vento band are as follows:• lower band of £900-£8600 (less serious cases)

• middle band of £8600-£25,700 (cases that do not merit an award in the upper band)

• upper band of £25,700-£42,900 (the most serious cases), with the most exceptional case is capable of exceeding £42,900.

[26]In Vento, Mummery LJ identified the lowest of the three bands being appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. However, this does not translate to a rule that all one-off occurrences must fall within the lower band and some occurrences will be sufficiently serious to warrant an award in one of the upper 2 bands.

[27]An award for injury to feelings is intended to compensate for the hurt and humiliation suffered by the claimant. This means that, in theory, the award depends not on the seriousness of the discrimination but on the nature of the claimant’s reaction to that discrimination. Therefore, the Tribunal’s main task is to determine the effect the discrimination has had on the life of the claimant and the key factors will be whether the discrimination has led to any medical condition, such as depression, panic attacks or any stress-related illness; whether the claimant has suffered a loss of confidence; how the discrimination has affected the claimant’s personal relationships; and whether the claimant continues to suffer as a result of the discrimination.

Conclusions

[28]Applying the law to the facts we find that, although the claimant was successful with her claim of discrimination under sections 15 and 21 of the Equality Act 2010, the discrimination was a one-off act of failing to delay the start of the redundancy consultation process. There were not two separate acts of discrimination for which the claimant should be compensated for separately and, therefore, the claimant’s approach to calculating two separate awards for injury to feelings in her schedule of loss is incorrect and will not be followed by this Tribunal.

[29]The respondent did delay the first consultation meeting from 15 June to 20 June 2018 and the local resolution was concluded at the meeting on 15 June. The email asking the claimant to attend the consultation meeting was sent on 13 June 2018. Looking at all the evidence in the round and applying our mind to what is more likely to have happened had the respondent made a reasonable adjustment and delayed the start of the consultation process, we find that it is more probable than not that Ms Keeble would have arranged for the first consultation meeting to take place after her return from holiday (31 July 2018) and that this is likely to have taken place on 1 August 2018, as opposed to 20 June when it actually took place. This would have given the claimant a period of 6 weeks after the conclusion of the local resolution and discussions about the occupational health report findings to do her normal day to day job, which is what the claimant has said she needed in order to help her mental health to improve sufficiently to be better able to handle the consultation process. There is no medical evidence in front of us that the claimant required a delay of four months before the consultation period could commence, as suggested by the claimant in her closing submissions.

[30]We agree with the respondent’s submission that, had the first consultation meeting taken place on 1 August 2018, the likelihood is that the claimant would have been better able to deal with the consultation process and would not have needed to take sick leave and there would have been no need for the respondent to give the claimant 2 weeks compassionate leave. Therefore, instead of taking 9 weeks (7 weeks of consultation plus 2 weeks of compassionate leave), the consultation process would have been completed in 4 weeks, as originally set out it the respondent’s business reorganisation proposal. This would have meant that the claimant would have been given notice of redundancy on 1 September 2018 and her employment would have ended on 1 October 2018. In reality, this means that as the claimant was dismissed on 24 September 2018, she has suffered a loss of earnings from 25 September to 1 October 2018, which is 1 week’s wages.

[31]The claimant’s net salary with the respondent was £258.02 per week. The claimant earned £140 net on 25 September 2018 with Northern Creative solutions, as set out in the payslip at page 59 of the bundle. This gives the claimant a net loss in the sum of £244.02 and the respondent is ordered to pay this sum to the claimant in respect of her claim for loss of earnings arising from the act of discrimination.

[32]The claimant is entitled to receive from the respondent interest on the sum of £244.02 at the rate of 8% per annum in accordance with Regulation 6(1)(b) of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The mid-point date is 2 April 2019, as this is the mid-point between 13 June 2018 and the date of this Judgment (21 January 2020). The interest is calculated at 8% per annum, which gives a daily rate of £0.05 on the sum of £244.02. There are 294 days from 2 April 2019 to 21 January 2020, which gives the total amount of interest on this award in the sum of £14.70.

[33]The claimant is a vulnerable individual who was already receiving medical intervention and help with her mental health prior to the redundancy consultation. We bear in mind that the claimant’s health is more likely to have made her more sensitive in her emotional response to the redundancy consultation and the loss of her employment. The claimant has said that she started feeling stressed when her job role changed to include HR functions in October 2017. The claimant’s evidence indicates that she felt upset and stressed in relation to matters outside the specific act of discrimination identified by this Tribunal, i.e. the failure to delay the redundancy consultation. The claimant’s evidence was that she was distressed when she took minutes at the consultation meeting on 28 March 2018, which we did not find to be an act of discrimination. The claimant was also very upset and distressed when she received her appraisal in April 2018 and, furthermore, as a result of going through the local resolution which she raised on 9 April 2018 and concluded on 15 June 2018. We did not find that any of these issues were acts of discrimination, nor were they related to the commencement of the redundancy consultation. The claimant has also given an account of being upset at the loss of her job, however this Tribunal did not find that the redundancy dismissal was an act of discrimination. In all the circumstances, we direct ourselves to disregard the hurt, humiliation and upset the claimant has experienced as a result of any or all of these situations as they are not connected to the respondent’s failure to delay the start of the redundancy consultation in any way.

[34]We accept that the claimant was upset by the respondent starting the redundancy consultation by sending her an email on 13 June 2018 inviting her to the first consultation meeting at a time when the claimant did not feel well enough to deal with the process, however we note that the claimant did not make any complaints to the respondent at the time that the first consultation meeting should not have taken place on 20 June 2018 and we also note that the failure to delay the start of the consultation process was not pleaded by the claimant in her ET1 form as being an act of discrimination. Starting the consultation in June 2018 led to the claimant taking periods of sick leave and the respondent providing the claimant with two weeks of compassionate leave because the claimant was feeling upset and extremely unwell. However, we do not accept that the single act of failing to delay the start of the redundancy consultation period has had the profound and ongoing effect claimed by the claimant, effectively preventing the claimant from entering into full-time employment as at the date of this hearing or from seeking a referral to specialist mental health services through her GP. We find that it is more probable than not that the claimant’s existing mental health has been exacerbated by her feeling out of her depth in undertaking HR duties which she did not feel confident about when her job role changed in October 2017, receiving negative comments on her appraisal in April 2018 and by the act of being made redundant in September 2018, which were not acts of discrimination.

[35]In all the circumstances, we find that the respondent’s failure to delay the start of the redundancy consultation in June 2018 was a one-off act of discrimination, particularly viewed in light of the fact that we found the respondent had adequately supported the claimant during the rest of the consultation process, carrying out risk assessments, making appropriate referrals to occupational health and agreeing with the claimant and implementing reasonable adjustments, as necessary. Although not all oneoff acts of discrimination automatically fall in the lower Vento band, we find that there is sufficient evidence in this case that the specific injury to feelings suffered by this claimant in respect of the failure to delay the consultation process, even given her particular vulnerability and existing mental health issues, falls within the middle to upper end of the lower Vento band. In this case we assess the compensation for injury to feelings to be in the sum of £6000.00.

[36]The respondent is ordered to pay to the claimant compensation for injury to feelings in the sum of £6000.00 plus interest at the rate of 8% per annum in accordance with Regulation 6(1)(a) of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. Interest is awarded from 13 June 2018 to 21 January 2020 at the rate of 8% per annum which gives a daily rate of £1.31. There are 587 days in the period of calculation which gives a total amount of interest on this award in the sum of £768.97.

[37]The Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply. EMPLOYMENT JUDGE ARULLENDRAN