Mrs R Callow v Aurum Academies Trust Ltd: 2600274/2017
EMPLOYMENT TRIBUNALS
Case No 2600274/2017
Between
Mrs R CallowClaimantAurum Academies Trust LtdRespondent
Before
Employment Judge P Britton
Members
Mr J AkhtarMr M J PaveyIn person for claimantMr M Magee (instructed by Counsel) for respondentDate 1 February 2018
JUDGMENT
This claim of disability discrimination is dismissed in its entirety.
REASONS
[1]The claim (ET1 was presented to the Tribunal on 23 March 2017. It was prepared for the Claimant by herself, assisted by her husband. In it the Claimant set out how she was employed by the Aurum Academies Trust at Washingborough Academy (“the school”) as a chef between 1 September 2015 and her resignation effective on 28 October 2016. She set out why she was to be seen as a disabled person by way of depression for the purposes of the Equality Act 2010 (the EQA). She set out allegations of discriminatory treatment by the Respondent,principally by the Headmaster of the school: Jason O’Rourke. They span the period from the first allegation of micromanagement in June 2016 through to the treatment of her second period of disability related sickness starting on 16 September, and thence with issues relating to her resignation and thereafter having been placed for the duration of her notice period on garden leave. The Claimant does not have the necessary two years qualifying service to bring a claim of constructive unfair dismissal pursuant to the provisions of the Employment Rights Act 1996, but s39 (2) (c) of the Equality Act 2010 (the EQA) can encompass such a claim if a sufficiently serious act of discrimination as defined between s13 and s27 of the Act , or a series of such acts culminating in a Page 1 of 15 “last straw” , such as to be repudiatory of the contract of employment, caused the resignation.[2]In due course a response (ET3) was presented to the Tribunal which gave non discriminatory explanations for the treatment from time to time of the Claimant. It was denied, if that be what the Claimant was seeking to allege, that the actions of the Respondent were repudiatory so as to mean the claim could claim constructive discriminatory unfair dismissal.[3]There was a first case management discussion before Employment Judge Hutchinson on 23 May 2017. He defined the issues as he understood them to be and we will come back to that. There was at that stage a fundamental first issue in that the Respondent did not accept that the Claimant was a disabled person for the purposes of the EQA; and so the Judge made the usual directions in that respect for the disclosure of GP notes and an impact statement by the Claimant; liberty for the Respondent to reply thereto; and if disability was not agreed that there should be an attended Preliminary Hearing to deal with that issue.[4]Taking matters forward between 3 and 5 August 2017 Employment Judge R Clark accordingly held that attended Preliminary Hearing; and for the reasons that he set out in detail, the reasons being published early in November but his judgment coming out immediately after the hearing, he held that the Claimant was a disabled person for the purposes of the EQA by reason of long standing clinical depression. The Respondent had in respect of the claims also applied for strike out and/or a deposit order. He refused both applications having, inter alia had regard to the bundle placed before him. So Judge Clark found that they were triable issues with more than a little reasonable prospect of success.
The issues
[5]So he set out what were the issues. At this stage having additionally considered the bundle and statements which are before us, we are going to list them in some detail as it assists the fact finding and also enables us to make first observations: they are as follows:-5.1 Issue 1: In or around June or July 2016 the micromanagement allegation. Essentially it is that whilst the Claimant was working in the kitchen with her catering assistant Karen Parker, and on a date now said to be in July, that into the kitchen came Mr O’Rourke who everybody in the school refers to as Jason. So henceforth we will call the Headmaster Jason. He had in tow with him an outside maintenance man. We gather he may have come to look at the lights. The Claimant stopped Jason and wanted to talk about getting in pest control. It doesn’t seem to be in dispute from Jason who was busy, this being early in the working day at what is a nursery and primary school with some 300 pupils, that he may have said “look I can’t micromanage an issue like this Becks. Sort it out for yourself but if you have a problem go and talk to Sarah”: that is a reference to Sarah Chatterton who is the Administrative Manager of the school. A core issue of course would be as to whether or not he said this before or after the Claimant disclosed her disability. It is not in dispute that the Claimant first disclosed that she suffered from depression on 6 July 2016. So if this is said to be an act of disability discrimination it of course cannot be so if the incident occurred before 6 July 2016, and because the Respondent up to then lacked the knowledge. Even so the issue becomes first of all should Jason have made a reference to “micromanage” and second as to the tone in which he may have said it: Page 2 of 15 this is because the issue of tone looms large in this case for reasons we will come back to.5.2 Issue 2. The next issue is something that did definitely happen on[6]July1. It is an agreed fact that the Claimant was then on the third day of a self-certified absence for depression. She had already been to her GP as to which cross reference the medical notes at Bp2 257. The Claimant wanted to come into school and confide in Jason and Sarah that she was a longstanding sufferer from depression. So she came into school on 6 July 2016 and she told them; the issue is whether or not she was categorically promised counselling. Shortly thereafter the school term ended on the 21st? This was followed by the summer holiday and the school being shut. In that respect there are no issues. There are some factual happenings however that we shall factor in when we come back to the chronology. As defined by EJ Clark3 this is the failure to provide a reasonable adjustment to the Claimant as at 21 July 2016 and thus pursuant to s20-21 of the EQA. 5.3 From the start of the autumn term 2016 there are the following issues and we have been able to pinpoint the dates more accurately:-5.3.1 Issue 3. 9 September 2016 the Claimant alleges “being excluded from a staff meeting” What this is about is that the Claimant never having attended a staff meeting before on that Friday early in the morning as the Friday staff meeting is at 8:15 in effect surprised Jason in the corridor outside the Headmaster’s small study, and which is opposite the staff room, and announced to him that she was attending the staff meeting. Jason queried “why are you coming?” because the catering staff had never attended staff meetings: they were primarily for the teachers, although the caretaker would be present to deal with any health and safety issues. But having so queried, Jason did not stop the Claimant attending the staff meeting. There is in the letter before action written by Chattertons4 (Bp 192) a suggestion that she had been the subject of demeaning remarks bullying and harassing treatment, this time by Jason in said staff meeting. But no evidence has been led by the Claimant on that allegation and therefore it is not an issue before us. So the issue confines itself to Jason’s query in the corridor to the Claimant. It was witnessed by Emma Revell who gave evidence before us; and if to query why the Claimant was attending was not inappropriate, nevertheless was there something about his tone which was oppressive or demeaning.5.3.2 Issue 4. On 15 September 2016 Jason with Sarah present held a meeting with the Claimant in Jason’s office to discuss issues that in particular had come to light the following previous day when the Claimant was attending a catering trade fair. Suffice it to say that the school had run out of sufficient food stuffs to cater for the menu requirements of the children as had been ordered by their parents. The net result was all hands on deck including Jason resorting to peeling apples as part of the improvised feeding of the 1 As first listed, it was not put sequentially because it was under a different label, but we are going to deal with issues chronologically in terms of fact finding. 2 Bp= bundle page. 3 See his published reasons Para 2.3. 4 The solicitors then acting for the Claimant. Page 3 of 15 children. As to hot food, it was found that a standby, i.e. dried pasta was seriously under stocked; stocking is part of the Claimant’s job. Sarah had to go to the local Coop and buy emergency supplies. And in the context there had come to light other shortcomings, not all at the door of the Claimant, in relation to the way that catering had been going since the start of term: Hence Jason’s decision that they should have this meeting on the 15th. Clear from the evidence is that this was not a disciplinary meeting as the minutes taken by Sarah make plain (Bp 167-8). This was a problem solving meeting to address the shortcomings that had come to light and create an action plan to prevent a reoccurrence. Leaving aside the issue of whether there is any disability discriminatory element to it, to address what had occurred in this way cannot but be within the remit of a reasonable management particularly given the importance of providing lunch to these young children at school. 5.3.3. Issue 5: The gold award issue. The school takes a very active role in what is described as the healthy living agenda. It sits in the heart of agricultural England. It clearly has close links to the surrounding agricultural community. It has a close liaison with the Soil Association which is of course at the forefront of organic farming. The children engage in growing vegetables at school and in that context the school has won awards from the Soil Association over the years. There is also the opportunity to win an award from the Soil Association for excellence in healthy catering. To win would particularly be an accolade for the Claimant and Karen. So the school won the Gold Award. The only issue is this. Was the photographed presentation at school to the Claimant and Karen at lunchtime on Friday 16 September demeaning? And if so what’s it got to do with her disability? Is it that the Claimant because of her vulnerability as a mentally disabled person had by now a perception that might indeed have been in the non clinical sense of that word to some extent paranoiac? Was she perceiving things which she might subjectively find were accusative ie the meeting on the fifteenth or demeaning, the presentation on the sixteenth, when they were nothing of the sort? 6. Issue 6. The sixth issue we are dealing with is the resignation of the Claimant on 28 September; and in the context of that because they were allowed in by Judge Clark we put into the chronology the two preceding happenstances in this case. Thus the Claimant following the gold award presentation on the Friday presented herself to her GP that night with an explanation of worsening symptoms of the depression for which she was already on the maximum dosage of Citalopram. The doctor decided that she should be issued with a “fit note”5, initially for a period of 2 weeks, as being unable to work because of depression, In the experience of this Tribunal which is very experienced particularly in issues relating to the Equality Act and has undertaken between it many cases relating to disability discrimination including mental health related issues, as an observation it is invariably the case that once depression takes hold it can extend out as an absence for more than the initial period of the first fit note. Something also observed to us by learned Counsel. In the context of the Claimant going off sick we get in the issue of the unfortunate sequence, and it does play a part in terms of objectively assessing the 5 What used to be referred to as a sick note. Page 4 of 15 mind, in that sense motivation, of Jason. We will provide more of our findings from the evidence on this topic now as it puts the latter events in context and explains the actions of Jason.6.1 The Claimant’s husband texted him on the Sunday, 18 September, that the Claimant would not be in from the Monday because of depression. Of course Jason’s immediate priority was to sort out providing the pupils with food on the Monday.6.2 It so happens that when he was discussing the emergency on the Monday in what is a tightly knit school community, he was informed that the Claimant had in fact been seen over the weekend out and about with her daughter at the local gala/derby at Carholme ( see Face Book posting at Bp 174). A day or so later there was a Face Book entry of her and her mother out celebrating the latter’s 60th birthday (Bp177).6.3 Obviously Jason was puzzled as to why the Claimant should go off sick after what he thought was a happy event on the Friday. Conversely he was concerned for the Claimant’s pastoral welfare; but on the other hand what was he to make of this local intelligence as to her activities over the weekend? How did it square given the disruption the late notice of her not coming in on the Monday had caused to the school? Thus we get the first letter (Bp 175) dated 21 September 2016 inviting the Claimant to come in to school for an informal discussion on the 28th. As a matter of fact, and we deal with it now, the Claimant was not being invited in under the formal parts of the Respondent’s management for attendance procedure (“MAP”) which is before us and in particular BP 61a. She was being invited in as the members themselves have pointed out on an agenda which meets best practice for the purposes of the ACAS code of practice. It was to explore the various aspects of her absence, how the school could help and importantly, and indeed vital in cases of this nature, the possibility of a referral to occupational health. In the experience of this Tribunal it is invariably the practice and indeed should be so that a reference to occupational health, absent complete lack of cooperation from an employee, should always be pursued having discussed the underlying reasons for the absence6 and agreed upon the wording of the referral.6.4 As it is on 26 September the Claimant e-mailed back (Bp178), albeit it was penned by her husband but the Respondent wouldn’t have known that because it’s actually in the name of the Claimant and issuing from her e-mail address. Essentially the e-mail just says “unable to attend” but makes reference to “seeing doctor on Friday. Thereafter be in touch”. The e-mail does not say “I am unable to attend because I am too sick”. Hence the second letter (Bp180) from the Respondent also dated 26 September reiterating the request to see her; making it plain that the agenda is as we have already said; not invoking the formal MAP; and indeed saying that Jason is prepared with Sarah, to meet the Claimant if necessary off site and that she can be accompanied by a companion. We have no doubt that if she had said can I bring my 6 Unless by now the health issue is completely resolved. Page 5 of 15 husband along the Respondent via Jason would not have objected. As it is at that stage the Claimant resigned (Bp181) on the 27 September giving notice to expire on the 28 October. The letter gave no reason for the resignation. The Claimant thanked the Respondent for the opportunity to have worked at the school and wished the latter well. Thus where is the link between her disability and the resignation?[7]Issue 7. The last issue we are dealing with is the handling of that resignation. The letter of the Respondent (Bp182) in reply to the letter of resignation is dated 28 September. Thus in relation to that letter:7.1 Was is it a repudiatory discriminatory act to put the Claimant on garden leave?7.2 Whether there was in that context additionally or in the alternative discrimination by requesting that the Claimant not contact colleagues in school? Labelling the claims in terms of the engagement of the provisions of the EQA[8]As made plain by EJ Clark7 the claims are ones of direct discrimination pursuant to s13 of the EQA save for issue 2 which is failure to provide a reasonable adjustment pursuant to s20-21. There is no claim before us based upon Section 15 unfavourable treatment or harassment pursuant to Section 26; and of course there has been the extensive attended PH before EJ Clark.[9]Thus as to what we are dealing with as to direct discrimination s13(1) provides: A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic , A treats B less favourably that A treats or would treat others.”[10]There is no actual comparator in this case. Thus the Claimant is as to a hypothetical comparator presumably contending8 that a person employed as per her at the school not suffering from a mental health disability would not have been so treated.[11]As to s20 the Act provides: S20(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 ( “ the PCP”) 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 7 As per his judgment (Bp 57-58) but add in the reasons viz the reasonable adjustment claim. 8 It is still not at all clear but applying the over riding objective we will work on that premise. Page 6 of 15 as it is reasonable to have to take to avoid the disadvantage9…[12]As to the burden of proof on both fronts put at its simplest if on the factual scenario there emerges a prima facie case then the burden switches to the Respondent thus to show viz s13 that no part of the treatment was because of the protected characteristic. As to s20, then if there was a duty to make reasonable adjustments and the tribunal has established on the evidence what was the adjustment required, then the Respondent must show that it was not reasonable to provide the adjustment. Findings of Fact: credibility[13]Before doing so we have heard under oath from the following witnesses and in each case evidence in chief by way of a written statement apart from that of Karen Parker. Thus otherwise the Claimant; Jason; Sarah and lastly Emma. We heard first from the Claimant.[14]And then we heard from Karen Parker. Stopping there Karen Parker was asked to come at very late notice. The Claimant had been requesting a witness order for around 2 months10 albeit it was only on the basis she thought that Karen could help. In the interests of justice we decided as she is still employed at the school that she should attend and principally because she might assist first on issue No 1 and then on the catering award issue. Well what did we make of Karen? She has now been employed at the school for twelve years. She is clearly very happy there. She had no issue with the presentation of the gold award on 15 September. She is in the photographs (Bp209-211) taken at the presentation standing beside the Claimant. Both are smiling and in one picture pupils can be seen congregating around them. So in that respect she doesn’t assist the Claimant when we come back to that issue, and she didn’t see the timing of the presentation at lunchtime rather that in a formal school assembly as in any way as demeaning or belittling the status of the award.[15]And as to micromanagement issue or indeed his management style in general and in particular to her and the Claimant, she was clear that Jason was never obnoxious, bullying, demeaning or domineering in his attitude. We use such descriptions as they appear in the Chatterton letter before action for the Claimant. The letter paints a picture of Jason as a consistent bully. As to whether or not Jason might have used the phrase micromanage when he visited the kitchen whether it be in June or July of 2016 she simply couldn’t assist. It was so long ago. Nothing stands out in her mind. We found her honest, straightforward and compelling. And thus it is the first issue in a case where credibility and who is to be believed are at the forefront where the evidence of the Claimant starts to be undermined. And as to Jason’s style, Karen ‘s evidence very much mirrors that of Emma Revell, who we also found to be an honest, credible witness, and who witnessed the discussion between the Claimant and Jason on the staff meeting issue on 9 September. So neither provides any support whatsoever for Claimant’s portrayal of Jason.[16]Following Karen, we heard from Jason. And yet again we first focus on credibility. We appreciate that perhaps bringing her claim has been an ordeal for the Claimant and that she is still mentally unwell. We do not say that she has 9 As the core issue in this case is what is the PCP if any relied upon by the Claimant, and even if there is one did it place her at a substantial disadvantage, there is no need to address the rest of the section unless the Claimant establishes that factual scenario. 10 This application had not been placed before a judge. Page 7 of 15 come to this Tribunal intending to lie. She has a perception on events as is invariably the case with a party to litigation. The question is does it bear scrutiny on an objective analysis which is the function of an industrial jury such as this. Let’s look at it.[17]The Claimant said very clearly in the Chatterton letter before action in her ET1 and before Employment Judge Hutchinson that the micromanagement issue happened in June. Well if it did it can’t possibly engage as an issue of discrimination because the first disclosure of a health issue to the Respondent is at best 6 July11. Now before us the Claimant’s moved it back. Is it as she says because having initially thought it was round about her birthday, 15th June, she has now realised it was later because of by e-mails she has read but not provided either to the Respondent for the purposes of discovery or any anytime during this Hearing? The problem there is the absence of the e-mails.[18]Second 6 July and the counselling. The problem is the Claimant contradicted herself. Her evidence was initially as per her pleading and her witness statement that on 6 July she was promised counselling by the Respondent and told categorically by Sarah on the seventh that she was going to get it. In her cross examination at the very onset she said that she had been told that they would look into12 on 6 July. That is not the same thing as a categorical promise. And when she was cross examining Jason she went along the same theme. We think she is muddled on this issue. Contrast Jason: he was absolutely clear that they never promised because they couldn’t. The school uses an external provider for matters of this nature namely Schools Advisory Service (SAS) which is an insurance based provider. So he would need to know if they would fund it or provide it. And then there is Sarah: a credible, consistent witness. She was adamant that she was delegated by Jason13 the task of enquiring of SAS; and when she explained to SAS that they had an employee who had disclosed a longstanding clinical depression and was it possible to provide her with counselling, she was told categorically no. And turn to the insurance document itself which is now in the bundle before us and it couldn’t be clearer. SAS has complete discretion as to whether it will provide such as wellbeing counselling. It acts in its own interests and it alone decides. Thus it would follow that the evidence of Sarah and Jason is backed up by the source data. Thus we have on the face of it the evidence of the Claimant which becomes contradictory in contrast with the consistency of the evidence for the relevant Respondent witnesses.[19]Then we come on to that the Claimant says that she would never ever go back and ask about such matters because she doesn’t like to be “confronting”. Well it may not be such as confronting but the Face Book entry (Bp156a) dated 31 August 2016 posted by the Claimant in relation to being asked by the Jason as to whether she would be prepared to cook a meal for the staff on the first day of the autumn term known as an inset day is sarcastic. Even if as per the GP entries she was stressed and taking anti-depressants, it did not stop her posting the entry. And it brings in the context. Jason was very proud of the Claimant’s culinary abilities. They were already working on the gold catering award. Expectations were high and the Claimant liked to otherwise get herself involved in food issues to do with the school. It had for instance a cookery club. She suggested they might get in a herbologist who might give the children a chat in the context of healthy eating. And here is a Headmaster who is quite clear if one thinks about the micromanage issue, who wants to try and empower where he 11 Bp154 12 Our emphasis. 13 Who as is now clear as with all Respondent witnesses we found credible and compelling. Page 8 of 15 can, members of staff and encourage them. So he had asked the Claimant if she wouldn’t mind cooking a special meal for the teachers on the inset day as of course the pupils would not be in.Thus she could engage her culinary skills: Not at all consistent as alleged by the Claimant with a school now embarking via its Headmaster on a train of discriminatory treatment because the Claimant has announced her depression. And how does she reward this act of support? “So my boss thinks it’s a ‘great way to start the new school term’ by me cooking school staff lunch…. Bah… Cos I don’t have any planning to do!! No, not the chef. Char su pork and a veggie chow main anyone?” Jason was shown the entry14 and was hurt. And albeit it has nothing to do with the disability issues it was hardly going to be conducive to trust in the relationship. And then we get the next credibility issue.[20]The Claimant had always put her case relating to 9 September on the basis that as we have already described it Jason’s tone and the way he phrased his question to the Claimant in the corridor when she said she was coming to the staff meeting was demeaning. But when she was questioning Emma she went much further than that. She said that so upset was she that after that staff meeting she went to her kitchen in floods of tears where Emma hastened to support her. Now Emma before us looked astonished at this suggestion and she told us not only did it definitely not happen, but it couldn’t have done because as soon as the staff meeting was over she had to rush away to her class of infants who had by now arrived and were assembled waiting for her . Why didn’t the Claimant raise this evidence of her upset earlier? Is it gilding the lily? Given our previous findings by now as to credibility we are driven to conclude that it did not happen.[21]The Claimant says that she was called to a performance review meeting on 15 September post the school food emergency. She used that phrase again today. But she wasn’t. It was as we have said the kind of meeting that regularly happens when matters of concern arise and need to be discussed: it falls squarely within management’s right to manage. She says that before she went into the meeting she had “thought I had got away with it”. She says that meeting was from the outset intimidating and confrontational because there was Jason sitting the other side of the desk, notebook in hand, side by side with him sat Sarah, similarly notebook in hand and she was obliged to sit opposite them. Thus because of her disability this was unnerving and implicitly, leaving aside what is the PCP, a failure to make a reasonable adjustment for her mental fragility in the context of the disability. But Jason and Sarah are clear: they did not sit alongside one another. Jason went further: he would never do that because he would see it as confrontation: So two consistent witnesses against one who is already undermined by our preceding findings as to credibility. It follows that we believe Jason and Sarah.[22]So those are the credibility issues. They inevitably have a knock on effect on our findings on the mainstream issues. 14 Not we stress by the Claimant. Page 9 of 15 Residual findings of fact[23]Prior to 6 July the Claimant had never disclosed previously to the Respondent her disability. We will accept that it was something she was deeply embarrassed about and shared with only her closest friends and her husband; even her parents didn’t know at that stage. In that year before she came to see Jason and Sarah she had been to her doctor at least once. We note that in the previous year in the August just into starting this job, the depression was there. We of course accept that coping with stressors such as a new job may exacerbate a mental health condition such as that suffered by the Claimant, but none of that can be laid at the door of the Respondent as the Claimant showed no inability to cope; indeed as is now clear she gave all outward signs of thriving in the job. And when she presented to her doctor on 4 July 2016 (Bp257) she was not blaming the school for her low mood. There were clearly also other stressors as she has admitted to the Tribunal. We don’t need to venture into them and therefore expose her privacy.[24]Against this background and having taken sickness absence on the advice of her GP, on the 6th she came into school that day because she wanted for the first time to explain how she was feeling. She told Jason and Sarah in a meeting with the door closed about her history of depression. Jason asked her whether or not there was anything specific about work which they should know in terms of it being a contributory factor. She said no. But Jason having himself seen within his extended family depression wanted to know if it might help if he could see if the school via SAS could provide some counselling. And he said that the school would investigate: and we have now dealt of course with that SAS would not help. The school, cash strapped as with most state institutions, did not have funds it could use for the counselling; and of course otherwise the Claimant could explore help via the NHS i.e. such as CBT via Well Being whether she did or not is not an issue for this Tribunal..[25]The Claimant was back at work the next day. Sarah, who comes early into the kitchen on a daily basis with her jacket potato for it to be baked for her for lunch, hugged the Claimant and congratulated on her being brave in disclosing her disability the day before, but then commiserated because SAS had confirmed that they would not cover counselling. So does that mean, which is now the remains of that issue under reasonable adjustment, that the Respondent is somehow obliged to nevertheless provide counselling? It is a non issue because the Claimant’s issue has always been before the Tribunal that she was categorically promised counselling on the 6th which was confirmed by Sarah on the 7th. But it wasn’t. It was the contrary. It therefore is the end of the issue.[26]Moving on, then there are no other issues left for that period. As we have already said there was nothing discriminatory about the micromanagement issue and first and foremost because the incident happened before the Respondent had any knowledge that the Claimant might have something that might constitute a disability. And in any event: all Jason was saying to the Claimant on a very busy morning was “issues about whether or not you need to bring in pest control are not for me, they are not things I should be micromanaging you on. Go and sort it yourself but if you need any help go and see Sarah”. And what does the Claimant do? She does sort it herself. She has the necessary wit and strength of will at that stage to be able to go and sort out pest control. Finally from our findings already, we are not persuaded at all that Jason conducted himself in a bullying or otherwise inappropriate tone. Thus there are no issues left for that term. Page 10 of 15[27]Back to the staff meeting request on the 9th September. The Claimant announced in the corridor to Jason at about 8:10 am that she would be attending the staff meeting. Yes it took Jason by surprise. She had never been to one before. Why would she want to attend a school teachers’ staff meeting? It’s not something the catering staff would be expected or need to do. As it is we think maybe the Claimant wanted to get herself more involved in the life of the school. Perhaps she had resolved to do that over the summer holidays. Maybe it would make her feel better. But those are speculative points. What matters is that we have the evidence of Emma Revell. There was nothing demeaning at all about the way that Jason dealt with the issue. Yes he queried why she wanted to come, but he didn’t stop her going and his tone was not hectoring or demeaning. So that is an end of that issue.[28]Leaving the school short of food on the 14th September when attending the trade fair. For reasons we have already gone to this was a serious shortcoming. The Claimant knew this . But as she told us: “I thought I’d got away with it.”[29]Of course she might have been taken aback by the, meeting on the 15th (see note of the same by SC at Bp167-8). She says she thought she was going to have a proper coffee and a fireside chat so to speak. It doesn’t matter: it wasn’t a disciplinary meeting. It was to discuss that which had come to light and how to make sure the school could avoid it happening in the future; and an action plan was drawn up which also involved Sarah. The issue of disability is irrelevant. Jason actually enquired of the Claimant as to whether there is anything about her disclosed health that might be relevant and the Claimant did not say there was. The impression that Jason and Sarah got was that the Claimant was simply being defensive about the issues of what had gone wrong at the school in terms of catering. And maybe she was because she had expected that it would just disappear ie that she had got away with it. So we have eliminated that issue. There is nothing about it that links to disability.[30]Gold award. Again we take this now short. The Headmaster was the first to congratulate the Claimant on being the winner, along of course with Karen as her assistant, of a catering Gold Award. He had been told by the Soil Association that they would give him the presentation plaque and the certificate when they came along for an arranged business meeting with him the following day. The meeting was scheduled for about 1:40pm straight after the school lunch and the Soil Association senior executives had a busy agenda for the morning. Jason far from being demeaning of the Claimant, insisted that she should along of course with Karen be presented personally with the plaque and the certificate by the Soil Association executives. Hence why it took place at lunchtime; and what better place to do it than in the canteen at the end of a busy lunch hour with lots of children in there still eating their meals etc. And the photographs speak for themselves. Happy smiling faces in terms of the Claimant, Karen and pupils. So why was it demeaning that it didn’t take place in a full school assembly? Well the full school assembly on a Friday would be at about 2:15 when the parents come in. There isn’t one in the morning. The Soil Association executives would have come and gone. The school can’t dictate to them their movements; and therefore Jason saw a photographed presentation at the end of lunchtime as being the best way to recognise the achievement of the Claimant and Karen and ensure that it was not missed. And what’s it got to do with disability? It’s a perception Page 11 of 15 issue as Mr McGee has rightly identified15. It goes to the state of mind of the Claimant. But objectively it doesn’t pass muster. There is nothing about the presentation that is discriminatory.[31]So we now come to the final issues. Jason had to decide what to do in the week commencing 19 September with the Claimant now going to be off sick for at least 2 weeks. The school uses an external legal/HR advisory service, Judicium Consulting Limited (“Judicium”). They are at arms length. Mr O’Rourke never does anything of moment relating to HR issues without consulting them. SC is not HR trained. Her role is primarily administration. We then factor in that the Respondent has a management for attendance policy (MAP). It provides a range of options as to what to do with absences. In this particular case the Claimant had actually exceeded the absence threshold for involvement of the MAP. She had about ten sickness days for a pre-arranged knee op; the 3 days for depression in July; and now ten days were certified as per the sick note. And although the Claimant may say the inception of the first informal, and indeed primarily pastoral phase was started too quickly via the letter of the 21 September, in the context of this case and the importance of the chef role it is not unreasonable that Jason as the head teacher decided having consulted Judicium wrote would write to the Claimant in the way we have just described, asking that they could meet. The Claimant’s response was to e-mail as we have said before that she was “unable to attend”. Albeit she made reference to seeing her doctor the coming Friday, she did not say “I’m too unwell to see you at the minute because of my depression[32]So Jason tried again to persuade her to agree to a meeting. The second letter sent on 26 September 2016 at Bp 181 at first blush troubled the Tribunal because of paragraph 2: “…However you may be aware just because you are signed off as unfit for work it does not mean that you are too unwell to attend a short meeting.”16[33]But there was of course in the mind of Jason this question mark in terms of the Claimant having been at the Gala at the weekend and the other anecdotal reports to which we have referred. Prima facie if she was well enough to take her daughter to the Gala or her mother out to celebrate her 60th, then why could she not cope with a meeting on “neutral” territory to discuss how she was feeling and the way forward i.e. perhaps a referral to OH. And the rest of the second letter is as per the first. It is supportive; making plain the primarily pastoral purpose of the meeting and that it can be held away from school if necessary. Therefore looked at overall the Respondent via these letters in the context is about the first stages of exploring how to manage the absence. However the Claimant relies on the letter of her GP dated 8th October 2016 (Bp 181). At first blush inter alia he makes a valid point, having opined that the Respondent acted prematurely, he wrote: “I would also question as to whether or not we had put a diagnosis of pneumonia down for the same time period, whether she would have been called in for a similar review.”[34]The letter before action from Chatterton’s dated 26 October 2016 (Bp192) referred to this letter being attached. But Jason is clear that he never saw it. The letter, which was received by the school on the 29 October was replied to on 3 November 2016 by the Chair of Governors, Steve Baker. This very detailed reply 15 We were grateful for his fair and balanced written submissions. 16 This is as per the MAP. Page 12 of 15 (Bp197-203), clearly written with the help of Judicium, makes no reference to the GP’s letter. Thus maybe it was never attached. But all this misses the point. The Claimant was not being punished for being off sick. She wasn’t being put down the formal route. She had not been reprimanded over the food shortcomings or the Face Book posting about the inset day meal. Everything points to a very supportive Respondent via Jason. The Respondent in wanting a meeting with the Claimant is about the first step in that potential process. The response of the Claimant to the second letter was to resign on the 27 September with notice expiring on the 28th October (Bp181).[35]Jason again consulted Judicium. Sarah then received the letter of response prepared by them . It was then simply topped and tailed and signed by Jason and issued on the 28 September (Bp182-3). By the reply, the Respondent accepted the resignation. Paragraph 2 read: “ I am writing to confirm acceptance of your resignation, which the Academy was very sorry to receive. However ,in light of your current ill health the Academy will not be requiring you to return to work and you will be placed on garden leave following the expiration of your current fit note on 3 October 2016. I hope this will allow you to focus on your health and recovery.”[36]Jason did not know that as the Claimant had resigned he could abridge the notice period and pay off the Claimant there and then with pay in lieu of notice. Garden leave off course means that the employment still continues to the end of the notice period. This in due course engages in that by the letter before action the Claimant via Chatterton’s the Claimant sought to retract her notice. We will return to that. Jason followed as is to be expected the advice of Judicium. It is no criticism of the Respondent but we do think however that those who advise them perhaps give more thought to the context rather than using this sort of ten plate letter because the provision for garden leave wasn’t really applicable. The Claimant wasn’t doing a job where she needed to be tied in from such as competing by the holding of her to the notice period but putting her on garden leave and thus precluding her from the work place inter alia preserve such as confidential material or protect the business from such as potential sabotage17. This obviously was not the case. But having said that how can this issue relate to disability discrimination? The Claimant was signed off sick at this stage until circa 2 October. She has resigned. In her resignation letter; she hade not said she wanted to work out her notice period. Indeed she talks about returning all school equipment loaned to her “before this date”. (Bp181).[37]So these are red herrings swimming in the issue, but we have dealt with them as the Claimant is unrepresented and the evidence has covered the forensic territory. However it is back to Issue 7: was it a repudiatory discriminatory act to put the Claimant on garden leave? It is of course misconceived. It cannot engage as a matter of law and because the Claimant has already resigned. Thus this letter cannot be a factor in her deciding to do so.[38]Finally as to the second limb of issue 7: whether there was in that context additionally or in the alternative direct discrimination pursuant to s13 of the EQA by requesting that the Claimant avoid contact? Again this was an unfortunate stipulation in the letter of the 28 September. Thus inter alia the third paragraph stated: 17 The letter of course didn’t say this but those are usually behind the rationale in imposing garden leave or indeed no contact to which next we come. Page 13 of 15 “Whilst on garden leave you will no longer be required to attend work unless specifically requested to do so. You should refrain from attending the Academy premises or contacting any of our pupils, members of staff, parents or associates of the school. We would also request that prior to your last day of work ( this being the 28 October 2016) we would kindly request that you remove references to Washingborough Academy ( and the Gold Catering Mark Award ) from your social media accounts. You shall however remain employed by the School and should be available during working hours to deal with any related matters that may arise…””[39]That was understandably hurtful to the Claimant. Why do it? The Claimant had, as is so obvious by and large served the school well until the last few weeks; she had been a popular chef and well regarded inter alia by the Head; parents and pupils. We have no evidence to the contrary. When this letter was written and then sent she remained in the employment and the Respondent knew sufficient, or should have with the professional support that it had, to have approached handling the Claimant on the basis she was disabled. And this is a s13 discrimination claim. In terms of the “treatment”18 imposed by this letter read literally it not only prevented her from making contact in school but also outside it, and thus understandably this is what she thought. And of course the Claimant was at a very low ebb. This section of this letter is of course penned by Judicium and the Headmaster just accepted that which he was given to send out for the reasons we have given. But of course it doesn’t mean that he should not apply his own mind to the context. Not articulated before us clearly in this respect but otherwise implicit for the preceding evidence would be Jason’s unease with the Claimant’s penchant for using Face Book with a lack of discretion in a way that certainly disrepute’s him as the Head such as the inset day meal posting.[40]Nevertheless this is the first issue which survives to the second stage for this reason; this treatment: would it have been meted out to an employee working for the Respondent at the school who was not disabled by reason of ill health? For the sake of argument that is the hypothetical construct. We have no actual comparators and because the school had never faced having to cope with this or a similar scenario before. If such a person having for instance posted the Face Book entry; fallen down on the food issue; and then gone off sick with for example “stress” but been seen prima facia acting in a way seemingly incompatible with if not unable to work then certainly sufficiently able to attend an informal meeting but declined and then resigned; would that person have been treated any differently? That is of course the test19 Thus on the burden of proof it passes to the Respondent as there is otherwise at least a possible inference to be drawn.[41]But from the evidence of Jason we can accept at least implicitly in terms of the letter drafted and the link to garden leave, that Judicium seems to have as a matter of practice linked garden leave with no contact for the duration. It may be over the top in terms of the school and the role the Claimant was providing, but it follows that because it would have been applied in such a situation to anybody resigning from a role such as the Claimant’s in school, that therefore a hypothetical comparator would have been treated the same. None of the other 18 Apropos s13. 19 See Mayor and Burgesses of the London Borough of Lewisham v Malcolm 2008 IRLR 700 HL and which thus made in may instances utilisation of s13 difficult in cases of disability in particular in this type of scenario hence s15 of the EQA which is tailor made for the disabled albeit with a justification defence available to a Respondent. Page 14 of 15 evidence points to the Respondent having been other that pastoral and caring in its approach to the Claimant. There is no evidence at all that points to a discriminatory culture and particularly towards the disabled including mental ill health within the school or in the wider sense the Respondent. That is the argument that Mr McGee has made before us and he is at law correct. Thus this claim also falls. It might have been different had the Claimant deployed s15 of the EQA, but she did not. Final Point[42]Nothing thereafter is relevant. An employer is entitled to accept the resignation of an employee unless obviously made in the heat of the moment in such as loss of temper. That does not apply here. The Claimant wanted to retract it by way of the letter before action from Chattertons written on 26 October: that is one day off the end of the notice period. And if it was posted, which appears to be the case, it would have been received after the notice period had run out. And that explains why in his reply to the letter on 3 November (Bp197-203) Mr Baker, as Chair of the Governors, makes plain inter alia that the employment has ended. Thus in any event having accepted the Claimant’s resignation by its letter of the 28th September the Respondent is not at law obliged to reconsider that decision and re-affirm the contract. Thus it is a red herring: hence doubtless why although covered in the bundle it was not an issue to go forwards as per the issues as defined by Employment Judge Clark.
Conclusion
[43]For the reasons we have now given the claims are dismissed in their entirety. Case No: 2600274/2017 EMPLOYMENT TRIBUNALS Claimant Respondent Mrs R Callow v Aurum Academy Trust Limited Heard at: Lincoln On: 10 August 2017 Before: Employment Judge R Clark Representation Claimant: In Person Respondent: Mr Magee of Counsel
Conclusion
[1]The claimant was disabled at all material times as a result of her mental impairment of depression.[2]The claim of direct disability discrimination is in time, insofar as it relates to the last pleaded allegation of less favourable treatment by being denied access to the workplace or contact with colleagues or pupils during her notice period (garden leave) which, by virtue of s.123(3)(a) of the Equality Act 2010 amounts to conduct extending over a period ending on 28/10/2016.[3]The Claimant’s remaining claims are, prima facie, out of time (subject to any finding at a later date that any of them form part of a wider act extending over a period of time, the end of which was in time) but, in any event, it is just and equitable to extend time for the presentation of all remaining claims to 27/1/2017.[4]For the avoidance of doubt, no further orders are made under rules 37 or 39 of the first schedule to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.
Conclusion
[1]INTRODUCTION 1.1. This is a preliminary hearing listed to determine the issue identified at the Telephone Preliminary Hearing held on 23 March 2017, namely:- a whether the claimant was a disabled person at the relevant time. b whether it can be determined that the claim(s) are out of time c To determine the respondent’s contention that the claims have little or no reasonable prospect of success such that they should be subject to a deposit order or struck out[2]Background to this hearing 2.1. This case concerns claims of discrimination relating to the alleged protected characteristic of disability. The detail of the claims was explored at that earlier preliminary hearing before EJ Hutchinson and the direct discrimination claims have been particularised further and recorded in the note of that hearing and subsequent correspondence. In summary form, they are:- a In or around June or July 2016 – the “micromanagement” allegation. b In Sept 2016 – being excluded from a staff meeting. c On 15 Sept 2016 – being called into a meeting and subjected to demeaning language. d On 16 September 2016, the failure to hold a whole school assembly to recognise the catering department’s gold award. e The Respondent’s response to the claimant’s resignation on 28/9/2017 – in that she was put on garden leave and excluded from contact with colleagues. 2.2. And amended in subsequent correspondence:- a On 21 September 2016, the respondent sending an email to the claimant requesting her to attend an absence review meeting (said to amount to putting pressure on her). b On 26 September 2016 sending an email to the claimant requesting that she attend a further absence review meeting at rearranged date (also amounting to putting pressure on her). 2.3. The reasonable adjustment claim is not clearly particularised. The PCP relied on appears to be the requirement to attend work. The disadvantage is the employment consequences of not doing so which a disabled employee may face greater exposure to. The adjustment relates to provision of counselling support following an offer made by the respondent to explore it on 6 July 2016. For today’s purposes, I have determined that the date on which the respondent is to be treated as failing to make the reasonable adjustment 21 July 2016.[3]EVIDENCE 3.1. I have heard from Mrs Callow who was questioned on her evidence. I did not hear any witnesses for the respondent. 3.2. I received a bundle of documents running to 123 pages. 3.3. I received oral closing submissions from both parties.[4]ISSUE 1 - Disability Status 4.1. A person is disabled for the purpose of the Equality Act 2010 (“the Act”) if their circumstances satisfy the conditions set out in section 6 and Schedule 1 of the Act. In short form, I must be satisfied that there is a physical or mental impairment which creates a long term substantial adverse effect on the claimant’s ability to carry out normal day to day activities. Schedule 1 further defines that test. In considering that test I have had regard to the 2011 guidance on the definition of disability. Of the many and varied situations in which disability can manifest itself which are covered by the guidance and the Act, I have particular regard to the need to consider the effect of the impairment as it would be without treatment or medication (which may include the manner in which the disabled person copes or masks their impairment); that substantial means simply more than minor or trivial; that “likely” simply means it could well happen. The guidance provides illustrative examples at C3-6 and A5 in respect of depression as an impairment; B5, C6 and C2 in respect of cumulative effects, recurring conditions and long term; B14 in respect of treatment. I am reminded of the need to consider each element. (Goodwin v Patent office [1999] ICR 302) 4.2. Turning to the facts, there were elements of the claimant’s evidence which was confused between how the condition has been in the past, how it was at the relevant time to these claims and how it is now. I accept Mr Magee’s caution about being influenced by the evidence as it is now rather than at the relevant time. However, on the evidence before me I am able to make following findings limited, at this stage, to the question of disability at the relevant time. 4.3. The claimant was diagnosed with depression in 2008. She continues to receive medical care under that diagnosis and has done at all material times in between. She has been prescribed Citlaprom for the last 9 years. That dose has varied from time to time. The illness has been relatively well managed during 2015 and the early part of 2016 during which her medication was 10µg daily but increased to 20µg. I find the claimant is ashamed of the diagnosis and seeks to mask it. The effects of the impairment come in waves and/or fluctuate over time. There can sometimes be episodes of rapid cycling of a few days bad followed by few days good. 4.4. Without the treatment she receives, I find the claimant would suffer bouts where she was unable to get out of bed for days at a time, would fail to take care of her personal hygiene, would leave the care of her children to her husband, would not plan food for the children or the family, mainly as she would be unable to go out to go shopping. In those times she eats poorly and unhealthily. The medication helps her to minimise the severity of those effects. 4.5. During the recruitment process for her post with the respondent, the claimant declared that she was not disabled. She underwent a post offer medical questionnaire in which she declared a similar position. There is a pattern of hiding her diagnosis. I find the claimant believed she was under no obligation to make a full disclosure at this stage. Whether or not she is correct in that, one obvious consequence of keeping things secret is that it limits the prospects of establishing any claim before the employer gained knowledge of any disability albeit that does not affect the determination of whether she was or was not disabled. 4.6. During her employment, the claimant continued under the care of her doctor for her depression. The claimant’s medical records are before me. Page 70 onwards covers the relevant period. From that I find the claimant continued with her prescription for citalopram. In August 2015 there is reference to depressive disorder, the claimant feeling really low, having lost interest and not being bothered about anything. She was recorded as not being able to enthuse about the new job. Her medication was increased. There were repeat prescriptions throughout the period of employment. On 7 April 2016 [74] there is a record of her suffering with a long history of depression, being unable to motivate herself regarding diet/weight loss. On 4 July 16 [75] there is a reference to low moods, to being all the time in a depressed mood. The gradual increase in the prescription can be charted from the 10µg at the start of her employment to 40µg by September 2016. I find there was a deterioration in the claimant’s condition over this period. 4.7. There is a significant event on 6/7/2016 where the claimant did disclose to her employer how she had suffered with depression on and off for a number of years. The respondent undertook to investigate counselling support. There is a dispute of fact on the outcome of this, the respondent saying it was not available whereas the claimant says she received no feedback either way. I return to this point later. 4.8. Between 16 September and 3 October 2016 the claimant was signed off work as unfit for work with depression. She received emails from work requiring her to attend an informal meeting in the workplace which adopted the position that she was not too unwell to come into work for such a meeting. 4.9. Returning to the medical records after this date, on 16 September 2016, the GP records the claimant as being “in trouble” at school in respect of the 15 September meeting. On 20 September it records her having resigned as she felt the school did not understand her situation. She was not sleeping. 4.10. I then turn to whether those facts and circumstances establish the test of disability. There is no dispute that the claimant has been diagnosed with a mental impairment from 2008 nor that she has been treated with varying levels of medication throughout the relevant period. The focus of the issue before me is whether the effects of that impairment on normal day to day activities create a substantial long term adverse effect. In my judgment they do. 4.11. Firstly, the threshold is relatively low. Substantial means more than merely minor or trivial. Secondly, the effects have lasted for longer than 12 months and, even when viewing their fluctuating nature, the history shows at the material time the serious episodes were likely to recur over a period longer than 12 months. Whilst the evidence shows the effect is continuing, I am satisfied that at the material time, particularly during 2016 the temporal requirement was made out. I am satisfied that getting up, getting dressed, personal hygiene, getting motivated to perform ordinary tasks, planning shopping, preparing meals are all normal day to day activities and that with or without her medication, but substantially more so without the benefit of medication, the claimant’s impairment creates an adverse effect on her ability to carry out those activities which is substantial in nature. I have considered whether any or all of those matters could simply be a question of ability, but dismiss that. I am satisfied the degree to which the impairment affects her is to a degree which falls outside general range of abilities to perform those activities found in the general population at large.[5]The Basic Chronology 5.1. The issue of time limits requires me to make further findings of fact. The issue of the merits of the claim require me to understand the parties respective cases, without determining matters in dispute. In that respect, I now turn to consider the basic chronology. 5.2. The claimant was employed between 1 September 2015 and 28 October 2016. As I have already stated, she did not disclose the diagnosis of depression in the application or post appointment health screening. The claimant suffered a downturn in her mental health in July 2016. She was off sick for 3 days between 4 and 6 July. She attended her workplace on 6 July whilst still off work and met Ms Chatterton. During that meeting she disclosed her long term depression. The immediate response was positive, Ms Chatterton reassuring the claimant and stated that she was proud of her for being able to disclose it. Ms Chatterton offered to look into support that might be available. That offer of support became something an odd state of affairs in this case. The respondent says it went back to the claimant the following day to say that, in fact, support was not available. It is odd because within two months of this, the respondent would later offer this support. It is also odd as the claimant’s case is that she received no feedback about counselling. I accepted that the time within such counselling could have reasonably been made available was within around 2 weeks and therefore determined the time at which the claim of a failure to make the adjustment is to be assessed is from 21 July 2016. 5.3. After the disclosure was made to Ms Chatterton, the claimant alleges she was subject to various detriments. The first is that she began to be micromanaged. Her ET1 says June but she expressed this as a consequence and has clarified it to be from July 2016. 5.4. Other events are alleged to take place in the workplace during the start of the 2016/17 academic year. She says in September she was excluded from staff meetings, spoken to in demeaning terms and, after the catering department won a gold award, that she was snubbed in the way the school did not follow its usual recognition ceremony at a whole school assembly. The school says catering staff were not required to attend the staff meeting and that there was appropriate recognition of the award. 5.5. An event which is likely to be significant in the final analysis of these claims arises in respect of the school’s response to apparent mistakes in kitchen ordering. On one occasion this resulted in a large number of children going without food. The respondent stepped in and arranged the meeting that happened on 15 September 16 [48]. That is accepted as being a fair record of the main points raised during the meeting. It does not conclude with any sanctions or disciplinary response. It recognised issues with the Claimant’s well-being and ill health and set out an agreed plan for avoiding a repeat which was directed at both the claimant in the kitchen and also administration. 5.6. Findings of fact will be necessary to determine what was occurring about that time which caused the claimant to suffer a deterioration in her health with the result that she went off work sick. It may or may not be that meeting or the background to it but from the following day, Friday 16 September, she was off work sick. She obtained and provided a fit note the same day which stated depression and signed her off for 2 working weeks, until 4 October 2016. 5.7. Notwithstanding the fit note and its terms, three working days later the respondent sent a letter to the claimant inviting her to an informal absence review meeting to take place during the currency of the fit note. There is a dispute of fact as to whether the terms of that letter are capable of amounting to a detriment, the respondent’s position is that it is wholly supportive to engage in a welfare meeting with someone who is off sick. The contents may or may not be read like that in due course but it does include an explicit reference to “your current diagnosis”. Without making any wider findings, I am satisfied for today’s purpose that a letter like this and its terms being written after 4 days of absence into what was then a relatively short and finite period of absence has the potential to be a detriment. 5.8. The claimant replied by email on Monday 26 September in relaxed terms stating simply that she was unable to attend. That triggered a second letter from the school. Again I am asked to conclude there can be no detriment and it is true that it is supportive in part and now offers a change of venue so that it takes place off site. Again, however, for today’s purposes I don’t accept that there can be no possible detriment arising from the fact of the letter, its timing, its terms, the insistence of the meeting at that early stage and particularly the presumption that her illness did not make her unfit to attend such a meeting. From the claimant’s perspective, she was signed off sick with depression and it may be found to be reasonable for her to hold the belief that this was oppressive. She will say that led to the resignation the following day [58]. 5.9. The school responded on 28 September accepting the claimant’s resignation [59]. I am again invited to say there cannot be a detriment arising from the mere acceptance of a resignation. To that limited extent I would agree but this letter goes further than merely accepting the resignation. Firstly, the employer does not require her to attend work and instead invites her to concentrate on her health by imposing garden leave on the notice period. That too, could be found to be a supportive measure and an act which simply releases from her obligations. But within that, the claimant is now also subject to a prohibition from making contact with anyone at the school. The need or reason for that is not clear and I am satisfied that there is a triable issue on whether imposing that restriction amounts to a detriment and, if it does, was done because of her disability. 5.10. That garden leave and the restrictions it imposed continued until the claimant’s employment terminated on 28 October 2016. 5.11. After her resignation, I find the Claimant was advised by her GP to seek advice about her situation from the C.A.B. She attended one of their offices on 3 October 2016. She followed this up with further advice from a solicitor on 7 October but I find she was unable to continue with that professional support due to her financial situation. She was, however, given sufficient advice to know that she needed to embark on Early Conciliation (“EC”) with ACAS as a pre-condition of lodging a claim with the ET.[6]ISSUE 2 - Time Limits 6.1. The limitation date for any claims arising on termination of employment would expire on 27 January 2017 before any adjustment is made for the purpose of complying with EC. EC is of course mandatory for the claims being brought by the claimant. She has contacted ACAS and engaged in EC and, to that extent, satisfied the bar on presenting claims to the ET set out in section 18A of the Employment Tribunal’s Act 1996. 6.2. She did in fact commenced EC on 27 January 2017, the last day for presenting a claim to the ET based on her last day of employment. It therefore meant the provisions of section 140B of the 2010 Act applied to extend time. EC concluded on 27 February 2017 and it is common ground that period means that the time limit for the presentation of claims based on the EDT expired on 27 March 2017. The claim was in fact presented on 23 March and is in time so far as any claim based on the last day of employment is concerned. 6.3. There is no claim arising from the EDT per se, at least as a dismissal, but the final act of discrimination in the garden leave restrictions continues over a period until that date and is therefore in time. However, the effect of the period of EC is such that anything alleged to have occurred before 28 October 2016 is prima facie out of time as having occurred more than 3 months before EC was entered into. If they are to proceed, they require an extension of time. 6.4. The jurisdiction question for me today is only about whether it is just and equitable to extend time. I do not trespass on the issue of whether any one discrete act is linked to any other discrete act so as to form part of a continuing act. That requires a full determination of all the facts and, although I note the same individuals appear to have been involved throughout, such matters are better left for a full ET after on hearing all the evidence, if necessary. 6.5. By section 123 of the 2010 Act, Employment Tribunals have jurisdiction to consider a claim for discrimination only where it is brought within 3 months of the date of the act to which the complaint relates or such other period as is just an equitable. It is for the claimant to show it is just and equitable and there is no presumption in favour of an extension. (Robertson v Bexley community centre 2003 IRLR 434). It has been held that the factors set out in section 33 of the Limitation Act 1980 may be informative in weighing the relative prejudice to the respondent of allowing an out of time claim against the prejudice to the claimant of refusing it (British Coal Corporation v Keeble [1997] IRLR 336). Those factors import considerations of the prejudice to both parties, the length of the delay, the reason for the delay, the effect on the cogency of evidence, whether the respondent had cooperated with requests for information, and the promptness of the claimant’s actions when she knew of her right to bring a claim. Additionally, other factors that might be relevant include whether the claimant was given incorrect advice, any ignorance of rights, and whether the disability or ill health has any bearing on the time limit. 6.6. I start with prejudice. Other than losing the windfall of a “limitation” type defence, there is no prejudice to the respondent in terms of the availability of witnesses or the cogency of evidence. Indeed, as there is a claim in time, in order for the Tribunal to understand the background to that claim the same evidential ground is likely to be covered in any event. 6.7. The length of the claimant’s delay is not extensive, at most it is 3 months and in many cases about one month. The reason for the delay follows what, in my judgment, is common in discrimination cases where the last event is in time but earlier matters, which may not in themselves have motivated the claimant to litigate, nonetheless are then relied on as part of the picture. That is typical because it reflects the common experience of the vast majority of employees not to bring claims at the first possible matter, whether they know the detail of the litigation procedure or not. They hope things will change, that they are wrong or that it was a one off. That is what I find occurred here. 6.8. There is nothing arising in the consideration of whether the respondent cooperated with requests for info. I do not regard a minimal response to EC, if that is in fact what happened, as engaging this factor. Each party may engage in EC only to the bare minimum if they chose. This is not a case of later discovered facts and I am not assisted by this factor in this case. 6.9. I am satisfied that the claimant has acted promptly once she knew of her rights and although she commenced EC at the last day, she has nonetheless acted in time as far as the last matter is concerned. 6.10. Whether ill health or disability has any bearing on time limits presents a mixed picture. There is evidence of consultations with CAB and a solicitor as early as October 2016 which tends to suggest the claimant was able to take steps to progress the claim at that time. Having said that, I am also satisfied that there had been a deterioration in her health at the relevant time and the nature of how it manifested affected her motivation to do normal day to day activities, not to mention litigating. The claimant was in a more acute phase of her depressive cycle having been off sick since 16 September 2016. This is likely to have had an effect on her ability to bring the claims in time, particularly as the result of her consultation with the solicitor appears to have left her with a financial obstacle to professional assistance leaving her to bring any claim unassisted as a litigant in person. This is a case where I view the ill health as a relevant factor, particularly as an ability to motivate herself to action is part of the condition, but I take the view is a long way from a determinative factor that it might be in other cases. 6.11. The final relevant factor is the merits of the claims themselves. It is never likely to be just and equitable to allow a party to bring a hopeless claim. The question may be whether a poor claim is so poor as to tip the balance against a just and equitable extension. But for the reasons I deal with below, this is not a claim that faces strike out or a deposit and there is nothing in the merits of the claims which would cause me to step back from reaching a just and equitable conclusion in favour of extending time. 6.12. My conclusions on the time limit extension is that the claimant has established that is just and equitable to allow the claims to proceed. I have weighed all the factors but the two I find of greatest significance are that there is a claim in time so far as garden leave is concerned and the respondent has to engage with the background to that in any event. Secondly, there is no evidential prejudice to the respondent in defending the case on its merits arising from the relatively short delay in bringing proceedings.[7]ISSUE 3 – Merits 7.1. I am asked to consider whether any of the claims fall into either test set out in rules 37(1)(a) or 39 of the 2013 rules. In short, whether the claims have no reasonable prospect of success, in which case I may order that part of the claim to be struck out, or little reasonable prospect of success in which case I may order the claimant to pay a deposit as a condition of allowing that claim to continue. 7.2. Against that statutory test, I remind myself that it is rare to strike out a discrimination claim on the merits as having no reasonable prospect of success. (Anyanwu v South Bank Student Union [2001] IRLR 305). Discrimination claims are fact sensitive and only in the clearest of cases will it be appropriate to strike out without hearing all the evidence. Likewise, in respect of deposit orders I remind myself that this is not a mechanism to achieve a strike out by the back door, but to discourage genuinely unmeritorious claims with the prospect of costs if the claim fails for the same reasons. Any order requires an enquiry as to the claimant’s means and the level of any deposit should be achievable. (Hemdam v Ishmail & Al-Megraby [2016] UKEAT/0021/16) 7.3. The two tests must of course be applied in the context of the liability test that will apply at the final hearing. In direct discrimination, that is whether the claimant was treated less favourably because of her disability of depression. In the reasonable adjustments claims, it is whether the respondent applied the PCP of a requirement to attend work regularly. If so, did this put the claimant at a substantial disadvantage compared to a non-disabled employee. Did the respondent know of her disability and the disadvantage the PCP put her to and, finally, did it fail to make the adjustment contended for (provision of Counselling and Support) and would that adjustment have been a reasonable one to have made. 7.4. In respect of the direct discrimination claims, it is common ground that the underlying events relied on by the claimant took place although there remains a dispute of fact as to whether the claimant was in fact excluded from meetings or simply not required to attend, spoken to in a demeaning manner or appropriately for the situation, denied the usual celebration assembly etc. If that dispute of fact was found in favour of the claimant, the acts or omissions would amount to detriments. As is often the case in direct discrimination claims, the central issue is the reason why those alleged detriments happened. That is clearly a triable issue that may or may not be found to be because of her disability. Whether that is the reason or not is a matter for the trial but it does not fall into either category for deposit or strike out. 7.5. The respondent’s essential argument in seeking strike out or deposit on the claims relating to the absence meetings and garden leave are that they are supportive or merely acknowledgments of a resignation and not capable of amounting to detriments. I have already set out why I disagree. In my judgment they are capable of amounting to detriments and it will be for the final hearing to determine whether they in fact do amount to detriments and the reason why they occurred. In particular, the exclusion from school during her notice period and the restrictions placed upon her potentially have a link to her absence for depression. Consequently, those matters will be determined at a final hearing. 7.6. Some aspects of the claim are clearly stronger than others. I am less convinced that the reason why the meeting about the shortfall in catering supplies was either held at all, or conducted in demeaning terms (if it was), was because of the claimant’s disability. There are no direct comparators and it will be argued that it would have taken place as it did were a non-disabled employee responsible for catering. Likewise, I retain some reservations about the reasonable adjustment claim. It is arguable that there is a PCP to attend work to a reasonable level and that, on balance, I accept the likelihood of being off sick leads to a greater risk of some sanction. That risk is likely to be greater where a disabled employee’s disability poses a greater susceptibility to time off work. There may be some evidential overlap between this claim and the letters sent in September seeking an early absence meeting. Whether counselling is a reasonable adjustment that would remove or substantially alleviate that disadvantage is not clear but I am satisfied that it is an arguable point. 7.7. The question remains whether any of those remaining matters warrant the imposition of a deposit order and whether their merits are such as to tip the balance in respect of the time limit points? After considering it in the round I have concluded to both is no. I am not satisfied the little reasonable prospects test is made out. They both require significant findings of fact to be set in the context of the surrounding events which is a matter for the final hearing. Though it is entirely possible those claims might fail, as indeed any of the others might, I am not satisfied that the essence of the claims as they appear before me today mean their merits are sufficiently poor to warrant the imposition of any deposit (or to weigh against an extension of time limits).[8]CONCLUSIONS 8.1. I am satisfied that the claimant was disabled within the meaning of the Equality Act 2010 at the material time by virtue of the diagnosis of depression. 8.2. I am satisfied that the claim relating to the garden leave restrictions is in time and that it is otherwise just and equitable to extend time to 27 January 2017 for the claimant to bring all her other claims. 8.3. For completeness, I make no orders under rules 37 or 39 in respect of the merits of the claims. The claimant should not treat that as a positive endorsement of the strength of her case, merely that I am not satisfied the test for making such orders has been met.