Mrs H Adams v Alliance Healthcare Management Services Ltd: 2600673/2021
EMPLOYMENT TRIBUNALS
Case No 2600673/2021
Between
Mrs H AdamsClaimantAlliance Healthcare Management Services LtdRespondent
Before
Employment Judge R BroughtonMr A Graham (instructed by Solicitor) for respondentDate 28 February 2023
JUDGMENT
The Claimant’s claim that she is a disabled person for the purposes of section 6 of the Equality Act 2010 is well founded and succeeds.
REASONS
Conclusion
[1]The Claimant presented a claim on the 15 April 2021 for unfair dismissal and disability discrimination following a period of Acas early conciliation from 19 March 2021 and ended on 13 April 2021.[2]The Claimant was employed by the Respondent as a healthcare provider from either 22 May 2017 or 5 June 2017.[3]Following a preliminary hearing before Employment Judge Brewer on 9 July 2021 the claim was listed before me today to determine the issue of disability. That is the only issue to be determined today. The Issues.[4]The Claimant is a litigant in person represented today by her husband.[5]I discussed with the parties at the outset of the hearing, the issues to be determined today and what is in dispute between the parties.[6]It was agreed that the matters to be determined are;11.1 Did the Claimant have a physical impairment, namely Meniere’s Disease.11.2 Did the impairment/s have a substantial adverse effect on her ability to carry out day to day activities? 11.4 Did the Claimant have medical treatment or take other measures to treat or correct the impairment? 11.5 Would the impairment have had a substantial adverse effect on her ability to carry out normal day to day activities without the treatment or other measures? 11.5.1 Were the effects of the impairment long term? Did they last for 12 months or were they likely to last 12 months and if not, where they likely to recur? Relevant Period[7]There was some discussion at the outset of the hearing with the parties about what the relevant period is and it was agreed that the relevant period, (the period during which it is alleged the discrimination took place) is the period 4 January 2021 to 24 February 2021.
Law
[8]There is reference in the claim form (p.14) to the “Company not treating me with a duty of care and respect in March 2020...” . However the Claimant confirmed that her claim does not relate to any acts of alleged discrimination in March 2020, only to events from 4 January 2021 until her employment ended on 24 February 2021.
Evidence
[9]The Respondent had prepared a bundle of documents which had been provided to the Claimant a couple of days prior to today’s hearing. The Claimant produced further documents which she wanted to rely upon during this hearing but which had not been provided in advance to the Respondent. The documents consisted of; what the Claimant alleged to be a repeat prescription for Betahistine and the information leaflet from the prescription box explaining what the medication is for.
Conclusions
[10]The Claimant made an application to admit those documents and I heard representations from both parties. It was opposed by the Respondent on the grounds that the Order of Employment Judge Brewer at the preliminary hearing in July had been that the Claimant must sent to the Respondent by 27 August 2021, copies of her GP and other medical records that she is relying upon and these documents should have been disclosed in compliance with that order.[11]The prejudice which the Respondent alleged it would suffer by allowing the documents to be admitted, was that potentially it would have incurred the wasted costs of attending today’s hearing, if the additional documents persuade it that the Claimant is disabled.[12]The documents appeared relevant to the issue of disability and relate to medication which is already mentioned in the medical evidence which has been disclosed. The documents consisted of only a few pages.[13]After considering the representations of the parties and taking into account the overriding objective in Rule 2, the application was granted to admit the documents into evidence. Full reasons were given orally at the hearing. The documents were paginated 71 to 74 and added into the bundle. Witnesses[14]The parties did not request any adjustments to the hearing.[15]Reference in this judgment to numbers in brackets are to pages in the joint bundle.[16]I heard evidence from the Claimant who affirmed that her evidence was the truth. The Claimant produced a disability impact statement (p.43 -45). I heard from no other witnesses from either party.
Findings of fact
[17]I made the following findings of fact on a balance of probabilities.[18]The findings set out are not intended to be a complete record of all the evidence I heard during the hearing. I took all the evidence into account unless otherwise noted however, these findings are those material to my conclusions.[19]The Claimant asserts that she has and had at the relevant time, a physical impairment which has been diagnosed as Meniere’s Disease.[20]The undisputed evidence of the Claimant is that Meniere’s Disease commonly has the following symptoms, information she had taken from the NHS website; “… a condition of the inner ear that causes sudden attacks of: Feeling like the room is spinning around you ( vertigo) A ringing noise inside the ear ( Tinnitus) Pressure felt deep inside the ear Hearing loss” … Known triggers are stress, anxiety, hypoventilation, fatigue, emotional distress, migraines, some foods and others.” Prior to 2018[21]The claimant gave evidence that she began to experience attacks of vertigo in 2012 after the death of her late husband. After a while the attacks stopped and between some point in 2012 and 2018 she had no attacks or very few.[22]The Claimant’s undisputed evidence is that in 2012 she was prescribed medication called Stugeron. This is not a controlling drug to be taken daily, she took it only when she was having attack. She stopped this medication when she started taking Betahistine daily, from 3 September 2018 . September 2018[23]The Claimant’s evidence is that the vertigo attacks started again in 2018 and became worse. She was then referred to ENT following a referral from her GP. In 2018 she had time off work due to the attacks.[24]There is disclosed by the Respondent, a review meeting with the Claimant (p. 64/65) on 8 January 2018 which refers to medication that the Claimant was taking and also refers to vertigo and a plan for what would happen if there was a vertigo episode at work.[25]I am satisfied on the evidence that there were instances and absences from work that led to the Respondent involving occupational health (OH) in 2018. The review notes refer to the Claimant having had an “episode” in the afternoon the day before, which had lasted the evening. They refer to underlying medical conditions of vertigo and migraines and a diagnosis back in 2012.[26]There is then an Occupational Health (OH) report obtained from the Respondent dated11 September 2018 (p.46) which referred to four occasions of absence in a 12 month period and the majority being due to symptoms related to underlying medical conditions of vertigo and migraine. It reports that the Claimant had been diagnosed with vertigo in 2012 and the symptoms are intermittent and vary in intensity but that the; “ frequency has increased recently”[27]The September 2018 OH also states that; “.However, she is often able to continue to work through them and carry out normal day to day activities but on other occasions her symptoms can be very severe and she struggles with her balance” ( p.46) Tribunal stress[28]The above report is supportive of the Claimant’s evidence that her condition become worse in 2018.[29]There is a letter from Mrs Peddireddy, Speciality in Doctor ENT (p. 51) from early September 2018, which refers to the Claimant having had episodes of vertigo for many years and left sided Tinnitus ongoing since 2012 and states; “ She is taking Betahistine and Cinnarizine on whenever required basis. Sometimes she feels nauseous. She also has intermittent left sided earache with no nasal symptoms. And; “It seems to be Meniere’s Disease and I have suggest [ sic] Betahistine 16mg three times per day for the next six weeks, We are also referring her to out Audiology Department for vestibular function tests, vestibular rehabilitation and Tinnitus management. We will review her again in two to three months…” Tribunal Stress[30]The Claimant confirmed under cross examination that this was the first time she was aware that her condition was Meniere’s Disease. October 2018[31]Following a clinic date of 8 October 2018, Mrs Peddireddy in a letter (p. 52) refers to seeing the Claimant in ENT clinic and of the Claimant having vestibular tests which show canal paresis of 47% . It notes that the Claimant is a little better with regards to the dizziness and has come off the Betahistine and suggested she takes “Cinnarizine whenever required”.[32]On 24 October 2018, only a couple of weeks after the Claimant had come off Betahistine, her GP reports that she has attended “ today in a distressed state” and writes (p.49); “She obviously has a diagnosis of really quite chronic vertigo which is intermittent and is certainly preventing her working at the moment…it seems unlikely that her condition will improve, given its chronic nature thus far. It is unlikely there will ever be any significand treatment for this”.[33]Between 8 and 24 October 2018, there appears therefore to have been a deterioration in her condition after coming off the medication and in February 2019 Mr Osiname, Lucum in ENT from the Sherwood Forest NHS Hospital in his report dictated on 25 February 2019 (p. 54) now advises an increase her medication, Betahistine back to 16mg three times a day (p.54); “Diagnosis” “1, Probably meniere’s Disease on the left side”. “Her history fits Meniere’s Disease. She has been taking 16mg of Betahistine, which seems to be controlling, but was advised to cut down to 8mg TDS, I have now told her to step up the Betahistine back to 16 MG three times a day and to cut our [ sic] cheese, chocolate, citrus and caffeine…” September 2019[34]There is a report from a consultation in 20 September 2019 with Miss Malick, Speciality Doctor in ENT to the Claimant’s GP (p.56) which advises as follows; “Diagnosis/Problems Probably left Meniere’s Disease”; and “I reviewed this pleasant 56 year old lady in clinic who had not had any vertigo attacks since June 2019.” “She has ongoing left sided unilateral Tinnitus and aural fullness and is coping with her symptoms. She has increased Betahistine dose to 16mg 3 times a day”. January 2020.[35]The last report the Claimant has disclosed is dated January 2020, and Miss Ladan, Speciality Doctor in ENT writes (p.58); “She has not had bad vertigo for some time now. She is still on her Betahistine 3 times a day. An MRI scan has revealed no lesions in the IAM or CP angle. I ask you kindly step down her Betashtine to 16 mg DB and observe if her symptoms are still controlled then after 3 months to step it down to once a day. …”[36]The above reports are supportive of the Claimant’s oral evidence of the symptoms she suffered of vertigo since 2012 and a worsening of those symptoms from 2018 .[37]The Claimant’s evidence is that she still has Meniere’s Disease, that it is not cured but managed with medication.[38]There are no reports after January 2020, 12 months prior to the relevant period.[39]The Claimant gave evidence that she received approximately 200 to 300 pages of documents from her GP; she did not understand them and she disclosed only the ones that she did understood.[40]The Claimant has however produced a copy of a prescription with a start date of 27 October 2021 and an end date of 27 April 2022 ( p .74) in her name and for; “ Betahistine 8mg tablets, 56 tablets, take ONE tablet two times a day” Tribunal Stress[41]The prescription does not state that it is a repeat prescription however the Claimant’s oral evidence is that it is and the Tribunal note that it is for a period of 6 months, which would indicate long term use.[42]The Claimant has also produced the information leaflet from the medication which explains about Betahistine (p.72 – 71) “Used for: To ease the symptoms of Meniere’s Disease in adults. Meiners Disease is a condition of the inner ear. It typically causes attacks of vertigo ( a feeling of spinning) , loss of hearing and Tinnitus ( noises in the ear ).The attacks can vary in severity and in how often they occur. Treatment and help to ease and prevent symptoms”[43]The information goes on about to how to take the medication; “ Take Betahistine exactly as your doctor tells you to. It is usual to take one (16mg) tablet three times daily at first. Once your symptoms are under control, your doctor may then reduce you does to one ( 8mg) tablet three times daily. ..” “ If you take Betahistine every day it is unlike to stop all attacks, but it may reduce the number and/or severity of your attacks..” Tribunal stress 2020 - 2021[44]The Claimant confirmed that from March 2020 up to her dismissal, she had only a few days off days off work (3 days in October 2020 according to the return to work interview notes at page 69 ) but this related not to her ill health but her husbands.[45]The Claimant gave evidence that she is a registered carer for her husband and on some days she is required to do everything for him including cleaning, shopping, cooking , dressing and grooming.[46]The Claimant under cross examination gave evidence that she had an attack on 14 January 2021 and a couple just after that date because of the stress at work however, she did not see her GP because she managed it herself by increasing her medication. She gave evidence that she has not seen her GP for over a year because she manages her condition with the ongoing medication. During these attacks she gave evidence that she experienced “spinning , she became more deaf in her left ear and was unable to stand up and felt nauseous , she had to sit or lie down during the attack . She cannot recall how long those specific attacks lasted but she gave evidence that attacks usually last from ½ hour to 5 hours.[47]The claimant gave evidence that she drives and is able to do so because of the medication.[48]The Claimant’s evidence, is that since 2019 she has continued to take the same medication for Meniere’s Disease and she can work through the symptoms with the medication. Albeit the dosage has changed, her evidence is that she has never stopped taking it. That is consistent with the medical report in January 2020 which confirms that the Claimant was stilling taking Betahistine three times a day, the reference to “controlling” the symptoms and not curing the condition and the prescription in October 2021 (p74).[49]The Claimant’s oral evidence is that even with the medication she still has symptoms of Tinnitus . The Claimant describes the effects as a feeling like someone has inserted a finger in her ear. Those effects, the Tinnitus and the fullness are consistent with the medical reports in 2018 and 2019 which refer to Tinnitus and also to a left-sided hearing issue and “fullness” .[50]The Claimant’s undisputed evidence is that the Tinnitus is constant and that she finds it difficult to concentrate, that she needs noise all the time whether she is typing or whether she is doing everyday things around the house. She needs noise to help her to manage the distraction of the Tinnitus and that it impacts upon sleep and occasionally makes it difficult and prevents her to sleeping altogether, although she believes eight times out of ten she is able to sleep.[51]Her evidence is that the effect of the Tinnitus is also that she struggles to hear people speaking . She can hear really low or high noises but it is the middle range she struggles with . She misses words and tries to compensate to a degree, by trying to lip read, however people talking in face coverings makes it much more difficult for her.[52]I am satisfied on her oral evidence that these are the effects that she constantly suffers from in her left ear and which she believes have got worse over time. Attacks[53]The Claimant’s evidence is that she had a panic attack in January 2021 which had been triggered by events at work but she had not had one in the last 12 months prior to that because of the medication. However, her evidence is that when she does have an attack, the effects are as follows;• she cannot stand and has to hold on to things to get her balance;• she experiences extreme dizziness• she has a sensation of spinning• increased deafness in the left ear.• she needs to sit or lay down until the attack passes, which may be for 30 minutes up to 5 hours;• she cannot drive because• she cannot see clearly• she cannot cook• she cannot work during these attacks• she feels nauseous.[54]I find on the evidence including the Claimant’s oral evidence and the medical reports, that as a fact, those are the adverse effects she experiences when she has a vertigo attack.[55]Regardless of the medication, the Claimant also suffers constantly with the effects of Tinnitus and hearing loss in her left ear.[56]In terms of the triggers that cause these vertigo attacks, the Claimant’s evidence is that the attacks, are triggered by stress, anxiety, migraines and hyperventilation. Again, I take into account her oral evidence, the NHS general guidelines and the medical reports and find on a balance of probabilities, that those are the triggers for an attack. Without the medication[57]There is no medical report disclosed about what the impact would be of not taking Betahistine. However, the Claimant’s evidence under oath is that she would experience vertigo all the time, she would not be able to walk in a straight line, she would have to hold on to furniture to keep her balance, her head would be spinning badly and she would feel nauseous, she could not stand for long and would not be able to drive, cook or work; “vertigo takes over your life”. She gave evidence that without medication she does not believe that she would be able to function. Long Term[58]I find on a balance of probabilities, that vertigo was diagnosed in 2012 and Meniere’s as the probable cause was mentioned in September and October 2018 and the Claimant has been taking medication to control the condition since early 2018 uninterrupted, up to the date of the hearing, other than a short period when she had come off Betahistine in early October 2018 but then presented in a distressed state and started taking it again and a few months later in February 2019 she was advised to increase the medication further (p. 52)[59]On a balance of probabilities, I find from that from February 2019 the Claimant has continued to take the medication Betahistine to manage her impairment without interruption and that the effects as described above regarding Tinnitus have been continuous since no later than late September 2019 when Tinnitus is reported in the medical records ( p. 51). Submissions Respondent[60]The respondent provided written submissions and expanded upon those with oral submissions. I have considered those submissions carefully. I have not set them out in full but in summary they are as follows;[61]Respondent submits that the burden of proof rests with the Claimant. That the medical evidence is lacking and does not exist for the relevant period of time that we are focussing on .[62]The Claimant made a subject access request for her medical records and receives 200 to 300 pages and only disclosed a few albeit it is appreciated the Respondent accepts, that medics write in their ‘own language’ . However it is submitted that the Claimant is relying really on the diagnosis of Meniere’s Disease but the Claimant has not disclosed any medical evidence that has actually diagnosed Meniere’s Disease.[63]However the Respondent accepted, when asked by the Tribunal, that “probably” would meet the likelihood test as set out in Guidance and SCP v Boyle ( see below in the legal principles section) and thus Mr Graham accepted would satisfy the burden of proof with regards to the diagnosis of Meniere’s Disease. Effects[64]The Respondent refers to the Claimants ability to care for her husband day to day and that OH had mentioned her ability to work through the symptoms (p. 46). However, the Tribunal pointed out that Mr Graham had only quoted from part of the report, he had neglected to refer to rest of the paragraph which when on to state: “but on other occasions her symptoms can be severe…”[65]The Respondent refers to the Claimant’s ability to drive and that DVLA have not prevented her from doing so and he reference that from March 2020 the Claimant had not had time off work for the condition.[66]The Respondent referred to the authorities of Kapadia v London Borough of Lambeth 2000 IRLR 14 EAT and Goodwin v Patent Office 1991 ICR 302 EAT Claimants submissions[67]The Claimant submits that she takes the medication because she has to . That as the Claimant takes medication for her condition, she had been cleared to drive by DVLA.[68]The prescription is a repeated prescription and without out she would not be able to function.[69]The Claimant submits that the Respondent made adjustments for her condition namely reducing her hours on the advice of OH advised for her to work 3 days per week and this adjustment and her medication has helped to reduce stress and the number of vertigo attacks and without the medication she could not carry out day normal day to day activities. The Law Disability
The Law
[70]The definition in section 6(1) Equality Act 2010 (EqA) is the starting point for establishing the meaning of ‘disability. The supplementary provisions for determining whether a person has a disability are set out in Part 1 of Schedule 1 to the EqA.[71]The Government has issued ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011) (‘the Guidance’) under S.6(5) EqA. The Guidance does not impose any legal obligations in itself but courts and tribunals must take account of it where they consider it to be relevant para 12, Sch 1, EqA and Goodwin v Patent Office 1999 ICR 302, EAT.[72]The Equality and Human Rights Commission (EHRC) has published the Code of Practice on Employment (2015) (‘the EHRC Employment Code’), which provides some guidance on the meaning of ‘disability’ under the EqA and this also does not impose legal obligations but must be taken into account where it appears relevant to any questions arising in proceedings.[73]The Equality Act 2010 contains the definition of disability and provides: Section 6. Disability(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.(2) A reference to a disabled person is a reference to a person who has a disability.(3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.(5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).(6) Schedule 1 (disability: supplementary provision) has effect. Schedule 1 sets out supplementary provisions including: Part 1: Determination of disability Long-term effects 2 (1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.(7) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.(8) For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed.(9) Regulations may prescribe circumstances in which, despite sub-paragraph (1), an effect is to be treated as being, or as not being, long-term. Effect of medical treatment 5(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect.(10) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid. PART 2 GUIDANCE Preliminary 10 This Part of this Schedule applies in relation to guidance referred to in section 6(5). Examples 11 The guidance may give examples of— (a)effects which it would, or would not, be reasonable, in relation to particular activities, to regard as substantial adverse effects; (b) substantial adverse effects which it would, or would not, be reasonable to regard as long-term. Adjudicating bodies 12(1) In determining whether a person is a disabled person, an adjudicating body must take account of such guidance as it thinks is relevant. The ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011)
Preliminary
[74]Relevant provisions which I have considered include the following and I have emboldened certain parts which I consider to be particularly pertinent; A3. The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. A4. Whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that an impairment has on that person’s ability to carry out normal day-to-day activities.... A6. It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa. A7. It is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded. Section B Meaning of ‘substantial adverse effect’ B1. The requirement that an adverse effect on normal day-today activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect. This is stated in the Act at S212(1). Cumulative effects of an impairment B4. An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, when taken together, could result in an overall substantial adverse effect. . Effects of treatment B12. The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. The practical effect of this provision is that the impairment should be treated as having the effect that it would have without the measures in question (Sch1, Para 5(1)). The Act states that the treatment or correction measures which are to be disregarded for these purposes include, in particular, medical treatment and the use of a prosthesis or other aid (Sch1, Para 5(2)). In this context, medical treatments would include treatments such as counselling, the need to follow a particular diet, and therapies, in addition to treatments with drugs. B13. This provision applies even if the measures result in the effects being completely under control or not at all apparent. Where treatment is continuing it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect. If the final outcome of such treatment cannot be determined, or if it is known that removal of the medical treatment would result in either a relapse or a worsened condition, it would be reasonable to disregard the medical treatment in accordance with paragraph 5 of Schedule 1. B16. Account should be taken of where the effect of the continuing medical treatment is to create a permanent improvement rather than a temporary improvement B17. However, if a person receives treatment which cures a condition that would otherwise meet the definition of a disability, the person would be protected by the Act as a person who had a disability in the past. Section C: Long-term The cumulative effect of related impairments should be taken into account when determining whether the person has experienced a long-term effect for the purposes of meeting the definition of a disabled person. The substantial adverse effect of an impairment which has developed from, or is likely to develop from, another impairment should be taken into account when determining whether the effect has lasted, or is likely to last at least twelve months, or for the rest of the life of the person affected. Meaning of ‘likely’ C3. The meaning of ‘likely’ is relevant when determining: whether an impairment has a long-term effect (Sch1, Para 2(1), see also paragraph C1);whether an impairment has a recurring effect (Sch1, Para 2(2), see also paragraphs C5 to C11); whether adverse effects of a progressive condition will become substantial (Sch1, Para 8, see also paragraphs B18 to B23); or how an impairment should be treated for the purposes of the Act when the effects of that impairment are controlled or corrected by treatment or behaviour (Sch1, Para 5(1), see also paragraphs B7 to B17). In these contexts, ‘likely’, should be interpreted as meaning that it could well happen. Recurring or fluctuating effects C5. The Act states that, if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur. (In deciding whether a person has had a disability in the past, the question is whether a substantial adverse effect has in fact recurred.) Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act, in respect of the meaning of ‘long-term’ (Sch1, Para 2(2), see also paragraphs C3 to C4 (meaning of likely). The guidance sets out the following examples: C6. …If the substantial adverse effects are likely to recur, they are to be treated as if they were continuing. If the effects are likely to recur beyond 12 months after the first occurrence, they are to be treated as long-term. Other impairments with effects which can recur beyond 12 months, or where effects can be sporadic, include Menières Disease and epilepsy as well as mental health conditions such as schizophrenia, bipolar affective disorder, and certain types of depression, though this is not an exhaustive list. Some impairments with recurring or fluctuating effects may be less obvious in their impact on the individual concerned than is the case with other impairments where the effects are more constant. C7. It is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the ‘long-term’ element of the definition is met. A person has Menières Disease. This results in his experiencing mild Tinnitus at times, which does not adversely affect his ability to carry out normal day-to-day activities. However, it also causes temporary periods of significant hearing loss every few months. The hearing loss substantially and adversely affects his ability to conduct conversations or listen to the radio or television. Although his condition does not continually have this adverse effect, it satisfies the long-term requirement because it has substantial adverse effects that are likely to recur beyond 12 months after he developed the impairment. Meaning of ‘normal day-to-day activities’ D2. The Act does not define what is to be regarded as a ‘normal day to-day activity’. D3. In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern. Adverse effects on the ability to carry out normal day-to-day activities D11. D12. In the Appendix, examples are given of circumstances where it would be reasonable to regard the adverse effect on the ability to carry out a normal day-to-day activity as substantial. Appendix An illustrative and non-exhaustive list of factors which, if they are experienced by a person, it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities. Whether a person satisfies the definition of a disabled person for the purposes of the Act will depend upon the full circumstances of the case. That is, whether the substantial adverse effect of the impairment on normal day to-day activities is long term. In the following examples, the effect described should be thought of as if it were the only effect of the impairment. Difficulty in getting dressed, for example, because of physical restrictions, a lack of understanding of the concept, or low motivation;• Difficulty preparing a meal, for example, because of restricted ability to do things like open cans or packages, or because of an inability to understand and follow a simple recipe;• Difficulty eating; for example, because of an inability to co-ordinate the use of a knife and fork, a need for assistance, or the effect of an eating disorder;• Difficulty going out of doors unaccompanied, for example, because the person has a phobia, a physical restriction, or a learning disability;• Difficulty waiting or queuing, for example, because of a lack of understanding of the concept, or because of pain or fatigue when standing for prolonged periods;• Difficulty using transport; for example, because of physical restrictions, pain or fatigue, a frequent need for a lavatory or as a result of a mental impairment or learning disability;• Difficulty in going up or down steps, stairs or gradients; for example, because movements are painful, fatiguing or restricted in some way;• A total inability to walk, or an ability to walk only a short distance without difficulty; for example because of physical restrictions, pain or fatigue; Case Authorities[75]The time at which to assess the disability is the date of the alleged discriminatory act: Cruickshank v VAW Motorcast Limited 2002 ICR 729 EAT.[76]Goodwin v Patent Office 1999 ICR 302 EAT; The EAT set out guidance on how to approach such cases; “Section 1(1) defines the circumstances in which a person has a disability within the meaning of the Act. The words of the section require a tribunal to look at the evidence by reference to four different conditions.(1) The impairment condition Does the applicant have an impairment which is either mental or physical?(2) The adverse effect condition. Does the impairment affect the applicant’s ability to carry’ out normal day to day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect?(3) The substantial condition Is the adverse effect (upon the applicant’s ability) substantial?(4) The long-term condition Is the adverse effect (upon the applicant’s ability) long-term? Frequently, there will be a complete overlap between conditions (3) and (4) but it will be as well to bear all four of them in mind. Tribunals may find it helpful to address each of the questions but at the same time be aware of the risk that dis-aggregation should not take one’s eye off the whole picture.[77]The Guidance stipulates that an event is likely to happen if it ‘could well happen’ (see para C3). This definition of the word ‘likely’ reflects the House of Lords’ decision in Boyle v SCA Packaging Ltd (Equality and Human Rights Commission intervening) 2009 ICR 1056, HL.• In All Answers Ltd v W 2021 IRLR 612, CA, and McDougall v Richmond Adult Community College 2008 ICR 431, CA, the key question is whether, as at the time of the alleged discrimination, the effect of an impairment has lasted or is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at that date and so the tribunal is not entitled to have regard to events occurring subsequently.[78]The impairments do not need to be related or interact with each other for their combined effect to be considered: Ginn v Tesco Stores Ltd EAT 0197/05. In Brown v Beth Johnson Foundation ET Case No.1304755/15
Conclusions
[79]The burden of proof is on the Claimant to establish that she meets the requirement of section 6 on a balance of probabilities and I shall address each requirement in turn; The impairment condition - 4 January 2021 to 24 February 2021.[80]The Respondent argues that there is no clear diagnosis and that this suggests therefore that there is no impairment.[81]The Tribunal is not persuaded that there is merit in the argument that there is no diagnosis. The medical reports may use the words “seems” to be Meniere’s Disease (p. 51) and “ probably” (p. 54) rather than more definite language, however the Tribunal finds that the wording is sufficient to make a findings of fact that there was a diagnosis and further, the use of the term “probably”, the Tribunal considers ( and Mr Graham accepted, would meet the likelihood test as set out in the Guidance and SCP v Boyle). “Probably” is the Tribunal consider at least equivalent to the meaning of “likely” or ‘could well’ be.[82]In any event, and regardless of whether the actual medical diagnosis is sufficiently definitive (which the Tribunal in any event find that it is), the Guidance makes it abundantly clear that it is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. Having a diagnosis or establishing the cause of the impairment does not mean that the impairment condition has not been met. That has to be considered in light of what the effects are on the individual.[83]We have, as the Respondent rightly submits, ‘slim’ medical evidence however, I conclude that although there is no requirement for a diagnosis, nonetheless there is medical evidence to support a finding that a diagnosis of Meniere’s Disease was made in 2018 and late 2019 and for which the Claimant was prescribed medication in an effort to ‘control’ the symptoms.[84]There are no reports after January 2020, 12 months prior to the relevant period . However, I accept on the evidence from the above reports, that the medication Betahistine was prescribed to assist the Claimant cope with the symptom of Meniere’s Disease and although the Claimant has only produced a copy of a prescription for the period 27 October 2021 and an end date of 27 April 2022 (i.e. some months after the relevant period), on a balance of probabilities, considering her oral evidence and the content of the various medical reports, including the reference from her GP on 24 October 2018 that the condition is chronic in nature and there is unlikely to ever be any significant treatment, that her condition has continued.[85]I accept on a balance of probabilities, taking into account the Claimant’s oral evidence and the evidence presented that she is still being prescribed the same medication, Betahistine, that there has been no change to the diagnosis and that she has not been ‘cured’. Further, I am satisfied that on the evidence including her oral evidence and the length of time the medication was prescribed for (i.e. 6 months) that on a balance of probabilities, the prescription is a repeat prescription.[86]I find that the Claimant has established on the balance of probabilities that she has an impairment and that impairment is Meniere’s Disease and that she continued to have that impairment during the relevant period. Adverse effects condition - 4 January 2021 to 24 February 2021.[87]Did the impairment have an adverse effect on the Claimant’s ability to carry out normal day to day activities ?[88]The occupational health report from September 2018 (p.46) refers to symptoms being intermittent and varying in intensity.[89]The Equality Act states that, if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur. Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act and the Guidance specifically cites Meniere’s Disease as the sort of condition to which this sort of situation would apply ( para C6).[90]It is not a requirement that the effects remain consistent.[91]What I have been presented with is a credible and thoughtful witness, who I accept was giving her honest account of her condition and its effects.[92]The Claimant describes the effects of the Tinnitus and a feeling of fullness in her ears and the need for noise to concentrate and sleep. I take into consideration that the Guidance at paragraph B11 provides that what should be taken into account when considering the effects include environmental factors and that must include I consider, how noisy or quiet an environment is.[93]It is not disputed by the Respondent that the problem with the Claimant’s left ear is connected with the Vertigo/Meniere’s Disease and I find on a balance of probabilities, that it is, based on the medical reports and the NHS guidance. The cumulative effect of related conditions should be take into account. The Claimant’s evidence is that she needs noise to concentrate and to sleep, she struggles with concentration and sleep in a quiet environment. I am persuaded that the effects of the problems with her left ear which include making it difficult for her to hear when people speak more quietly than normal, such that she compensates by lip reading along with the need for noise to enable her to concentrate, is more than minor or trivial. Communication verbally with people and concentrating on tasks including normal household tasks such as cooking, are normal day to day activities. I accept the Claimant’s evidence that this has not changed since the reports in 2018 and 2019 and if anything, has worsened and she continued to have the effects during the relevant period.[94]However, regardless of whether the Tinnitus alone had a substantial adverse effect on her normal day to day activities during the relevant period, I am satisfied on the evidence and on a balance of probabilities that the effects of the vertigo attacks on their own (and combined with the Tinnitus), had a substantial adverse effect during the relevant period on her normal day to day activities. The effects the Claimant describes as set out in the findings above, are substantial and affect her normal day to day activities. The ability to stand, drive, cook for example are all normal day to day activities.[95]The Guidance makes it clear that what is important is to focus, not on what the individual can do, but to look at what the individual cannot do. I am not persuaded by the Respondent’s submission that the ability to care for her husband or drive or indeed cope at work undermines her evidence on the effects. The Claimant’s evidence is that she had a vertigo attack in January 2021 which had been triggered by events at work but she had not had one in the last 12 months prior to that. However, her evidence is that when she does have a panic attack, that the effects of that are very significant, certainly as she describes them they are much more than minor or trivial. The Claimant does not allege however, that she suffers regularly with vertigo attacks because her condition is controlled I am satisfied, but the medication she takes.[96]The EqA provides that where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect.[97]In this context, ‘likely’ should be interpreted as meaning ‘could well happen’[98]But for that medication, I am persuaded on the evidence, that the attacks are likely to be more regular and debilitating and that but for the medication the impairment would have had a substantial adverse effect on her day to day activities during the relevant period.[99]The Claimant’s description of the attacks of vertigo that she alleges that she would suffer but for the medication, is consistent with continued need for medication to control her symptoms at 16mg per day and consistent with the medical evidence which has described her condition as “chronic”.[100]I have also taken into consideration the guidance that the Claimant has produced from the NHS website, which sets out the common symptoms or effects of this condition and while I appreciate that it is not specific to the Claimant, it is consistent and supportive of the Claimant’s description of her symptoms, consistent with the medical evidence and the need for ongoing medication.[101]I am satisfied that the impairments had a substantial and adverse effect on the Claimant’s normal day to day activities during the relevant period and regardless of a diagnosis, she therefore had a physical impairment. Were the effects substantial and long term ?[102]As set out in my findings, I have heard and accepted the Claimant’s own evidence about what the impact of stopping the medication would and but for the medication the likely effects of the impairment .[103]I am satisfied on a balance of probabilities, that the Claimant’s condition worsened in 2018 and that she continued to have the condition and that but for the medication it is likely that she would have experienced the substantial adverse effects on her normal day to day activities, throughout 2019, 2020 and 2021, and that therefore the substantial adverse effects had lasted for 12 months as at the start of the relevant date.[104]On a balance of probabilities I find that it is likely that but for the medication the Claimant would have continued to suffer with the attacks that she describes more regularly and of greater severity throughout the 12 month period prior to the start of the relevant period , albeit on a fluctuating basis. The Guidance make clear, even if the effects fluctuate or they recur and are likely , which I am satisfied they were likely to, hence the need for ongoing medication. The definition of long-term has been met.[105]In summary, taking into account all of the evidence, my findings are that the Claimant has satisfied the requirements of section 6 EqA. She had a disability, during the relevant period as defined by section 6, namely Meniere’s Disease. The Claimant’s claim that she is a disabled person for the purposes of section 6 of the Equality Act 2010 is well founded and succeeds.
Findings of fact
[106]Mrs Adams attended a disciplinary hearing on 18 February 2021. The invite made it clear to her that the allegations were one of gross misconduct for refusing to follow the instruction to work from home and of breach of Alliance’s social media policy. She was told she could be accompanied to the meeting by a colleague or trade union representative.[107]The meeting was presided over by Mr T Wasteney. Mrs Adams was accompanied by a colleague. In the meeting Mrs Adams: 107.1. Reiterated her belief that she was not insured to have work equipment at home; 107.2. Suggested she work in a separate office block called AP7. Page 16 of 31 107.3. She also suggested that she might work in a meeting room or other room to herself. 107.4. She was unaware of any social media policy. Besides her husband could write on it if he wanted to. She just would not, going forward. However it was confirmed to her that she could have accessed it on the intranet and she confirmed she had access to that. 107.5. She said she could wear a motorcycle helmet that covered her face.[108]Having considered the exchanges, the Tribunal is satisfied that she had a fair opportunity to put her side of the argument.[109]Before the outcome of the meeting, Mrs Adams disclosed a page from her home insurance policy schedule that said “Items held or used for business purposes except those listed as business equipment in the definitions” Mrs Adams never provided the terms of the policy that defined the words in bold, and did not provide to Alliance any evidence of any enquiries that she had made to see if this covered working from home for her employer. Disciplinary outcome on 23 February 2021[110]Mr Wateney wrote to Mrs Adams on 23 February 2021. He decided that Mrs Adams had committed gross misconduct for her refusal to work from home and he also relied on the social media comments. The letter is detailed and thorough. In evidence Mr Wateney explained that in his mind the social media comments did not alone justify a finding of gross misconduct or justify dismissal. He told us the main problem was that Mrs Adams refused to work from home and had provided no good reason for doing so. We accept that was the real reason for his summary dismissal of Mrs Adams. The letter concentrates on that aspect in our view. Besides the social media comments were quite old. The obvious main problem is that Mrs Adams was not able to work in the office, and was refusing to work from home. They wanted her back to work but she was refusing to do so. This was the main source of all the problems. We therefore accept it was what weighed most heavily on his mind. Appeal against dismissal[111]Mrs Adams appealed against her dismissal. She was invited to an appeal meeting. She was reminded of her right to be accompanied. Mr M Benham heard the appeal. At the hearing on 8 March 2021, Mrs Adams was accompanied by a colleague. Notably, Mrs Adams told Mr Benham that she had said only ever said to Alliance that she did not want to work from home, as opposed to saying she could not work from home. The Tribunal notes this is in complete contrast to the number of objections she had earlier raised (insurance, council tax etc.) to show she could not work from home. Having considered the exchanges in the appeal hearing, the Tribunal is satisfied that she had a fair opportunity to put her side of the argument. Page 17 of 31[112]On 19 March 2021, Mr Benham dismissed the substantive appeal. He concluded that working from home was itself a reasonable adjustment, that because she could not wear a face mask she could not work from an alternative location in the office, and that there was no reason provided why she could not work from home in any event. There was some suggestion that Alliance had offered the claimant a chance to work elsewhere. This does not appear to tally with the evidence we heard. However it does not matter since Mrs Adams’s inability to wear a mask meant she could not work in an office anyway. Alternative office[113]It can be seen that Mrs Adams suggested in evidence that she could work from either another building (building AP7 was identified) or a separate office or meeting room given over to her.[114]As for AP7, it is not clear to us if such a space was available, since the buildings are owned by a separate company, albeit one that belongs to the same corporate group as Alliance. The respondent’s witnesses seemed unclear but believed it was not. However whatever the reality of such availability, we find as a fact that such a suggestion is unreasonable: 114.1. It is not reasonable to expect a whole floor or building or part thereof to be provided for the exclusive use of the claimant. It is disproportionate, and the claimant is isolated from other staff and management; 114.2. There was on the basis of the evidence available at the time a viable alternative of the claimant working from home.[115]As for the use of a separate office or meeting room, we do not accept this was reasonable either. She would have to wear a mask to get to and from the office or meeting room, which she could not do. In addition we accept the respondent’s evidence that, because the office was open plan, the meeting rooms were needed to provide a private space for meetings between staff. Again though, on the evidence at the time, there was the alternative that she could work from home. Law Unfair dismissal[116]The Employment Rights Act 1996 section 111 entitles a person who has been employed for a sufficient period to bring a claim for unfair dismissal[117]Employment Rights Act 1996 section 98 provides (so far as relevant): “(1) In determining … whether the dismissal of an employee is fair or unfair, it is for the employer to show— “(a) the reason (or, if more than one, the principal reason) for the dismissal, and “(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. “(2) A reason falls within this subsection if it— Page 18 of 31 “… “(b) relates to the conduct of the employee, “… “(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— “(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and “(b) shall be determined in accordance with equity and the substantial merits of the case. “…”[118]The employer bears the burden of proving on the balance of probabilities that the claimant was dismissed for misconduct. If the employer fails to persuade the tribunal that had a genuine belief in the employee’s misconduct, then the dismissal is unfair.[119]When it comes to reasonableness the burden of proof is neutral. The tribunal should consider all the circumstances including the employer’s size and administrative resources.[120]The tribunal has had regard to British Home Stores Ltd v Burchell [1980] ICR 303 EAT; Iceland Frozen Foods Ltd v Jones [1993] ICR 17 EAT; Foley v Post Office [2000] IRLR 82 CA and Sainsbury’s Supermarkets Limited v Hitt [2003] IRLR 23 CA.[121]The tribunal understands of the effect of these cases is as follows: 121.1. Was there a reasonable basis for the respondent’s belief? 121.2. Was that based upon a reasonable investigation? 121.3. Was the procedure that the employer followed within the “range of reasonable responses” open to the employer? 121.4. Was the decision to dismiss summarily within the “range of reasonable responses” open to the employer?[122]The range of reasonable responses is not infinitely wide. Long standing practice is relevant, and there is no special rule because health and safety is involved: Newbound v Thames Water Utilities [2015] IRLR 734 CA.[123]The Tribunal is entitled to consider and measure the employer’s conduct and decision against the employer’s own disciplinary or conduct codes.[124]The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out the basic requirements for fairness applicable in most conduct cases. The Trade Union and Labour Relations (Consolidation) Act 1992 section 207A requires a Tribunal to have regard to the code.[125]The code identifies the following key steps in any disciplinary procedure: 125.1. carry out an investigation to establish the facts of each case; Page 19 of 31 125.2. inform the employee of the problem; 125.3. hold a meeting with the employee to discuss the problem; 125.4. allow the employee to be accompanied at the meeting; 125.5. decide on appropriate action; and 125.6. provide employees with an opportunity to appeal.[126]The code points out each case must be looked at in the context of its particular circumstances, which may include health or domestic problems, provocation, justifiable ignorance of the rule or standard involved, or inconsistent treatment in the past.[127]The employee’s length of service is relevant when deciding the appropriate sanction: Strouthos v London Underground Ltd [2004] IRLR 636, CA; Newbound.[128]Despite the code of practice and guidelines in the cases, ultimately each case must turn on its own facts and be broadly assessed in accordance with the equity and substantial merits: Jefferson (Commercial) LLP v Westgate UKEAT/0128/12 EAT; Bailey v BP Oil Kent Refinery [1980] ICR 642 CA.[129]When a person is dismissed for gross misconduct, but the only claim is one of unfair dismissal, then the Tribunal does not have to determine if there is gross misconduct to decide if the dismissal is fair or unfair. The factual enquiry is in relation to the matters dictated by the Employment Rights Act 1996 s.98, not what happened which is dictated by the contractual enquiry: see West v Percy Community Centre [2016] ELR 223 EAT Discrimination arising from a disability[130]The Equality Act 2010 section 15 provides (so far as relevant) “Discrimination arising from disability “(1) A person(a) (A) discriminates against a disabled person(b) (B) if— “(a) A treats B unfavourably because of something arising in consequence of B's disability, and “(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim….”[131]The approach to cases under section 15 was explained in Pnaiser v NHS England aor [2016] IRLR 170 (after referring to the previous authorities): 131.1. the Tribunal had to identify whether there was unfavourable treatment and by whom; 131.2. it had to determine what caused the treatment. The focus was on the reason in the mind of the alleged discriminator, and an examination of the conscious or unconscious thought processes of that person might be required; 131.3. the motive of the alleged discriminator in acting as he did was irrelevant; Page 20 of 31 131.4. the Tribunal had to determine whether the reason was "something arising in consequence of [the claimant's] disability", which could describe a range of causal links; 131.5. that stage of the causation test involved an objective question and did not depend on the thought processes of the alleged discriminator; 131.6. the knowledge required was of the disability; it did not extend to a requirement of knowledge that the "something" leading to the unfavourable treatment was a consequence of the disability.[132]In Williams v Trustees of Swansea University Pension and Assurance Scheme aor [2019] ICR 230 UKSC the Supreme Court suggested at [27] “I agree […] that in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the passages in the Code of Practice to which [Counsel] draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.”[133]The parts of the code referred to are that the claimant must have been put to a disadvantage (The code [5.7]) and that it is enough the claimant can reasonably say they would have preferred to be treated differently (The Code [4.9]). This corresponds in substance with the test in Shamoon v RUC Chief Constable [2003] IRLR 285 UKHL.[134]As for detriments, we understand detriment to mean that “detriment” requires us to establish if the claimant believes she has been subjected to a disadvantage and that belief is reasonable: West Yorkshire police v Khan 2001 ICR 1065 UKHL; Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 33 UKHL; Derbyshire aors v St Helens MBC 2007 ICR 841 UKHL: Barclays Bank plc v Kapur [1995] IRLR 87 CA; Employment code [9.8]-[9.9] Harassment[135]The Equality Act 2010 section 26 provides (so far as relevant): “(1) A person(a) (A) harasses another(b) (B) if— “(a) A engages in unwanted conduct related to a relevant protected characteristic, and “(b) the conduct has the purpose or effect of— “(i) violating B's dignity, or “(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. “… Page 21 of 31 “(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— “(a) the perception of B; “(b) the other circumstances of the case; “(c) whether it is reasonable for the conduct to have that effect.”[136]The Tribunal should: 136.1. consider the 3 elements separately even though they overlap, 136.2. have regard to the context to assess if it was reasonably apparent what was the purpose or effect, 136.3. be sensitive to hurt that result from offensive comments or conduct but seek not to encourage a culture of hypersensitivity (see Richmond Pharmacology v Dhaliwal [2009] IRLR 336 EAT).[137]The Tribunal’s approach was explained in Pemberton v Inwood [2018] ICR 1291 CA by Underhill LJ and is as follows. A Tribunal must 137.1. consider both: 137.1.1. whether the claimant perceives themselves to have suffered the effect in question (subjective); and 137.1.2. whether it was reasonable for the conduct to be regarded as having that effect (objective). 137.2. It must also take into account all the other circumstances.[138]The conduct must be related to the protected characteristic. Unacceptable general anti-social behaviour not related to a protected characteristic is not enough: Brumfitt v Ministry of Defence [2005] IRLR 4 EAT; UNITE v Nailyard [2018] IRLR 730 CA.[139]The Tribunal has reminded itself that it does not follow that because someone has put up with “banter” for years or joined in even, does not mean it is unwanted. It is important to look at all the circumstances: Munchkins Restaurant Ltd aors v Karmazyn UKEAT/0359/09; but that if a claimant makes it clear through words or conduct they take no objection, that may suggest the conduct is not unwanted (e.g., English v Thomas Sanderson Blinds Ltd [2009] ICR 543 CA; and acceptable conduct can cross the line and become unwanted: English. We have also considered the Code [7.8] which says “7.8 The word ‘unwanted’ means essentially the same as ‘unwelcome’ or ‘uninvited’. ‘Unwanted’ does not mean that express objection must be made to the conduct before it is deemed to be unwanted. A serious one-off incident can also amount to harassment.”[140]We have also had regard to the list of examples of unwanted conduct in the Code at [2.8]. Page 22 of 31 Indirect discrimination[141]In light of the common ground, we need only comment on one aspect of indirect discrimination.[142]In indirect discrimination claims, one cannot justify discrimination based purely on the basis of costs alone: Cross and ors v British Airways plc [2005] IRLR 423 EAT; HM Land Registry v Benson and ors [2012] ICR 627 EAT. Recent cases considering this principle have not departed from it.[143]In Heskett v Secretary of State for Justice [2021] ICR 110 CA, the Court said “the essential question is whether the employer’s aim in acting in the way that gives rise to the discriminatory impact can fairly be described as no more than a wish to save costs. If so, the defence of justification cannot succeed. But, if not, it will be necessary to arrive at a fair characterisation of the employer’s aim taken as a whole and decide whether that aim is legitimate. The distinction involved may sometimes be subtle… but it is real”.[144]However financial budgetary control can be a legitimate aim: Benson and dealing with financial pressures can be the need to deal with real-world financial pressures: Heskett. Burden of proof: Equality Act 2010[145]The Equality Act 2010 section 136 sets out the way that the burden of proof operates in claims under the legislation, and was explained in Igen Ltd aors v Wong aors [2005] IRLR 258 CA; Efobi v Royal Mail Group Ltd [2019] 2 All ER 917 CA; [2021] 1 WLR 3863 UKSC; Hewage v Grampian Health Board [2012] ICR 1054 UKSC and Madarassy v Nomura International plc [2007] ICR 867 CA.[146]At the first stage, the Tribunal must consider whether the claimant has proved facts on the balance of probabilities from which the Tribunal could properly conclude that the respondent has committed an unlawful act of discrimination or harassment. The Tribunal presumes there is an absence of an adequate explanation for the respondent at this stage but it can take into account the respondent’s evidence is assessing if the claimant has discharged the burden of proof. At this stage it is irrelevant that the respondent has not adduced an explantion.[147]It is not enough for a claimant to prove bare facts of a difference in status and a difference in treatment. They only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that the respondent had committed an unlawful act of discrimination or harassment: Madarassy at 56; Efobi UKSC at 46. There must instead be some evidential basis on which the Tribunal could properly infer that the protected characteristic either consciously or subconsciously was the course of the treatment.[148]The Tribunal may look at the circumstances and, in appropriate cases, draw inferences from breaches of, for example, codes of practice or policies. Page 23 of 31[149]If the claimant succeeds in showing that there is, on the face of it, unlawful discrimination or harassment, then the Tribunal must uphold the claim unless the respondent proves that it did not commit or was not to be treated as having committed the alleged act. The standard of proof is the balance of probabilities. It does not matter if the conduct was unreasonable or not sensible: The question is if the conduct was discriminatory.[150]In Efobi UKSC and Hewage the Court said it is important not to make too much of the role of the burden of proof provisions. As Lord Hope said at para 32: “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other”[151]Where there is a question about whether something is a proportionate means of achieving a legitimate aim, the burden rests on the respondent. Conclusions Unfair dismissal (Employment Rights Act 1996 Part X) What was the reason or principal reason for dismissal: the respondent relies on gross misconduct? Was it a potentially fair reason?[152]We conclude that the respondent’s reason for dismissal was its honest belief Mrs Adams had committed an act of gross misconduct.[153]The reasons are as follows: 153.1. As set out in the findings of fact, this was an emergency situation. Alliance had reasonably decided those in the office must wear face masks. Mrs Adams could not do that. Alliance believed it was a reasonable instruction. Therefore Alliance had issued an instruction for the claimant to work from home. She had, in effect, refused but provided no good reasons why. Alliance’s own published examples of gross misconduct identified gross insubordination and refusal to carry out a reasonable instruction as gross misconduct. As we found, Alliance genuinely believed the instruction was one it could give to Mrs Adams. In the circumstances it is perfectly believable Alliance honestly believed she had refused to carry out a reasonable instruction and so was guilty of gross misconduct. 153.2. “Gross misconduct” includes “misconduct”. That is a potentially fair reason. Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant, including following a fair procedure?[154]We are satisfied there was as much investigation as was reasonable. Establishing her refusal to work from home required little investigation. The respondent provided Mrs Adams on many occasions opportunity to explain the rationale for her objection. Page 24 of 31[155]The respondent followed a fair procedure in our view. There was a fair and reasonable investigation, disciplinary hearing and appeal hearing. She knew what she was accused of at all stages. She was entitled to representation at all stages. It complied with the substance of Alliance’s procedure and with the ACAS Code of Practice Number 1.[156]The definition of gross misconduct was clear from the staff handbook. We are satisfied that she had had plenty of opportunity to familiarise herself with it and had had reasonable access to it.[157]We have looked at the question of whether it was reasonable in itself to request that she work from home. If it were not, then the reason for dismissal would be fundamentally flawed. Our analysis is as follows: 157.1. Clause 4.1 does not of itself entitle Alliance to direct Mrs Adams to work from home for the following reasons 157.1.1. We have approached working out its meaning by seeking to establish what the words mean to the reasonable person aware of the reality when the parties entered into the contract. 157.1.2. At that time it was a fact that 157.1.2.1. Anyone who wanted to work from home had to apply and have specific managerial approval; 157.1.2.2. Anyone who did work from home (e.g. sales) had different terms in their contract; 157.1.2.3. Alliance provided offices from which staff at Mrs Adam’s level and in her position were expected to work. All the equipment was there and kept there for her to use. 157.1.3. The first bullet point of clause 4.1 cannot properly refer to working from home. In the circumstances no reasonable person could consider the words “location at which the company carries out business from time to time within reasonable travelling distance” could cover home. It does not fit with the factual matrix. Alliance never contemplated doing business from anyone’s home. The next sentence that confirms travel expenses would be paid “if this need occurs” clearly conveys to the reasonable reader that the first part refers to having to travel to a different office. 157.1.4. The second bullet point of clause 4.1 does not in our view reasonably include an employee’s home. Firstly the words “transfer” suggest to us a move from a base to another base. Working from home still kept the employee linked with their particular office to which they were assigned. Therefore if an employee at Nottingham then worked from home, it would be too far a stretch of the language to say they had Page 25 of 31 “transferred”. In any case “another place of work within the UK…” cannot in the circumstances when the contract was executed and taking into account that an employee is “transferred” there, be reasonably read as meaning a home could fall be seen as what “another place of work” is meant to cover. 157.1.5. The clause is we think premised on the basis that Alliance has at least some standing or control over the particular place of work at which the employee is working. It has no control over anyone’s home. If it were as broad as Alliance suggested 157.1.5.1. They could in theory designate anywhere “another place of work” such as a library, coffee shop or even a park bench; 157.1.5.2. There would be no reason for such a strict work from home policy or vetting of requests; 157.1.5.3. There would be no need for a special version of the clause for those who were employed to and it was contemplated would work from home; 157.1.5.4. There is no obvious reason to impose the restriction of the United Kingdom since if an employee were to work from home, there is no obvious reason why they could not do that outside the United Kingdom. The imposition of territorial limit and “transfers” strongly suggests the territorial limit is intended to restrict the width of the geographical area of permanent relocation to another office or workplace provided by Alliance. 157.2. However this was an urgent situation like that contemplated in the case law we referred to above. There was a pandemic of an airborne, communicable disease. The respondent assessed face masks were a minimum requirement. Mrs Adams could not wear one. She could therefore attend work. She was otherwise able to work and provide service and Alliance could provide her with work. It was an exceptional situation in which it was permissible legally in our view to work from home so that her employment could continue. As a matter of law, we conclude the facts were such they could order to take this exceptional step and there was presented to them no reason why she could not do it. 157.3. Therefore the request she work from home was reasonable.[158]It follows she did in fact fail to comply with a proper instruction and do what they were entitled to request her to do. Therefore its belief it was gross Page 26 of 31 insubordination and refusal to carry out a reasonable instruction amounted to gross misconduct was a reasonable belief.[159]We have however considered Alliance’s response to this. We appreciate the usual sanction for gross misconduct is summary dismissal. However it is not automatically so. Here we believe Alliance acted unreasonably. Our reasons are as follows: 159.1. Alliance’s disciplinary policy directs that gross misconduct must result in dismissal without notice. The clear wording “the dismissal will take immediate effect” and “will not be entitled to [notice or pay in lieu of notice]” clearly do not afford the decisionmaker any discretion in relation to gross misconduct. The reasonable employer would not fetter the decision-maker’s discretion that way because it does not afford opportunity to consider exceptions. Even if the decision-maker realised they had a discretion about whether to summarily dismiss or not, the policy as worded most clearly directs the decision maker to the idea there is only one acceptable outcome so far as Alliance is concerned. The effect that it means that in practice Alliance will accept only one outcome once gross misconduct is established. 159.2. A reasonable employer would have appreciated the fact it was asking an employee to work from home when the contract did not entitle them to do that. They therefore would have been less headstrong about it and appreciated the wider circumstances. 159.3. The reasonable employer would have appreciated the fact Mrs Adams was ready and willing to work, albeit not at home. This militates somewhat the severity of her gross misconduct 159.4. The reasonable employer would have recognised she had given good service and performed satisfactorily. 159.5. The reasonable employer would have recognised that the reality here was not one of gross insubordination or refusal to carry out a reasonable instruction, but in fact a clash of expectations: they wanted her to work albeit from home, whereas she wanted to work albeit from the office. Neither party’s stance is overtly unreasonable. In reality the working relationship had hit an impasse. It was in effect some other substantial reason the relationship could not continue. 159.6. The reasonable employer would have reflected on this. In our view a reasonable employer would still have dismissed fairly, but only on notice, because that is in short equivalent to terminating the employment in any event because of the impasse.[160]Therefore the dismissal was unfair. Should the compensation be reduced to reflect the chance the claimant would have been fairly dismissed by the respondent in any event? If so by how much?[161]In our opinion the reality was that the relationship had come to an impasse. There was no way forward given Alliance’s reasonable insistence she work from home, and Mrs Adam’s insistence that she work from the office. She Page 27 of 31 would have therefore been dismissed at the end of a period of notice. She could have been dismissed fairly for some other substantial reason and, had Alliance acted fairly, we are satisfied they would have dismissed her with 3 months’ notice. The situation meant that dismissal was inevitable.[162]Therefore compensation has to be reduced to no more than notice pay, which is 3 weeks’ pay because Mrs Adams had 3 whole years of continuous employment. Did the claimant cause or contribute to dismissal by blameworthy conduct such that it is just and equitable to reduce their basic and/or compensatory award?[163]We have concluded it was. Our reasons are as follows: 163.1. Mrs Adams was obstinate and obstructive throughout the process. She threw up unreasonable objections unbacked by evidence. She indicated some willingness to work from home when in fact it was not the case. Moreover, she never told them the true reason. Had she done so, it may have avoided a disciplinary hearing or risk of dismissal for gross misconduct. 163.2. Second are the issues with the posts on social media. We appreciate Mr Adams wrote them. We assume he did so of his own volition and not under order from Mrs Adams. The respondent accepts they were not enough to warrant dismissal and were not part of the reason for her dismissal. They are vitriolic, emotional and highly provocative. If she had not associated herself with them, we would have said no more about it. However she did. It therefore undermined the relationship with her employer. It at least warranted consideration in the disciplinary process.[164]We do not think that Mrs Adams was wholly to blame. None of it stopped Alliance from taking a reasoned decision. However it does mean she is mostly to blame. She was combative and not co-operative. She brought most of the problems on herself from her attitude.[165]A reduction of 75% of any award does justice in this case. We have considered whether the reduction should be different for the basic and compensatory award. We can see no good reason for differential reduction. Her conduct affected the totality of what happened. Therefore the reduction should be the same. Has there been any breach of the ACAS code of conduct?[166]Based on our findings of fact, there has not. Discrimination arising from disability (Equality Act 2010 section 15)[167]We remind ourselves that it is not disputed that 167.1. the respondent treated the claimant unfavourably by dismissing her; 167.2. the claimant’s inability to wear a mask arose from her Ménière’s disease; 167.3. the respondent knew or ought to have known of her disability. Page 28 of 31 Did the respondent dismiss her because she was unable to wear a face mask?[168]The answer is yes. The reason for the dismissal was because she would not work from home. But the only reason she had to work from home was because she could not wear a face mask at work, as the respondent required. That is at the heart of it. The chain of causation is made out. Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were to prevent the spread of Covid-19 in the workplace and thereby to promote the health and safety of those working there.[169]We are satisfied that it was a legitimate aim. We are satisfied it was proportionate.[170]Covid-19 could be a serious illness. It is easily spread. It was highly prevalent in the community. It can therefore easily impact on a workforce if there were an outbreak. We therefore have no difficulty concluding it is a legitimate aim. Health and safety is promoted by reduction of the risk of Covid-19 (or any other easily transmissible illness which is prevalent in the community). In addition maintaining a healthy workforce is beneficial obviously to the employees but also the employer, because the fewer absences through sickness, the better.[171]We consider now proportionality. The respondent had access to a lot of guidance. We are satisfied they considered the matter carefully. We are not in a position to decide whether a face shield (like that the claimant wore) and a face mask provide equivalent or near-equivalent protection. We can see from a lay person’s perspective arguments both ways. However we are satisfied it is legitimate to decide that a face mask is preferable to a face shield and therefore to forbid those at work. We note that the respondent did not stop Mrs Adams from working – but only from attending the office.[172]We do not consider there was any other realistic option. Only 3 were explored and neither answers the point. 172.1. Furlough would not address the fundamental problem that Mrs Adams did not want to be at home in the day. 172.2. If we presume another office building were available, then working from another office was disproportionate. There would still be a need for protection to prevent the spread of germs and their transmission in that office building. She would still need to wear some sort of protection when moving about that office. Even if she had it to herself (as she appeared to suggest), it would still need cleaning, servicing etc. exposing staff to risk, and so she would still need to wear a face mask. We do not in any case consider it realistic she have a building or significant part to herself. It would be expensive, she would lack supervision or ability to access support or social contact, she would in effect be isolated. 172.3. She should have a meeting room to herself. These rooms were required for meetings with others. It was not realistic to give over one resource to her with its consequent impact on facilities Page 29 of 31 available for other staff. Besides it does not address the difficulty of having to wear a mask to get to and from that room.
Conclusion
[173]This claim fails. Indirect discrimination (Equality Act 2010 section 19)[174]There is no dispute that 174.1. the respondent had a PCP that people in the respondent’s workplace must wear face masks from January 2021. 174.2. the respondent applied the PCP to the claimant; 174.3. the respondent applied the PCP to all staff regardless of disability or would have done so; and 174.4. the PCP put people with the claimant’s disability at a particular disadvantage when compared with those who do not have the claimant’s disability in that the latter can wear face masks and so attend the workplace.[175]It cannot sensibly be said the PCP did not put the claimant at that disadvantage. Therefore the case turns on the proportionality and legitimacy. Was the PCP a proportionate means of achieving a legitimate aim? The respondent says that its aims were: To prevent the spread of Covid-19 in the workplace and thereby to promote the health and safety of those working there.[176]The answer is yes. We repeat everything that we set out in paragraph 169 above. Harassment related to disability (Equality Act 2010 section 26) Did the respondent do the following things: On 4, 5 and 6 January 2021 tell the claimant that if she did not work from home she would not be paid?[177]The answer to that is yes. If so, was that unwanted conduct?[178]The answer to that is yes. No employee would want to be told that, and it is readily acceptable Mrs Adams did not want to be told it either. Did it relate to disability?[179]The answer in our opinion is no. It relates to her refusal to work from home. It is correct that she was being asked to work from because she could not wear a mask as a consequence of her disability. However her disability had nothing to do with why she could not work from home or her refusal to do so. We do not consider the relationship between the two to be more than co-incidence. Assume she were not disabled but did not want to work from home when asked to do so, she would be told exactly the same thing. We see it as co-incidence rather than there being a relationship, in those circumstances. Page 30 of 31 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?[180]We conclude it did not. The purpose was to tell her the factual reality. If not, did it reasonably have that effect, taking into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect?[181]While Mrs Adams may have perceived it that way, her reaction was not reasonable in the circumstances. She had been requested to work from home. She refused to do so. Alliance was doing no more than telling her the factual reality that if she did not, then she would not be paid. It is not reasonable to be upset at being informed of the consequences of refusing to do a certain thing.[182]We have considered the surrounding circumstances. We accept that the situation may have been tense. We acknowledge that in theory, it is not what is said but the way that it is said may take an otherwise reasonable statement into the realm of harassment. We do not believe the facts here amount to doing that. Things may have been tense on both sides. But we are not convinced it made unacceptable that which was otherwise acceptable. Conclusion This claim fails too.[1]By an application dated 19 March 2023 the claimant sought reconsideration of the Tribunal’s judgment dated 28 February 2023. It was sent to the parties on 6 March 2023. The application is therefore in time. The application[2]The application runs to 5 pages. I have read the whole of the application.[3]The claimant’s submissions are as follows (in very brief summary): 3.1. The respondent made threats which caused her to behave the way she did; 3.2. She disputes the Tribunal’s conclusions she was “obstinate and obstructive”, saying she was “defensive and direct”; 3.3. She does not accept our conclusion she had access to the intranet; 3.4. She criticises our dismissal of her arguments about insurances; 3.5. She alleges we made a number of assumptions throughout the case e.g. relating to provision of equipment for working from home and mentioning of her husband’s illness; Page 1 of 4 3.6. She disputes the conclusions about face mask policy at the respondent, and information being emailed to them; 3.7. She asserts other information ought to have been included in relation to discussions on 4, 5 and 6 January; 3.8. She criticises the use of the words “request”, “instruction”, “demand” in the judgment suggesting this undermines the reasoning; 3.9. She assert the Tribunal is incorrect to record that her husband’s illness was the real reason she wanted to work from the office. 3.10. She criticises the conclusion that there was an emergency situation. Reconsideration, process and the law Reconsideration[4]Rule 70 provides that a Tribunal can reconsider a judgment where it is necessary in the interests of justice to do so. I may confirm, revoke or vary the decision: rule 70. Process[5]Rule 71 allows the parties to apply for a Tribunal to reconsider its judgment. Nothing else turns on this rule.[6]The process I must follow is set out in rule 72. That provides: “72.— Process “(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. …”.[7]It is imperative I go through this stage first: TH White and Sons Ltd v White UKEAT/0022/21 EAT.
Law
[8]The following principles are in my view relevant to deciding if there is a prospect of success. 8.1. The words “necessary in the interests of justice” mean the Tribunal a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation: Outasight VB Ltd v Brown 2015 ICR D11 EAT. See also Flint v Eastern Electricity Board [1975] IRLR 277 QBD; Newcastle Upon Tyne City Page 2 of 4 Council v Marsden [2010] ICR 743 EAT; Ministry of Justice v Burton [2016] ICR 1128 CA. 8.2. There is no need for exceptional circumstances: Williams v Ferrosan Ltd [2004] IRLR 607 EAT, and each decision is unique to its own facts. However the discretion must be exercised in accordance with recognised principles and judiciously: Sodhexo Ltd v Gibbons [2005] IRLR 836 EAT. 8.3. Though in reference to the old procedures, the EAT said in Stevenson v Golden Wonder Ltd [1977] IRLR 474 EAT that the reconsideration process is “not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before”. I see no reason why that principle does not apply to the current provisions either.[9]Because the reconsideration relates to our findings and conclusions, rather than to legal argument or new evidence, for example, I have reminded myself that I can expect our reasons to be read as a whole; a judgment is not obliged to identify every piece of evidence put before us; and there is no assumption we have not considered something or an argument simply because a particular piece of evidence has not been referred to, or specifically dealt with: DPP Law Ltd v Greenberg [2021] IRLR 1016 CA. The case relates to appeals and how appellate courts should approach appeals, but I see no reason why the same cannot be expected of parties seeking reconsideration of conclusions reached.
Conclusions
[10]In a trial, the Tribunal considers all the evidence before it and applies such weight to such parts as its thinks reasonably appropriate. There is no rule that one cannot accept oral evidence because there are no ancillary documents, or one cannot make assumptions/draw inferences about facts justified on the evidence, or draw conclusions about what happened based on the evidence. There is no rule that the Tribunal is obliged to accept what a party, here the claimant, asserts without question.[11]I have considered the whole of the Tribunal’s judgment. Read as a whole I am satisfied that the judgment and reasons are clear to the reasonable reader. The use of the words request”, “instruction”, “demand” do not undermine the judgment when read as a whole. The other conclusions, in particular about her reason for not wanting to work at the office and that she was “obstinate” and “obstructive” are conclusions the Tribunal was entitled to reach. The Tribunal is entitled to draw reasonable inferences (whether they are called assumptions or otherwise) from the evidence and reasonably to prefer one party’s evidence over the other’s. I am satisfied that nothing in the claimant’s application shows that the Tribunal has reached a decision that it was not entitled to reach based on the evidence before it. The Tribunal has weighed up the evidence and reached factual conclusions open to it. Page 3 of 4[12]The application is in short no more than strong disagreement with the Tribunal’s judgment and reasons. It is no more than an attempt to reargue the case with different emphasis on the evidence and arguments to persuade the Tribunal to change its mind. These are matters that could, and in many cases were, put before the Tribunal at the original hearing. Clearly the Tribunal did not agree.[13]Strong disagreement and a wish to reargue or re-emphasise particular points or to seek to persuade a Tribunal to change its mind are not good enough reasons to reconsider the judgment. The application can be dismissed for this reason alone. In any case nothing in the application suggests any reasonable prospect that the Tribunal would vary or revoke its judgment.[14]The Tribunal also notes that the claimant has had a fair opportunity to present her claim and evidence in support of it. There is a public interest in the finality of litigation. It is not fair that the respondent should be subjected to further expense to deal with the application which will not succeed. It would also cause delay to the determination of the remedy in this case to allow it to proceed which is not beneficial to either party. These too weigh against the reasonable prospect that the Tribunal will vary or revoke its decision.