Ms J OwenMr G TomeyIn person for claimantMr J Braier (instructed by Counsel) for respondentDate 17 October 2019
JUDGMENT
The unanimous judgment of the Employment Tribunal is that:-[1]The complaints of breach of contract (notice pay) and unpaid holiday pay are dismissed on withdrawal.[2]The complaints of disability discrimination under sections 15, 20-21 and 26 Equality Act 2010 are upheld.
REASONS
[1]The Claimant brought complaints of disability discrimination under sections 15, 20-21, and 26 Equality Act 2010 (“EA 2010”), breach of contract (notice pay) and a claim for unpaid holiday pay.[2]It was common ground that the Claimant had been employed by the Respondent from December 2017 until her dismissal on 24 May 2018, during her probationary period.[3]At the suggestion of the Tribunal, the parties discussed the breach of contract and holiday pay complaints. Having discussed these with Counsel for the Respondent, during the time we spent pre-reading witness statements, the Claimant withdrew these complaints; and they were then dismissed.[4]The Tribunal revised the List of Issues from the draft provided by Counsel on the first day of the hearing.[5]Prior to making submissions, the parties confirmed that the issues set out in the List of Issues at the Appendix to these Reasons remained for determination.
The Evidence
[6]The Tribunal read witness statements for, and heard oral evidence from, the following witnesses: 6.1. The Claimant; 6.2. Natasha Beech, Regional Human Resources Manager; 6.3. Bill Latimer, Head of Business for Southend Audi (at the relevant time); 6.4. Katy-Lee Kelly, team leader or supervisor; 6.5. Tim Ahmet, the Claimant’s line manager.[7]The Tribunal accepted the Claimant’s evidence about the symptoms and effect of her physical impairment, including the symptoms and effect of her medication.[8]In broad terms, the Tribunal accepted the Claimant’s account of events; where we did not accept her evidence, we have indicated this in our findings of fact.[9]For reasons we have explained below, we found that the Respondent’s witnesses were not wholly reliable. We found that this stemmed from the unshakeable belief of the Respondent’s managers and Ms. Beech that the Claimant was exaggerating her symptoms and the effects of medication. We found that the Respondent and its witnesses were mistaken in this belief.[10]There was an agreed bundle of documents. Page references in this set of Reasons refer to pages in that bundle.
The Facts
[11]The Claimant was employed as a Contact Centre Advisor at the Respondent’s site at Southend. The site provides sales, aftercare and servicing for Audi cars. It includes a call centre function where the Claimant worked. Her duties are set out in the job description at pages 46-47. They included answering a number of calls each day and hitting a target number of bookings.[12]Throughout her employment, the Claimant received positive feedback on her work and met the targets set (she was on target in May 2018 when she was dismissed). The Respondent’s policies[13]The Respondent’s employment policies are contained in a staff handbook which has a contractual section containing general terms and conditions (pages 57 to 77). The sickness absence reporting procedure (p.61) includes: “8.4 If you cannot attend work because you are ill or injured you should telephone your line manager as early as possible and no later than 30 minutes after the time when you are normally expected to start work. Please note that voicemail messages, texts or email are not sufficient, contact should be made in person over the telephone unless there are exceptional circumstances.”[14]The terms and conditions went on to state that absence was unauthorised if not notified in accordance with the reporting procedure, and that it would be dealt with under the disciplinary procedure: see 8.12-8.13 (p.63). It also states that, if an employee has not called in, their line manager: “will try to contact you, by telephone and in writing if necessary.” (8.14).[15]Ms Beech’s evidence was that the requirement at clause 8.4 referred to above was to ensure absence was properly notified and monitored to ensure the welfare of employees and to enable business to manage absence levels, because historically the company had had high absence levels. Whilst we accepted this evidence, we heard no further evidence about the absence levels overall nor any evidence to suggest the Claimant’s level of absence was more or less than the average. Moreover, we found it was unlikely that the requirement to telephone in was strictly enforced by the Respondent because:- 15.1. We noted the response of Ms Kelly on both occasions when the Claimant sent a WhatsApp message to say that she was not coming in to work (on 8 May and 18 May 2018). 15.2. Mr Ahmet, the Claimant’s manager, did not call the Claimant back on 8 May 2018 to tell her what was needed or should be done in terms of calling in and neither did he do this on 18 May 2018. 15.3. Mr Ahmet had been told that he could contact the Claimant on 18 May 2018 but he did not seek to do so.[16]We found Ms Beech’s evidence that six other employees in the group of companies had been dismissed during the probationary period for failure to report absence correctly or not at all to be of little or no relevance in this case, because she could give no evidence about whether any of them had texted in to their manager (as the Claimant had done on both of the relevant dates), whether the alleged employees performed well at work, whether their roles were senior or skilled and essential to the running of the business, nor whether any of them had offered to work on other days as the Claimant had done on 18 May 2018.[17]The Respondent’s sickness absence tolerance policy is at page 78. This states (with emphasis added): “You should also be aware that our absence and sickness policy tolerates up to 2 instances of sickness absence in 6 months and similarly up to 4 instances of sickness absence in 12 months. As a general rule we believe that an absence record that exceeds 2 in 6 months or 4 in 12 months is unacceptable. The company will investigate every case where a member of staff exceeds this absence level. This investigation may include a return to work interview with the member of staff. I should make it clear at this stage that following such an investigation, the company may decide to pursue disciplinary action if an insufficient explanation for the high absence record is given. We make a commitment to support our people and assist them through difficult personal times, however we do consider high absence records to be a serious issue for the business and for affected colleagues.” The Claimant’s disability[18]The Claimant is disabled by the physical impairment of Interstitial Cystitis (“IC”). In brief, the condition causes the lining of the bladder to become chronically inflamed. The Claimant’s symptoms are aggravated by the acidic nature of urine causing her chronic pain. Her symptoms flare up from time to time. The Claimant takes medication to try to reduce the symptoms, including Co-Codamol and Gabapentin, as well as selfcatheterising when required. The return to work meeting 9 May 2018[19]The Claimant was absent from work on 31 January (half day), 6 February 2018 and 8 May 2018. These absences were all due to her disability.[20]On 8 May 2018, the Claimant had a severe flare-up of her IC. In such circumstances, the Claimant’s symptoms increase to such a point that she is immobilised due to the pain and the frequency of symptoms including the urge to urinate (irrespective of whether this was possible), with intense cramping and stabbing pains in her pelvis. The Claimant was unable to sleep which made her tired and lacking in concentration. The Claimant was unable to leave her home and made many trips to the toilet estimated by the Claimant to be between 60 and 100.[21]On 8 May at 07:09, the Claimant sent a message to her supervisor, Ms Kelly, to inform her of the flare-up the previous day, and that she would not be attending work. She was not challenged in evidence as to the accuracy of the contents of the message which was: “Katie-Lee I can’t get hold of Tim cause my phones been cut off but I’m going hospital and GP cause I had a flare up yesterday and couldn’t get to hospital cause it was closed all weekend. Trust me it’s the worse one I’ve had, blood and everything. Could you let Tim know and if he needs to he can call me xxx”[22]The Claimant sent a WhatsApp message because her phone was cut off and because it was just after 7am and she did not want to call her manager, Mr Ahmet. The Claimant knew that Mr Ahmet had previously explained that text messages could be accepted by managers on a discretionary basis.[23]Having sent the message, neither Ms Kelly, her supervisor, nor Mr Ahmet, her manager, responded by telling the Claimant that she must call in, nor that there was a risk of any disciplinary sanction by not doing so.[24]The return to work meeting took place on 9 May 2018; the Claimant was mistaken in thinking that this was 11 May 2018 as stated in her witness statement.[25]Ms Beech, Regional HR Adviser, held the return to work meeting to assist Mr Ahmet, who would usually have held it, but was unable to do so because he was busy moving to another site.[26]The form completed by Ms Beech at the meeting is at page 102 - 103. This recorded that the Claimant did not correctly report her absence because she texted in, but the marked outcome of the meeting is that no further action is required. Apart from this form, no contemporaneous notes were made at that meeting.[27]We prefer the Claimant’s account of that meeting. The Claimant was told repeatedly at the meeting that she needed to be careful because her absences would hit the triggers within the sickness absence policy and told that she should not have texted in her absence. Reasonably, the Claimant attempted to inform Ms Beech of her symptoms of IC believing that she did not understand the gravity of those symptoms. Towards the end of the meeting, Ms Beech repeatedly warned the Claimant to be careful and asked for proof of the condition.[28]We found that the Claimant was not “quite aggressive” as alleged by Ms Beech. If she was, we were sure that this would have been noted in writing on the return to work form or in a subsequent piece of correspondence, but there is no such record.[29]From hearing Ms Beech in evidence and considering the relevant documents, we found Ms Beech was not at all sympathetic to the Claimant. She did not use the word “mindful”; this would have been unlikely in the context of the meeting and her unsympathetic approach. Ms Beech did not only warn the Claimant about reporting by telephone, we found that she told the Claimant to be careful of the triggers in the sickness absence policy.[30]The Claimant did initiate a conversation about her condition. We find that Ms Beech was dismissive about what the Claimant stated of her symptoms of IC. We find that this was why the Claimant sent a long email to Ms Beech on 11 May 2018 explaining how IC affected her (see pages 104 - 105).[31]It is clear from this email that Ms Beech did question the Claimant at the return to work meeting about the evidence she had for her condition. Moreover, this email provided some evidence in support of the Claimant’s oral evidence that Ms Beech warned her to be careful (or “wary”) of having sickness absence to avoid the policy triggers being reached. Unless the Claimant had been warned repeatedly to be careful, the Claimant was unlikely to have sent so much information to Ms Beech, including website links and would not have made a statement about previous legal proceedings unless the Claimant felt that she was being challenged about the legitimacy of what she had said in the meeting.[32]The exact number of warnings given by Ms Beech about triggers of the policy is not material, although we find it is likely that there were at least three if not more. It is clear that warnings were repeated as the Claimant was trying to explain IC and her symptoms.[33]In short, we find that Ms Beech did not pay much, if any, regard to what the Claimant told her at the meeting. Her tone at the meeting was unsupportive. There was no recognition that the Claimant was a disabled person despite plenty of evidence to indicate that Ms Beech was on notice of this.[34]In oral evidence, Ms Beech stated that she offered to refer the Claimant to occupational health. This was not in her witness statement and not on the return to work form. We find that no such offer was made because:- 34.1. It was implausible that, if it was made, it would not have been referred to in the return to work form or her witness statement or in some other piece of contemporaneous correspondence. 34.2. It was implausible that the Claimant would have refused the offer given what the Claimant was telling Ms Beech at the meeting. 34.3. The allegation was implausible. The experience of the Employment Tribunal is that a referral to occupational health is not made at the option of the employee.[35]We did not accept that Ms Beech was mistaken or had a poor recollection about this alleged offer to refer to occupational health. We asked ourselves why Ms Beech had made up this evidence. We inferred that it was because the Claimant’s account of the meeting was correct and Ms Beech had sought to damage her credibility. This is also why she alleged that the Claimant was aggressive when this was not the case. Meeting 22 May 2018 with Ms Beech[36]The Claimant had a further flare up of her IC on the night of 17-18 May 2018. We accepted the Claimant’s evidence about her symptoms at this time, medication taken and what effect the symptoms had on her.[37]The Claimant had had a sleepless night; she had been back and forth between her bed and the toilet all night, and she had been in the toilet for long periods of time. The Tribunal found that it was unrealistic for an employee to telephone into work from a toilet, as the Respondent suggested. On the 18 May 2018, the Claimant sent a WhatsApp message to her supervisor, Ms Kelly, at 06:06 in the morning explaining the effect of her symptoms and that her home phone was not working, her mobile phone contact was cut, and asking what she could do about calling in. The Claimant also offered to work a Saturday to make up the hours that she would miss by being absent. The Claimant’s symptoms meant that she had been on and off the toilet all night and continued to be in that position. Because of the night that she had had, and the medication that she was taking, she wanted to send a message to her employer before she went to sleep later that morning.[38]In response to the Claimant’s WhatsApp message, Ms Kelly responded by asking whether she had texted this information to Mr Ahmet. The Claimant replied that she had. At 07:12 that morning, Ms Kelly replied: “That’s ok then, I’ll have a look at what Saturdays are free but you’ll be fine xx”.[39]This email is a further piece of evidence leading to the inference that the policy that the employee must telephone in sickness absence was not strictly enforced. We rejected Ms. Kelly’s evidence on this point, finding that this employee of the Respondent was prepared to adopt the company line in her evidence; she could offer no satisfactory explanation for the inconsistency between the alleged strict enforcement of the sickness absence reporting policy and(a) the contents of her reply to the Claimant’s message and(b) the fact that she did not instruct the Claimant to telephone in anyway. We accepted the Claimant’s evidence as to why she did not telephone in on this morning. Ms Beech did not accept the Claimant’s genuine account of her symptoms and the effect that it had on her.[40]Given the extreme effect of her symptoms, we found that the Claimant did not want to call Mr. Ahmet so early in the morning, and wanted to try to go to sleep; she was in no position to hold a telephone conversation with her manager after her lack of sleep and given her symptoms, and nor did she believe that this was necessary after her WhatsApp message and Ms. Kelly’s response to it. When constantly going to the toilet, and spending time there, the Claimant’s priority was to alleviate the symptoms of her IC, not making a call via WhatsApp when her message had already been accepted by her supervisor.[41]Following this absence, a further return to work meeting was arranged for 22 May 2018 to be held by Ms Beech. The Claimant asked Ms Beech if it was okay to have Ms Kelly attend. She did this to avoid any risk of miscommunication which she felt had occurred at the first return to work meeting with Ms Beech. Ms Beech refused stating that it was not appropriate. The Claimant went to speak to Ms Kelly who encouraged the Claimant to attend the meeting.[42]In respect of return to work meeting, we found that it was the practice or policy that employees were not permitted to be accompanied at those meetings.[43]We did not find that this PCP placed the Claimant at a substantial or any disadvantage in itself compared to non-disabled employees. The Claimant wanted a witness to avoid any risk of miscommunication which arose at the first return to work meeting on 8 May. The Claimant was not affected either by her medication or by her symptoms by 22 May 2018, some four days after the absence. We found Ms Beech did offer that the Claimant could be accompanied by someone other than Ms Kelly.[44]We did not find there was a PCP for the return to work meeting to be held with Ms Beech on behalf of the Respondent. The PCP was that it would be attended by a line manager or a member of the HR team, not Ms Beech herself. 24 May 2018 meeting with Bill Latimer[45]On 24 May 2018, the Claimant was required to attend a meeting with Mr Latimer. There was no letter of invitation, she was not told what the meeting was about, and she was not given any notice of the meeting.[46]The Tribunal found Mr Latimer to be an unreliable witness. He made no notes of meetings such as the meeting alleged to have taken place on 24 May 2018 at which the dismissal of the Claimant was agreed with Mr Ahmet. We found his memory to be poor; for example, he could not recall precisely when that meeting with Mr. Ahmet had taken place.[47]Mr Latimer was unimpressive in oral evidence, trying to limit answers in crossexamination to one word (or as few words as possible). Moreover, in crossexamination, he said that notes were made of the meeting of 24 May 2018 (even though these had not been disclosed and no notes were referred to in his witness statement), but overnight these notes could not be found; we found that no such notes were ever made. We considered that the events in question were not so long ago that the Head of Business for Southend Audi, as he was then, would be unable to recall events.[48]Mr Latimer was quite entitled to invite the Claimant to a meeting with him given his role as Head of Business at the Audi site; after all, the Respondent had grounds to believe that the Claimant had breached the letter of the sickness absence reporting policy on two occasions (although not repeatedly as the Respondent alleged).[49]In general, we accepted the Claimant’s account of events in that meeting. At the meeting, the Claimant gave the whole account of the night and morning of 18 May 2018, and that she believed her message, coupled with the response of Ms. Kelly, was sufficient. Mr. Latimer’s evidence was incorrect: he stated that the only reason that she gave for not ringing was that her phone was cut off. We found that Mr. Latimer did interrogate the Claimant about her impairment and its effect. Having seen him give evidence, particularly when responding to cross-examination questions from the Claimant, we found that, at their meeting on 24 May 2018, he was very abrupt with the Claimant and lost his patience as she tried to explain why she did not telephone in. We find that he did raise his voice and he was standing over her, although he did not shout; we accepted that the Claimant perceived that he did shout. He repeatedly asked why the Claimant had not called in using WhatsApp, as the Claimant tried to explain why. The Claimant asked to get her phone during the meeting to confirm her timing of events on the morning of 18 May 2018; and this was a reasonable request in the circumstances where she had had no notice of the meeting or the line of questioning. Mr. Latimer refused, causing the Claimant anxiety. The Claimant was intimidated by Mr. Latimer’s actions, because she felt she was being held accountable without being able to defend herself. At this point, Mr. Latimer threw his phone down, an act which further intimidated the Claimant and added to the hostile environment that she experienced.[50]The Claimant was upset and crying and had to repeat the effects of her condition and how this related to why she had not telephoned in to her manager.[51]The meeting concluded by Mr. Latimer stating the policy needed to be followed regardless of the Claimant’s reason for texting.[52]Mr. Latimer did not believe the Claimant’s account of why she did not telephone in. He made that clear in oral evidence. He found the Claimant was trying to pull the “wool over his eyes”. He demonstrated by the manner of his evidence before us that he had little patience with the Claimant on 24 May 2018 and no ability to change his belief, despite having heard the Claimant’s genuine account of her symptoms; we found that at the meeting he did not listen to her mitigation for the recent breach of the sickness reporting policy. We found that he had no grasp of the impact of his approach to the Claimant at this meeting.[53]Moreover, we accepted the Claimant’s evidence that Mr. Latimer was in essence mocking her explanation at this meeting. We did consider paragraph 48 of the Respondent’s written submissions, but we found that they did not assist the Respondent. We noted the Respondent did not call any corroborating evidence, despite the meeting taking place in a glass fronted office that Mr Braier relied upon, and we found Mr. Latimer’s demeanour and conduct in the witness stand was more consistent with the Claimant’s account of that meeting, even allowing for the pressure of giving evidence and the unfamiliar nature of this exercise. Given all the above circumstances, the Tribunal understood why the Claimant did not complain about Mr. Latimer after the meeting.[54]We did not accept Mr Latimer’s conduct at the meeting only related to the Claimant’s failure to follow the reporting policy. We found that he did not accept her explanation as to why she had not followed the reporting policy, even though we find that her explanation had been an honest one, explaining about her IC and her symptoms. Therefore, we find as a fact that his conduct at that meeting related to her IC symptoms.[55]Mr. Latimer dismissed the Claimant at the meeting. As Mr. Latimer conceded in cross-examination, the Claimant was entitled to have the opportunity to appeal, even though she was in her probationary period. The Respondent did not offer any opportunity to appeal; there was no mention of it in the dismissal letter or witness statement.[56]The Tribunal carefully examined why Mr. Latimer decided to dismiss the Claimant. From all the evidence, we concluded, by drawing inferences, that the reason why he dismissed the Claimant was not the alleged legitimate aim of ensuring the proper management of employee absence. We found that the reason was a combination of the Claimant’s degree of sickness absence within her probation period and his belief that she had breached the sickness absence reporting policy for no good reason. We inferred this from the following primary facts: 56.1. The Claimant had, on any view, breached the reporting procedure on only two occasions. The first occasion had been following a flare up after a conversation with Mr. Ahmet when he had said that a message could be allowed at a manager’s discretion, and when she did not realise that not calling in was considered unauthorised absence and with mitigation due to her symptoms. On the second occasion, there was substantial mitigation: her extreme symptoms in the midst of a flare up of her IC; sending in a message early to both Ms. Kelly and Mr. Ahmet, asking what to do; the response from her supervisor; and from her offer to make up the day by working another day. 56.2. We found that breach of the sickness absence reporting policy, in circumstances such as these (where the Claimant had messaged in and the messages had contained the offers made for her manager to call her) was not enforced as strictly nor viewed as such a serious matter as the Respondent contended. If it had been, her line manager, Mr. Ahmet, would have called her back after her messages and/or given her some form of informal written warning in respect of her WhatsApp message of 8 May 2018. In a discussion with Mr. Ahmet after her January 2018 sickness absence for IC, he had told her that texting in could be authorised on a discretionary basis; the Claimant’s evidence is corroborated at least in part by the email of Ms. Kelly to all staff on 9 April 2018 (which asks employees to call or text her if they are going to be late or ill that week). The Claimant’s evidence on this point further explains why no such informal warning was sent or given orally. 56.3. The sickness absence reporting policy provides an exception to calling in where there are “exceptional circumstances”. We heard no evidence about how these were defined, nor why Mr. Latimer did not consider this proviso applied in the Claimant’s case. 56.4. There was no documentary evidence of the meetings between Mr. Ahmet and Mr. Latimer, nor between HR and Mr. Latimer, on 24 May 2018, nor any contemporaneous documentary evidence of the reasons for dismissal arrived at in those meetings. The Tribunal found that this was so unlikely as to require an explanation, because there could be no sensible or logical reason for this. It was inconsistent that the dismissal letter stated that the Claimant was dismissed “after much consideration”, yet there was no documentary evidence to show this (or any) consideration. In the absence of any explanation for the absence of documentary evidence, and in the light of Mr. Latimer’s not credible evidence that notes were taken but could not be found, we inferred that the Respondent’s witnesses had not wanted to record that the Claimant’s level of absence was taken into account as one reason for dismissal. 56.5. The Claimant was not offered an appeal. This pointed to the Respondent wanting the Claimant out of the business as quickly as possible. We inferred that this was probably because it wanted to avoid any future sickness absence from the Claimant. 56.6. There were no concerns about the Claimant’s performance. 56.7. The Claimant was not given any formal or written warning prior to her dismissal. 56.8. Other employees had been allowed to text or message about sickness absence and were not dismissed, evidenced by Ms. Kelly’s email to staff of April 2018. 56.9. The table of alleged comparators was not relevant, given that there was no evidence that those on it were actual comparators as we have explained above. The Law Disability Discrimination
The Law
[57]In this case, two types of disability discrimination were alleged: failure to make reasonable adjustments (section 20-21 EA 2010) and unfavourable treatment in consequence of something arising from the Claimant’s disability (section 15 EA 2010). The Tribunal directed itself to the relevant law as follows. Duty to make reasonable adjustments[58]Given the carefully drawn statutory duty to make reasonable adjustments, it is helpful to set out the relevant statutory provisions at the outset: “20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. 21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person ...”[59]Paragraph 20 of Schedule 8 EA 2010 provides a limitation on the duty where the Respondent lacks the requisite knowledge: “20. Lack of knowledge of disability, etc. (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know – (a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question; (b) [in any case referred to in Part 2 of this Schedule], that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.”[60]A statutory Code of Practice on Employment has been published by the Equality and Human Rights Commission 2011 (“The Code”). The Courts are obliged to take it into consideration whenever relevant. Chapter 6 is concerned with the duty to make reasonable adjustments, and emphasises that the duty is one requiring an employer to take positive steps to ensure disabled people can progress in employment. The Code includes: 60.1. Paragraphs 6.23 to 6.29 of the Code give guidance as to what is meant by “reasonable steps”. 60.2. Paragraph 6.28 identifies some of the factors which might be taken into account when deciding whether a step is reasonable. They include the size of the employer; the practicability of the proposed step; the cost of making the adjustment; the extent of the employer's resources; and whether the steps would be effective in preventing the substantive disadvantage.[61]The duty to make reasonable adjustments requires a correlation between the disadvantage in question and the steps taken to alleviate that disadvantage. In order for the Tribunal to analyse the position correctly, it must have in mind the particular disadvantage that is being relied upon, otherwise the analysis as to the reasonableness of the step taken may be misdirected: see, for example, Linsley v HMRC UKEAT 0150/18 at para 31.[62]An Employment Tribunal considering a claim that an employer has discriminated against an employee by failing to comply with the duty to make reasonable adjustments must identify: 62.1. the relevant provision, criterion or practice made by the employer; and/or 62.2. the relevant physical features of the premises occupied by the employer and/or the auxiliary aid required; 62.3. the identity of non-disabled comparators (where appropriate); and 62.4. the nature and extent of the substantial disadvantage suffered by the Claimant.[63]The above steps follow the guidance provided in Environment Agency v Rowan [2008] IRLR 20 at paragraph 27.[64]Substantial disadvantage is such disadvantage as is more than minor or trivial. The Code (at paragraph 6.16) emphasises that the purpose of the comparison is to determine whether the disadvantage arises in consequence of the disability and that, unlike direct or indirect discrimination, there is "no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same" as those of the disabled person.[65]The nature of the comparison exercise under section 20 required the tribunal to ask: does the PCP put the disabled person at a substantial disadvantage compared with a non-disabled person? The fact that they were treated equally and might both be subject to the same disadvantage when absent for the same period of time did not eliminate the disadvantage if the PCP bit harder on the disabled, or a category of them, than it did on the able-bodied: Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216 (where the Tribunal and the EAT had erred in holding that the s.20 duty had not been engaged because the absence policy applied equally to everyone: see paragraphs 46-48, 58, 63 of the judgment). What adjustments are reasonable?[66]In Archibald v Fife, the House of Lords held what steps are reasonable depends on the circumstances of the particular case, which the employment tribunal must establish (paragraph 43).[67]We note that the Code of Practice on Employment refers, at paragraph 6.28, to the practicability of the step as being one of the factors to be taken into account when deciding whether taking that step is reasonable. The presence of an existing policy or practice is a factor to be taken into account when assessing whether taking a particular step is practicable: see Linsley v HMRC UKEAT 0150/18. Discrimination arising from disability[68]Section 15 EA provides: “(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. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[69]In Williams v Trustees of Swansea University Pension and Insurance Scheme [2019] ICR 230, the Supreme Court explained the relatively low threshold for what amounts to unfavourable treatment: “27...... 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.....” Causation[70]The Equality and Human Rights Commission’s Code of Practice on Employment states that the consequence of a disability “includes anything which is the result, effect or outcome of a disabled person’s disability”: see para 5.9.[71]There are two parts to the causation test: a) There must be “something arising” in consequence of the Claimant’s disability; and b) The unfavourable treatment must be because of that “something arising.”[72]In Pnaiser v NHS England and anor [2016] IRLR 170 EAT, Simler J summarised the proper approach to determining section 15 EA claims in paragraph 31[73]As noted in Pnaiser, the causal link between the “something” that causes unfavourable treatment and the disability may include more than one link.[74]For example, in Sheikholeslami v University of Edinburgh [2018] IRLR 1090, the claimant was dismissed when absent due to work-related stress and depression. The claimant had suggested that she be moved out of the School of Engineering but the University refused. She was eventually dismissed. The tribunal found that she was dismissed because she was unwilling or unable to return to her existing post. Simler P allowed an appeal against the tribunal’s decision that there was no causal connection between the claimant’s disability and her absence or refusal to return to her post in the School of Engineering. She noted that the tribunal did not appear to contemplate the possibility that there might be more than one link between the “something” that causes unfavourable treatment and the disability for s.15 purposes. At paragraph 65 the EAT held: “...the Tribunal did not consider why the Claimant was not prepared to return to her existing post. In fact, on the Tribunal’s findings, it was the Claimant’s mental health disability that caused her to be ill and absent from the School of Engineering (as certified by doctor’s notes); and this continued until termination of her contract. Further, there was evidence from the Claimant that she believed her discriminatory treatment in the School of Engineering caused her disability, and she perceived hostility from those at the School of Engineering as a result of it. Although the cause of the disability might be irrelevant in many cases, in a case like the present one, where the disability, its cause, and its effects are all so interlinked, it seems to me, in agreement with Mr Gorton, that the broad causation question in s.15 was capable of being satisfied on this basis.”[75]Simler P concluded that the tribunal had applied too strict a causation test (paragraph 66): “The critical question was whether on the objective facts, her refusal to return arose in ‘consequence of’ (rather than being caused by) her disability. This is a looser connection that might involve more than one link in the chain of consequences.”[76]In City of York Council v Grosset [2018] ICR 1492, a case relied upon by Mr. Braier, Sales LJ noted that section 15(1) posed two questions. The first question involves examination of the employer’s state of mind (did A treat B less favourably because of an identified “something”); the second question of whether the “something” for section 15 purposes arises in consequence of the employee’s disability is an objective matter. See Grosset at paragraphs 37-38.[77]Grosset is not authority for the proposition that motivation is required at the first question stage. We found assistance in another case cited by Counsel.[78]In Dunn v Secretary of State for Justice [2019] IRLR 1998, the Court held (per Underhill LJ): 18. “Because of”. It is a condition of liability for disability discrimination both under section 13 and under section 15 that the complainant should have been treated in the manner complained because of either (under section 13) his or her disability or (under section 15) the “something” which arises in consequence of that disability. That will typically, though not invariably, involve establishing (with the benefit of section 136 if required) that the disability, or the relevant related factor, operated on the mind of the putative discriminator, as part of his or her conscious or unconscious “mental processes”. Establishing an employer's “motivation” (as it is often put – NB that this is not in this context the same as “motive”) is of course a familiar exercise in discrimination law generally. The most recent authoritative exposition is in the judgments of the majority in the Supreme Court in R (E) v Governing Body of JFS [2009] UKSC 15, [2010] 2 AC 728: see in particular per Lady Hale at paras. 62–64 (pp. 759–760). Employer’s knowledge of causal link[79]It is no defence if the respondent did not know that the ‘something’ leading to the unfavourable treatment was a consequence of the disability: see City of York Council v Grosset [2018] ICR 1492. Burden of proof[80]As with other types of discrimination complaints, a claimant bringing a complaint of section 15 discrimination bears an initial burden of proof. She must prove facts from which the tribunal could decide that an unlawful act of discrimination has taken place.[81]This means that the claimant has to show:• That she was disabled at relevant times;• That she has been subjected to unfavourable treatment;• A link between the disability and the “something” that is said to be the ground for the unfavourable treatment;• Evidence from which the tribunal could infer that the “something” was an effective reason or cause of the unfavourable treatment.[82]If the claimant proves facts from which the tribunal could conclude that there was section 15 discrimination, the burden shifts, in accordance with section 136 EA, to the respondent to prove a non-discriminatory explanation, or to justify the treatment under section 15(1)(b).[83]Simler P stated in Pnaiser that: “Although it can be helpful in some cases for Tribunals to go through the two stages suggested in Igen v Wong, as the authorities demonstrate, it is not necessarily an error of law not to do so, and in many cases, moving straight to the second stage is sensible”. Disability as background or context[84]We accepted that there is a distinction to be drawn between disability as background or context and something arising in consequence of disability being an operative cause of the treatment complained of.[85]Where disability provides only the background or context in which the treatment complained about occurs, but the respondent identifies a genuine non-discriminatory reason for the treatment, the necessary causative link between the unfavourable treatment and the disability will be missing. We recognise that it is important to distinguish between the context and the causal link: see Basildon and Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305, at paragraph 34. Justification defence: Proportionality[86]Section 15(2)(b) requires the putative discriminator A to show that “the treatment” of B is a proportionate means of achieving a legitimate aim. The focus is therefore upon “the treatment”; and the starting point therefore must be that the tribunal should apply s.15(2)(b) by identifying the act or omission which constitutes unfavourable treatment and asking whether that act or omission is a proportionate means of achieving a legitimate aim: Buchanan v Commissioner of Police for the Metropolis [2016] IRLR 918.[87]The correct test for assessing whether treatment is proportionate was explained (looking at section 15 EA in the housing context) in the Supreme Court in Akerman Livingstone v Aster Communities [2015] AC 1399 at paragraph 28 (per Baroness Hale): 87.1. Is the objective sufficiently important to justify limiting a fundamental right? 87.2. Is the measure rationally connected to the objective? 87.3. Are the means chosen no more than is necessary to accomplish the objective? 87.4. Are the disadvantages caused disproportionate to the aims pursued? Put in context, the fourth stage asks: does the treatment strike a fair balance between the employer’s needs to accomplish its objective and the disadvantages thereby caused to the Claimant as a disabled person?[88]Baroness Hale sat in both the above case and in Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601, relied upon by Mr. Braier, in which essentially the same key principles were set out. At paragraph 25, Baroness Hale explains: “To some extent the answer depends upon whether there were non- discriminatory alternatives available”[89]The judgment of the Court of Appeal in Hardys & Hansons plc v Lax [2005] IRLR 726, [2005] ICR 1565, concerned an appeal relating to a complaint of indirect discrimination on the grounds of sex. The Court held that it is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. The Court emphasised that there is no room to introduce into the test of objective justification the 'range of reasonable responses' which is available to an employer in cases of unfair dismissal. Burden of proof in discrimination cases[90]We reminded ourselves of the reversal of the burden of proof provisions within section 136(2) EA 2010, as explained in Igen v Wong [2005] EWCA Civ. 142 and Madarassy v Nomura [2007] ICR 867.[91]In respect of the application of these provisions in complaints of breach of the duty to make reasonable adjustments, in Project Management Institute v Latif [2007] IRLR 579 (Elias P, as he then was, presiding) the EAT held at paras 44, 53-54 that:- 91.1. The burden of proof remains on the Claimant to prove the threshold conditions (i.e. those matters identified in Rowan) without which the duty to adjust is not engaged. These are matters of fact in which the employer is unlikely to have knowledge or information not available to the Claimant. 91.2. Where the threshold conditions have been established, the burden only passes to the respondent if a potentially reasonable adjustment has been identified. 91.3. This does not require the Claimant to set out the detail of the adjustment for the burden to shift, provided the respondent can understand the broad nature of the adjustment proposed and has sufficient detail to deal with the question of reasonableness. 91.4. If no potentially reasonable adjustment has been identified, the burden does not shift to the respondent.[92]In short, if the burden shifts, the employer must show the disadvantage would not have been eliminated or reduced by the proposed adjustment and/or that the adjustment was not a reasonable one to make. Submissions[93]We heard oral submissions from the parties, and we received written submissions from Counsel for the Respondent and from the Claimant. It would not be proportionate to set out all submissions here. Each submission was taken into account, even if we do not address each submission separately below.
Conclusions
[94]Applying our findings of fact and the above principles of law to the remaining issues, we have reached the following conclusions. As a matter of law, and good practice, the complaints of failures to make reasonable adjustments should be considered before complaints brought under section 15 EA 2010 where these complaints are about the same factual matters. Issues 2 to 6[95]We concluded that the treatment of the Claimant at the return to work meeting on 9 May 2018 was unfavourable, passing the relatively low threshold explained in Williams.[96]Ms Beech did repeatedly tell the Claimant to be careful, referring to her sickness absences and the trigger mechanism in the sickness absence policy. Ms Beech did repeatedly ask the Claimant to explain her symptoms and her conditions because the Claimant was not listened to and because what the Claimant said was viewed with scepticism by Ms Beech. It was not merely a question of there being an implied threat behind the words that was unfavourable; it was unfavourable treatment because the Claimant was not being listened to. This unfavourable treatment was because of something arising in consequence of her disability: the sickness absence of 8 May 2018.[97]Turning to the question of proportionality, although the Respondent may have had a legitimate aim, the purpose of the meeting was to inform Ms Beech, and therefore the Respondent, of the reason for absence and to consider the welfare of the employee. The purpose was not to repeatedly warn of trigger points and the implied risk of further absence management.[98]The Respondent’s approach and the treatment of the Claimant at this meeting was not necessary in the circumstances. There was no balancing of the Claimant’s welfare against that of the Respondent’s aim. At that meeting, we concluded that Ms Beech did not entertain the idea that the Claimant may be disabled at all.[99]In submissions, drawing on Ms Beech’s evidence, Counsel stated that the return to work interview was not part of the formal procedure but only a preliminary to it. If this was the case, the Tribunal could less understand why Ms Beech acted as she did and why she did not consider whether any adjustment was appropriate. We rejected the submissions at paragraph 31 of the closing submissions; if the legitimate aim was efficient absence management, it was unnecessary to repeatedly warn the Claimant of the risk posed by reaching triggers in the sickness absence policy and not to listen to what the Claimant was explaining about her condition.[100]An alternative means of dealing with the legitimate aim would have been to listen and enquire about the symptoms and to consider with the Claimant whether any adjustment was required, and to consider the whole policy, which included a commitment to “support our people through difficult personal times”, and to examine what that commitment might require. Issues 7 to 11[101]We concluded that although there was a PCP requiring an employee to attend a return to work meeting unaccompanied, this did not place the Claimant at any substantial disadvantage compared to non-disabled employees returning to work from sickness absence. In any event, if there was such substantial disadvantage, the offer of an employee other than Ms Kelly to attend was a reasonable adjustment and the duty was discharged.[102]We concluded that there was no PCP that the Claimant was required to have a return to work meeting conducted by Ms Beech. We accepted this complaint was misguided, probably because as a litigant in person the Claimant did not understand the nature of the duty to make reasonable adjustments which is relatively complex as a matter of law. Issues 12 to 15[103]The list of issues is in error in specifying 22 May 2018; neither party suggested that the meeting between the Claimant and Mr. Latimer was on that date.[104]We concluded that it was not unfavourable treatment to require the Claimant to attend the meeting on 24 May 2018 with Mr. Latimer simply because the meeting was something arising in consequence of the Claimant’s disability. After all, Mr Latimer was the overall manager of this site and the Claimant had failed to comply with the letter of the policy on two occasions, even if we found that there was good reason why she did not do so on both occasions.[105]Turning to issue 13(b), Mr. Latimer’s conduct at the meeting on 24 May 2018 was unfavourable. We repeat our findings of fact about his conduct at that meeting. In summary, he acted in a way that was intimidating: he raised his voice at the Claimant, he refused her the opportunity to consult her phone for evidence, and he threw down his phone.[106]The Tribunal concluded that the “something arising” was in part her disabilityrelated absence, and in part that she had failed to comply with the absence reporting procedures, because of disability-related reasons on 18 May 2018.[107]We accept that there was a legitimate aim of ensuring proper management of employee absence. But the treatment of the Claimant was not because of that aim, but because Mr. Latimer did not believe the Claimant’s explanation for not calling in to her line manager.[108]In any event, even if there was this legitimate aim made out, the response of Mr. Latimer at the meeting was disproportionate. There was no need to be intimidating, particularly when the Respondent’s own policy indicated that there was an alternative - in the form of the provision of support for an employee. Issues 16 to 21[109]We have set out in our findings of fact how Mr Latimer conducted the meeting on 24 May 2018.[110]We accepted the Claimant’s evidence that his conduct was unwanted.[111]The Tribunal found that the conduct related to the Claimant’s disability, rejecting the Respondent’s submissions.[112]Applying the statutory test for harassment and the guidance from the authorities set out above, we find that Mr Latimer did violate the Claimant’s dignity and did create an intimidating or hostile environment; in particular, the statement that the Claimant was pulling the wool over his eyes was an insulting comment.[113]In any event, the Claimant did perceive Mr Latimer to act in the manner prescribed by section 26(4) EA 2010 given how he acted at that meeting, and the context in which he did, with the Claimant bearing all about her disability. It was reasonable for it to have this upsetting effect upon her. Issues 22 - 25[114]The Respondent applied a PCP, in the form of the sickness absence reporting procedure at 8.4 of its general contractual terms and conditions, set out at paragraph 13 above.[115]Non-disabled employees would not be put at any disadvantage by this procedure, because they would be able to telephone their manager as early as possible and within 30 minutes of work commencing.[116]As Mr. Braier identified in his submissions, the key issue is whether that PCP placed the Claimant at a substantial disadvantage in comparison with non-disabled employees.[117]Given the Claimant’s evidence as to the nature, severity, duration and effect of her symptoms, the Tribunal concluded that the PCP put her at a more than minor or trivial disadvantage compared to non-disabled persons. The Claimant would find it practically difficult, and suffer more than trivial disadvantage, in the midst of a flare up of her IC symptoms, when she was spending long periods on the toilet, and either in bed or on the toilet, to telephone her line manager after a night of no sleep.[118]The question is not whether she had the physical ability to have stayed awake longer (after her message exchange with Ms. Kelly) and to make a call to Mr. Ahmet later in the morning (despite the response of Ms. Kelly which indicated that this was not required). The Respondent’s submissions (paragraph 70) sought to raise the threshold for the duty to a test that many disabled persons could not meet, namely: unless it was impossible for the disabled person to comply with the PCP, it was not engaged. This distinction (between more than minor disadvantage and practical physical impossibility) is well-demonstrated by the facts on the night of 17/18 May 2018. We found the Claimant to be both credible and consistent as a witness. In those circumstances, where she was in such discomfort, had not slept, and was spending a considerable time on the toilet, it would be a more than minor disadvantage to have to call Mr. Ahmet. The suggestion that she could have telephoned him whilst on the toilet overlooks the fact that this would involve at least some loss of dignity.[119]Applying Griffiths v DWP, the Tribunal considered that the terms of the PCP put the Claimant at greater risk of breaching it and therefore at greater risk of disciplinary sanction (for unauthorised absence) than non-disabled persons.[120]The Tribunal concluded that the Respondent did have actual or constructive knowledge that the Claimant was likely to be placed at that more than minor disadvantage as a result of her disability because: 120.1. After a further absence, on 8 May 2018, the Claimant had explained her symptoms to Ms. Beech at the return to work meeting on 9 May 2018. Ms. Beech had actual or constructive notice of the disadvantage that this meeting, had she been receptive to what she was being told by the Claimant. 120.2. After the return to work meeting, the Claimant had sent Ms. Beech a detailed account of her condition, by email on 11 May 2019. This gave a long explanation of the symptoms of IC. We accepted that the Claimant had meant to state that she would need to go to the toilet up to 100 times (not 1000) per day, and that this coupled with the symptoms referred to ought to have indicated to the Respondent that the PCP put the Claimant at more than minor disadvantage compared to non-disabled employees.[121]Accordingly, the Tribunal concluded that the duty to make reasonable adjustments was engaged.[122]The Claimant, although a lay person, had identified at least one reasonable adjustment, which was that messaging in was sufficient on the first morning of sickness absence caused by the symptoms in an IC flare up.[123]The Respondent’s submissions did not argue that, if the duty was engaged, it had been discharged. We found that the Respondent did not discharge the burden of proof and failed to show that reasonable adjustments were made.[124]The Tribunal concluded that reasonable adjustments were not made. A reasonable adjustment would have been to permit messaging in on the first day of absence (during the times specified in the PCP) due to symptoms arising from an IC flare up. After all, we found that management had a discretion in respect of the mode of sickness reporting and that the policy was not strictly enforced, with text messages being accepted on some occasions.[125]The Tribunal concluded that the duty to make reasonable adjustments had not been discharged. Issues 26-29 Dismissal: discrimination arising from disability[126]As recorded in the list of issues, it was common ground that the Claimant was dismissed, and that dismissal amounts to unfavourable treatment.[127]The Tribunal concluded that the dismissal was because of “something arising” out of her disability.[128]We found as a fact that part of the “something” leading to her dismissal was the fact that she had failed to report her absence by telephone call on two occasions: see paragraph 55 above. We found that those failures were “something arising” in consequence of her disability. Mr. Latimer did not accept her explanation about her IC flare ups and the symptoms as to why she had not followed that reporting policy.[129]The Respondent’s case was that the Claimant was dismissed because of a legitimate aim of ensuring the proper management of employee absence. We concluded that the Claimant was not dismissed for this alleged legitimate aim. We repeat the facts found at paragraph 55 above.[130]If we are wrong in the above conclusion, we concluded that the decision to dismiss was not a proportionate means to achieving that legitimate aim because, in particular: 130.1. The unfavourable treatment could not be justified where there were reasonable adjustments which could have been made, such as by allowing the Claimant to message to her manager that she would be absent on the first day of sickness absence following an IC flare-up. 130.2. The policy referred to an exception, being where there were “exceptional circumstances”. This term is not defined in the policy. We concluded that, when read with the commitment to support employees at difficult times, there was an option for the Respondent to treat this phrase as incorporating exceptional circumstances produced by an employee’s disability, such as a flare up of the Claimant’s IC symptoms, which meant that she could not go beyond her bedroom or toilet. After all, in this case, the Claimant had proposed that her manager call her if this was necessary (see for example p.98). 130.3. Given the response of Ms. Kelly on 18 May 2018 when the Claimant asked what she should do about calling in and that she had texted Mr. Ahmet (“That’s Ok then”, p.101), and Mr. Ahmet’s earlier statement that texting in could be allowed by discretion, the breaches of the sickness absence reporting policy were very minor in any event.
Summary
[131]Complaints under section 15, sections 20-21, and section 26 EA 2010 are upheld.[132]Given our conclusions, the case will proceed to a remedy hearing on 11 October 2019. Employment Judge Ross 18 September 2019 IN THE EAST LONDON EMPLOYMENT TRIBUNAL B E T W E E N: AB Claimant And HODGSON AUTOMOTIVE LIMITED Respondent LIST OF ISSUES Disability
LIST OF ISSUES
[1]It is not in dispute that, at all material times: 1.1. As a result of suffering from interstitial cystitis the Claimant (‘C’) suffered from a disability as defined under the Equality Act 2010 (‘EqA’) section 6. 1.2. The Respondent had knowledge that the Claimant was a disabled person. Meeting of 09.05.18 – Discrimination arising from disability[2]It is not in dispute that a return to work meeting was held on 09.05.18 between C and Natasha Beech.[3]In that meeting, did Natasha Beech: 3.1. Tell C three times to be careful, referring to C’s number of absences; and/or 3.2. Ask C repeatedly to explain herself and her condition?[4]If yes, did that amount to unfavourable treatment of C?[5]If yes, was it done because of something arising from C’s disability? C relies on her disability-related absence of 08.05.18.[6]If yes, was the treatment a proportionate means of achieving the legitimate aim of ensuring the proper management of employee absence? Meeting of 22.05.18 with Natasha Beech – Failure to make reasonable adjustments[7]In the conduct of its return to work meetings, did the Respondent (‘R’) apply a PCP that: 7.1. An employee is required to attend a return to work meeting unaccompanied; and/or 7.2. An employee is required to have their return to work meeting conducted by Natasha Beech even when they make a request for it to be held with a different manager?[8]If yes, did either or both of those PCPs put C at a substantial disadvantage in comparison with those who are not disabled? C relies on a difficulty expressing herself clearly and understanding the questions put to her.[9]If yes, did R have actual or constructive knowledge that C was likely to be placed at that disadvantage as a result of her disability?[10]If substantial disadvantage and knowledge are made out, what adjustments did R make to avoid the disadvantage?[11]Did R fail to take any steps that were reasonable to take to avoid the disadvantage? It is C’s case that the R failed to take the following reasonable steps: 11.1. Allowing C to be accompanied to the meeting; and 11.2. Arranging a manager other than Natasha Beech to conduct the meeting. Meeting of 22.05.18 with Bill Latimer – Discrimination arising from disability[12]It is not in dispute that such a meeting occurred.[13]Did R subject C to unfavourable treatment by(a) requiring her to attend this meeting and(b) Mr. Latimer’s conduct at the meeting?[14]If yes, was the meeting held because of something arising from C’s disability? C relies on her disability-related absence as the something arising. R’s case is that the treatment was because of C’s failure to comply with the absence reporting procedures, and that this was not something arising from C’s disability.[15]If yes, was the treatment a proportionate means of achieving the legitimate aim of ensuring the proper management of employee absence? Meeting of 22.05.18 with Bill Latimer - Harassment How did Mr Latimer conduct that meeting? Was that conduct unwanted? If yes, was it related to C’s disability?[19]Did Mr Latimer so conduct the meeting with the purpose of violating C’s dignity or creating for C an intimidating, hostile, degrading, humiliating or offensive environment?[20]If no, did C perceive Mr Latimer’s conduct to have any of those proscribed effects?[21]If yes, was it reasonable for the conduct to have that effect? Absence Reporting Procedure – Failure to make reasonable adjustments[22]It is not in dispute that R applied a PCP in the form of an absence reporting procedure set out in the following terms: If you cannot attend work because you are ill or injured you should telephone your line manager as early as possible and no later than 30 minutes after the time when you are normally expected to start work. Please note that voicemail messages, texts or email are not sufficient, contact should be made in person over the telephone unless there are special circumstances.[23]Did that PCP put C at a substantial disadvantage in comparison with those who are not disabled?[24]If yes, did R have actual or constructive knowledge that C was likely to be placed at that disadvantage as a result of her disability?[25]If substantial disadvantage and knowledge are proven, did R fail to take steps that were reasonable to take to avoid that disadvantage? C contends that reasonable steps that the R failed to take were: 25.1. Allowing her to inform of her absence by text message or WhatsApp message; and 25.2. Not subjecting her to the sanction of dismissal for breaching the PCP. Dismissal – Discrimination arising from disability It is not in dispute that C was dismissed.[27]It is not in dispute that dismissal amounts to unfavourable treatment.[28]Was C’s dismissal because of something arising out of her disability? C’s case is that she was dismissed because of her failure to comply with the absence reporting procedure and that that failure was something arising because of her disability. R’s case is that that failure was not something arising because of C’s disability.[29]If yes, was C’s dismissal a proportionate means of achieving the legitimate aim of ensuring the proper management of employee absence?