Miss H Diallo v London Borough of Havering: 3201830/2020
JUDGMENT
The complaint of discrimination on grounds of pregnancy and maternity is dismissed. JUDGMENT having been sent to the parties on 14 December 2021 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013.REASONS
[1]Miss Diallo works for the Council, managing a team of social workers. Her claim concerns the build-up to her maternity leave in April 2020. During her last few months at work she had a number of disagreements with her own manager, Ms Farida Patel, about issues such as leave dates, a workstation assessment, a closer car parking space and the handover of her work. All this resulted in a grievance against Ms Patel which was upheld in part. Since then she has returned to work.[2]The sole complaint is of discrimination on grounds of pregnancy and maternity, which is covered by a single section of the Equality Act 2010, section 18. This provides: Page 1 of 13 18 Pregnancy and maternity discrimination: work cases (2) A person(a) (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably— (a) because of the pregnancy, or(b) because of illness suffered by her as a result of it.[3]The protected period mentioned in this section is simply the period covered by the pregnancy and maternity leave.[4]Unfavourable treatment is not defined but is similar to the term ‘detriment’ which appears elsewhere in the Act. In short, it is something unwelcome. It does not have to involve being treated worse than someone else. Being dismissed is still unfavourable treatment even if the whole team is made redundant. But to be unlawful it has to be because of the pregnancy or a resulting illness.[5]The issues were considered at a case management preliminary hearing on 9 November 2020 by Employment Judge Housego and he helpfully set out the factual issues as follows: 48. In December 2019 Ms Diallo says that she was deprived of leave over the Christmas / New Year period. The Respondent says that she never asked. Ms Diallo agrees that she never put in a formal request to the booking system, because it has to be approved by her manager and in November 2019 Ms Patel had told her she would not approve that request. Ms Diallo agrees that cover is required for the period (this is an employer whose role is to care for people so a shutdown is not possible). Ms Diallo says that a colleague (Modi [in fact called Mobe], at the same level as her) agreed to cover her work. Ms Diallo accepts that [Mobe] worked that period (as did she), but Ms Diallo says that [Mobe] was agreeable to cover her (Ms Diallo’s) work in addition to her own. The Respondent did not know this was Ms Diallo’s position, and their likely response is that it is a management call as to the level of cover required, and having one person do the work of two was not acceptable. The Respondent says that this allegation is, in any event, out of time, did not form part of a series and it is not just and equitable to extend time. 49. There was a work place assessment for kit that would have helped her, in particular a new chair, and it took from November 2019 to March 2020 to get it. The Respondent agrees that this was a long time, but says that is was mischance that the report was mislaid, that Ms Diallo had also mislaid hers, that it took a while to get a copy and then to get the chair and other equipment. They say that this is not a reasonable adjustment disability claim, but a pregnancy discrimination claim. There is nothing here, they say that means that Ms Diallo was treated any worse than anyone else who might need special equipment, and that if it was unsatisfactory it was not pregnancy related discrimination, and that the reason the equipment was needed was pregnancy does not change that. 50. Ms Diallo says that her pregnancy and the demands it placed on her were ignored Page 2 of 13 by Ms Patel in the following ways:50.1 She was considered to be at risk of pre-eclampsia, but no enquiry was made as to her health.50.2 When she returned to work on 07 April 2020 she had no return to work interview, because she was going to be off on maternity leave soon.50.3 When she returned to work on 07 April 2020 her job was being done by someone else, who continued to do it until she left on maternity leave.50.4 No-one told her that these arrangements had been made, and nor was she consulted about them.50.5 She had problems using her laptop as the log in had been allocated to another too early.50.6 When she did go off on maternity leave no “keeping in touch” days were organised. 51. The Respondent says that the Covid-19 period was troublesome (to use a neutral word) for everyone. They did not know whether or not Ms Diallo would return from her self-isolation (she might become ill, as she was self-isolating as she had symptoms), and when she did return it was not pregnancy discrimination but common sense to leave the maternity cover they had arranged in place. Ms Diallo was not taking her maternity leave until late in her pregnancy, so they say that it was never going to be long before she went off on maternity leave. 52. Ms Diallo complains that when she started self-isolating Ms Patel told her that this meant that her maternity leave had started, because the absence was near the start of maternity leave. The Respondent accepts that Ms Patel told her that and was in error in so doing as Ms Diallo was not absent for a pregnancy related reason, but says that when Ms Diallo said so to human resources they reversed this, and within 24 hours of Ms Patel telling Ms Diallo that she was now on maternity leave. Ms Diallo does not accept that cures the issue.[6]In addition to these factual points, we also need to consider whether all of the complaints were brought in time, the relevant date being 16 February 2020. We can only deal with earlier events if it would be just and equitable to extend time the normal time limit, or if they form part of a continuing series of acts which ended after that date. Procedure and evidence[7]In addressing these issues we heard evidence from Miss Diallo and Ms Patel. There was also an electronic bundle of 671 pages. Another witness statement was supplied by Miss Diallo from a former colleague, Mr Sebastian, but he did not attend the hearing. It related to his experiences being managed by Ms Patel but was not relevant to any of the factual issues we have to decide and so we did not find it of Page 3 of 13 any assistance.[8]Having considered that evidence we make our findings of fact. These are limited to the issues set out at the preliminary hearing and go no further than necessary to reach our conclusions. Colleagues of Miss Diallo, who have not given evidence, are generally referred to by their first names only. That is simply to avoid disclosing personal details unnecessarily, provided that such caution does not interfere with the principle of open justice. Findings of FactBackground
[9]Miss Diallo joined the Children's Services Department as a Team Manager in February 2019, managing a team of seven social workers. She reports in turn to a Group Manager. At the time of the events in question this was Ms Patel, one of two Group Managers responsible for 56 social workers in total. Given the preponderance of younger women in that group, at any given time there are generally between seven and twelve absent on maternity leave, so the process and management responsibilities are well known.[10]Miss Diallo told Ms Patel about her pregnancy at a supervision meeting in September 2019. Although it was at an early stage – 11 weeks - and she did not want other colleagues informed, she asked about getting a car-parking space nearer the office. This is something that might normally be allowed at the six month stage. Ms Patel felt that this would need a recommendation from Occupational Health to bring it forward, and that referral was put in train. There was some tension over these discussions, and Miss Diallo felt that Ms Patel was not being very supportive. More generally she felt that Ms Patel gave her little praise and was quick to criticise. As a result she contacted the Head of Service, Ms Patel’s manager, and asked for a three-way meeting to discuss those concerns. In fact, Ms Patel and Miss Diallo met and cleared the air, and Miss Diallo then reported back to the Head of Service that all was well. In her evidence to us, Miss Diallo accepted that Ms Patel also offered her a later start at work each day. They had discussed her morning sickness, which was not every day, and Ms Patel told her to take it one day at a time, and to keep her informed of any other changes that were needed.[11]On 29 November a workstation assessment was carried out for Miss Diallo. The report made a number of recommendations including a chair with multi-directional armrests, a laptop stand, compact keyboard, mouse, and a double leg-rest. Unfortunately Miss Diallo did not send this to Ms Patel until 13 January, after the Christmas break, so there was a delay in responding.[12]On receipt of this report, Ms Patel placed an order with the relevant business support manager for all of the equipment recommended. It took some time to arrive. The request was approved by the relevant manager on 14 February. The chair arrived Page 4 of 13 in March, shortly before maternity leave began, and the rest did not arrive at all before she left. Ms Patel was not aware of this however. By then Miss Diallo was working from home for three days a week, even before lockdown, and did not raise this at the time. It only emerged in her subsequent grievance. The Christmas Leave issue[13]Christmas is a difficult period for social workers. It is a stressful time for families and demand on social services is certainly no lower than at other times of the year. Some cover over the Christmas period is essential. The Council have a requirement for three managers to be available on the working days over Christmas and this obviously has to be planned in advance. There were six days in particular that needed to be covered, between 23 December and 2 January. After some discussion that year it was decided that in fact four managers were needed on 30 December and 2 January. This all meant that each manager would need to work on 2 or 3 days over this period.[14]So, on 6 November, (p.264) Ms Patel emailed Miss Diallo and her colleague, Mobe, to say that they were short of managers and asking them to put forward some days to be fair on the other managers. Miss Diallo was hoping to take the whole of this period off work so that she could travel to see her family. She then spoke to Mobe, and Mobe agreed that she would do extra shifts to cover for her. Mobe also spoke to Ms Patel. Her starting position had been that she also wanted all of Christmas and New Year off work. Mobe had worked throughout August too. However, Mobe understood that taking the whole period off was asking too much. Ms Patel welcomed any offer of help, but was also aware that Mobe would need to come in every day to allow Miss Diallo that whole period off. She felt that it would unfair on Mobe to ask her to do that.[15]So, she told Miss Diallo that she would need to do at least a couple of days. Miss Diallo was naturally unhappy about this. She accepted the position though, and emailed that day (p.270) to say that she would have to cancel all her leave and come in to work. Ms Patel responded that she was not asking her to come in every day, but Miss Diallo felt that there was no point and she would take her holiday another time. In the event however, Miss Diallo was off sick from 18 December over the entire Christmas period and so did not come in at all, so the previous discussion became somewhat academic.[16]In her witness statement Miss Diallo says (para. 16) that she was the only manager expected to work five days over Christmas, but in fact that was not the case; she chose not to take any leave at all during that period. Leave arrangements before maternity leave[17]Arrangements had to be made in the new year for Miss Diallo’s forthcoming absence, and a plan was agreed to hand over her work to a colleague, Caroline. Page 5 of 13 This involved Caroline stepping up into the team manager role and the necessary steps were discussed at a supervision meeting on 14 January. It involved a gradual handover of responsibilities. At that stage the intention was that Miss Diallo’s maternity leave would start on 20 April, given that her due date was 30 April.[18]Shortly afterwards a more formal letter was sent to Miss Diallo (p.44) setting out her maternity rights and explaining, among other things, about Keeping in Touch days, i.e. that she could take up to ten of these during her maternity leave, that it was not a requirement, and that if she wished to take this up she should agree the days in advance with her manager.[19]On 7 February Miss Diallo simply announced that she would be working from home on Tuesdays from then on. It does not appear to have been discussed with Ms Patel but no objection was taken.[20]The following week, on 13 February, Miss Diallo informed some of her team that Caroline would be taking over when she went on maternity leave and told the rest of the team shortly afterwards. The next day she had a routine supervision meeting with Ms Patel, which Caroline joined, and they reviewed the handover plan. Caroline was by then reducing her workload so as to be able to take over Miss Diallo’s. She was also becoming more closely involved in meetings about ongoing legal cases, and strategy meetings. The aim was to have substantially handed over Miss Diallo’s work to her by 10 April.[21]At the same time Miss Diallo told Ms Patel that she had been to see her GP who recommended that she work from home three days a week. Ms Patel did not challenge that and was happy to accommodate the request.[22]The handover plan changed on 16 March when Miss Diallo emailed Ms Patel to say that she wanted to take leave from 1 to 17 April, so her maternity leave would begin at the end of March (p.224). Again, Ms Patel agreed the request, and asked Miss Diallo to put the request on the Oracle system, which is used to record absences. It does not appear however that she ever did so.[23]Ms Patel then took steps to bring the handover forward. She contacted Caroline, who was agreeable, then asked the Head of Service (p.254) to bring Caroline’s appointment at team manager forward to 1 April.[24]In mid-March the national lockdown began and the day after making this leave request Miss Diallo sent a further email to Ms Patel (p.262) pointing out that the government had advised that pregnant women should stay at home. Again, Ms Patel agreed without any hesitation, and said she should not come in. The position therefore was that from 17 March Miss Diallo was working from home, and was expected to go on leave at the end of the month.[25]She then notified Ms Patel, on 22 March (p.156) as follows: Page 6 of 13 Hi Farida I have been coughing and has runny nose, I called 111 and they advised me to selfisolate for 14 days as of today. I will be off work from tomorrow, will call the sickness line in the morning. I have cleared my LL tray, have no current tasks. Supervision is updated on [a number of named cases]. I have also had hand over meeting between myself Caroline, Grace, Laura & Francis. Alexa, Caroline, Grace, Laura — personal supervision folders are up to date, I emailed copies to them & cc you and Caroline in email. I intend to do the followings in the next few days: 1. Update personal supervision folders for Francis & Annie [etc] … I'm happy to sign off the PDRs for the rest of my staff if they can let me know once they have completed their PDRs. Thanks[26]The reference to LL is to the Liquid Logic case management system. This is an online work area for each team manager and others, where they can be assigned cases and tasks, so Miss Diallo had now effectively cleared her in-tray. (The Liquid Logic file is accessible by other team managers, so that they can pick up work from each other as required rather than have everything on individual email accounts.)[27]The effect of this message therefore, given the short period to run until her leave started – six days – was that she was going off sick with a small handful of remaining tasks – mainly handovers - which she would complete from home, and that would take her up to her leave period and then to the start of her maternity leave. As she said in her evidence, the bulk of her work had already been handed over to Caroline by this stage.[28]Ms Patel was, like everyone else, wrestling with the impact of the national lockdown. She does not appear to have replied, or at least we have not seen a reply, but from an operational point of view this would not have called for any particular action on her part. It would simply have been a case of wishing her well or commiserating on a further period of sickness absence. Perhaps it was that failure to respond at this busy time that caused ill feeling on Miss Diallo’s part, but the fact is that she avoided any discussion with Ms Patel from then on.[29]As already noted, the holiday request had not been put on Oracle, and so the Council’s systems would have recorded Miss Diallo as off sick. Nothing further was heard from her until Sunday, 5 April, when she sent an email to Ms Patel (p.226) Page 7 of 13 announcing “I have a hospital appointment tomorrow morning at 10:30 and if all goes well I intend to carry on working until 17.04.20. I texted you last week re: unlocking my laptop, will be grateful if you could raise a call with IT if not already done.”[30]Ms Patel responded the following morning. She did not, as she might have done, query why Miss Diallo was not on holiday, but she did say that: “In relation to you returning to work, the policy states once you have been on sick leave your maternity leave starts, I will forward you the policy. In regards to the lap top not working, this could be because your new lap top may have been given out to someone, therefore the licence may not be valid on your current lap top. I will get confirmation on this.”[31]The first part above was a mistake on her part. The covid related absence was not pregnancy-related, and so did not trigger the start of Miss Diallo’s maternity leave. Ms Patel emailed the next day to apologise, having spoken to HR. In fact, Miss Diallo contacted HR about this, rather than respond directly, and they explained the position to Ms Patel.[32]Ms Patel also continued to sort out Miss Diallo’s laptop issues, liaising with IT. At that stage, with the move to home working, laptops were at a premium. Miss Diallo had an old one which was due for replacement, and the new one had been reassigned as she was not expected back for the time being, so the old one needed to be fixed, or the communication issue resolved. Miss Diallo also had a work mobile, linked to the laptop, so neither of them could be used for the time being. That meant that Miss Diallo had to communicate via her personal mobile and personal email account, as she had done for this last email about the hospital appointment.[33]By then Miss Diallo had contacted her union about Ms Patel, and been advised to communicate by email as far as possible. This shows that relations had become strained, although it is not easy for us to see why. Ms Patel had made a mistake over the maternity leave starting, and there was perhaps a lack of communication in response to the email of 23 March, but that followed discussions over several months to support her during her pregnancy.[34]Miss Diallo did respond that day, asking Ms Patel to confirm that her maternity leave had started (p.228). Ms Patel called her but Miss Diallo did not answer. At 14.56 that afternoon Ms Patel emailed Miss Diallo on her private email address asking her to call. We are satisfied that Miss Diallo was avoiding her calls, which was not a justified position for her to adopt. Page 8 of 13[35]The following morning, still having heard nothing, Ms Patel emailed again at 11.30. This was the email in which she apologised for the mistake over the maternity leave. She also noted that Miss Diallo did not want to take annual leave as previously discussed, and asked her to call and discuss things. Again, she had no response.[36]It was not until the next day, at 12.08 (p.234) that Miss Diallo emailed again. It was a rather formal message as follows: Good Afternoon Farida Following a discussion with BASW [her union] and our own HR, it's my intention to return to work imminently and to continue to work from home actively until the 17.04.20. Whilst I appreciate there was a request for A/L for the beginning of April this was never confirmed by either parties. Return to work - I would like an update on where to start from Also I'd rather have emails correspondences with you as my work mobile is currently not working. I'm happy for ICT to contact me on my personal mobile.[37]By this stage all of her work had been handed over to Caroline, following a long process involving Miss Diallo. She had failed to book the agreed holiday and so was insisting on returning to work at a time when, by design, there was no longer any work for her to do. The reference to her union appears to be a warning shot, and the final comment is a pointed one. She was happy for ICT to contact her on her mobile but not Ms Patel. All this is surprising behaviour from a manager in her position. It left Ms Patel with limited options for discussion with her.[38]By this time Ms Patel had given Caroline access to Miss Diallo’s Liquid Logic tray, so that she could pick up incoming work. There is nothing unusual in that. Indeed, it is a requirement, and the point of the system is to allow this sort of access and cover. Miss Diallo feels that she should have been informed about this at the time, although it is not clear to us why that was necessary. It was part of the agreed handover and did not, for example, give Caroline access to her email account.[39]So, by 8 April, when Miss Diallo was seeking to pick up the reins again, there were five working days remaining, allowing for Easter, before her maternity leave did start. It is difficult to avoid the conclusion that she simply decided against taking her leave at a time of national lockdown.[40]The ICT issues must have been resolved that day because on 9 April she emailed her team at 10.20 from her work email address: Good Morning Dear Colleagues I understand you were informed that I was on A/L and was not returning to work until Page 9 of 13 after my mat leave. Just to clarity I was on sick leave and returned to work on 06.04.20 but was not able to get onto the system for various reasons. My last day at work will be 17.04.20 and I'm still available on my emails.[41]It is difficult to see what purpose was served by this, which must have been confusing for her team. They had indeed been told that Miss Diallo was on annual leave, because that is what Miss Diallo had requested. Neither Ms Patel nor Caroline were made aware of this announcement before it was made, nor indeed about her decision not to take the agreed annual leave.[42]Ms Patel then emailed her at 10.47 to ask, again, for a telephone call. Miss Diallo responded shortly afterwards to say that she had tried to answer Ms Patel’s call from her laptop but could not hear anything, although in her evidence to us Miss Diallo accepted that she had been advised not to have telephone discussions. She could of course have called on her mobile if she was willing to have a discussion. Instead she ended her email by asking Ms Patel to email any work that she wanted her to undertake.[43]Ms Patel responded at 11.39 (p.241). Understandably she asked what work, if any, Miss Diallo had outstanding. She added that she had spoken to Caroline and she had agreed to send her some audits to complete for the rest of her time. Clearly they were struggling to find any useful work for her to do.[44]Her email added: The team will miss your presence and I am sure as your leaving date is not until the 17/4/20, they will want to arrange some sort of celebration to wish you well and to celebrate the awaited arrival of the new member of the family.[45]Miss Diallo did not see this as a genuine statement and responded (p.246) declining any sort of celebration, saying that she was a private person.[46]Her last working day was therefore 17 April 2020. As before, when she sent her email on 23 March bowing out before the start of her leave period, Ms Patel did not send any final message and allowed the date to pass.[47]On 18 April 2020 Miss Diallo submitted a long and detailed grievance about Ms Patel, a process that led to a disciplinary investigation. The outcome of that process was to uphold only two points:a. She was wrongly informed that her maternity leave had started when she reported sick on 23 March; andb. That the other equipment identified in the workstation assessment (other than the chair) had not been provided. Page 10 of 13[48]As a footnote, Ms Patel was not aware of this grievance until later. But she did email Miss Diallo the following Monday to say: Sorry, I was not able to catch up with you on Friday. Please can you call me to hand over on any bits and pieces that you have been unable to complete. If I do not hear from you, I wish you all the best and hope all goes well and you have some time to rest up till the new baby arrives. Whilst you are away we would like to keep in touch and forward you any new information that comes through to ensure you are still informed of any new developments in the service. I will forward these on to your personal email. If you have objections let me have alternative email address or means of how we remain in contact with you.[49]It was sent to her work address, and may not have been seen at the time, we cite this as an example of the consideration which was undoubtedly shown to Miss Diallo during this period.Conclusions
[50]The first question in each case is whether Miss Diallo suffered any unfavourable treatment. Our conclusions on this point are no different to those found in the grievance process.[51]We sympathise with Miss Diallo over the Christmas leave issue. She had no family in the UK and wanted to travel to see them. Having to work for 2 days over Christmas and New Year would mean that this became impractical. No doubt she was upset about it. However, we recognise that Christmas working is unpopular with her colleagues too. We take into account that one of them offered to cover, but did so reluctantly, and that Ms Patel felt that it would be unreasonable and unfair to impose on her an obligation to work all through this period. The upshot is that the demands made of Miss Diallo were the same as, and certainly no greater than, those imposed on the others. Ultimately, these were normal working days, and Miss Diallo was required to work on them, unless given leave, and that requirement cannot in our view amount to unfavourable treatment.[52]In any event, the requirement was never made as she was off sick at the relevant times, and for that reason too cannot in our view amount to unfavourable treatment. It was simply overtaken by events.[53]As to the workstation assessment, the main point here is that it was not provided to Ms Patel until 13 January. It is not clear why action had to wait for Miss Diallo to send the report personally to Ms Patel, but we accept that it was not provided separately, and she took prompt action to obtain the necessary equipment. There was a delay, and since the Council accept that this was a failure that was upheld in the grievance, we accept that this was unfavourable treatment too. Page 11 of 13[54]Turning to the other matters listed:a. It was accepted in the evidence we heard that Miss Diallo did not raise with Ms Patel any risk of pre-eclampsia.b. When she returned to work on 7 April 2020 there was no return to work interview, but that was because it occurred during lockdown. Miss Diallo did not physically return, and had given no notice of her return. Not only that but she was unwilling even to talk to Ms Patel by telephone. In those circumstances the lack of discussion between them cannot be laid at Ms Patel’s door, or amount to unfavourable treatment.c. At that point her role was being carried out by Caroline, but that is what had been discussed and agreed. Again, this is not unfavourable treatment. There was no question of Miss Diallo being deliberately side-linedd. There was no lack of consultation about this, save perhaps for the Liquid Logic access, although that was something that Ms Patel was authorised to give to Caroline. It did not impinge in any way on Miss Diallo by that stage and so was not unfavourable treatment.e. The laptop issue was simply a routine IT problem which appears to have been resolved without delay.f. Finally, Keeping in Touch days were a matter to be initiated by Miss Diallo. She was made aware of the entitlement but did not avail of it.[55]The remaining question is whether these modest instances of unfavourable treatment – the delay in providing equipment and the mistake over the start of maternity leave – were because of her pregnancy. That is close to suggesting a deliberate failure on Ms Patel’s part, and we have to focus on her intentions in considering this question. The equipment delay, we are satisfied, was not her fault at all and she tried to expedite it. The maternity leave issue was in our view a genuine mistake, swiftly corrected, and not in any way motivated by the fact that Miss Diallo was pregnant or any ill will towards her. These conclusions seem to us self-evident from the evidence we heard, so there is need to have resort to the burden of proof provisions in the Equality Act.[56]More generally, it appears to us that Miss Diallo expected more in terms of support and consideration than was realistic or achievable, particularly during the busy early days of the lockdown period. It may be that her view of things, and of Ms Patel, was coloured by the refusal of her Christmas Leave request. Their relationship had certainly suffered by the time her maternity leave approached. Nevertheless, we take the view that Ms Patel was conscientious and supportive throughout. If we are wrong in our conclusion that there was no other unfavourable treatment, we are Page 12 of 13 satisfied that any additional failure was inadvertent.