Ms N Mead v A Best on behalf of the Management Committee of Egham Bowls Club: 3305301/2023
EMPLOYMENT TRIBUNALS
Case No 3305301/2023
Between
Ms N MeadClaimantAngela Best on behalf of the Management Committee of Egham Bowls ClubRespondent
Before
Employment Judge Quill; Mr N Boustred; Ms A TelferIn person for claimantMr A Webster (instructed by counsel) for respondentDate 22 May 2025
JUDGMENT
(1) The Claimant’s son had ADHD and ASD at all relevant times, each of which met the definition of disability in section 6 EQA.(2) All the complaints were presented within the relevant time limits.(3) All the complaints of direct discrimination fail and are dismissed.(4) All the complaints of victimisation fail and are dismissed. Approved by:
REASONS
[1]The judgment and reasons were given orally on 22 May 2025. Written reasons have been requested by the Respondent's representative on the instructions given to them by the Respondent, and this document contains those reasons.[2]Egham Bowls Club is an unincorporated association. The decision about Respondent name as shown above was made on the papers prior to the preliminary hearing.[3]The claim was presented while the Claimant was an employee.[4]The complaint alleges that there has been direct discrimination because of another person’s protected characteristic, namely her son’s disability. It also alleges victimisation. Page 1 of 50 The Claims and The Issues[5]At the preliminary hearing on 20 June 2024, various orders were made add a list of issues produced. The summary and orders document is [Bundle 92] and the list of issues itself commences at [Bundle 98].[6]It read (omitting remedy issues): 1. JURISDICTION – TIME LIMITS C commenced ACAS Early Conciliation against the first three Respondents, Anna Mays, Angela Best and Kerry Payne, the Claimant entered into ACAS early conciliation on 03 March 2023 and received her certificates on 14 April 2023. With regard to the remaining nine Respondents, the Claimant entered into ACAS early conciliation on 09 May 2023 and received her certificates on 11 May 2023. The Claimant submitted her ET1 Claim Form on 12 May 2023. 1.1. Were all the Claimant’s complaints presented within the time limits set out in section 123(1)(a) of the Equality Act 2010? 1.2. If one or more alleged act(s) is time barred, did all or any of them form part of the conduct extending over a period within the meaning of s123(3)(a) Equality Act 2010? 1.3. Alternatively, has the Claimant persuaded the Tribunal that it is just and equitable to extend time under s123(1)(b) Equality Act 2010? 2. DISABILITY The Claimant contends that her son is an associated person with ADHD and Autism. The Respondent does not concede that her son is disabled at all or at any relevant time or that the Respondent did or ought reasonably to have had knowledge of the same in any event as her son is not in the Management Committee’s employ and therefore the Respondents are not privy to any medical disclosure. 2.1. Is the Claimant associated with someone who meets the definition of a disabled person for the purposes of s6 and Schedule 1 of the Equality Act 2010 in that: 2.1.1. Did the associated person have a physical or mental impairment at the relevant time? 2.1.2. Did that impairment have an adverse effect on the associated person’s ability to carry out normal day-to-day activities? 2.1.3. If so, during what period did the impairment have such effect? 2.1.4. Was that adverse effect substantial and long-term and if so, from when? 2.2. Did the Respondents know (or could reasonably be expected to have known) of the Claimant’s son’s disabilities at the relevant time? 3. DIRECT DISABILITY DISCRIMINATION BY ASSOCIATION, S13 AND S39(2)(D) EQUALITY ACT 2010 Page 2 of 50 3.1. Did the Respondent subject the Claimant to the following (potentially discriminatory) treatment? 3.1.1. On 05 December 2022, the Claimant was told by Martin Hays that Anna Mays emailed Martin Hays that the workplace is not a suitable place for a child and that the Claimant cannot perform her duties because she has her son with her. 3.1.2. On 05 December 2022, Anna Mays told the Welfare Officer to contact Social Services in regard to the welfare of the Claimant’s son. 3.1.3. On 14 December 2022, the Claimant received a letter from Egham Bowls Club confirming that the Claimant’s son was banned from being at the Club. [This meant the Claimant had the additional stress and expenses of trying to arrange childcare for him whilst she was at work. ] 3.1.4. On 03 January 2023, Anna Mays asked intrusive and personal questions about the Claimant’s living situation. Anna Mays asked Ian Crook, the Maintenance Manager, to go into the Claimant’s property and complete an inspection. This is a violation of the Claimant’s privacy. 3.1.5. On 3 February 2023, the Claimant was told disciplinary action would be brought against her for being visibly upset on the phone after she was accused of lying. / The Claimant was informed by Angela Best on 03 February 2023 that she was required to attend a disciplinary meeting on 09 February 2023 in regard to her behaviour in the clubhouse. 3.1.6. In February 2023, the Claimant was told disciplinary action was being 3.1.7. In March 2023, the Claimant was informed by David Ayton via telephone conversation that a note would be placed on her file about her conduct whilst at work for 12 months. 3.1.8. In April 2023 it was re-affirmed by David Ayton that disciplinary proceedings would be brought against the Claimant. 3.2. If so, was that treatment less favourable than the treatment of others not associated with a disabled person? 3.3. The Claimant puts forward a hypothetical comparator of an employee of similar standing to the Claimant but does not have an association to a disabled person. 3.4. Are there facts from which the Tribunal could decide, in the absence of any other explanation, that the Respondents discriminated against the Claimant? 3.5. If so, have the Respondents shown that they did not discriminate against the Claimant 4. VICTIMISATION S27 AND S39(4)(D) EQUALITY ACT 2010 4.1. Has the Claimant done a protected act? The Claimant avers she did the following protected acts: 4.1.1. On 03 December 2022, the Claimant approached the Welfare Officer and alleged her son had been discriminated against by Anna Mays. 4.1.2. On 03 March 2023, the Claimant contacted ACAS early conciliation and alleged discrimination. Page 3 of 50 4.2. Has the Claimant been subjected to a detriment because of the protected act(s)? The Claimant avers she has suffered the following detriments: 4.2.1. On 05 December 2022, Anna Mays told the Welfare Officer to contact Social Services in regard to the welfare of her son. 4.2.2. On 14 December 2022, the her son was banned from being at the Club. This meant the Claimant had the additional stress and expenses of trying to arrange childcare for her son whilst she was at work. 4.2.3. On 3 February 2023, the Claimant was told disciplinary action would be brought against her for being visibly upset on the phone after she was accused of lying. / The Claimant was informed by Angela Best on 03 February 2023 that she was required to attend a disciplinary meeting on 09 February 2023 in regard to her behaviour in the clubhouse. 4.2.4. In February 2023, the Claimant was told disciplinary action was being 4.2.5. In March 2023, the Claimant was informed by David Ayton that a note would be placed on her file about her conduct whilst at work. 4.2.6. In April 2023, it was re-affirmed by David Ayton that disciplinary proceedings would be brought against the Claimant.[7]As set out under the heading for Section 2 there were two alleged disabilities rather than one. The fact that paragraph 10 of the orders refers only to ADHD does not alter that fact. The Particulars of Complaint referred to “disabilities” plural in paragraph 8 and conditions plural in paragraph 26. As we told the parties on Day 1, we are satisfied that it is clear from the particulars of complaint that autism as well as ADHD were each alleged to be a disability for the purposes of the claim, notwithstanding the fact that (as mentioned in paragraph 7 of Particulars of Complaint) at the time the particulars were drafted the Claimant's son was awaiting a formal diagnosis of ASD.[8]The Respondent concedes that the Claimant's son has a disability namely autism or autism spectrum disorder and that he had it at all relevant times. Item 2.2 of the list of issues was not formally conceded, though it was the Respondent’s position that it was unnecessary for the Claimant to prove knowledge in order to succeed in either a complaint of direct disability discrimination or of victimisation.[9]The Respondent does not concede that the Claimant's son has ADHD such that it meets the definition in the Equality Act 2010. The Respondent made clear that this was because the Claimant had failed to comply with the orders and therefore there was - in the Respondent’s opinion - no evidence on which it could properly make a concession.[10]The Respondent did not waive without prejudice privilege in relation to communications with ACAS. They also did not waive their rights under the Employment Tribunals Act 1996 to the effect that anything a person said to an ACAS officer is not admissible evidence without their consent Page 4 of 50[11]There is no dispute that the Claimant did contact ACAS. Twelve early conciliation certificates are in the bundle and twelve Respondents were named on the claim form with the relevant certificate numbers each quoted. One batch of early conciliation started 3 March 2023 and ended 14 April 2023. Another batch commenced on 9 May 2023 and finished on 11 May 2023.[12]On Day 1, we asked for clarification from the Claimant whether she was alleging that:12.1 it was her act of commencing early conciliation that had led the Respondent to believe that she might do a future protected act, such as present a claim to the Tribunal alleging discrimination, or12.2 whether she was alleging that the actual contact with ACAS was itself a protected act.[13]The Respondent’s position was that the Claimant had to be limited to the latter argument based on the fact that neither the list of issues nor the particulars of claim raised the former argument.[14]The Claimant’s position was that she stood by the particulars of complaint which had been prepared with assistance from a charity offering advice. For completeness, we have addressed both potential arguments in our reasons below, but there was no application to formally amend the claim and we agree with the Respondent that such an application would have been required.[15]In relation to paragraphs 3.1.3 and 4.2.2, the Claimant confirmed during crossexamination that the allegation does not relate to a letter but it is to an email and, specifically, it is to the email which is at [Bundle 192] dated 12 December 2022. The Hearing and The Evidence[16]The Claimant had supplied a witness statement from herself and we had that in hard copy as well as electronically. This had not been exchanged in accordance with the case management orders but the Respondent did not seek to allege that she should not be able to give evidence.[17]We also had a written statement from Kevin Clark which was in the form of an email.[18]Each of the Claimant and Mr Clark gave evidence on oath in the hearing room.[19]The Claimant also provided an email from Richard Edwards who was not going to attend. It was not an email that had been prepared for the purposes of these proceedings and we were not prepared to treat it as a witness statement. It also appeared in the bundle [Bundle 178]. As we said on Day 1, the fact that we were Page 5 of 50 not treating it as a witness statement did not prevent either side from referring to that email in their evidence or their submissions and inviting us to make findings of fact based on its contents.[20]On the Sunday before the hearing started on the Monday, the Claimant emailed the Respondent’s representatives with a further proposed witness statement. This was from Della Frith.[21]The Respondent objected to Ms Frith being a witness,21.1 on the basis that her witness statement did not contain evidence that was relevant to the list of issues and also21.2 on the basis that it had not been supplied in accordance with the case management orders and also21.3 on the basis that its extreme lateness prejudiced the Respondent.[22]For the reasons we gave at the time we permitted the Claimant to call Ms Frith as a witness and she gave her evidence by video.[23]Neither Mr Clark nor Ms Frith were cross-examined by the Respondent though each of them answered some questions from the panel.[24]There were two witnesses for the Respondent, namely Anna Mays - who was chairperson in the relevant period - and Angela Best - who was secretary in the relevant period. 25. [Bundle 279] mentioned AB passed around the email from the insurers confirming that children should not be unattended in the club.[26]This was also mentioned in paragraph 51 of Ms Best’s statement.[27]This email was not in the bundle Ms Best stated in cross examination that she thought it had been supplied to the Claimant during the litigation[28]We ordered that, if available, it be supplied to the Claimant and the tribunal but we did not receive it. (We did receive, during the deliberations, some photos which we had not requested, but we did not receive the item that we had actually requested.)[29]This was a disclosable document and Ms Best had referred to its alleged contents in her written statement. Page 6 of 50
The Findings of Fact
[30]We make the following findings of fact on the balance of probabilities having considered all of the evidence presented during the hearing.[31]The Respondent’s constitution is at [Bundle 353]. As noted in the list of objects, its activities include promoting and encouraging “the participation in, and to provide facilities for, the amateur sport of bowls (“the Sport”) in Egham and the community in the surrounding area.”[32]It has indoor bowling and also outdoor bowling. It is a social club as well as a purely sporting club. On the premises there is a licensed bar. Membership of the club is potentially open to people under 18 and people under 18 are allowed to be on the premises. As confirmed by Ms Frith, and not disputed by the Claimant herself, persons under 18 had to be accompanied by an adult.[33]The Claimant commenced employment in January 2022. The written terms and conditions of employment documents is at [Bundle 105].[34]The contract referred to her role as Bar Steward and that is how she is also referred to in various management committee meetings.[35]There was also a bar manager, and the bar manager was effectively the Claimant’s line manager. At the start of the Claimant’s employment, that was Bryan Putnam. From around November 2022, it became Dave Ayton.[36]At the relevant times, apart from the Claimant, there were no other bar stewards or bar staff with regular hours.[37]The were some other people who sometimes did bar work on an as and when required basis. These included:37.1 Mr Clark who worked behind the bar from around 2013 to around 202437.2 Ms Frith whose last assignment was around October 2022 (and she was asked to return her set of keys around November 202237.3 Ian Jenkins, for whom we have no start and end dates, but who was available to be given shifts throughout the entirety of the relevant period, namely from around December 2022 to around April 2023.[38]The Claimant’s duties included opening and closing the bar. They also included serving behind the bar. They also included spending some time in the car park in the morning, and again in the afternoon, during the period when the Respondent had a manual barrier to the car park. The purpose of these duties was to allow bona fide members to park while preventing other people, especially parents dropping off or collecting children from school, from using the car park. Page 7 of 50[39]In terms of the latter duty, there came a time when this was no longer required because the Respondent made alternative arrangements to use number plate recognition.[40]As a result of her appointment, the Claimant was able to live in a property known as the bungalow. This was owned by the Respondent. Paragraph 10.2 of the contract referred to a right of access for the purposes of maintenance and inspection of the premises.[41]The Claimant has two children. We will refer to her younger child as the Claimant’s son and to her older child as the elder brother. They lived with her in the bungalow[42]As of late 2022 and early 2023, the Claimant's son was 8 years old. He attended a nearby school. He had a care plan in place such that he had one to one supervision at school from a teaching assistant.[43]At [Bundle 460], there is an autism spectrum disorder assessment report. The report is dated 25 July 2024. In other words, the report was prepared around 15 months after the claim was presented (which was 12 May 2023), and it was around a month after the preliminary hearing which took place (20 June 2024).43.1 This is the only medical evidence which has been produced by the Claimant and she did not comply with the case management orders which required her to prepare an impact statement.43.2 We note the full contents and we do not need to quote from it extensively.43.3 We note that it states that the Claimant’s son was diagnosed with ADHD when he was six years old, so prior to the Claimant’s working for the Respondent.43.4 We note that the document does not specify whether the author had seen first hand evidence of this diagnosis or whether the remark was based on what the author was told by somebody else, such as the Claimant.[44]When the interviews for the role were taking place, the Claimant was asked about childcare arrangements. She informed the interviewers that she had childcare arrangements for all the working hours that were required by the contract.44.1 When the Claimant said this, she believed it to be true.44.2 The Claimant's intention was that the elder brother would collect the Claimant’s son from school and would be able to look after him in the evenings until the Claimant finished work. Page 8 of 50[45]After the Claimant had been working for Respondent for a couple of months, the elder brother’s work arrangements changed and he was no longer able to collect the Claimant’s son from school and look after him each evening.[46]The Claimant began bringing her son onto the premises while she was working. The Respondent, as mentioned above, does allow people under the age of 18 onto the premises including for bowling.[47]The Claimant mentioned this to Trevor Hoy, who was the Respondent’s Management Secretary at the time, and he did not raise an objection at the time.[48]The casual bar staff, Della Frith and Ian Jenkins, also sometimes were accompanied by a child while they were working. Ms Frith's child was in her mid teens and Mr Jenkins child was a similar age to the Claimant's son.[49]Neither Ms Frith nor Mr Jenkins always brought their child with them. Furthermore neither Ms Frith nor Mr Jenkins worked every day or worked on a regular basis.[50]Ms Mays was a member of the club at all relevant times. As confirmed at the January 2022 committee meeting [Bundle 117], she agreed to become volunteer welfare officer.[51]In around September 2022, Ms Mays exchanged some emails with the Claimant in connection with her welfare officer role. On 15 September 2022, Ms Mays wrote: Rest assured, your feelings are not being ignored. You will be aware that there are a few changes happening within the club and we are preparing for an AGM which may well mean that roles and responsibilities change. I am making it my priority to go into those changes with a clearer outline of how these issues should be dealt with in future so that we are never in this situation again.[52]As of the 21 November 2022 committee meeting, Ms Mays was the new chair of the management committee, and Ms Best was the new secretary. However, even prior to that meeting, Ms Mays was beginning to take more of a leading role and to become more familiar with various aspects of the running of the club.[53]On 9 and 10 October 2022 [Bundle 130], there was a further exchange of emails between the Claimant and Ms Mays. Ms May informed the Claimant that she should speak to either Trevor Hoy or else to the then bar manager Bryan Putnam because the points being raised by the Claimant did not appear to be within the remit of the welfare officer.[54]The Claimant’s email just after midnight on 10 October 2022 asserted, that in her opinion, the matters being raised were about “threatening behaviour and bullying” and that such matters did come under safeguarding. The behaviour in Page 9 of 50 question was the alleged behaviour of another committee member and what she had allegedly said to the Claimant. The alleged incident did not involve the Claimant’s son.[55]On 10 October, Ms Mays forwarded the email trail to Trevor Hoy and Bryan Putnam and also to Kerry Payne who was the committee member mentioned by the Claimant.55.1 The email commenced “Hi Trevor”. It stated that Ms Mays had been told that the Claimant was routinely drunk while working and this was often when her son was with her.55.2 The email made reference to the elder brother but made no express comment to the effect that the elder brother should be looking after the Claimant’s son while the Claimant was working.[56]On 22 October 2022, at 11.24 Ms Mays sent an email to Trevor Hoy and others [Bundle 133]. She commented on various topics.56.1 She said that she had received reports about the Claimant’s behaviour and acknowledged the reports might be false. She also commented on the Claimant’s son’s presence during working hours and said she had had reports about his behaviour which, again, she said might be false.56.2 She mentioned that the Claimant’s son was vulnerable. We find that this was partly a reference to age but also partially a reference to the issues that we have decided amount to disabilities.56.3 Our finding is that one of the main purposes of sending this email was the fact that Ms Mays was anticipating that someone else would be taking over as Welfare Officer shortly. Her opinion was that the person who was to take over as Welfare Officer would need to be suitable and that they may need to follow up on some of the issues in her email.56.4 She asked Mr Hoy to find out how often and how long the Claimant’s son was in the bar, and whether he was routinely running around, in the indoor area near to the bowling area.[57]Mr Hoy replied on 23 October [Bundle 138]. The reply included: We were assured by Natasha, when she was appointed that there would be no childcare issues, this was raised as a specific point.[58]Ms Mays replied [Bundle 136] later the same day commenting on the Claimant’s contract. She also stated that: Page 10 of 50 With regards to childcare, it remains a concern. I don't see how she could ever man the gate and get her child to school and pick him up, they are the same period of time. Yes she may have someone else who could take him in but given his additional support needs that was always likely to be a big ask. Children with ASD are notoriously difficult to get to school, anxiety is high and the need for a consistent, calm and attentive carer is paramount.[59]Our finding is, and we consider it to be clear from the full email exchanges around this time, that one of Ms Mays’ concerns was that the club might need to take action to protect the club’s position with a view to avoiding, or minimising, the risks of legal liability. As the email exchange continued that day, she raised points about the legal situation in connection with the bungalow and with the Claimant’s employment contract. Her concerns including whether the Respondent was complying with National Minimum Wage legislation and with HMRC requirements.[60]In the coming days, Ms Mays contacted the Claimant and raised an issue about the bar not having been open during scheduled hours; that is the hours advertised to members, and the hours stated in the Claimant’s contract of employment.[61]On 25 October 2022 [Bundle 143], Ms Mays mentioned to the Claimant that she had seen the Claimant's son running around at “green level” (meaning near to the bowling green), the previous Friday and that she thought this was inappropriate both from the point of view of the bowlers using the green but also from the point of view of his own safety.[62]The Claimant replied the same day. She made a point which she stood by in the employment tribunal hearing. She said that the only reason her son had been at green level was that he had been looking for her. She amplified the point at the employment tribunal; she said that he had gone to green level in order to approach a specific member (someone who was familiar to him) to ask about the Claimant's whereabouts.[63]Ms Mays replied.63.1 She said that, in her opinion, it was obvious that the Claimant could not supervise her son when she was working.63.2 She implied that it had been her assumption that, on the day in question, there had been a temporary or emergency situation with childcare. Her other emails at the time show that she had been told (albeit that she had not seen for herself) that he was frequently present, but she did not raise that point with the Claimant in these emails.[64]In the email exchange, Ms Mays asked the Claimant if the Claimant needed any assistance. Page 11 of 50[65]Within two separate emails sent that day, 25 October 2022, the Claimant said that she would leave her son at home going forward. She said that she could completely understand where Ms Mays was coming from.[66]The Claimant also said that she was not there to babysit the children of members and Ms Mays agreed with her and told her that she should refuse to do that if asked.[67]On around 27 October, Ms Mays spoke to the Claimant. We find that the contents of the conversation are accurately summarised in Ms Mays’ email to Mr Hoy at 2134 that day [Bundle 151], which was written while the events where fresh in her mind.67.1 The Claimant informed Ms Mays that her son had a social worker and also that the reason for having a social worker was that he had autism. This was prior to the autism report produced more than 18 months later.67.2 Ms Mays told the Claimant that she had received reports about the Claimant taking drinks without paying for them.67.3 Ms Mays told the Claimant that she, Ms Mays, had received reports alleging that the Claimant was regularly drunk while working. She said that – if true – this was a cause for concern for two reasons. Firstly, that it raised questions about whether she was properly performing her duties as an employee. Secondly, Ms Mays suggested, it raised questions about the appropriateness of having her son present at such times.67.4 Ms Mays told the Claimant that she had safeguarding concerns and had been thinking about whether she needed to formally report those concerns. She told the Claimant that she had taken informal advice from the Bowls Surrey Safeguarding officer.67.5 Our finding is that, at the time, Ms Mays genuinely held the concerns set out in that email.67.6 In the email, Ms Mays repeated her concerns that the club might be breaching employment obligations to the Claimant, and that it might be necessary to vary her contract to remedy this.67.7 She expressed concerns about whether the incoming holders of particular posts following the annual general meeting would be suitable and appropriate. There were also concerns about the liability of the club in connection with various matters, especially the living arrangements within the tied accommodation. Page 12 of 50[68]The annual general meeting took place around 7 November 2022. From that date forward, Ms Best was secretary and Ms Mays was chair. It is also at from that date, approximately, that Dave Ayton became Bar Manager.[69]During November, because of Ms Mays concerns about the number of hours the Claimant was doing, but also because of concerns raised with Ms Mays by members about the bar’s opening hours, there was correspondence between Ms Mays and the Claimant with Ms Mays seeking clarification of what the arrangements usually were. In particular, she wanted to know whether it was the Claimant herself who decided when to open the bar or whether the Claimant carrying out the instructions of the Bar Manager or somebody else.[70]There was also friction between Ms Mays and the new bar manager, Dave Ayton, in connection with the arrangements for opening the bar.70.1 Ms Mays made clear that, as far as she was concerned, it should be open all the times that it had been advertised as its opening hours. At all other times, it should generally be closed, but on the basis that extra opening hours could potentially be agreed for specific reasons from time to time, but that that should be a decision made by the senior members of the management committee not just by the Bar Manager or just by the Claimant.70.2 Mr Ayton did not agree. His position was that he had been elected to be Bar Manager because of suitable expertise, and that he was mandated to be able to decide the opening times.[71]There was a committee meeting on 21 November 2022. The minutes are [Bundle 162].71.1 There was discussion about, and approval for, having automatic number plate recognition in the car park. One of Ms Mays reasons to for wanting to have numberplate recognition was to reduce the number of different tasks the Claimant had to do and with a view to making sure that there was no breach of minimum wage regulations.71.2 The bar manager reported that he had implemented a rule that children would no longer be allowed behind the bar and nor would non-bar staff.71.3 There was a discussion about the issue of children in the clubhouse. There was, at that time, no restriction on their whereabouts subject to Mr Ayton's new rules about not being allowed behind the bar and to the previously existing rules about having to be accompanied by an adult.71.4 There was a discussion about whether a new restriction should be put in place to ensure that there was a minimum distance between the children and Page 13 of 50 the bar. No decisions were made and members were invited to think about it further for discussions at later meeting.[72]The committee member appointed to replace Ms Mays as Welfare Officer was Martin Hayes.[73]On around 24 November, Ms Mays and Mr Hayes met and discussed issues which did not directly relate to the Claimant. There was disagreement between the two of them about potentially what actions should be taken by the welfare officer.73.1 As shown on [Bundle 171, 170], from around 3:30pm to around 5:15pm on 2 December 2022, there was a further exchange of emails between Mr Hayes and Ms Mays about this same issue which was one which Ms Mays regarded as a safeguarding issue (and which needed to be formally handled and documented as such) and which Mr Hayes believed he had dealt with appropriately and closed down.73.2 The tone of the emails makes clear that they were angry with each other and that they each thought the other person was in the wrong. Martin Hayes’ opinion was that he was being bullied over this issue and he said so in the emails to Ms Mays.[74]Dave Ayton’s correspondence also suggested that he believed that he was being bullied and excluded from decision-making. 75. [Bundle 176] shows that Ms Frith was asked to hand the keys back on 20 November. Ms Frith’s last shift working was prior to that, in other words, it was significantly prior to 2 December 2022.[76]On 2 December an incident occurred. The facts are in dispute between the parties. During the hearing, it was referred to as the “wheelchair incident”.76.1 A member of the club had a wheelchair. On 2 December, the wheelchair was in the clubhouse area. The owner was not using it at the time.76.2 The Claimant's son was sitting in the wheelchair. There was an interaction between Ms Mays and the Claimant's son. The Claimant was not present at the time. Ms Mays asked the Claimant's son to get out of the wheelchair. He did not immediately do so. Other people became involved.76.3 In reaching our conclusions about what happened, we do take into account what Richard Edwards wrote in his email on 3 December. He does not directly comment on anything that Ms Mays is alleged to have said directly to the Claimant's son. We note that he states that it was he who asked the Claimant to get the Claimant's son out of the chair. Page 14 of 5076.4 The interaction was loud enough for other members of the club to be aware of the situation and to speak to Ms Mays about it, and to locate the Claimant and bring the Claimant to the area with the intention of the Claimant removing her son from the wheelchair.76.5 The Claimant's son was very upset by the incident. We accept that the Claimant genuinely believes that he had an autism meltdown in connection with the incident. However, we are not persuaded on the evidence that he became distressed specifically by Ms Mays’ words to him as opposed to the subsequent discussions nearby involving various people which culminated in the Claimant arriving and removing him from the chair.[77]The following day, just before 1pm, Mr Edwards sent an email to Ms Mays and Mr Hayes about what he believed he had witnessed the previous day. He referred to the Claimant's son as an autistic child.[78]Later the same day [Bundle 178], Ms Mays wrote to Mr Hayes suggesting that she that he would speak to Mr Edwards and making clear she did not agree with his account of the incident. She presumably used “reply all” meaning that Mr Edwards also received a copy. It was this which prompted Mr Edwards’ reply at 8:26pm, which stated emphatically that he stood by his account.[79]Mr Hayes invited people to meet him to provide statements about the incident. He circulated an email at 9.45 on 4 December 2022. [Bundle 180][80]Having noted that email, Ms Mays wrote to Ms Best about it, and expressed the view that the investigation should be in relation to who was supervising at the Claimant's son. [Bundle 181]. She commented that she did not think the Claimant should bring her child to work because while working she could not also be looking after her son.[81]According to the list of issues, though not mentioned in the Claimant's written statement, the Claimant had approached Martin Hayes on 3 December 2022. The Claimant has not provided any evidence from Mr Hayes about his recollection of what the Claimant said. Nor has the Respondent.81.1 Our finding is that the Claimant and Mr Hayes did have a discussion on 2 or 3 December 2022.81.2 Whether that was before or after Mr Edwards’ email and whether it was initiated by the Claimant or whether it was initiated by Mr Hayes is not crucial to the issues that we have to decide.81.3 We have to decide whether, as alleged in the list of issues, the Claimant made any suggestion that there had been discrimination, either expressly or implicitly. Page 15 of 5081.4 On the balance of probabilities, our finding is that - at the time – the Claimant’s suggestion was not that the actions of Ms Mays had been because the Claimant's son had a disability and/or because he had autism.81.5 The evidence as a whole shows that there were significant disagreements between members of the club and also between committee members. The Claimant herself - during his employment tribunal hearing - has expressed the view that she believed that she was being unfairly criticised. She expressed the view that there was animosity towards her and that it was because of the animosity towards her, the Claimant, that criticisms had been made of her son's behaviour (that were not justified). Our finding is that she did not believe that there was animosity towards her because of her son’s behaviour, but rather her belief was that there was animosity towards her for other reasons, and that her son’s alleged behaviour was being used as a sham reason to get at her.81.6 On the balance of probabilities, these are the opinions that she expressed to Mr Hayes at the time. In other words, she did not at the time suggest (expressly or by implication) that it was because her son had a disability that Ms Mays had asked him to move. Rather, she simply told Mr Hayes that Ms Mays was being unreasonable by asking him to move and that this had been upsetting for him and/or upsetting for the Claimant. We infer that she suggested that Ms Mays’ actions had been unnecessary and also that this was something about which other members agreed with the Claimant, and disagreed with Ms Mays.81.7 On the Claimant's own account, during cross-examination, she stated that it was later on when she reflected about matters that she came to the view that there had been discrimination and/or discrimination by association.81.8 We find that this is not something that she was thinking about at the time (around 3 December 2022), and our finding is that she did not say anything to Mr Hayes to the effect that she believed that there had been any treatment or conduct connected to her son's disability.[82]As the Claimant says in her witness statement, the Claimant did not think that Ms Mays should have spoken to her son directly. Rather she thinks that Ms Mays should have come to speak to her about her son being in the wheelchair. Although not strictly relevant to what we have to decide, our finding is that had Ms Mays done so, the Claimant would not have immediately agreed to remove her son from the wheelchair. Rather she would have sought to justify to Ms Mays that it was appropriate for her son to be able to stay in the wheelchair.[83]On 5 December at 3.56pm [Bundle 186], Ms Mays sent an email to Mr Hayes. In the email exchange which followed that day – as in their earlier email Page 16 of 50 exchanges - it was apparent they had different opinions about the safeguarding role. Their differences in opinion did not arise, for the first time, as a result of the wheelchair incident, or as a result of anything that anyone (including the Claimant) said about the wheelchair incident.[84]In the email exchange, Ms Mays expressed the opinion that it would be appropriate for the welfare officer, as part of his safeguarding role, to contact the social worker allocated to the Claimant's son, if he, Mr Hayes, did have any safeguarding concerns about the wheelchair incident.[85]In her email at 8:32pm, [Bundle 183, 184], Ms Mays repeated comments that she made previously. Ms Mays offered the opinion (and we find that it was her genuine belief at the time) that the Claimant could not look after her son and perform her duties as an employee at the same time. This was Ms Mays’ genuine opinion and it was one that she had formed prior to the wheelchair incident and prior to any questions being directed to her about the wheelchair incident.[86]In the following days, Ms Mays and Ms Best sent emails to Mr Hayes asking whether, if he had any concerns about the Claimant's son’s safeguarding, he had reported it to the social worker. Mr Hayes declined to comment one way or the other.[87]For what it is worth, we accept the Claimant's recollection that the social worker was aware, because the Claimant had mentioned it to the social worker.[88]On 12 December [Bundle 192], Ms Best sent an email to the Claimant.88.1 The email commented on the fact that the Claimant had been given the job on the basis that she did have adequate childcare in place. It acknowledged that there might sometimes be emergencies that might mean that the arrangements fell through, and so she might need to bring her son with her to work. It suggested that what had been happening in recent weeks was that he had been attending work with the Claimant regularly.88.2 The email accurately reported that the national governing body had expressed concerns about an employee having their young child with them while on duty.88.3 The email said that the Claimant's son must not come to work with her anymore. It concluded: … the club is not a suitable environment for a young unsupervised child and you would not be able to look after him whilst working. Obviously you have control over your days off, so I would encourage you to work the casual rota around your childcare needs but please do come back to me if you envisage any difficulty in managing your home and work commitments. Page 17 of 50[89]The email did not state that the Claimant's son could not come onto the premises at other times. It was not Ms Best’s intention to imply that the Claimant's son could not come onto the premises at all. Our finding is that the words used in the email accurately convey the intended meaning, namely that the Claimant should not bring her son to work with her, when she was working, but no other restrictions other than that were being placed either on the Claimant or her son.[90]Trevor Hoy sent an email to some committee members on 16 December 2022 [Bundle 193].90.1 He says he had “become acquainted with a letter that has apparently been sent to Natasha which effectively bans her son Sebastian from been at the club!”90.2 Our finding is that he had not seen such a letter, and that such a letter does not exist.90.3 Our inference, therefore, is that he is basing what he wrote on what he had been told by the Claimant. It was the Claimant, not Ms Best or any other committee member, who suggested that the Claimant's son was banned from the club.90.4 Mr Hoy went on to say that some people, including himself, were regarding the issue as “potentially discriminatory, especially in view of [the Claimant's son's] mental health issues”.90.5 Our finding is that this was Mr Hoy's own opinion, not something which the Claimant had suggested to him. Furthermore, he based his opinion on the inaccurate information given to him by the Claimant. In other words, he was not specifically told that the Claimant had only been told not to bring her child to work with her while she was supposed to be working. Rather he was inaccurately told that there was a blanket ban on the Claimant's son being inside the clubhouse.[91]Having sent the email to the committee members, Mr Hoy then immediately forwarded on to Richard Edwards, Kevin Clark and Martin Hayes. Mr Hayes replied stating that he thought “this” was “totally unacceptable”. By “this”, he meant the things described in Mr Hoy’s email. As we have said, Mr Hoy’s email was inaccurate (being based on inaccurate information from the Claimant). Mr Hayes said that he had been totally unaware of what Mr Hoy described. Our finding is that the reason that he was unaware that the Claimant’s son had been banned from the clubhouse is that there had been no such ban.[92]On around Sunday 18 December 2022, there was a meeting between the Claimant and the Bar Manager and Ms Mays and Ms Best. Page 18 of 5092.1 This is the meeting which the Claimant recalls leaving part way through, with the Claimant's opinion being that Ms Mays had said that the wheelchair incident was caused by the fact that she, Ms Mays had been having a bad day, which is a comment that Ms Mays does not accept that she made. We do not need to decide the dispute about whether Ms Mays apologised and/or said that she had been having a bad day on 2 December 2022, as that is not important to the decisions that we have to make and the difference of opinion/recollection over that particular point does not affect our assessment of any witness’s credibility.92.2 Our finding is that the email exchange at [Bundle 200] contains a reasonably accurate summary of the contents of the meeting. The Claimant received a copy of Ms Best’s email and replied to it.92.3 Both Ms Best's email of 19 December and the Claimant's reply the same date, were written one day after the meeting, and while matters were fresh in their minds. They were written before the committee meeting.92.4 Ms Best’s email included: 5. You [Mr Ayton] agreed to inform Natasha [the Claimant] that, while she is working, she has a nominated person/persons who will be responsible for [the Claimant’s son] if he is in Egham Bowls Club and that they would supervise him throughout.92.5 The reason for this instruction was that(i) the general rules stated that under 18s needed to be accompanied by an adult and(ii) Ms Mays and Ms Best did not consider that the Claimant could be that adult while she was working and(iii) they believed that this instruction – provided properly followed – would satisfy safeguarding requirements and reduce risk of the Respondent being deemed to have breached the requirements of its insurance policy, if there was a claim on it.92.6 That paragraph (number 5) of Ms Best’s email accurately recorded that the Claimant was to be told that she could bring her son into the clubhouse while she was working but solely on the basis that she could do so if and only if a specific adult was nominated as being the person who was accompanying him. While the Claimant was working, this could not be the Claimant herself; it had to be somebody else. The Claimant's reply did not dispute that that is what she had been told. Without expressly either agreeing or disagreeing that she would do this in future, she said that she saw no problem carrying on with what she had been doing previously.92.7 Mr Ayton's email at 5pm on 19 December, copied to the Claimant, amongst others, confirmed the accuracy of what Ms Best had written. [Bundle 202] Page 19 of 50[93]The minutes of the 19 December 2022 committee meeting (as amended in red on 22 January 2023) are at [Bundle 195].93.1 Within the notes, it was mentioned that Dave Ayton and Ms Mays and Ms Best had met the Claimant's the previous day.93.2 As noted in an email sent prior to the meeting [Bundle 201], Mr Hayes submitted his report in writing and did not attend the meeting. In the minutes, under the heading “welfare officer’s report”, it was suggested that letters and emails sent to the Claimant by Ms Best and Ms Mays which were potentially discriminatory.93.2.1 Our finding is that “discriminatory” was a word that was used as a result of the opinions of Mr Hoy (and potentially Mr Hayes and/or other committee members) and not because the Claimant herself had made such a suggestion to Mr Hayes by 19 December 2022.93.2.2 Our finding is that the word “discriminatory” was used specifically in connection with the information given to the Claimant about bringing her son to the premises. It was not about the wheelchair incident. The wheelchair incident was addressed separately and the welfare officer reported that he was carrying out an investigation and would supply relevant documents to a committee of three members.[94]In around late December or very early January the Claimant spoke to Ian Crook about mould in the bungalow. She did so in the belief that he was the correct person to speak to and that is an opinion which he agreed with.[95]Mr Crook was familiar with the bungalow and its previous occupants. [Bundle 209]. As he mentioned in his email on 3 January to Ms Mays, the Claimant told him that she had previously raised issues about mould with Trevor Hoy, but nothing had been done. Furthermore, Ian Crook was aware from speaking to the previous bar steward, who had lived in the bungalow for 11 years, that there was a history of mould problems.[96]In Ms Mays email of 9.01am on 3 January [Bundle 209], she asked a series of questions to Mr Crook about the situation, including things that, by implication, she was asking him to report back to her on.96.1 The questions included about the identity of, and number of, people living in the bungalow and whether any of the Claimant’s activities might be contributing to the mould problem, as well as various other matters.96.2 The reason she asked these questions was that she was concerned about the club's potential liability for the costs. She also wished to avoid Mr Crook Page 20 of 50 giving any commitment to the Claimant that the club would definitely pay to fix the problem.96.3 The email exchange continued through the course of the day, and our finding is that Ms Mays wanted the club to comply with any legal obligations that it did have, but she also wished there to be some fact-finding to assist with establishing what those legal obligations might be.[97]This exchange of correspondence was not instigated by Ms Mays. Rather, on discovering that the Claimant was seeking advice from Mr Crook (which was going to include him looking at the problem himself), Ms Mays made suggestions to Mr Crook about the types of things that he should look out for at the bungalow.[98]Mr Crook did attend the property and did take some action for which Ms Mays was grateful. Ms Mays approved the expenditure he suggested. [Bundle 213][99]On 19 January at 2038 [Bundle 231], Kelly Jenkins, the partner of Ian Jenkins (casual member of the bar staff), sent an email to Ms Mays and Ms Best. She reported that, earlier that day, her daughter had been told not by the Claimant not to pass the line at the bar when attempting to order a soft drink and chocolate bar. She said that this was a change that had not been notified to her, or to Ian Jenkins. She said that Dave Ayton had denied implementation of a new rule that children could stand close to the bar.[100]This prompted Ms Best to write to Mr Ayton at 2338 on 19 January [Bundle 226]. She asked him if he had implemented new rules in the bar area. Ms Best interpreted Ms Jenkins’ email as being about what children were allowed to do as members and/or the children of members within the clubhouse. She was plainly correct to do so. Nothing in Ms Jenkins email was about what Ian Jenkins’ daughter was allowed to do when she was accompanying him while he worked a shift behind the bar.[101]Mr Ayton’s reply commenced: hi This is what you and Anna [Ms Mays] implemented when you told Natasha [the Claimant] that [the Claimant’s son] wasn’t allowed to sit at the bar Then you removed the stools and suggested he sat on the sofas Ian was fully aware of this and the fact that you had a conversation with Kelly at the bar and suggested that [her daughter] went and sat with Colin These stupid unnecessary rules that you have great delight in implementing because of your vendetta against [the Claimant’s son] is the reason why there is such a bad atmosphere in the club[102]Our finding is that the Claimant had started to implement a rule for all children being kept away from the bar as a result of her being told that she was not Page 21 of 50 allowed to be the adult supervising her son if he was on the premises while she was working. Although this is similar to what had been discussed at the November committee meeting (about children having to be a certain distance from the bar), our finding is that that was not what either the Claimant (when she told Ian Jenkins daughter to stand away from the bar) or Mr Ayton (when he replied to Ms Best) had in mind. Rather, it was the Claimant's approach that, since she had been told that her son could not be at the bar while she was working (and Mr Jenkins had been told that his daughter could not be at the bar when he was working), then no children should be at the bar at all.[103]Mr Ayton’s email referred to the children of Ms Frith and Mr Jenkins. He also suggested that the “rule” which he, Mr Ayton, had in mind was a rule that Ian Jenkins was aware of. He also suggested that Mr Jenkins daughter had also been directed to sit away from the bar. By implication, although not expressly stated, Mr Ayton’s opinion was that Mr Jenkins was aware of rules that applied to the supervision of his daughter while he was working. The tone of Mr Ayton's reply makes it clear that he disagreed with the “rule”.[104]The management committee met on Monday 23 January at 7pm. The notes are at [Bundle 233]. (The date is incorrect, it was on the Monday, which was 23 January, not on 24 January.)104.1 In reference (amongst other things) to Ms Jenkins email, it was noted that complaints had been made about apparent new rules been implemented by the bar steward in other words, the Claimant about children not being allowed onto the lino area.104.2 The minutes accurately record that the rule which Ms Mays and Ms Best had actually implemented was that the Claimant was not to have her son at the bar because she was not the person who was supposed to be supervising him. In other words, as conveyed in December there was supposed to be another nominated person who was officially in charge of supervising him.104.3 The notes accurately record Ms Mays’ genuine opinion that ensuring that the Claimant’s son was accompanied by somebody other than the Respondent’s employee, while that employee was performing duties for the Respondent, was an appropriate interpretation of the Respondent’s legal obligations.104.4 It was unanimously agreed that the suggestion made at the November meeting would not be implemented. In other words, there would be no restrictions on where children were allowed to sit or stand within the clubhouse and that included being allowed on the lino area near to the bar. Page 22 of 50[105]Ms Mays reported back to Ms Jenkins following the committee meeting [Bundle 231]. She accurately reported that there was no ban on children being at the bar.[106]One comment that was made at the management committee meeting in January was that the number plate recognition tablet had been unplugged.106.1 It was suggested that this might have been done by the Claimant’s son and Mr Ayton was asked to investigate ensure it did not happen again. There was no suggestion made the any disciplinary action would be taken.106.2 At 2140 on 25 January (so two days after the meeting), Mr Ayton wrote to the committee stating that anyone claimed to have seen the Claimant’s son doing this was a barefaced liar.106.3 Mr Ayton's email also said that Ms Best had lied to the Claimant by falsely telling the Claimant that she, Ms Best, had not been at the committee meeting on the Monday evening.[107]Mr Ayton's email was clearly based on nothing other than what the Claimant told him(i) about what happened to the number plate recognition system, and(ii) about what Ms Best had allegedly said to the Claimant. In fact, Ms Best had not lied to the Claimant. Ms Best had not said that she, Ms Best, had not been at the committee meeting. Rather she said she had not been present when the number plate recognition system had been unplugged, and had not claimed to have witnessed the Claimant’s son doing this. This was also true; she had not claimed to have witnessed what had happened.[108]The fact that the ANPR system had been unplugged led to a discussion about who actually had been supervising the Claimant's son at the relevant time.108.1 It is not necessary for us to make any decisions about what happened in connection with the number plate recognition system, but there was a suggestion that the reason it had been unplugged was so that the socket could be used to charge the Claimant's son's iPad instead.108.2 Whether that was done by the Claimant or by her son and whether in either case, they were aware that the effect of their action would be to cause the number plate recognition system to stop working is not important.108.3 However, we do find that the discussions around the topic did lead to some bad feeling.108.4 The Claimant had a telephone conversation about this matter on 25 January while she was working. The exact details of what she said, and the exact details of her volume / tone are not matters about which we need to find facts. Page 23 of 50108.5 However, the telephone call was in earshot of one of the committee members Kerry Payne. Ms Payne wrote to the rest of the committee [Bundle 242] at 7.59am on 26 January 2023.108.6 The email made various allegations about what the Claimant had supposedly said and how she said it. It suggested that the Claimant’s behaviour potentially put the club in a bad light.108.7 Ms Payne has not given evidence. It is sufficient to say that - while we make no findings of fact about the accuracy of the allegations - the Claimant does not specifically take issue with Ms Payne’s description of the Claimant’s conduct. In particular, she does not allege that Ms Payne made up these allegations, or that Ms Payne was pretending to have thought that the conduct might put the club in a bad light.108.8 Rather, the Claimant's stance is that she, the Claimant, was justifiably upset by the questions about the ANPR system having been unplugged and justifiably upset by the suggestion that it might have been her son who did it.108.9 The Claimant's stance is that it was a lie for anyone to say that her son had done it and it was – therefore - understandable and justifiable that she was very upset about it, and would speak that way on the phone.[109]At around 9.41am on 26 January, Ian Crook wrote: Kerry, you really need to think before you send emails, Natasha is an employee of the the club. She is therefore afforded certain rights as said employee. You not following correct procedures could now put the club in a very vulnerable position. I would suggest nobody comment further Ian[110]At 3.37pm the same day, as per [Bundle 248], Ms Payne's partner sent a much briefer email that was consistent with what Kerry Payne had said.[111]On 3 February, Ms Best wrote to the Claimant to say that there would be a disciplinary meeting [Bundle 252].111.1 The letter stated that the matter going to be dealt with in accordance with the disciplinary procedure and a copy was supplied.111.2 The letter stated that the alleged misconduct was the Claimant behaviour’s in the clubhouse while on duty on the evening of Wednesday 25 January.111.3 The letter said that the meeting (at 11am on 9 February) would be under the first formal stage of the disciplinary proceeding procedure. It stated that the Page 24 of 50 maximum consequence might be a first formal warning, in which case a record would be kept for 12 months and disregarded thereafter.[112]On 8 February, Ian Crook sent a very lengthy email to Angela Best, to Ms Mays, and to Katie Woodall with the heading “disciplinary meeting”.112.1 He quoted the letter which had been sent to the Claimant inviting her to a disciplinary meeting.112.2 He quoted Kerry Payne’s email and he acknowledged that he understood that the subject matter of the disciplinary invitation was the alleged conduct mentioned in Kerry Payne’s email.112.3 He quoted an email which he had sent on 27 January, expressing some concerns about what happened.112.4 Although he suggested that it was Kerry Payne who should face disciplinary action (member’s breach of the club's constitution) rather than the Claimant (as an employee), he did not assert that either Ms Payne’s conduct, or the decision to invite the Claimant to a disciplinary investigation meeting was connected to the Claimant's son’s disability.112.5 He quoted from the disciplinary process and stated that the club had acted too quickly by moving straight to a disciplinary hearing without any prior investigation. He referred to the possibility of there being various witnesses who might have things to say that were supportive of the fact that the Claimant had not committed misconduct.112.6 He says that the Claimant had told him that she had contacted citizen's advice.[113]The following day, at 9:26am, Mr Cook sent a further email at reporting (accurately) that he had written to the Claimant telling her that she did not need to attend the disciplinary meeting that day. He repeated the comment that the Claimant had contacted citizens advice. He added that citizens advice had advised the Claimant to contact ACAS. There is no suggestion in that email, of 9 February, that Mr Crook believed, or that the Claimant had told him, that there was any connection to the Claimant's son’s disability.[114]Mr Crook wrote to the Claimant by email (this followed an earlier text message in which he had already told the Claimant that she did not need to attend the hearing). In the email, he asked that the Claimant delay contacting ACAS until the full management committees had been able to discuss the subject.[115]The management committee did discuss the matter on 20 February. The minutes start on [Bundle 279]. According to the minutes, some of the points that Page 25 of 50 Mr Crook made at the meeting were similar to those mentioned in the email, mainly regarding an alleged failure to follow due process and in particular alleged failure to contact potentially relevant witnesses. According to the minutes there is no suggestion that anything about the Claimant's son’s disability was raised and we find that it was not raised.[116]On 9 February, Ms Best received the Claimant’s message that said she could not attend the meeting. She acknowledged it at 10:28am and there was no further attempt to rearrange the meeting either before or after the meeting on 20 February. On 11 February [Bundle 270], the Claimant was informed that there would be a discussion at the 20 February management meeting, after which the Claimant would be contacted again, but there was no further attempt (in the time period that we are looking at, which is up to the presentation of the claim form on 12 May 2023) to rearrange the hearing.[117]The Claimant's son’s club membership was discussed at the meeting on 20 February 2023 and was approved. There had been a delay in processing the matter previously due to a misunderstanding over the advice that had been received.[118]On 18 February 2023, the welfare officer, Mr Hayes, sent a report to the management committee [Bundle 286].118.1 He reported in relation to what he regarded as the conclusion of the investigation into the wheelchair incident. He made a recommendation that Ms Mays had no contact with any children at the club in future.118.2 Following the section of his email which included what he had to say about the wheelchair incident, Mr Hayes put another heading, “Discrimination at Egham”.118.3 His first sentence under that heading was (our emphasis) unfortunately, I have had to begin another investigation, this time into discrimination.118.4 Our finding is that he did not regard the previous investigation as having been dealing with discrimination. In other words, he had not been considering the wheelchair incident as an allegation of discrimination.[119]The Claimant commenced a batch of early conciliation on 3 March 2023 and the prospective Respondents named were Angela Best, Kerry Payne, Anna Mays, and only those three. The address used in each case was the postal address of the club. Page 26 of 50[120]Had the Claimant instructed ACAS that she did not wish them to contact the prospective respondents, then our finding is that ACAS would have issued the certificate immediately. Therefore, regardless of what the Claimant did or did not say to ACAS, it seems to have been the opinion of the ACAS officer that some attempt at early conciliation might be made. We do not know, because the Respondent has not waived privilege, whether any contact was actually made.[121]There then followed a committee meeting in April, which we discuss in more detail in the analysis section below[122]The claim form was presented after that, on 12 May 2023. The Law Equality Act 2010 (“EQA”)
The Law
[123]The burden of proof provisions are codified in s136 EQA and s136 is applicable to all of the contraventions of the Equality Act which are alleged in these proceedings.(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[124]It is a two stage approach.124.1 At the first stage, the Tribunal considers whether the Tribunal has found facts - having assessed the totality of the evidence presented by either side and drawn any appropriate factual inferences from that evidence - from which the Tribunal could conclude - in the absence of an adequate explanation - that a contravention has occurred. At this first stage it is not sufficient for the Claimant to simply prove that the alleged treatment did occur. There has to be some evidential basis from which the Tribunal could reasonably infer that there was a contravention of the act. The Tribunal can and should look at all the relevant facts and circumstances when considering this part of the burden of proof test.124.2 If the Claimant succeeds at the first stage then that means the burden of proof is shifted to the Respondent and the claim is to be upheld unless the Respondent proves the contravention did not occur. Page 27 of 50[125]In Efobi v Royal Mail [2021] UKSC 33, the Supreme Court made clear that the changes to the wording of the burden of proof provision in EQA compared to the wording in earlier legislation do not represent a change in the law. Thus when assessing the evidence in a case and considering the burden of proof provisions, the Tribunal can have regard to the guidance given by the Court of Appeal in, for example, Igen v Wong [2005] EWCA Civ 142 and Madarassy v Nomura International [2007] EWCA Civ 33.[126]As per paragraph 57 of Madarassy, “could decide” in section 136(2) EQA is equivalent to: a reasonable tribunal could properly decide from all the evidence before it.[127]The burden of proof does not shift simply because, for example, the Claimant proves that there was a difference in treatment (in comparison to someone whose relevant protected characteristics were different) and/or that there was and/or that there was a protected act. Those things only indicate the possibility of discrimination or victimisation. They are not sufficient in themselves to shift the burden of proof; something more is needed.[128]It does not necessarily have to be a great deal more: Denman v Commission for Equality and Human Rights 2010 EWCA Civ 1279. For example - depending on the facts of the case - an evasive or untruthful answer from a Respondent or an important witness, could be the “something more” that is required. In some circumstances, it may simply be the context of the act itself. In SRA v Mitchell EAT 0497/12, the EAT upheld a tribunal’s decision that the burden of proof shifted based on a finding that the employer had given a false explanation for the less favourable treatment. That being said, it is important for us to remind ourselves that the mere fact alone that a Tribunal rejects the employer’s explanation for some particular act or omission does not mean that the burden of proof necessarily shifts, see for example Raj v Capita Business Services EAT 0074/19.[129]Recent EAT cases have re-emphasised the importance of actually adhering to the two stage approach set out in section 136. We have taken note of the comments in Field v Steve Pye and Co (KL) Limited and ors [2022] EAT 68 and of the fact that several subsequent EAT decisions have cited those comments with approval.[130]As per Essex County Council v Jarrett [2015] UKEAT 0045/15/0411, where there are multiple allegations, the Tribunal has to consider each allegation separately when determining whether the burden of proof has shifted in relation to each one.130.1 That does not mean that we must ignore the rest of the evidence when considering one particular allegation. Page 28 of 50130.2 The opposite is true. When there are multiple allegations, and/or a lot of facts found as part of the background information, a Tribunal has to stand back and consider all of the evidence in the round to consider whether any inference of discrimination/victimisation should be drawn: see Qureshi v Victoria University of Manchester. There must be no failure to consider ‘the bigger picture’, as it was described in Humby v Barts Health NHS Trust [2024] EAT 17.130.3 We assess separately, for each allegation, whether the burden of proof shifts or not, taking into account all of the facts which we have found. Time Limits for EQA complaints[131]In EQA, time limits are covered in s123, which states (in part): (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it[132]In considering whether it is just and equitable to extend time the Tribunal should have regard to the fact that the time limits are relatively short. That being said, time limits are there for a reason and the default position is to enforce them unless there is a good reason to extend. That does not meant that the lack of a good reason for presenting the claim in time is fatal. On the contrary, the lack of a good reason for presenting the claim in time is just one of the factors which a tribunal can take into account, and it might possibly be outweighed by other factors. Disability[133]Section 6 of the Equality Act 2010 (“EQA”) defines disability. 6 Disability(1) A person (P) has a disability if— Page 29 of 50 (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.(2) A reference to a disabled person is a reference to a person who has a disability.(3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability. ... (6) Schedule 1 (disability: supplementary provision) has effect.[134]The section refers to the need to take into account Schedule 1. The paragraphs in that schedule include the following extracts in Part 1. 2 Long-term effects(1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. 5 Effect of medical treatment (1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect. (2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.(3) Sub-paragraph (1) does not apply— (a) in relation to the impairment of a person's sight, to the extent that the impairment is, in the person's case, correctable by spectacles or contact lenses or in such other ways as may be prescribed; (b) in relation to such other impairments as may be prescribed, in such circumstances as are prescribed.[135]The “Guidance on matters to be taken into account in determining questions relating to the definition of disability” is issued by the Secretary of State under section 6(5) of the Equality Act 2010. The guidance does not impose any legal obligations and is not an authoritative statement of the law. In other words, where appellate court decisions differ from the guidance, then it is the court decision which takes precedence in the interpretation of the legislation. The guidance Page 30 of 50 must be taken into account (Part 2 of Schedule 1, paragraph 12), but, ultimately, it is the legislation itself which must be interpreted and applied by the Tribunal. The questions to be answered[136]In Goodwin v Patent Office [1999] I.C.R. 302, the EAT provided guidance on the for the Tribunal to adopt when making a decision about “disability” in accordance with the definition in the Disability Discrimination Act 1995. The following four questions should be answered, and treated as separate questions, albeit some of the evidence and analysis will overlap between the questions and albeit answering these questions separately must not get in the way of examining the evidence as a whole and adopting a purposive approach to interpreting and applying the actual statutory wording.136.1 Did the Claimant have a mental or physical impairment? (the ‘impairment condition’);136.2 Did the impairment affect the Claimant’s ability to carry out normal day-today activities? (the ‘adverse effect condition’);136.3 Was the adverse condition substantial? (the ‘substantial condition’);136.4 Was the adverse condition long term? (the ‘long-term condition’).[137]In Sullivan v Bury Street Capital Limited Neutral Citation Number: [2021] EWCA Civ 1694, the Court of Appeal approved the following list as setting out the questions that a tribunal is required to address when determining whether or not a Claimant is disabled for the purposes of the Equality Act 2010.137.1 Was there an impairment?137.2 What were its adverse effects?137.3 Were they more than minor or trivial?137.4 Was there a real possibility that they would continue for more than 12 months or that they would recur?[138]Effectively this is the same as the list produced in Goodwin (and the fourth question is to be re-worded when the Claimant is seeking to argue that the effects had already lasted 12 months by the relevant date).[139]The Respondent’s knowledge is not directly relevant to any of these questions or the issue of whether a person meets the definition in section 6 EQA. However, of course, evidence from the Respondent (whether witnesses or documents) can be taken into account whether there is any corroboration for (or undermining of) Page 31 of 50 the Claimant’s account to have been suffering from particular adverse effects at particular times.[140]The point in time which the question of disability is to be determined is the date of the alleged discriminatory act or omission. That therefore is the date to be used when deciding all of the four questions, including, importantly, the fourth (the long term condition).[141]If the definition is satisfied as of the date of the earliest alleged act, then it may not be necessary to separately consider later dates as well. However, where necessary that can be done. In any event, if the definition is not satisfied as of the earliest alleged discriminatory act or omission, then the four questions can be answered as of the dates of each later complaint. Treatment[142]When considering each of the four Goodwin questions, as per paragraph 5 of schedule 1, it is important to effectively ignore any beneficial effects of treatment and to ascertain the effects on day-to-day activities as it would otherwise be but for that medical treatment. Evidence Issues[143]Medical evidence is likely to assist the Tribunal but, ultimately, it is the Tribunal’s legal determination, based on the totality of the evidence, which is what counts. A Claimant who fails to produce medical evidence to support their case runs the risk that the Tribunal will decide that they have failed to meet their burden of showing that the Section 6 definition is met. However, there is no rule of law that medical evidence is essential in order for the Tribunal to be satisfied that the definition is met.[144]In accordance with normal principles, if the Tribunal decides that either party (the Claimant or the Respondent) had documents in their possession that they have failed to disclose, then they run the risk of the Tribunal deciding that they did so deliberately, and that they did so because the documents undermined their case. However, in accordance with normal principles, not every failure to disclose will lead to that result, and the Tribunal might decide to accept the party’s explanation for the failure, and/or accept that the missing documents did not assist the opposing party Definition of Direct Discrimination – section 13 EQA[145]Direct discrimination is defined in s.13 EQA. (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Page 32 of 50[146]There are two questions: whether the Respondent has treated the Claimant less favourably than it treated others (“the less favourable treatment question”) and whether the Respondent has done so because of the protected characteristic (“the reason why question”).[147]For the less favourable treatment question, the comparison between the treatment of the Claimant and the treatment of others can potentially require decisions to be made about whether another person is an actual comparator and/or the circumstances and attributes of a hypothetical comparator. Paragraphs 54 to 65 of Martin v The Board Of Governors Of St Francis Xavier 6th Form College [2024] EAT 22 provide a recent and clear summary of the types of arguments about comparators (and the proper role of section 23 EQA) that might be presented to us, and we have taken it into account.[148]When considering the “reason why question” for the treatment we have found to have occurred, we must analyse both the conscious and sub-conscious mental processes and motivations of the decision makers which led to the Respondent’s various acts, omissions and decisions.[149]The mere fact alone that a Respondent, or a particular individual, has behaved unreasonably and/or treated the Claimant badly or unfairly will not, in itself, be sufficient to cause the burden of proof to shift. For one thing, there may also need to be consideration of whether the “bad” treatment is comparable to the way in which others were treated. However:149.1 The greater the difference between the Claimant’s treatment and that of another employee in similar circumstances, the more likely it is that the Tribunal will decide that an inference of discrimination could be drawn. Likewise, the more closely the circumstances of the Claimant and the alleged comparator match, and/or the greater the number of comparators who have had “better” treatment, the more likely it is that the burden of proof will shift.149.2 The more unreasonable the treatment, the more likely it is that the Tribunal will decide that it calls for an explanation and the more likely that the Tribunal might decide that it is possible to infer that a hypothetical comparator would have been treated differently.149.3 Where the Respondent offers an explanation for the Claimant’s treatment (and/or the differences between the Claimant’s treatment the alleged comparator’s treatment), then the burden of proof might shift where the Tribunal decides that the explanation is dishonest, and/or if different explanations have been put forward which are contradictory to each other. Page 33 of 50[150]For comparators for direct disability discrimination allegations the EHRC Code gives useful guidance at paragraphs 3.29 and 3.30 in particular with the example quoted therein.[151]There is no requirement that the protected characteristic in question be the Claimant’s own protected characteristic.[152]The wording of section 13 is wide enough to, and does, cover less favourable treatment to the Claimant which is because of another person’s protected characteristic.[153]Similarly, it is irrelevant whether the wrongdoer is correct or incorrect in their belief about the protected characteristic in question. So if there is less favourable treatment because the wrongdoer perceives that someone has a disability, then it is not necessary for the Claimant to prove that the person actually did have the disability. Victimisation[154]Section 27 EQA reads in part:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.[155]There is an infringement if(a) a Claimant has been subjected to a detriment and(b) she was subjected to that detriment because of a protected act. The alleged victimiser’s improper motivations might be unconscious or conscious.[156]A person is subjected to a detriment if they are placed at a disadvantage. There is no need to prove that their treatment was less favourable than another’s.[157]In terms of what constitutes a protected act, a broad interpretation should be applied to “any other thing for the purposes of or in connection with this Act” as per 27(2)(c). It is not a requirement that the alleged protected act involves an assertion that there has been a breach of the Equality Act, since that is covered by s 27(2)(d).[158]As per section 27(2)(d), an act may be a protected act where the allegation is either express or implied. There is no requirement for the Claimant to have Page 34 of 50 specifically mentioned the phrase “Equality Act” or to have used specific words such as “discrimination” or “disability”. However, to be a protected act in accordance with 27(2)(d) the allegation relied on must assert facts which, if true, could amount to a breach of Equality Act 2010. Where an employee makes an allegation of wrongdoing by the employer, but without asserting (either expressly or by implication) that the wrongdoing was a breach of the Act (eg that it was less favourable treatment because of a protected characteristic, etc) then the allegation does not fall within section 27(2)(d).[159]To succeed in a claim of victimisation the Claimant must show that she was subjected to the detriment because she did a protected act (or because the employer believed she had done or might do a protected act). Where there has been a detriment and a protected act then that is not sufficient, in itself, for the complaints of victimisation to succeed. The tribunal must consider the reason for the Claimant’s treatment and decide what (consciously and/or subconsciously) motivated the employer to subject the Claimant to the detriment. This will require identification of the decision-maker(s) and consideration of the mental processes of the decision-makers. If the necessary link between the detriment suffered and the protected act is established, the complaint of victimisation succeeds. The Claimant does not succeed simply by establishing that “but for” the protected act, she would not have been dismissed (or subjected to another detriment).[160]The Claimant does not have to persuade us that the protected act was the only reason for the dismissal or other detriment. If the employer has more than one reason for the dismissal (or other detriment), the Claimant does not have to establish that the protected act was the principal reason. The victimisation complaint can succeed provided the protected acts have a “significant influence” on the decision making. For an influence to be “significant” it does not have to be of great importance. A significant influence is rather “an influence which is more than trivial”. See Igen v Wong 2005 ICR 931 and Villalba v Merrill Lynch and Co Inc 2007 ICR 469.[161]A victimisation claim might fail where the reason for the dismissal (or other detriment) was not the protected act itself but some feature of it which could properly be treated as separable, such as the manner in which the protected act was carried out. See Martin v Devonshires Solicitors 2011 ICR 352.[162]Section 136 applies to victimisation complaints. Therefore, the initial burden is on the Claimant to show that there are proven facts from which the tribunal could decide, in the absence of any other explanation, that the Respondent has contravened section 27. If the Claimant does that, the burden then passes to the Respondent to prove that victimisation did not occur. If the Respondent is unable to do so, the tribunal is obliged to uphold the claim. Page 35 of 50 Analysis and conclusions[163]We will address the matters as set out in list of issues. 1.1. Were all the Claimant’s complaints presented within the time limits set out in section 123(1)(a) of the Equality Act 2010?[164]All the complaints were presented in time. Because of the early conciliation naming Ms Best as potential respondent, complaints about acts and omissions on or after 4 December 2022 are in time. 2. DISABILITY 2.1. Is the Claimant associated with someone who meets the definition of a disabled person for the purposes of s6 and Schedule 1 of the Equality Act 2010 in that: 2.1.1. Did the associated person have a physical or mental impairment at the relevant time?[165]In terms of ADHD, the Claimant has proven that her son has ADHD, and that it amounted to a disability at all relevant times.[166]There is no specific medical evidence on the point. There is no rule of law that the Tribunal can only decide that someone has an impairment, and that impairment meets the definition in section 6 EQA, provided there is medical evidence. We are obliged to assess such evidence as we do have, and reach a decision, taking into account that the onus is on the Claimant to show that her son has the disability in question, not on the other side to disprove it.[167]The Claimant’s position is supported by her own oral evidence that he was diagnosed with ADHD. It is also supported by the fact that a care plan was in place for him at the school, during 2022, so prior to the autism diagnosis in July 2024. That care plan required one to one supervision.[168]As mentioned in findings of fact, the written autism diagnosis itself, makes passing reference to the ADHD diagnosis. Although it lacks specific details about when the diagnosis was made, and how the author of report, knows about the diagnosis, on the balance of probabilities, there sufficient evidence for us to conclude that ADHD is also an impairment which the Claimant’s son had.[169]We are satisfied by the evidence that ADHD made a substantial contribution to the overall effect on his day-to-day activities, which are described in detail in the autism spectrum report[170]At all relevant times, each of ADHD and ASD were impairments which met the definition in section 6 EQA. Page 36 of 50 2.2. Did the Respondents know (or could reasonably be expected to have known) of the Claimant’s son’s disabilities at the relevant time?[171]Although not privy to the Claimant’s son’s medical information, Ms Mays and Ms Best were aware, at all relevant times, that the Claimant’s own opinion was that her son had autism.[172]They were aware that according to the Claimant, the reason that the Claimant’s son had a social worker was connected to autism.[173]Thus, regardless of whether they had the EQA definition in mind – which is irrelevant – they were aware that, in lay person’s terms, the Claimant had what might loosely be referred to as a disability. Furthermore, and in any event, they were aware that - in the Claimant’s opinion - his autism had a significant impact on his day to day life.[174]They were also aware that the Claimant’s son was potentially more vulnerable than other children of a similar age.[175]It is convenient to analyse the alleged protected acts first. 4.1. Has the Claimant done a protected act? The Claimant avers she did the following protected acts: 4.1.1. On 03 December 2022, the Claimant approached the Welfare Officer and alleged her son had been discriminated against by Anna Mays.[176]Our finding was that it is not the case that the Claimant, either expressly or by implication, said anything to the effect that anything Ms Mays had done (or anything that anyone else had done, for that matter) amounted to discrimination (or harassment) because of her son’s disability.[177]This is not a case where we have to decide about the parties’ competing interpretations about the meaning of the precise words used. Neither the Claimant nor Mr Hayes have given evidence about the precise words used. However, for the reasons set out in the findings of fact we have made inferences about what the Claimant said (and did not say) to Mr Hayes.[178]On 3 December 2022, the Claimant remained annoyed and upset about the wheelchair incident. However, it was not her opinion - at the time - that there had been disability discrimination, and she did not state or imply such an assertion to Mr Hayes.[179]There was clearly bad feeling between Ms Mays and Mr Hayes (and we make that comment without making any comment about where the responsibility lies for that) and we are confident that he would have made a specific written reference to the Claimant’s having said that the wheelchair incident was Page 37 of 50 discriminatory behaviour by Ms Mays if the Claimant had actually said (or implied) such a thing. He was not reluctant (and nor should he have been reluctant to state an opinion, given the fact that his role was Welfare Officer) to state the opinion that a later incident (the fact that he perceived there had been a ban on the Claimant’s son from entering the premises) amounted to discrimination, but he did not form that opinion because the Claimant had done a protected act on 3 December 2022. Our decision is that she did no protected act on 3 December 2022. 4.1.2. On 03 March 2023, the Claimant contacted ACAS early conciliation and alleged discrimination.[180]In principle, if a person contacted ACAS and alleged discrimination, that might fall within Section 27(2)(d) or else Section 27(2)(c) EQA.[181]Depending on the circumstances, what the person said to ACAS might be inadmissible if it was covered by “without prejudice privilege”.[182]In terms of the Employment Tribunals Act 1996, section 18(7) reads: (7) Anything communicated to a conciliation officer in connection with the performance of his functions under any of sections 18A to 18C shall not be admissible in evidence in any proceedings before an employment tribunal, except with the consent of the person who communicated it to that officer.[183]So nothing in that section would prevent the Claimant giving evidence about what she said to the ACAS officer. That is, the evidence may or may not be inadmissible for other reasons, but section 18(7) would not render it inadmissible.[184]During her oral evidence, the Claimant was asked what she said to ACAS. It is not inherently implausible that a person who later brings a claim which alleges discrimination gave information to ACAS which referred to some alleged breaches of EQA, but we cannot simply assume that to be the case in the absence of evidence.[185]The Claimant’s account was that she contacted ACAS, and ACAS put her in touch with a charity. She says that it was as a result of information that she received from that charity which led her to the opinion that there had been discrimination by association. The Claimant does not recall her exact comments to ACAS. The sequence of events is consistent with her having contacted ACAS to suggest that she intended to bring a claim against her employer, but without, at that time, making a suggestion the treatment that she wished to complain about was connected to her son’s disability, as opposed to be treatment that she was dissatisfied with for other reasons.[186]The Claimant has failed to prove that what she said to ACAS amounted to a protected act. Page 38 of 50[187]It has also not been proven what ACAS said to the Respondent, or when. We are satisfied that ACAS’s contact with the Respondent (if any) was covered by “without prejudice privilege”. The Respondent has not waived that privilege. There is no basis on which we could decide that one of the exceptions applied such that without prejudice material should be deemed to be admissible.[188]However, we have, for completeness, carried out an analysis of what our decisions would have been had we decided that the Claimant’s contact with ACAS was a protected act in itself, or if it was something that caused the Respondent to believe (as per Section 27(1)(b) EQA) that the Claimant had done, or might late do, a protected act.[189]We now go through the alleged wrongdoing. 3. DIRECT DISABILITY DISCRIMINATION BY ASSOCIATION, S13 AND S39(2)(D) EQUALITY ACT 2010 3.1. Did the Respondent subject the Claimant to the following (potentially discriminatory) treatment? 3.1.1. On 05 December 2022, the Claimant was told by Martin Hays that Anna Mays emailed Martin Hays that the workplace is not a suitable place for a child and that the Claimant cannot perform her duties because she has her son with her.[190]This is alleged to be discrimination only, not victimisation as well.[191]It is factually accurate that an email along those lines was sent by Ms Mays.[192]Mr Hayes’ comments to the Claimant were not motivated by the fact that the Claimant’s son has disabilities. They were motivated by the fact that he had actually seen an email from Ms Mays.[193]It is plain that the Claimant’s actual intended allegation relates to Ms Mays’ actions in sending the email, rather than to Mr Hayes’ act of telling the Claimant about it.[194]Our decision is that Ms Mays did know about the Claimant’s son’s disability. As discussed in the findings of fact, she described his circumstances (and what the Claimant had said about them) in communications she had sent prior to the email to Mr Hayes. The fact that she had not seen medical evidence about particular impairments, and the fact that a court or tribunal had not made (and, therefore, she had not seen) a formal decision that he met the definition of “disability” do not mean that she did not know about the disability. She knew that the Claimant’s son had one or more impairments which had a substantial and long-term effect on his day-to-day activities. Page 39 of 50[195]To succeed in an allegation that they were treated less favourably because of a particular protected characteristic, a claimant does not have to show that they actually did have that characteristic. For one thing, they can succeed if they were treated less favourably because of another person’s protected characteristic. Furthermore, they can succeed if they can show that the person treating them less favourably did so because that person perceived (whether rightly or wrongly) that someone had a particular protected characteristic.[196]However, as the EHRC code correctly points out: the relevant circumstances of the comparator and the disabled person, including their abilities, must not be materially different. An appropriate comparator will be a person who does not have the disabled person’s impairment but who has the same abilities or skills as the disabled person (regardless of whether those abilities or skills arise from the disability itself).[197]Thus, even if it were true that it was the specific behaviour of the Claimant’s son which caused Ms Mays to write the email, that would not be sufficient for the Claimant to succeed in a complaint of direct discrimination. The Tribunal would have to decide (taking into account the burden of proof provisions) whether a hypothetical comparator would have been treated differently. On this hypothesis, the hypothetical comparator would be a Bar Steward whose circumstances were the same as the Claimant’s in all relevant respects, including the age of her son and behaviour of her son, but whose son did not have a disability.[198]However, on the Respondent’s case, it is not admitted that it was the behaviour of the Claimant’s son which motivated the Respondent’s actions. On the Respondent’s case, the actual reasons for decisions about whether or not the Claimant was allowed to have her son in the clubhouse while the Claimant was working were not motivated by his specific behaviour, but by the general principle that an employee is required to devote all of their time to their duties, rather than to looking after their child (and the related argument that, if the child were injured, the Respondent was concerned about potential liability for that injury if no-one was supervising him and/or if it were to be alleged that they had allowed him on their premises in circumstances in which they were aware that the duties they expected the Claimant to perform as their employee prevented the Claimant from supervising him).[199]We are not persuaded that either Ian Jenkins or Della Frith are actual comparators. In each case, contrary to the requirements of section 23 EQA, there are material difference between their circumstances and the Claimant’s circumstances.[200]In the case of Ms Frith, she had ceased working by no later than around 20 November 2022. It has not been suggested by the Respondent that there was a Page 40 of 50 hard and fast rule, prior to the wheelchair incident, about employees bringing their children to work.[201]In the case of the casual staff (including Mr Jenkins and Ms Frith), it rarely, but occasionally, happened that they would have their children present while they were working. In the case of the Claimant, the expectation that she not bring her child to work with her had been set out during the interview process. She was asked to confirm (and she did) that she would have childcare arrangements in place for the hours of work that were required for the job (those hours being discussed in the interview process, and subsequently put in writing in the written contract). It probably was not said in specific words “you will not be permitted to bring your child to work with you”, but it did not have to be. The questions put to the Claimant about child care plainly demonstrated that the Respondent was not proposing that her child would be with her while she was working, and the Claimant’s responses plainly showed that she understood that. Furthermore, her responses prior to getting the job plainly showed that she was not seeking permission (and she knew she did not have it) to bring her son to work with her.[202]Had the parties stopped and thought about it at the time, they might have discussed whether, in exceptional circumstances, the Claimant would be allowed to bring her child with her if childcare arrangements unexpectedly fell through. However, they did not go into that level of detail at the time. They both knew that the arrangement was to be that the Claimant attended work and did so without bringing her child with her. There are no facts from which we could conclude that a hypothetical comparator would have been treated differently.[203]The Claimant alleges that when circumstances changed, Trevor Hoy gave permission for her to bring her son to work with her. The Respondent has not called Trevor Hoy to dispute that. In any event, it is clear that, during 2022, the Claimant did start regularly bringing her son with her, while she was to working, and that committee members, including Mr Hoy, knew that.[204]However, we are not having to decide whether it amounted to a variation of the Claimant’s contract (or purported variation) for her to be told, in late 2022, that she could not bring her son. We have to decide whether it was direct discrimination or not.[205]Neither Ms Frith nor Mr Jenkins were regularly bringing their child with them on the shifts that they did work. Nor were either of them working regularly, as the Claimant did.[206]The hypothetical comparator for the Claimant would have circumstances which included that they were a full-time worker on the same contractual terms as the Claimant. The hypothetical comparator would be someone who had also been told, before the job was offered, that they were expected to have childcare Page 41 of 50 arrangements in place to cover the hours that they were expected to be working for the Respondent. The hypothetical comparator would be someone who had also started to bring their child to work on a regular basis (not just when there was an unexpected problem with childcare arrangements).[207]The Claimant’s son’s disability is mentioned in the contemporaneous correspondence. There might, therefore, be facts from which we could conclude that his disability was a cause for Ms Mays’ treatment of the Claimant, as outlined in paragraph 3.1 of list of issues.[208]However, we are fully satisfied, from the evidence, that Ms Mays’ email to Mr Hayes (which included the comment, at [Bundle 184] that the clubhouse was “not a suitable place for a child to be unattended and clearly Natasha cannot look after her child and perform her duties as bar steward. She is aware that he should not be there …”) was not treating the Claimant any differently than if her son had no disability.208.1 The email expressed Ms Mays’ genuine opinions. It was her genuine opinion that the workplace was not a suitable place for any child of an employee to be unattended while the employee was performing their duties.208.2 Furthermore, nor would she have been content that the child of an employee could be supervised by that employee while they were supposedly working for the Respondent.208.3 Her reasons for her stance were various, but they included that (in her opinion) there was the potential for the Respondent to be liable (or face accusations that it was liable) if something went wrong, and if they had allowed the situation to continue.208.4 We are satisfied that her opinions about the appropriateness of any Bar Steward bringing their child to work were not because this particular Bar Steward (the Claimant) had a child with a disability. However, even if we are wrong about that, and if her stance was partially motivated by the Claimant’s son’s behaviour, then we are fully satisfied that Ms Mays would not have acted any differently in relation to comparable behaviour from the child of a hypothetical Bar Steward if that child had no disability (or had a different disability to the disabilities of the Claimant’s son).[209]This allegation fails. 3.1.2. On 05 December 2022, Anna Mays told the Welfare Officer to contact Social Services in regard to the welfare of her son. 4.2.1. On 05 December 2022, Anna Mays told the Welfare Officer to contact Social Services in regard to the welfare of her son Page 42 of 50[210]The same alleged act is said to have been direct discrimination and also victimisation. There is nothing wrong with arguing both. In principle, both complaints could potentially succeed.[211]They require separate analysis, and we deal first with discrimination.[212]The comments which Ms Mays made on 5 December 2022, in emails to Mr Hayes, included: It has always been my understanding that when you are dealing with a safeguarding concern that relates to a vulnerable person already known to social services the social worker should really be involved as clearly there is a bigger picture to consider. I trust you will share your concerns with the social worker in due course, to ensure that the club has followed procedures. and [the Claimant] told me this morning that you hadn't contacted the social worker, so your intention does not seem to be to safeguard [the Claimant’s son]. What you should have done, is identify that the child was in a vulnerable situation and that the family needs greater support to provide suitable childcare provision. and Your role, if any, might be to support the family in gaining the help they need, which is why you should have involved the social worker if anyone.[213]Our finding is that Ms Mays very clearly stated that her own opinion was that contacting the social worker was appropriate. In the same correspondence, she also made clear that ultimately, as welfare officer, Mr Hayes had to decide for himself if contacting the social worker was something the welfare officer should do. The context includes that they were each disagreeing with the other, and that Ms Mays was aware that Mr Hayes was suggesting that there were grounds to investigate what Ms Mays had done on 2 December 2022. The correspondence shows that Ms Mays was clearly not seeking to hide anything from social services.[214]Given the contents of the contemporaneous correspondence, there are facts from which we could conclude that the Claimant’s son’s disability was part of the thought processes which led to Ms Mays’ actions.[215]We are satisfied that the Respondent has discharged the burden of proof.[216]It is true that Ms Mays does refer to the fact that the Claimant's child has a social worker and is a vulnerable person. She does that in the context of criticising Mr Hayes for not contacting the social worker and also in the context of telling him what, in her opinion, his proper role should be. What Ms Mays wrote is, on the face of it, simply common sense; namely, that if there is alleged to be a safeguarding issue in connection with a particular child, and that child already Page 43 of 50 has a social worker, then informing the social worker could well be appropriate, and would not be a breach of data protection or confidentiality requirements.[217]The hypothetical comparator would also have to be a Bar Steward whose child was not disabled, and whose child had a social worker, and whose child had been involved in an interaction with Ms Mays on 2 December 2022, and where there had been correspondence between Ms Mays and Mr Hayes about that interaction.[218]We are entirely satisfied that Ms Mays would have made precisely the same comments (about whether Mr Hayes should, or should not, contact the child’s social worker) regardless of whether the hypothetical Bar Steward’s child had a disability or not.[219]The direct discrimination allegation fails.[220]The victimisation allegation fails because the Claimant had not done the alleged protected act, and nor did Ms Mays think that she had, or that she was going to do a protected act. It also fails because the act referred to in paragraph 4.2.1 was not motivated by anything that the Claimant had said to Mr Hayes, or might say to him in the future, but was motivated by Ms Mays’ desire to share her genuine opinion with Mr Hayes about the role of welfare officer. She had been sharing her opinion about that prior to the wheelchair incident. 3.1.3. On 14 December 2022, the Claimant received a letter from Egham Bowls Club confirming that her son was banned from being at the Club. [This meant the Claimant had the additional stress and expenses of trying to arrange childcare for her son whilst she was at work.] 4.2.2. On 14 December 2022, the Claimant’s son was banned from being at the Club. This meant the Claimant had the additional stress and expenses of trying to arrange childcare for her son whilst she was at work.[221]Again, the same alleged act (though phrased slightly differently) is said to be both discrimination and victimisation.[222]The list of issues refers to “14 December” and to a “letter”. However, as mentioned above, the Claimant confirmed that it was an allegation about [Bundle 192], which is an email not a letter, and is dated 12 December not 14 December.[223]These complaints (of discrimination and victimisation) fail on the facts insofar as the allegation states that he was “banned”.223.1 He was not banned.223.2 The Claimant was told that she could not bring him to work with her when she was working. Page 44 of 50223.3 She was free to bring him with her at other times.223.4 Similarly, he was also free to attend the club while the Claimant was working, provided that, at those times, he was accompanied by an adult who was not the Claimant. The email of 12 December 2022 neither expressly refers to that possibility, nor expressly rules it out. However, as of the 18 December 2022 meeting, and the correspondence on 19 December 2022, the Respondent expressly told the Claimant that this possibility existed.[224]The comments about “additional stress and expenses of trying to arrange childcare for her son whilst she was at work” would seem to be more relevant to remedy than to liability. For completeness, we are satisfied that the Respondent (whether acting through Ms Best or Ms Mays or otherwise) did not take actions with the intention of causing extra stress and expense to the Claimant.[225]In terms of the requirement for the Claimant’s son (who was under 18 at the time) to be accompanied by an adult, that was a requirement which applied to all children, not just the Claimant’s son. For the children of staff working behind the bar, it seems that the rule had not been rigidly enforced in the past. However, from Mr Ayton’s correspondence, we infer that, from around December 2022 (or January 2023 at the latest) there was enforcement of the rule for the children of staff, and that Mr Jenkins had been made aware of it too. So for bar staff, if there children were present while they were working, the children were not to be allowed to be sitting at the bar (and “accompanied” by the adult working behind the bar) but rather alternative arrangements had to be in place, such that some other adult had to be the person responsible for the child (and that the child might need to be with that other person, rather than seated at the bar).[226]There are no facts from which we could conclude that a hypothetical comparator would have been treated differently. However, if we are wrong about that, then the Respondent has satisfied us that it has discharged the burden for reasons similar to those we outlined when discussing paragraph 3.1.1 of list of issues.[227]There are also no facts from which we could conclude that this was victimisation. 3.1.4. On 03 January 2023, Anna Mays asked intrusive and personal questions about the Claimant’s living situation. Anna Mays asked Ian Crook, the Maintenance Manager, to go into the Claimant’s property and complete an inspection. This is a violation of the Claimant’s privacy.[228]We discussed the email exchanges between Ian Crook and Ms Mays in the findings of fact.[229]We have taken the burden of proof provisions into account. We have taken account of the possibility of any unconscious motives, as well conscious thought processes. However, we are entirely satisfied that the only motivations which Page 45 of 50 Ms Mays had are those stated in findings of fact. She was concerned about the cost to the Respondent about remedying any defects in the bungalow. The fact that the Claimant’s son is disabled had nothing whatsoever to do with the questions she asked of Ian Crooks or the things she asked him to do.[230]This allegation fails. 3.1.5. On 3 February 2023, the Claimant was told disciplinary action would be brought against her for being visibly upset on the phone after she was accused of lying. / The Claimant was informed by Angela Best on 03 February 2023 that she was required to attend a disciplinary meeting on 09 February 2023 in regard to her behaviour in the clubhouse. 3.1.6. In February 2023, the Claimant was told disciplinary action was being 4.2.3. On 3 February 2023, the Claimant was told disciplinary action would be brought against her for being visibly upset on the phone after she was accused of lying. / The Claimant was informed by Angela Best on 03 February 2023 that she was required to attend a disciplinary meeting on 09 February 2023 in regard to her behaviour in the clubhouse. 4.2.4. In February 2023, the Claimant was told disciplinary action was being[231]The same alleged act is said to be both discrimination and victimisation.[232]It is factually accurate that the claimant was told that she had to attend a meeting on 9 February. We quoted from the letter in the findings of fact. If “disciplinary action” refers to the requirement to attend the hearing, then that is true. However, it is not true that she was told that a sanction would definitely be imposed, or that she was told that there had already been a decision that she had committed misconduct.[233]The Claimant was told what the reasons for the meeting were. She knew (and Ian Crook also knew, and knew that the Claimant knew) that the reason for the meeting was her alleged conduct, as had been reported by Kerry Payne.[234]Our decision is that the Respondent did not put forward a sham reason. The conscious reason which Ms Best had for sending the letter was exactly as stated in the letter itself.[235]The Claimant’s argument for why there is an alleged connection to her son’s disability is that she says she was upset at the time, and that is why she acted in the way that she did at the time that Kerry Payne saw and heard her. However, the Respondent’s proposed disciplinary hearing was not because of the reasons that she was upset. The proposed hearing was because of her (alleged) conduct. Page 46 of 50[236]There are no facts from which we could conclude that a hypothetical comparator would have been treated any differently. Our decision is that the appropriate comparator is someone about whom there was an email similar to that which Kerry Payne sent, but who did not have a disabled child. However, even if (contrary to our decision) the appropriate comparator is someone who was upset about comments that they believed had been made by the employer about their child (being a child with no disability, or a child with a disability different to that of the Claimant’s son) and who, because they were upset, spoke loudly and/or used the words which the Claimant used, while on the phone at work, then there are no facts from which we could conclude that the hypothetical comparator would have been treated differently.[237]For completeness, while we do not consider that the hypothetical comparator would have to be someone who was upset about an accusation that their child had done something, the actual allegation connected to the Claimant’s son (that he had unplugged the ANPR so that he could use the socket to charge his own device) had nothing to do with the Claimant’s son’s disability. The allegation (which was not true, as far as the Claimant is concerned, and we are not finding otherwise) is one which would have been made against a non-disabled child in similar circumstances.[238]Furthermore, even if, contrary to the list of issues, the alleged wrongdoing was Kerry Payne’s actions in sending her email, there are again no facts from which we could conclude that a hypothetical comparator would have been treated differently.[239]Even the Claimant’s own position appears to be more to the effect that the Respondent should have made allowances for her behaviour in the circumstances (as she alleges the circumstances to have been), rather than that her behaviour was entirely acceptable.[240]Finally, for completeness, we do not necessarily think that Mr Crook is correct to say that a fair procedure was not being followed. However, in any event, we took everything he wrote into account when deciding that the burden of proof had not shifted.[241]The discrimination allegation fails.[242]The victimisation allegation also fails. As well as the fact that there had been no protected act by 3 February 2025, it also fails for reasons similar to those we discussed when analysing direct discrimination. 3.1.7. In March 2023, the Claimant was informed by David Ayton via telephone conversation that a note would be placed on her file about her conduct whilst at work for 12 months. Page 47 of 50 4.2.5. In March 2023, the Claimant was informed by David Ayton that a note would be placed on her file about her conduct whilst at work.[243]The Claimant has made clear that she is not alleging that David Ayton discriminated or victimised her. She is not alleging that he made up these assertions (for discriminatory reasons, or at all). Rather her allegation is that the Respondent actually did do the things that Mr Ayton said it did, and his information to her was truthful and accurate.[244]The discrimination complaint and the victimisation complaint each fail on the facts insofar as the allegation is that the Respondent did place such a note on her file. The Respondent denies that this happened, and our finding of fact is that it did not. It is entirely inconsistent with the minutes of the April meeting. It also defies common sense, that, after a heated discussion in February, with Mr Crook strenuously arguing that even having the proposed hearing would be a breach of the Claimant’s employment rights (his argument being that further investigation should be done), that the Respondent would have decided that the appropriate solution was to simply impose a sanction without so much as holding a hearing to allow the Claimant to put her case.[245]Our finding is that no member of the management committee (whether Ms Mays or Ms Best or other) told Mr Ayton that the Respondent was placing a note on her file. 3.1.8. In April 2023 it was re-affirmed by David Ayton that disciplinary proceedings would be brought against the Claimant. 4.2.6. In April 2023, it was re-affirmed by David Ayton that disciplinary proceedings would be brought against the Claimant.[246]Similarly to the last pair of allegations, the Claimant is not suggesting that David Ayton discriminated or victimised her. She is not alleging that he made up these assertions (for discriminatory reasons, or at all). Rather her allegation is that his information to her was a truthful and accurate explanation of what the Respondent intended to do.[247]For those familiar with employment practices, there is a marked inconsistency between telling someone in March that there would be a note on their file (which implies the disciplinary matter has been concluded, and a decision reached, regardless of whether it was a formal or informal outcome) and telling someone in April that disciplinary proceedings “would be brought” (which implies that the matter is not concluded and, if anything, is at a comparatively early stage).[248]Of course, one possibility to be considered is whether the Respondent acted in a way that was out of the ordinary. That is, purported to have concluded disciplinary proceedings and then, later, purported to re-open them. (There has been no suggestion that Mr Ayton was referring, in April, to proceedings for Page 48 of 50 different alleged misconduct to that which he had – on the Claimant’s case – discussed in March.)[249]If it were true that the Respondent acted in a way that was out of the ordinary, and different to what a typical employer usually did, then that would be relevant when deciding whether the burden of proof should shift.[250]However, in April, the February minutes, were approved by a 7-2 majority, with the comments: 2. Acceptance of Minutes from last meeting. PG advised that she did not accept the minutes of the last meeting and that they were not a true recollection of the meeting. She reported that there had been a vote regarding not processing disciplinary against Natasha Mead which some members of the committee stated did not happen. It was pointed out to the committee that Natasha has gone to ACAS and we are taking legal advice regarding this.[251]On the balance of probabilities, the February minutes accurately reflect that, at that meeting, there was a (heated) discussion about the topic of potential disciplinary action against the Claimant, but no final decision was actually made.[252]The comments in the April minutes, combined with the content of the February minutes (which recorded Mr Crook’s strenuous objections to the disciplinary process) are consistent with Mr Ayton (who was not present) forming the opinion that the disciplinary process, commenced in February 2023, was to resume.[253]Our finding is that the Claimant had not been told that the process had ceased, and the minutes do not say that the Respondent had decided that it had ceased, or would be abandoned, or had been concluded.[254]In actual fact, the Claimant was not (in the time periods relevant to this claim) required to actually attend a meeting. No further invitation was sent after she declined to attend the 9 February hearing.[255]There are no facts from which we could conclude that the Respondent’s decisions not to abandon the process commenced in February, or the Respondent’s actions in declining to tell the Claimant that it had concluded (and, on the contrary, allowing the Claimant to be told, via Mr Ayton, that it was continuing) were because she had a disabled child, or were any different to the way in which a hypothetical comparator would have been treated. Our reasons for this decision are similar to those we discussed for paragraphs 3.1.5 and 3.1.6 of list of issues.[256]In considering whether there was victimisation, we have already said that we have decided that the Claimant has not proven that either protected act took place. In terms of timings, it would potentially be significant if, in February, there Page 49 of 50 was a decision that there would be no disciplinary action and then, in April (after the alleged second protected act) the Respondent reversed that earlier decision.[257]We take into consideration that Pam Gordon, and one other person (we assume that Pam Gordon was one of two people who voted against approving the minutes) seemingly did believe that the February outcome was that there would be no disciplinary action. However, five people did not agree with Pam Gordon, and Ms Mays and Ms Best are the only attendees, of either meeting, to have given evidence.[258]As a finding of fact, we are not persuaded that the Respondent changed its position after the second alleged protected act. It had written to her in February to say there would be disciplinary hearing, she did not attend, it told her that it would update her in due course, and there is no evidence that it ever decided that the disciplinary proceedings would not continue.[259]To the extent that Mr Ayton might ever have formed the opinion that the Respondent had already decided to impose a formal warning, our decision is that he was wrong about that. Although it is a reflection of the fact that, according to the letter to the Claimant, that was the maximum punishment she was facing.[260]The victimisation allegation also fails. There are no facts from which we could conclude that the things decided at the April meeting, or anything that the Claimant was told about those things, were because of the Claimant’s communication with ACAS (either because of what she actually did say, or because of the belief that she might do a future protected act, such as bring employment tribunal claim).
Conclusion
[261]Thus all the complaints failed and there was no need to address remedy. Approved by: