Ms R Owen v Mr P Wright and London Borough of Enfield: 3305803/2021 and 3303495/2022
EMPLOYMENT TRIBUNALS
Case No 3305803/2021, 3303495/2022
Between
Ms R OwenClaimantMr P Wright and London Borough of EnfieldRespondent
Before
Employment Judge M WarrenIn person for claimantMr S Bishop (instructed by Counsel) for respondentDate 27 January 2023
JUDGMENT
[1]Oral Judgment given at the hearing: 1.1. During her employment with the Respondent, the Claimant was a disabled person as defined in the Equality Act 2010 by reason of Dyspraxia.[2]Reserved Judgment: 2.1. The Claimant’s claims of harassment related to disability are dismissed upon withdrawal. 2.2. The Respondent’s Application for the Claimant’s complaint of constructive unfair dismissal and of failure to make reasonable adjustments be Struck Out or subject to a Deposit Order, is refused.
REASONS
ORAL DECISION TO THE PARTIES - DISABILITY
Background
[1]The issue which I have to decide first is whether Ms Owen was a disabled person at the relevant time as defined in the Equality Act 2010. The Respondent accepts that she has dyspraxia which is long term and that she had it at the relevant time. They say that it was mild and so did not have a substantial adverse impact on her day to day activities. Evidence[2]I had before me two witness statements from Ms Owen, neither of which contained a great deal on the central issue of the effect of her dyspraxia on her day to day activities. I also had a bundle of documents in PDF format. I was frustrated by the numbering of the bundle, in that the way page numbers had been printed, they were extremely difficult, in some cases impossible, to read because of over printing. That would be confusing enough as it is, but given that Ms Owen has dyspraxia, as the respondent accepts, it was all the more exasperating. The numbering caused understandable and predictable confusion for Ms Owen during the course of the hearing. When I quote page numbers below, I am referring to the number in accordance with the numbering within the PDF file, not the paper numbering.
The Law
[3]For the purposes of the Equality Act 2010 (EqA) a person is said, at section 6, to have a disability if they meet the following definition: “A person (P) has a disability if –(a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.[4]The burden of proof lies with the Claimant to prove that she is a disabled person in accordance with that definition.[5]The expression ‘substantial’ is defined at Section 212 as, ‘more than minor or trivial’.[6]Paragraph 12 of Schedule 1 provides that a Tribunal must take into account such guidance as it thinks is relevant in determining whether a person is disabled. Such guidance which is relevant is that which is produced by the government’s office for disability issues entitled, ‘Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability’. Although I acknowledge that the guidance is not to be taken too literally and used as a check list, (Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19) much of what is there is reflected in the authorities, (or vice versa).[7]As to the meaning of ‘substantial adverse effects’, paragraph B1 assists as follows: “The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences and ability which may exist amongst people. A substantial effect is one that is more than a minor or trivial effect”.[8]The guidance suggests that whilst specialised activities either to do with one’s work or otherwise, are unlikely to be normal day-to-day activities, (paragraphs D8 and 9) some work related activities can be regarded as normal day-to-day activities such as sitting down, standing up, walking, running, verbal interaction, writing, driving, using computer keyboards or mobile phones, lifting and carrying (paragraph D10). That needs to read in light of Paterson v Commissioner of Police of the Metropolis [2007] ICR 1522 EAT and Chacon Navas v Eurest Colectividades SA [2007] ICR 1 ECJ, which are authority for the proposition that normal day to day activities includes activities relevant to participation in professional life, and Chief Constable of Dumfries and Galloway Constabulary v Adams [2009] ICR 1034 EAT which clarifies that does not apply to specialist skills.
Findings
[9]Ms Owen has a degree in psychology and a masters in social work. She is intelligent and by observation, an articulate person. She says herself that she would describe herself as someone who functions better at a high level.[10]Whilst studying for her Masters in Social Work at the University of Middlesex, the university commissioned a report by a John Butler, expert in specific learning difficulties, (SpLD) which is dated 25 Jan 2016. It is in the bundle and I refer to the conclusions which start at page 197.[11]Mr Butler refers to Ms Owen’s test scores as revealing above average strengths in abstract verbal reasoning. He writes that, in contrast with her excellent underlying verbal ability, she has weaknesses in areas of cognitive processing; specifically auditory short-term and working memory, phonological awareness and the speed of processing visual and phonological information. However he says, her word reading efficiency and phonological decoding are competent. He wrote that she had difficulties predominantly organisational in nature, rather than phonological. He said that her reading accuracy was good and single word reading tests showed visual errors rather than phonological errors. She has a very slow reading speed. He wrote that her difficulties will affect her ability to efficiently read large amounts of text under timed conditions and organise writing tasks, and that note taking would be difficult. He said that she would have slow performance in reading tasks. He made reference on page 198 to her condition affecting a range of day to day activities, particularly when demands are made on working memory and when information must be processed efficiently. He said that despite her strengths, she showed significant weaknesses in several areas of literacy and information processing, which put her at a substantial disadvantage in many study situations which would require appropriate support and adjustments. He suggested she met the definition of a disabled person, (it is of course for me to decide whether or not she meets that definition, it is not a question for an expert in a particular discipline).[12]Under a heading of written composition, Mr Butler wrote that that Ms Owen’s weak working memory would increase the time that she would need to compose written assignments. He said that individuals with SpLD have a difficult in writing fluently and producing structured work. He said that when she was writing complex sentences, she may forget what she intended to say, resulting in grammatical inconsistencies or losing the thread of an argument. She may also have difficulty accessing appropriate words to express her ideas clearly.[13]In an application for employment with the respondent, copied in the bundle at 207, Ms Owen wrote that she ensured that all her work is documented and uploaded onto a database. She referred to placements that she had been on during her Masters and she wrote: “These placements have developed my writing skills and I am now able to write thorough and detailed reports, including analysis and observations. I have written a Section 7 report to a high standard where I also gave evidence in court and the recommendations were approved.” And a little later she wrote: “I am trained and can confidently use the Liquid Logic system. I am IT literate and able to use all Microsoft Office applications”[14]On a part of the form at 209, the applicant is asked to state whether they are disabled or not, the form setting out a definition of disability lifted from the Equality Act. Ms Owens answered, “no”.[15]After starting work with the respondent in November 2015, a work place assessment was carried out by an occupational health physician, Dr Lucy Grundy in February 2018, (page 237). Specific difficulties with work are noted at page 240: “Rebecca explained difficulties writing, for example, she said she struggled to get her ideas down both in her work and her qualification coursework…difficulties with reading, as it requires a lot of effort to read and amend documents… difficulties managing her email inbox, for example, she said she does not know how to place things in folders or how to organise them. She reported difficulties with general tidiness and organisation … she currently struggles to organise her paperwork… some difficulty with note taking … difficulties with note taking … difficult to concentrate on her own tasks when others are talking … she remembers verbal instructions and said she prefers to have them written down, so she can refer back to them at a later date. She reported pronunciation difficulties and said she sometimes gets words wrong.” A lot of that of course, is consistent with the report of Mr Butler. It does not escape my notice there, that a lot of what Dr Grundy writes is what she was told by Ms Owen, but it has a corroborative value.[16]In September 2019, the respondent obtained an Occupational Health report, (page 261/2). The advisor records that Ms Owen told the advisor that she finds it difficult to start writing sentences fluently, that she has to think about it and it takes her a long time to write notes. The advisor writes, “the disability provisions of the Equality Act 2010 are like to be applicable to the disabilities arising out of the underlying Dyspraxia at present”.[17]In terms of Ms Owen’s evidence, I found her an entirely compelling witness. There were situations where Mr Bishop was following a line of questions, where through no fault of his, he found himself digging a bigger and bigger hole for the respondent, as Ms Owen’s evidence became the more compelling with the answers that she gave.[18]I focus on findings relating to Ms Owen’s activities, at the material time, in her personal life and in work, in what might be described as, “ordinary day to day work activities” and not on what might be regarded as, “specialist activities”: 18.1. She could not organise filing her own emails, personal or work related. 18.2. She found it hard to concentrate if there were noises around her. 18.3. She found it hard and time consuming to complete forms, not just her mileage forms at work, but any sort of form, including in her personal life. She had to have a hard copy and to have family help her. 18.4. She had difficulties accessing and using Google maps, WhatsApp or saving numbers to her phone. 18.5. She found it difficult to navigate her phone. 18.6. It took her a long time to compose simple text messages to her friends. Mr Bishop made issue of the fact that she had not said that before, but I found her long explanation of how, even though EJ Wyeth had explained the meaning of, “day to day activities” to her, she thought he meant in the context of work, not personal life, entirely convincing. 18.7. She had the same problem composing emails. 18.8. She struggled to remember and follow standards scripts in how to answer the phone at work 18.9. She found herself with clumsy hands sometimes when using her phone or writing with a pen. Her handwriting sometimes became scruffy. 18.10. She found driving, in particular finding her way to somewhere she is not familiar with, a challenge. I noted the OH report at 262 referred to Ms Owen driving a car. 18.11. She struggled to differentiate right from left.[19]I witnessed for myself manifestation of the difficulties Ms Owen faced in answering questions and dealing with documents during the hearing. She was not play acting. Her demeanour was compelling, as someone experiencing precisely the sort of difficulties she had described and as is described in the contemporaneous reports, even after making allowance for the added difficulty of the confusing page numbers, which would have been a problem for anyone.[20]Ms Owen struggled to understand and follow new procedures.[21]Mr Bishop attempted to undermine Ms Owen’s credibility by reference to emails, for example that of Mr Wright in January and February 2020 about the reason for her absence at that time. That attempt was unsuccessful, as it was clear from the emails that there were personal matters and work related matters that were causing her absence.[22]Mr Bishop tried unsuccessfully to catch Ms Owen out by making reference to information, which was not before the tribunal, which he said indicated total editing time on the second of Ms Owen’s witness statements, 7 pages 3331 words, was 106 mins. Even before he got to put his point, Ms Owen was explaining the lengths she had gone to with saving various drafts as they evolved, working in manuscript on print-outs of the same, sending drafts to her mother, who would sense check and send back as re-drafts to re-save. Her evidence was compelling. I declined Mr Bishop’s invitation that I should see the document he was referring to and that it should be referred to Ms Owen. It had not been disclosed in advance anyway and in any event, she had dealt with it.
Conclusions
[23]Mr Bishop in his submissions astutely recognised the potential impact of Ms Owen’s evidence and demeanour. He is right to caution me against assuming that what I saw yesterday was a representation of the way that Ms Owen was and the impact of her impairment during her employment with the respondent. I have not made that assumption, but her demeanour and her explanations, for me, enhanced the credibility of her evidence.[24]Mr Bishop also made the point that in the context of previous Employment Judges going to some lengths to explain to Ms Owen that her witness statement should contain information about the impact of her impairment on her day to day activities in normal life, and given her high intellectual abilities, it is not credible for her to make references for the first time in oral evidence, to problems sending texts, organising and sending emails, driving and so on. He said it made it impossible for him to cross examine effectively. That is a good point. Ordinarily, from a person of such apparent intellectual ability, I would frankly have given such evidence short shrift in these circumstances. But this witness has dyspraxia. Indeed, it seems to me that this problem with her evidence is illustrative of the effect of that. At the risk of using the word too often, I found it compelling.[25]It is true to say that contrary evidence is contained in the job application at page 207 quoted above. I accept Ms Owen’s evidence in cross examination, that she was trying to impress, as anyone would in a job application. She was trying to shine a favourable light on herself and in terms of the questions about her disability, did not regard herself at the time, as disabled; to her, a disabled person was someone with physical impairments.[26]I have described in my findings day to day activities, both common in the average work place and in a person’s private none work life. I have set out how those activities are impacted for Ms Owen by her dyspraxia. Not being able to easily and quickly write a text or an email, or to organise one’s emails, or to fill in a form, might on their own be minor and trivial, but cumulatively, their impact is substantial.[27]Problems of slowness in reading, difficulties in preparing written work, in organising oneself, in writing with structure, in short term working memory, in losing the thread, in keeping written work tidy, in remembering verbal instructions – these are all effects which will be substantial in any workplace that involved administration and use of the written word. They are day to day activities. They are not specialist activities.[28]The respondent says a distinction must be drawn between finding work intellectually challenging and finding it difficult because of a disability. I agree. But I find that Ms Owen’s difficulties as described above, were because her of impairment, not because of the intellectual demands of the job.[29]For these reasons, I find that during her employment Ms Owen was a disabled person as defined in the Equality Act 2010 reason of her dyspraxia. RESERVED DECISION
Background
[30]An oral decision was given to the parties as to whether or not Ms Owen was a disabled person at the material time on day one of the Hearing, 7 July 2022. Due to shortage of time, I reserved my decision on the remaining matters. Has the Claimant withdrawn part of her claim and should she be permitted to reintroduce it ?[31]Ms Owen’s claim is of disability discrimination. In her claim form at 8.2 (page 13) she complained that discrimination and bullying caused her to be signed off sick. In the opening paragraph of additional information provided at section 15 of the ET1, she referred to suffering from the First Respondent’s bullying and harassment.[32]Ms Owen was ordered to provide further and better particulars by Employment Judge George. She responded by saving an electronic copy of the letter written on the instructions of EJ George and typing in her narrative response. In his Hearing Summary following the Preliminary Hearing on 9 December 2021, Employment Judge Lewis set out a list of allegations of harassment related to disability which he had prepared from Ms Owen’s claim form and further and better particulars. Respect to EJ Lewis for the work which must have gone into that.[33]In preparation for the Preliminary Hearing on 9 December 2021, the parties co-operated in the preparation of an agreed List of Issues and Ms Owen submitted a completed Agenda. Not known to EJ Lewis, confirmed to me by Ms Owen during this hearing, she had the benefit of legal advice when completing those documents.[34]Ms Owen provided a draft List of Legal Issues which set out the legal test for whether or not she met the definition of a disabled person and the relevant questions in relation to a claim of failure to make reasonable adjustments, including a proposed PCP. That is all. There was no reference to any other form of claim.[35]In the Agenda at 2.1, (where it asks whether any claims are withdrawn), Ms Owen has written, “The bulling [sic] and harassment claim of being put on performance has been withdrawn because it was out of time, I could not get any legal help and due to my disability and illness found the system too difficult to do in the right time frames”.[36]Not known to EJ Lewis at the time, but confirmed to me by Ms Owen in this hearing, she withdrew her harassment claim on legal advice.[37]EJ Lewis records in his Hearing Summary at paragraphs 6 – 9 that Ms Owen said during the hearing that she had not wanted to withdraw those claims and that she still wished to pursue them. The Respondent’s position was that it was not open to her to do so. EJ Lewis observed that there remained proceedings and the Tribunal had power to permit an amendment at any time. He directed these issues be dealt with at this Open Preliminary Hearing.[38]Miss Owen issued a second claim on 21 March 2022. At section8.1 of the ET1 she ticked the box that she was claiming unfair dismissal only. At8.2 she wrote, “I am therefore making a claim for constructive dismissal. This is related to my previous claims of failure to make reasonable adjustments and bully and discrimination related to my disability…”
The Law
[39]Rule 51 of the Employment Tribunals Rules of Procedure 2013, provides: “Where a Claimant informs the Tribunal, either in writing or in the course of a hearing, that a claim, or part of it, is withdrawn, the claim, or part, comes to an end…”[40]Rule 52, provides: “Where a claim, or part of it, has been withdrawn under Rule 51, the Tribunal shall issue a judgment dismissing it (which means that the Claimant may not commence a further claim against the Respondent raising the same, or substantially the same, complaint) unless –(a) the Claimant has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so; or(b) the Tribunal believes that to issue such a Judgment would not be in the interests of justice.”[41]The case of Campbell v OCS Group Limited and Moffatt UK EAT/0188/16/DA, the decision of the then President, Mrs Justice Simler as she then was, deals with the application of Rules 51 and 52. Where a Claimant withdraws a claim, it comes to an end and cannot be revived, (Rule 51). The Tribunal must then issue a Judgment, unless either of the exceptions in Rule 52 apply. If a Judgment is not issued, it remains the case the claim in the extant proceedings cannot be revived, that does not mean that a fresh claim on the same facts could not be made, (see paragraph 13). Issuing a Judgment dismissing the claim on withdrawal, does mean that a fresh claim on the same facts cannot be issued, (Rule 52).[42]The exceptions in Rule 52 which may cause an Employment Judge not to issue a Judgment dismissing the withdrawn claim are either where the Claimant has expressly reserved the right to bring a further claim, (which does not apply here) or it is not thought to be in the interests of justice to issue such a Judgment, which might apply here.[43]This exception gives rise to a discretion on my part. That discretion must be exercised judicially, having regard to the balance of prejudice to the parties and the overriding objective.[44]The overriding objective is at Rule 2 and provides as follows: The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.[45]It is in the interests of justice that there shall be finality in litigation.
Conclusions
[46]Miss Owen has clearly withdrawn her harassment related to disability claim. Whilst at first blush, I had thought there might be some ambiguity, because it appeared it might have meant she was withdrawing her claim of being put on performance only, (in other words not other aspects of her harassment claim). However, it becomes perfectly clear that it is the entirety of her harassment claim that she has withdrawn when one has regard to the List of Issues that she produced, bearing in mind that the same was produced with, and on, legal advice. Pursuant to Rule 51, the claim is withdrawn, it has come to an end and cannot be revived.[47]Absent a Judgment dismissing it upon withdrawal, she could have issued a fresh claim for harassment, in her second claim form. She did not do so.[48]I must have regard to the provisions of Rule 52, which requires me to consider whether it is in the interests of justice to issue a Judgment dismissing her claims on withdrawal.[49]The prejudice to the First Respondent is that he faces potential personal liability for alleged acts of discrimination said to have been carried out by him during the course of his employment. He and the Second Respondent are entitled to take the Claimant’s withdrawal at face value. The Respondents will still have to answer harassment allegations, but in the context of a complaint of constructive dismissal, (which will be subject to limits on the amount of compensation that might be awarded), in any event.[50]The prejudice to Miss Owen if I issue a Judgment is that she will not be able to issue a further claim of disability related harassment. That prejudice is ameliorated by: 50.1. She made the decision to withdraw her claim with the benefit of legal advice; 50.2. Were she to have attempted to issue a third claim for harassment, it would have been out of time and therefore subject to questions of whether it would be just and equitable to extend time; 50.3. She had the opportunity of adding the harassment claim in her second claim form, (although had she done so that would then have been subject to an enquiry as to whether the principles of issue estoppel and the rule in Henderson v Henderson should apply); and 50.4. She is still able to pursue the factual allegations lying behind the former harassment claim in support of her complaint of constructive unfair dismissal, albeit with compensation for unfair dismissal subject to the statutory cap of a year’s salary.[51]The most significant aspect to the overriding objective in this instance is the potential absence of a level playing field. As I have observed a number of times already, Miss Owen acknowledged to me that her withdrawal was with the benefit of legal advice.[52]For these reasons, I dismiss the Claimant’s claims of disability related harassment upon them having been withdrawn. Strike Out or Deposit Order – the Law Strike Out[53]Employment Tribunals Rules of Procedure, rule 37 provides that: (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; …[54]A tribunal should be slow to strike out a claim brought by a litigant in person on the basis that it has no reasonable prospects of success, see Mbuisa v cygnet Healthcare Ltd UKEAT 0119/18. Strike out is a draconian step that should only be taken in exceptional cases. If a case is poorly pleaded, the appropriate step is to record how the case is put, ensure that the pleading is amended and make a deposit order if appropriate.[55]In respect of discrimination cases, the appropriate approach to strike out stems from the case of Anyanwu v Southbank Student Union 2001 ICR 391. In broad, general terms, that case was authority for the proposition that discrimination cases should be heard and not struck out. In Ezsias v North Glamorgan NHS Trust 2007 CA ICR 1126 at paragraph 29, Kay LJ said that only in exceptional cases would a case be struck out when the central facts are in dispute.[56]In Morgan v Royal Mencap Society [2016] IRLR 428 the then President of the EAT, Mrs Justice Simler, reminded us that the threshold is high, (paragraph 13). She acknowledged at paragraph 14 that there are cases where, if one takes the claimant’s case at its highest, it cannot succeed on the legal basis on which it is advanced and in those circumstances, it will be appropriate to strike out. However, she says, where there are disputed facts, unless there are very strong reasons for concluding that the claimants view of the facts is unsustainable, a resolution of the conflict of facts is likely to be required.[57]In exercising discretion, a Tribunal should have regard to the overriding objective as set out above. Deposit Order[58]The Employment Tribunals’ rules of procedure at Rule 39 provide as follows: (1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. …[59]In Hemdan v Ishmail and another UKEAT/0021/16. Mrs Justice Simler, (as she then was) reviewed the legal principles to be applied when considering whether or not to make a Deposit Order. She said at paragraph 10, “There can accordingly be little doubt in our collective minds that the purpose of a deposit order is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails.” At paragraph 12, “The test for ordering payment of the deposit order by a party is that the party has little reasonable prospect of success in relation to a specific allegation, argument or response, in contrast to the test for a strike out which requires a tribunal to be satisfied that there is no reasonable prospect of success. The test, therefore, is less rigorous in that sense, but nevertheless there must be a proper basis for doubting the likelihood of a party being able to establish facts essential to the claim or the defence. The fact that a tribunal is required to give reasons for reaching such a conclusion serves to emphasis the fact that there must be such a proper basis.” And she said at paragraph 13, “The assessment of the likelihood of a party being able to establish facts essential to his or her case is a summary assessment intended to avoid cost and delay. …a mini-trial of the facts is to be avoided… Where there is a core factual conflict it should be properly resolved at a full Merits Hearing where evidence is heard and tested.” Should the Claimant’s complaint of Constructive Dismissal be Struck Out or the subject of a Deposit Order ?[60]Mr Bishop told me in submissions that the Respondent does not take a time point in relation to the constructive unfair dismissal claim, (not in terms of jurisdiction).[61]Miss Owen was absent from work due to ill health between 17 December 2020 and her resignation on 12 November 2021. Events prior to the commencement of her absence form a substantial part of her constructive dismissal claim; a series of events which she says form part of the Respondent’s breach of the implied term requiring it to maintain mutual trust and confidence.[62]During the period of her absence through ill health, she received contractual sick pay at her full rate of pay for six months and one half her rate of pay for a further six months.[63]Also during her period of absence, she received outcomes to her Grievance, (May 2021) and her Appeal against that outcome, (August 2021).[64]She gave one month’s notice; her dismissal was effective 12 January 2022 and she issued these proceedings on 21 March 2022 claiming constructive unfair dismissal.[65]Mr Bishop’s first argument is that the so called, “last straw” must be when somebody from Human Resources, (a Ms Read) suggested that Ms Owen be referred to Occupational Health in order to support her return to work.[66]What Ms Owen says at 8.2 of her claim form is: “I was offered to come back but the stress was counter-productive to my recovery as I just could not trust that the equipment would be in place given that there had been two prior repeated failures to ensure the recommendations from my Learning Difficulties Report. Therefore I had no option but to resign due to ill health as a result of this negligence from working for months on end in these discriminatory conditions.”[67]What Ms Owen told me during the hearing is that this period of absence was due to her having a breakdown. She said she was in a bad way, crying every day and undergoing therapy. She said she was, “not really there to be honest” and she said that every so often something would happen with her Grievance and she would not know what to do. She then said when Ms Read got in touch with her and said she had to go back to work, her reaction was, “oh my God, I’m not going back”.[68]She said that at that time, she was still in therapy and still trying to come to terms with what had been going on. Mr Bishop says that there is no medical evidence about this, a point Ms Owen might bear in mind and rectify.[69]Mr Bishop suggests that Ms Owen affirmed the Contract of Employment because the last alleged breach would only have been events which happened before her absence began in December 2020 and that thereafter, Ms Owen continued to take payment of her sick pay. For Ms Owen’s benefit, I explained that this means it is suggested because she continued to receive sick pay, she was happy for the Contract of Employment to remain in place and so had agreed to put up with the Respondent’s alleged earlier breaches of contract by the way it behaved.[70]Further, Mr Bishop refers to the timing of the resignation. Ms Owen resigned once her contractual sick pay came to an end. That is evidence of her affirmation of the Contract and that the reason for her resignation was not the Respondent’s breach of contract, but the fact that her sick pay had run out.[71]Contrast to that what Ms Owen said to me during the hearing as quoted above; that she was going through a breakdown and when the Respondent suggested she should return to work, she just could not face it.[72]In these circumstances, I cannot say that Ms Owen’s complaint of constructive unfair dismissal has no or has little reasonable prospects of success. A Tribunal will have to hear the evidence and decide whether firstly, it upholds her allegations; secondly, whether there are events during her period of ill health that contributed toward a breach of the implied term of mutual trust and confidence, and then, whether because of her ill health one cannot say that she affirmed the contract. I will not make a Deposit Order and I will not Strike Out the constructive dismissal claim. Should the Claimant’s complaint of Failure to Make Reasonable Adjustments be Struck Out or made the subject of a Deposit Order ?[73]Mr Bishop in closing submissions acknowledged that it is possible for a Tribunal to find time does not run until a decision is made and the Respondent does not therefore take a time point at this stage.[74]In his submissions, Mr Bishop focused his application on seeking a Deposit Order, no doubt recognising when considering whether or not to strike out a discrimination claim, a Tribunal must take the Claimant’s case at its highest.[75]EJ Lewis identified the issues in the reasonable adjustments claim in his Preliminary Hearing Summary from December 2021. The first is in respect of provision of equipment, coaching and software by way of auxiliary aids. Mr Bishop says that these would not have made any difference to Ms Owen’s poor performance. Ms Owen responds that when these types of adjustment have been made for her in the past at University and in the early days of her employment, she had thrived. I cannot say that answer has little reasonable prospects of success.[76]EJ Lewis then lists four PCPs: the requirement to complete mileage forms; the new way of working so called, “a collective process”; Mr Wright’s tendency to focus on negatives or the requirement to attend team meetings at 9am and the imposition of a heavy workload with insufficient training. Mr Bishop’s submission is that on the basis of what we have seen in the litigation so far, the documents that Ms Owen has produced, their structure (or lack of it), her explanation of the difficulties she has in producing documentation and the help that she receives from her family, all point towards the conclusion that no matter what the Respondent would have done, Ms Owen would not have been able to cope.[77]I return to Ms Owen’s response referred to above, that she had previously thrived. She says that adjustments are crucial and she benefits from them. I cannot say Ms Owen has no or little prospects of success in this regard.[78]For these reasons I decline to either strike out or make a Deposit Order in relation to Ms Owen’s complaint of the Respondent’s failures to make reasonable adjustments. Delay[79]Producing this decision has been delayed by a lack of typing resources at the employment tribunal.
The facts
[80]The following is also recorded:- “Paul explained that if Rebecca’s key performance indicators did not improve then we would consider the performance process. This will be reviewed every week in supervision and then again formally after four weeks.”[81]On the back of that the action column recorded that the claimant and Mr Wright were to have weekly supervision on cases.[82]Under AOB the following is recorded:- “Equipment – Paul is still chasing this. Paul will copy Rebecca into emails so that she can chase up where it is. It appears there is an impact on the supply chain of Covid-19. Paul is chasing Florah about whether LBE could provide a solely administrative role during the Covid-19 restrictions. Florah is looking into this.”[83]We have a redacted email chain concerning the provision of equipment. On 23 April someone appears to be chasing the equipment. On 19 May 2020 it is probably Mr Wright requesting an update on the situation concerning equipment. On 21 May 2020 the ICT service officer sent an email, probably to Mr Wright, saying as follows:- “So… we have the following items ready and prepped for collection from the ICT stores at the Civic Centre. … Screen overlay – blue Olympus Dictaphone Double headset – to replace broken one Dragon naturally speaking software has been installed on to Rebecca’s device and training has been procured. I have passed both yours and Rebecca’s email address to the training company… so they will be in touch to arrange the training for Dragon and strategy coaching. I am still waiting back to hear about the other two items of software – mind mapping and Claro Read. We need to ensure they are compatible with our Win10 platform before they can be procured and installed.”[84]It would appear that on 21 May that email was forwarded to the claimant by Mr Wright who stated:- “Please can you liaise with xxx to pick up your equipment?”[85]We find that the Dragon software had been installed on the claimant’s computer on 26 March 2020. We find that the Dictaphone, headset and overlay were available for collection from 21 May 2020. We find that the software training and dyspraxia strategy coaching had been arranged and were available from 21 May 2020. We find that in all probability the printer had already been refused to the claimant on the grounds of the respondent’s remote working policy. Hence, of the ten recommendations by Access to Work, six were available by 21 May 2020. We have found that it was reasonable not to provide the printer. The claimant had already been referred to ‘Remploy’. This meant that only two items of auxiliary aids, namely the Claro Read Pro and Inspiration Mind Mapping remained outstanding as of that date. The reason they remained outstanding was their compatibility with the second respondent’s system needed to be checked.[86]We have considered whether the delay in the provision of the aids was a failure to make reasonable adjustments. Taking into account the problems clearly presented by the Covid lock down we have concluded that there was no such failure.[87]The next supervision record is dated 3 June 2020. As regards the equipment the following is recorded:- “Equipment – Rebecca is still to pick up her equipment – when are you going to pick it up? Tomorrow. In terms of the equipment the training starts next Monday. The software is installed on the computer. Rebecca feels its outrageous that the equipment has taken so long. Rebecca is looking forward to having the equipment to support her moving forward. TM [Mr Wright] is hoping that this will make life a lot easier for Rebecca moving forward.”[88]The claimant accepted that the Dragon software had been installed but stated that it was not activated as she could not use it. We find this somewhat surprising as the claimant was clearly familiar with the Dragon software having used it previously. Nevertheless, she was to have training and did have training shortly thereafter.[89]We have been provided with a Personal Improvement Plan for the claimant dated 3 June 2020. Although Mr Wright referred to this as an informal Personal Improvement Plan, it appears somewhat formal to us. It is four pages long, detailed and has provision for all parties to sign it although the copy we have is unsigned. A number of required outcomes and levels of performance are set out which include, to a substantial degree, in relation to record keeping. It is recorded that the claimant had been provided with the means of procuring equipment to support her dyspraxia and that it was important that it was taken up. It is also recorded that the claimant had access to Dragon software to help her complete case notes and written work in a time effective manner.[90]The next supervision record is dated 9 June 2020. As regards the provision of equipment the following is recorded:- “Rebecca has still not picked up her equipment. Rebecca was not able to do it because her daughter was unwell. Rebecca felt she could not pick up the equipment with her daughter in the car.” And Under performance management “Went through the PIP template. TM [Mr Wright] raised that Rebecca has still not got her equipment which means she will not working optimum level. Rebecca explained that she will pick this up tomorrow. All indications from supervision suggest that Rebecca is hitting all of the targets so far.” And Under training & development “Rebecca has a lot of training with the equipment which will need prioritising.”[91]In her oral evidence, the claimant stressed that while she was hitting performance targets she was only doing so by staying up late and getting through it.[92]The next supervision record is dated 16 June 2020. Overall it is positive. It is noted that the claimant had started her training for her specialist equipment and that it was intense and three hours at a time.[93]The next supervision record is dated 23 June 2020. The following is recorded:- “Rebecca has handled the cases and it was manageable. Rebecca said that she felt that she had the space to prepare for going out. How are you getting on with new equipment and training? Another session on Friday. Rebecca still hasn’t been able to do this yet. Friday you feel that you can use it properly when the computer is able to pick up Rebecca’s voice.”[94]At that stage the claimant’s caseload was 19 which was recorded as being high with the expectation that it would come down quickly.[95]Quite apart from being on the informal Personal Improvement Plan, it is clear to us that Mr Wright was pushing for improvement in her performance. The following is recorded:- “TM [Mr Wright] explained that Rebecca should be working harder/smarter/faster.”[96]Under training & development the following is recorded:- “Rebecca has to prioritise your dragon software training to support working in a quicker and smarter way.”[97]The next supervision record is dated 2 July 2020. It is recorded that Mr Wright praised the claimant and in her oral evidence she accepted that Mr Wright did praise her sometimes. The PIP was discussed and it was recorded that the claimant did not have anything out of time in terms of her KPIs. This was said to be positive.[98]Under training & development the following is recorded:- “Rebecca is still completing her dragon software. Rebecca explained that she is practising her dragon software before she takes the next session. Rebecca is going to leave this for a couple of weeks.”[99]The next supervision record is dated 16 July 2020. The claimant is recorded as saying that her workload is comfortable and she feels okay. It is recorded that the claimant was being supported by a trainee dealing with her caseload. As usual, performance issues were raised. She had missed some KPIs but this was apparently due to ill health.[100]Under training & development the following is recorded:- “Dragon software training is still being practised. Rebecca thinks it alright – Rebecca needs to practise it more to get used to it.”[101]We have an email trail around this time. On 19 May 2020 Mr Wright had sent an email to the claimant asking her if she had got any of the equipment. The claimant responded on 16 July 2020 as follows:- “Yes I have all the equipment, although the Aqua overlay arrived dented. (I will follow this up). In regard to the dyspraxia strategy coaching – I am not sure who is doing this? The assisted training has begun which involves three hour sessions.”[102]Mr Wright replied on 16 July 2020 as follows:- “This email was from nearly two months ago and I’ve asked you on multiple occasions during supervision whether this was being sorted. Can you speak to xxx [a redacted email address] to confirm what has happened to your training.”[103]In her oral evidence the claimant asserted that she had been requesting a monitor for working at home around this time on a number of occasions. We note that no such request is recorded in any contemporaneous documentation. We doubt whether she was requesting a monitor at this stage. This is because, as will be referred to in due course, there is a reference to the claimant only realising she needed a monitor much later and, when she did raise the issue, Mr Wright sent her the contact details of what to do.[104]On 22 July 2020 Ms Spillman sent an email to the claimant stating as “All items have been collected from ICT stores, although I understand this was only recently. Understand training is underway but as this is scheduled direct with the third party training company and yourself, I am not clear what is outstanding, if any. The other software- Claro Reed and Inspiration Mind Mapping, we are still awaiting confirmation from our infrastructure team on its compatibility. As we operate on a WIN 10 platform, I was seeking their advice. I have chased them again today.”[105]The claimant was on annual leave in August 2020.[106]The next supervision record is dated 1 September 2020. A performance issue was raised concerning a complaint by a family that the claimant had contacted a child’s school without consent. This performance issue does not appear to us to have anything to do with the claimant’s dyspraxia.[107]The ClaroRead Pro was installed on the claimant’s computer on 6 October 2020 and the Mind Mapping software was installed on 12 October 2020. Hence, by 12 October 2020 the claimant had been provided with all auxiliary aids recommended by the DWP Workplace Assessment report (excluding the printer). The claimant told us that the ClaroRead was not activated as she had not done the training but, as is clear to us, the onus was on the claimant to arrange her training with the third party provider and it was her responsibility to do so. Again, we find that the delay in the provision of the equipment was excusable and we do not find that the delay constituted a failure to provide reasonable adjustments.[108]The first three allegations of unfavourable treatment relate to events that took place on a day in September 2020. The first is an allegation that Mr Wright told the claimant she could not have a printer and justified this on the basis that she had left out a confidential paper. Mr Wright’s evidence was as follows:- “The claimant did request portable printer as part of her Access to Work but this was not provided. … I had let the claimant know in early March 2020 that a portable printer would not be provided as there were no roles which allowed for this and reiterated this in July/August 2020. I provided the example of the claimant having left confidential documentation out previously to stress the importance of the risk of disclosure of such information and the denial of a mobile printer.”[109]We have already found that the claimant was probably denied a printer much earlier than September 2020. We have already found that not providing the claimant with a printer was for a reasonable and justifiable reason. However, as a matter of fact, we do find that Mr Wright refused the claimant a printer and gave as a reason that she had previously left confidential information out.[110]Whilst the claimant may have found the non-provision of a printer to be unfavourable treatment, we find that this was not consequent upon anything arising in consequence of her disability but was consequent upon the respondent’s data protection policies.[111]The second issue in September was Mr Wright telling the claimant that someone had rung through wanting to make a complaint and asking the claimant if it was her. It is alleged that when the claimant asked what it was about, Mr Wright simply said “it doesn’t matter as it was being dealt with”. We find that this was no more than routine management. It is inevitable that if a complaint was telephoned through to Mr Wright he might ask members of the team if they were involved. We do not find that this was unfavourable treatment and, in any event, we do not find that it was because of anything arising in consequence of the claimant’s disability.[112]The next allegation is that whilst the claimant was on the phone to a mother Mr Wright kept saying that she had got the service users name wrong. The claimant’s own evidence is that the service user had mental health issues and in her witness statement the claimant acknowledges that she accidently got the service user’s name wrong which angered the service user. Again, we do not find that this incident was anything other than routine management. The claimant got a service user’s name wrong on the telephone and Mr Wright pointed it out. We do not find that this is unfavourable treatment and, in any event, we do not find that the treatment was because of anything rising in consequence of the claimant’s disability.[113]The next supervision record is dated 30 October 2020. We note that this is approximately two months after the previous supervision record. We had no explanation as to why there is such a gap.[114]There is reference to an assessment being out of time and it is recorded that the claimant and Mr Wright discussed that admin tasks tended to slow the claimant down which caused drift and delay.[115]We were taken to an email from 26 October 2020, sent to the entire team, wherein Mr Wright was asking the whole team to ensure that, when opening an assessment, one of the ‘factors’ was ticked. As a follow up to the supervision meeting on 30 October, we were shown an email wherein Mr Wright was complaining that the claimant had failed to tick the correct factor. The claimant acknowledged that she had made this error. Mr Wright concluded, “Please don’t do it again”.[116]In her oral evidence, the claimant characterised this as Mr Wright singling her out and sought to explain it by the fact that her software was not activated and she had not completed the training. However, we find that Mr Wright was perfectly justified in raising concerns about the claimant’s inability to complete the required documentation accurately. When dealing with issues of child protection and safety we readily understand how important it was to get the documentation correct. From Mr Wright’s perspective, the claimant had the requisite software and Dictaphone and had at least begun the training on it. In our judgment, it was not unreasonable for him to expect an improvement in the claimant’s performance.[117]On 2 November 2020, Mr Wright introduced a new way of working referred to as the “Collective Process”. As such, the respondent did have this as a PCP. Without going into too much detail, assessment tasks were broken down into four distinct categories. New forms were introduced with a single template at its heart. The spreadsheet was to be completed by Mr Wright but it did require each social worker to enter data onto it as they performed one of the four tasks. We accept that the collective process involved daily use of spreadsheets which needed to be accessed, new forms and protocols and that the volume of emails may have increased as all social workers kept each other informed. As such, we readily accept that it posed a challenge not only to the claimant but no doubt to all social workers in adapting to a new system of working.[118]We find that the introduction of the collective process was not unfavourable treatment. It was a reform to the way of working for the whole team. It was not introduced because of something arising in consequence of the claimant’s dyspraxia.[119]We have considered whether the introduction of the collective process, as a PCP, put the claimant at a substantial disadvantage compared with those who were not disabled. We accept that potentially it could put the claimant at a disadvantage due to her difficulties processing data and entering it into forms. However, by this time the claimant had all the auxiliary aids recommended and access to the relevant training to use them.[120]Further, we find the next supervision record to be important. Although dated 30 October 2020 it was actually held on 11 November 2020. The following is recorded“Rebecca said that the assessment script and the agency checks that had been brought in by the TM [Mr Wright] to help her inform her assessments is an easier way. Rebecca likes the collective approach that we are currently taking to ensure cases are progressed. Rebecca feels like she gets it now and at first found it tricky.” [our underlining][121]Further, the following is recorded under “Performance Management”: “Assessment script – C + F assessment. TM raised concerns about the following: XXX assessment is going out of date today and Dad hasn’t been spoken to. CIN plan was closed down rather than being progressed as a CIN. XXX data was entered into XXX section 47 data. Rebecca has recently been given an assessment script to prompt her in what questions to ask for a C + F assessment. The completed form was not a satisfactory standard for the TM. They were one line and TM questioned the quality of Rebecca’s recording. Rebecca questioned about whether the level of detail was necessary. The TM found it concerning that Rebecca does not understand the level of detail we need to assess parenting is in depth. Rebecca explained that she is learning and will try harder. TM was worried as the form already contained lots of prompts. “[122]Not for the first time, we find that some of the significant concerns raised by Mr Wright about the claimant’s performance concerned issues of judgment and the undertaking of her job that are unrelated to her dyspraxia. Even where dyspraxia related in terms of organisation and recording of data, by this time the claimant had all auxiliary aids recommended by the Workplace Assessment Report, albeit that her training was incomplete.[123]We find that the claimant was struggling to perform satisfactorily in her role as a Child Social Worker irrespective of the difficulties posed by her dyspraxia. In this context, it is particularly illuminating that the following conversation was recorded in the supervision record:- “Rebecca and TM discussed different types of social work and whether Rebecca was happy in the chaotic world of frontline child protection, given the instability in her personal life. Rebecca explained that she will think about whether this is working for her.”[124]Again in this context, we were taken to an email dated 12 November 2020 wherein Mr Wright raised with the claimant another example of her being careless in finalising an assessment without ticking the physical assessment box.[125]The respondent did have a PCP requiring the claimant to fill in car mileage and overtime forms to make car mileage and overtime claims. The issue of mileage and expenses is referenced in the supervision record from 11 November 2020. The following is recorded:- “Other than this Rebecca is fine. Rebecca still hasn’t been able to claim mileage and expenses. How long do your expenses go back? May 2019. TM advised Rebecca that she will struggle to claim this back. Rebecca explained that she struggles to fill in forms and navigate the paperwork that is requested that goes along with these things.”[126]Clearly the requirement to fill in these forms did put the claimant at a disadvantage in that she had difficulties doing so. However, the claimant had been provided with support/assistance in completing these forms as all auxiliary aids had been provided by this time.[127]The claimant alleges that in October or November 2020, in response to the claimant expressing her need for support with mileage forms, Mr Wright stated that the claimant did not like “admin”. The claimant took this to be a slight on the basis that it suggested that she could not be bothered to do her mileage claim forms whereas it was her dyspraxia that was presenting her with difficulties in doing so. Mr Wright’s evidence was that he could not recall saying this. Whether or not this comment was made, we find that it is somewhat equivocal and does not necessarily have the connotations that the claimant asserts that it does. We have quoted the reference to the claimant having difficulties with admin tasks in one of the supervision reports above. Mr Wright was clearly aware of this. The allegation is not dealt with in either of the claimant’s witness statements which would suggest that it was not of major importance. We find that this was a one off minor comment and of little or no consequence such that it can be regarded a de minimis.[128]As regards the practice of requiring attendance at a 9am team meeting, we have relatively little evidence of this point. The claimant does not deal with it in either of her witness statements. Nevertheless, Mr Wright conceded that there were regular 9am team meetings. However, he told us and we accept that these meetings were not set in stone and there was a high degree of flexibility to accommodate the needs of the various social workers involved, especially during times of covid. By way of example we have been shown a screen shot from the text messages exchanged on 8 December where unidentified colleagues were asking for the meeting to be put back and Mr Wright was agreeing. Consequently, we find that there was a PCP of requiring attendance at 9am team meetings but that that did not put the claimant at a substantial disadvantage because of her dyspraxia. Indeed, her main difficulties appear to have been caused by childcare commitments and the school run.[129]The second part of this alleged PCP was the imposition of a heavy workload without time off for training. We have no doubt that at times the claimant’s work as a social worker was pressurised and time consuming. As such, we find that the workload could be heavy at times. However, having reviewed all the supervision notes, it is clear to us that generally speaking the claimant was coping well and we do not accept that there was never any time off for training, As has already been observed, the onus was on the claimant to obtain her training which was to be provided by a third party and we do not accept that the claimant never had time to access this training had she wanted to.[130]We do not find that the respondent had a PCP of “focussing on negatives in Mr Wright’s supervision meetings with the claimant”. This is more a criticism of Mr Wright’s management style, which, in any event, we do not accept. Having reviewed all the supervision records, we find that they are both positive and negative. As has already been observed, it is inevitable that the negatives will stand out as far as any employee is concerned.[131]We have taken the alleged treatments 6.1.1 – 6.1.12 as being said to have taken place after the introduction of the collective process on 2 November 2020. As recorded before, we find that all the auxiliary aids, with the exception of the completion of her training, had been provided to the claimant by this time. As already recorded, the onus was on the claimant to arrange her training and ensure that it took place. However, as recorded in the grievance report of 3 March 2021, Mr Wright was not sure if the training had happened.[132]As regards the collective process, as recorded above, in the supervision record of 11 November 2020, the claimant felt that she ‘got’ the collective process by then. We find that Mr Wright did not dismiss the claimant’s questions about the new way of working and the forms and protocols.[133]We find that Mr Wright did not set unrealistic tasks for the claimant to finish each day. We find that Mr Wright was broadly supportive of the claimant albeit in the context where she was clearly struggling to perform in an optimum manner.[134]Mr Wright acknowledged that he had made comments in emails about the claimant’s work along the lines of “another mistake again” and “ at last you are showing some interest in escalating cases for families”. Mr Wright acknowledged that his tone was inappropriate and apologised for it. We have considered whether those remarks were because of something arising in consequence of the claimant’s disability, namely that it took her longer to complete tasks and process information. We have concluded that it did not. In our judgment, these remarks were prompted by perceived failings in the claimant’s practice unrelated to her dyspraxia and to do with her judgment.[135]We find that Mr Wright did not say to the claimant that he was only going to talk about negatives. The supervision record notes make it abundantly clear that Mr Wright provided feedback that was both positive and negative. It is perhaps inevitable that someone in the claimant’s position may have a perception that the feedback is all negative as that, inevitably, is what is dwelt upon by management seeking to improve an employee’s performance.[136]As regards the team meeting where the claimant had a perception that she was being put on mute by Mr Wright for no legitimate reason, Mr Wright denies having done this. Once again, in neither of the claimant’s witness statements does she deal with these allegations. We find that the claimant does not prove that these allegations took place and that, even if they did take place, then any such unfavourable treatment was not because of the claimant’s disability. Lastly, we do not find that Mr Wright saying to the rest of the team in December 2020, “You will all go one to bright and better things” constitutes unfavourable treatment.[137]What we do find is that the claimant had been put on an informal performance improvement plan on 3 June 2020 and that throughout this period Mr Wright was indicating that the matter may be escalated to a formal performance process unless there was improvement. Informal and formal performance improvement plans are staging posts towards capability dismissals. We find that that was unfavourable treatment and that, in part, it was because of something arising in consequence of her disability.[138]The last supervision record we have is from 27 November 2020. Clearly, relations between Mr Wright and the claimant had all but broken down at that point, The record begins:- “TM is aware that Rebecca has contacted HOS requesting a mediator”.[139]The claimant was complaining about being bullied by Mr Wright. The claimant was placed on a formal Performance Improvement Plan. The notes go on to record the claimant saying that she had only just worked out that she needed a monitor.[140]As regards the monitor, Mr Wright then forwarded to the claimant on 25 November 2020 an email that had been sent round on 12 June 2020 which stated as follows:- “Monitors There is no stock of these for working from home, however, it has been agreed that mangers can approve staff to buy their own monitor and the manager will be able to reimburse the cost.”[141]Whilst the claimant does not appear on the distribution list, we have no doubt that had the claimant raised the issue earlier with Mr Wright he would have referred her to that email at the time. There was no reason for him not to.[142]Also on 27 November 2020, the claimant raised a grievance against Mr Wright. This alleged harassing and undermining behaviour against Mr Wright. It does complain about a lack of support and states:- “Especially knowing I have learning difficulty and am still undergoing training on my LD packages”.[143]A grievance meeting was held with Nicole Gibson on 16 December 2020. In our judgment, an important exchange took place during the course of this meeting. The following is recorded:- “NG – Can you elaborate further on “harassing” and “undermining behaviour” ? When did this alleged conversation take place and why? RO – I was shocked – Up til then he was really supportive, and I was pleased to have him. He was shouting and he’d only talk about negatives about my work. This was the start of everything up until was fine. He was negative, I shut down.”[144]We find this exchange important as it demonstrates to us that the reality of the situation was that until a relatively short time prior to 27 November 2020 the claimant and Mr Wright had a reasonably good working relationship and that many of the allegations that pre-date this time have been drawn up retrospectively in the context of this litigation.[145]In due course, the grievance report was produced on 3 March 2021. This confirms that, following the grievance meeting on 16 December 2020, a decision was made by management to move the claimant on a temporary basis to another team. The claimant was contacted with this information on 17 December 2020 but was informed by the claimant that she had been signed off sick. Consequently, she was not moved to another team at that stage.[146]The claimant’s grievance was rejected and she was informed of this in an outcome letter on 11 May 2021.[147]On 17 May 2021, the claimant appealed the grievance outcome. There was a grievance appeal hearing on 8 July 2021, heard by Mr Mark Bradburn. In an outcome letter dated 25 August 2021 the claimant was informed that her appeal had been rejected.[148]On 11 November 2021, Ms Linda Reed had a discussion with the claimant concerning her return to work. The discussion was about referring the claimant to Occupational Health for guidance on the claimant’s return to work and it was indicated that she could join a new team.[149]On 12 November 2021, the claimant sent an email to the respondent as “I am formally writing to give my notice of resignation from work. I have been off sick since December 2020 and am on nil pay and will be unable to return.”[150]The claimant was asked for her reason for resignation and replied in an email dated 3 December 2021. This reads as follows:- “Further to our conversation and email around my reason for resignation I can only provide this as follows: At the time of resigning I felt panicked about the thought of returning as I am still trying to recover and am still have a sick note up until January 2022. It has been a very long time and clearly there is a severity of the situation which can only be further validated from my GP. However, in regards to why I feel my only option is to resign is the main about my mental health. After our conversation around going to HR for an assessment on my return this seemed to trigger so much stress and even a flash back of the two previous times I went to HR where I had the hope of receiving my learning disabilities equipment to be in place and it just not being provided, which meant I was put under tremendous strain and I feel I was in a very unsafe, unprotected environment where while I was still waiting for all my equipment to arrive I was given case loads as high as 43 and put on performance. Because I cannot be sure things have really changed and I am still suffering from the after effect with anxiety and depressive disorder as a direct result of Enfield Council’s negligence, this is why I am having to chose to focus on my recovery and not return back to work.”[151]The glaring inaccuracy in that explanation is that, as we have found, prior to the claimant going off sick in December 2020, all the recommended auxiliary aids had been provided to the claimant albeit that she had not, for whatever reason, completed the training that had been provided. Conclusions Auxiliary aids
Conclusions
[152]We do not find that the respondent failed to provide the claimant with a large monitor. A monitor was always available to the claimant had she required one. She would have had to buy it herself but would have been reimbursed by the respondent for it. We find that the claimant only raised the issue of the monitor in the supervision on 27 November 2020 and that Mr Wright responded promptly in relation thereto.[153]We find that the respondent did not provide a portable printer/wireless inkjet printer for the claimant to use at home but that that was justified and that consequently there was no failure. She had free access to the printer in the office.[154]We find that there was provision of a screen overlay, work related dyspraxia strategy coaching and other assistive software. We find that the training was arranged and the claimant was informed that it was for her to liaise with the third party provider in order to have that training. We do not accept that the claimant’s workload precluded her from undertaking that training over the many months when she should have had it. Nevertheless, we accept that the claimant did not in fact conclude her training and communicated this to Mr Wright in the various supervisions leading up to the supervision on 27 November 2020. Consequently, we do not find that there was a failure to provide those auxiliary aids notwithstanding that the claimant had not actually completed the training. Reasonable adjustments[155]We find that the respondent did have the PCPs of requiring the claimant to fill in car mileage and overtime forms, working pursuant to the collective process and a general requirement to attend 9am team meetings.[156]We find that in relation to filling in the car mileage and overtime forms and in relation to the collective process that the claimant was put at a substantial disadvantage by reason of her dyspraxia. Further, we find that the respondents knew of this. We do not find that the practice of requiring attendance at a 9am team meeting put the claimant at a substantial disadvantage because of her dyspraxia.[157]As regards completing car mileage and overtime forms, we have considered what steps could have been taken to avoid or ameliorate the disadvantage. The obvious steps were the provisions of the auxiliary aids that the claimant was in fact provided with. It was reasonable of the respondent to provide those auxiliary aids and we have found there was no failure to do so.[158]In relation to the particular steps suggested, we make the following findings:158.1 As regards completing car mileage and overtime forms, support and assistance was provided in terms of the auxiliary aids.158.2 As regards the collective process, we find that it was not reasonable for the respondent to have an entirely different way of working for the claimant to the rest of her team.158.3 As far as the provision of hard copies of documents is concerned, we have found that the claimant had access to hard copies as necessary in the office.158.4 As regards alleviating the workload on the claimant and affording time off for training/coaching, we find that the claimant’s workload was ameliorated on frequent occasions. Further, we have found that the claimant could and should have been able to have time off for training/coaching which was her responsibility. Mr Wright is documented on a number of occasions encouraging her to have her training. Accordingly, we do not find that there was a failure to take these steps.158.5 Our review of the supervision records is that Mr Wright, on many occasions, is documented as highlighting positives as well as negatives.[159]Consequently, we find that there was no failure to make reasonable adjustments. Section 15 disability discrimination[160]With the exception of being placed on the informal and formal Performance Improvement Plans, we have found that each of the alleged items of treatment 1-12 were not unfavourable treatment, or if unfavourable treatment, such treatment was not because of anything arising in consequence of the claimant’s dyspraxia or were not proved.[161]We have found that the claimant was put on an informal Performance Improvement Plan on 6 June 2020 which was escalated to a formal Performance Improvement Plan on 27 November 2020. We find that that is unfavourable treatment.[162]We find that being placed on performance plans constituted conduct extending over a period and not a one off event with lasting consequences. As such we find that the claim is not out of time. Even if it was out of time, it is only out of time by 9 and 23 days respectively and we would extend time on a just and equitable basis.[163]The claimant was put on the Performance Improvement Plans due to deficiencies in her practice as a social worker. We have found that some, but not all, of those deficiencies arose because of something arising in consequence of her disability.[164]We find that clearly, there was a legitimate aim in seeking to monitor and improve the claimant’s performance. That legitimate aim was child protection and safety.[165]We have considered very carefully whether or not the imposition of the informal and formal Performance Improvement Plans was a proportionate means of achieving that legitimate aim. We find that monitoring the claimant’s performance and seeking to improve her conduct as a social worker was proportionate. However, we find that being placed both on informal and formal Performance Improvement Plans had obvious potential implications for the claimant’s long-term employment. We find that putting the claimant on those Performance Improvement Plans at a time when, in fact, she had not completed her training on the software provided, was disproportionate. Consequently, we find that the claimant’s case of disability discrimination succeeds to the extent that she was treated unfavourably by being placed on the informal and formal Performance Improvement Plans.[166]Having made this finding, there will obviously be a remedy hearing. At that remedy hearing we will hear further submissions on what, if any, difference there would have been in the treatment of the claimant in all probability had she not been placed on the Performance Improvement Plans until such time as she had managed to complete her training on the software. Unfair dismissal (constructive)[167]The claimant went off sick on 17 December 2020. Thereafter her only interaction with the respondent was in relation to her grievance and grievance appeal. The grievance appeal was finally determined on 25 August 2021. Thereafter the only contact the claimant had with the respondent was when Ms Reed contacted the claimant with a view to facilitating her return to work, referring her to OH and suggesting a transfer to a new team.[168]It is not suggested by the claimant that the way in which the grievance and grievance appeal and the outcomes thereof constituted breaches of the claimant’s contract of employment. Further, it is not suggested that Ms Reed’s contact constituted a breach of the claimant’s contract of employment.[169]The allegations of breach of contract all relate to the allegations of treatment dealt with under the disability discrimination claim. Notwithstanding that we have found that the imposition of the Performance Improvement Plans constituted unfavourable treatment constituting disability discrimination, we do not find that that was sufficiently serious to constitute a fundamental breach of the claimant’s contract of employment. Accordingly, the claimant’s claim for unfair dismissal must fail.[170]In any event, had any of the respondent’s conduct been sufficiently serious to constitute a fundamental breach of contract, then we find that the claimant had, by the time of her resignation in November 2021, affirmed that contract and lost the right to rescind it. Nearly a year had expired since she had gone off sick.[171]The claim of constructive unfair dismissal is therefore dismissed. RECONSIDERATION JUDGMENT The judgment of the tribunal is that:
Conclusions
[1]It is not in the interests of justice to reconsider the judgment and the original decision is confirmed.[2]The respondent is ordered to pay the claimant compensation for injury to feelings in the sum of £4,500 plus £882.90 interest thereon, total £5,382.90.
Conclusions
[1]Following the decision and reasons being sent to the parties both the claimant and the respondents have made applications for reconsideration[2]The applications have been dealt with at a hearing with submissions from both sides. The claimant’s application[3]The claimant’s application relates to her reasonable adjustments claim concerning the provision of a printer and a large monitor. In or judgment the claimant’s application is seeking to re-argue issues that have already been decided in this case.[4]In paragraph 74, 109, 110 and 153 we have found that the non-supply of printers was not a failure to make a reasonable adjustment and was indeed justified.[5]As regards the provision of a large monitor, in paragraphs 140 and 152 of the reasons we have found that there was no failure to provide a large monitor.[6]Consequently, in our judgment, it would not be in the interests of justice to reconsider the judgment on the grounds advanced by the claimant. The respondent’s application[7]At the outset of the hearing we granted permission for the claimant to characterise the matters complained about in the context of her unfair dismissal (constructive) claim as s.15 disability discrimination. Two of the allegations of unfavourable treatment were as follows“6.1.6 Mr Wright dismissing questions the claimant asked about the new way of working and the forms and protocols, and in response to her queries threatening to put the claimant on a formal performance process 6.1.7 Mr Wright setting unrealistic tasks for the claimant to finish each day and saying he was going to go to HR and put the claimant on a formal performance process if the task was not done.”[8]In our findings of fact we made the following findings:- “132 As regards the collective process, as recorded above, in the supervision record of 11 November 2020, the claimant felt that she “got” the collective process by then. We find that Mr Wright did not dismiss the claimant’s questions about the new way of working and the forms and protocols. 133. We find that Mr Wright did not set unrealistic tasks for the claimant to finish each day. We find that Mr Wright was broadly supportive of the claimant albeit in the context where she was clearly struggling to perform in an optimum manner.”[9]Consequently, as regards the factual issues 6.1.6 and 6.1.7, we found in favour of the respondent as regards the first part of both allegations.[10]However, we went on to make the following findings:- “137 What we do find is that the claimant had been put on an informal performance improvement plan on 3 June 2020 and that throughout this period Mr Wright was indicating that the matter may be escalated to a formal performance process unless there was improvement. Informal and formal performance improvement plans are staging posts towards capability dismissals. We find that that was unfavourable treatment and that, in part, it was because of something arising in consequence of her disability.”[11]In our judgment, we have therefore found the second part of issues 6.1.6 and 6.1.7 in the claimant’s favour. The fact that we used the word indicated rather than threatened is immaterial in our judgment.[12]Mr McCombie complains that our findings that actually placing the claimant on an informal performance improvement plan and later indicating that she would be placed on a formal performance improvement plan (which he accepts may well be a more common sense approach) were nevertheless not specified as issues in the s.15 disability discrimination claim. There is some force in his argument but, in our judgment, the claimant has succeeded in the essence of her claim that for a period of time between June and November 2020 she was told that unless her performance improved she would be placed on a formal personal improvement plan.[13]We have found that that unfavourable treatment was, in part, because of something arising in consequence of her disability. Mr McCombie goes on to say that our reasons are deficient in that we have not identified what it was that constituted the part of the something arising in consequence of her disability. In that context we have revisited some of the evidence that there was before us. In paragraph 37 of the witness statement of Mr Wright he says as follows“I did seek to place the claimant on formal performance as her work required improvement following informal performance and advised her of this in supervision on 27 November 2020 (pages 383-392, 420-423).”[14]In his witness statement Mr Wright is referring to the supervision records which began in June 2020 and run through to 27 November 2020. It would appear that he is justifying the progression of the claimant on to the formal performance process by reference to the claimant’s performance at work throughout the whole of this period. We have already found in our reasons that the performance issues raised in relation to the claimant were both nondyspraxia related and dyspraxia related or at the very least potentially dyspraxia related.[15]Further, by reference to the supervision record of 27 November 2020, it is quite clear to us that some of the specific issues raised did or may well have related to the claimant’s dyspraxia. For example, there is a failure to close a case down. In addition, there is the assertion that six assessments are out of time or have recently been completed out of time. In our judgment, this justifies our finding that, in part, the unfavourable treatment was because of something arising in consequence of the claimant’s disability.[16]Consequently, in our judgment, the interests of justice do not require us to reconsider this decision.[17]I should go on to deal with the fact that Mr McCombie claims that the recasting of the case to include an allegation that the unfavourable treatment included the actual placing of the claimant on an informal and formal capability process prejudiced the respondent in that it did not or could not have presented the evidence that it wanted to. In our judgment, we do not agree with this contention. The actual placing of the claimant on the informal and formal personal improvement plans was the end product of the indication that that was likely to happen. As indicated in our judgment, the claimant has succeeded in the essence of her claim in so far as the contingent possibility that she would be placed on such plans. That alleged threat was in the list of issues and was a matter that the respondent would have to meet in answer to these claims. Consequently, we do not find that the respondent was prejudiced in the way it presented its defence. Injury to feelings[18]In arriving at its figure for injury to feelings the tribunal has taken into account the matters raised by the claimant in her schedule of loss and in her witness statements.[19]Further, the tribunal had submissions from the claimant and Mr McCombie today.
The law
[20]The tribunal has taken into account the following matters:-[21]As per the IDS Employment Law Handbook on Discrimination at Work at paragraph 37.63: “In Prison Service and others v Johnson [1997] ICR 275, EAT (a race discrimination case), the EAT summarised the general principles that underlie awards for injury to feelings: Awards for injury to feelings are designed to compensate the injured party fully but not to punish the guilty party. An award should not be inflated by feelings of indignation at the guilty party’s conduct. Awards should not be so low as to diminish respect for the policy of the discrimination legislation. On the other hand, awards should not be so excessive that they might be regarded as untaxed riches. Awards should be broadly similar to the range of awards in personal injury cases. Tribunals should bear in mind the value in everyday life of the sum they are contemplating, and Tribunals should bear in mind the need for public respect for the level of awards made.”[22]Further, that we are to focus on the effect not the gravity of the discriminatory act.[23]Further, that in order to be compensated for discrimination, it is necessary for the court or tribunal to be satisfied, on the basis on the evidence and its findings of fact, that the harm or injury suffered by the claimant was caused by the act of discrimination – see Essa v Laing Ltd [2004] ICR 746 CA.”[24]In our assessment of this case we have taken into account the following matters:24.1 The conduct of the respondent was not deliberate or intentional. We accept that the conduct of the respondents was motivated by the need for public protection in childcare cases and to secure the optimum performance of the claimant as its employee.24.2 The discriminatory conduct was the threat and imposition of personal improvement plans, both informal and to become formal, as far as the claimant is concerned. We do not find that the discriminatory conduct extended to the degree of supervision that the claimant was experiencing. In our judgment, it was entirely warranted for the respondent to manage the claimant broadly in the way she was being managed but not with the threat of the formal capability process, which, of course, has dismissal as its potential ultimate end.24.3 We have taken into account that there is a high degree of probability, in our judgment, that once the claimant had concluded her training she would have been subjected to the capability process in any event due to the problems she was experiencing in her delivery of best care.24.4 On the other hand, the period which we are dealing with covers approximately six months from June to 27 November 2020 and so this was not a one off incident but conduct that covered a period of time. Further, the treatment has clearly had some effect on the claimant, albeit that the effects on the claimant may have been exacerbated by issues that we have not found in her favour.24.5 Consequently, in our judgment, this case falls within the less serious cases band of the Vento guidelines which at the time was £900– £9,000. In our judgment, taking everything into account, an appropriate figure for injury to feelings would be £4,500. That equates very roughly to two months net earnings for the claimant. In addition, by reference to personal injury litigation, that represents in excess of one years suffering from, for example, a whiplash injury.24.6 The claimant is entitled to interest on her award. We have taken the 27 November 2020 as the start date. To todays date that is 2 years 165 days At 8 % that would add 19.62%, which is a total figure of £882.90.