Mrs P Guiltenane v Queens Park Community School Academy Trust: 3311747/2021
EMPLOYMENT TRIBUNALS
Case No 3311747/2021
Between
Mrs P GuiltenaneClaimantQueens Park Community School Academy TrustRespondent
Before
Employment Judge Bedeau
Members
Mr S WoodwardMr K RoseNr A Watson (instructed by counsel) for respondentDate 17 October 2023
JUDGMENT
[1]The claim of failure to make reasonable adjustments is not well-founded and is dismissed.[2]The claim of unfair dismissal is not well-founded and is dismissed.[3]The claim of wrongful dismissal has not been proved and is dismissed.[4]The provisional remedy hearing listed on 11 December 2023, is hereby vacated. The parties must not attend as there will be no hearing.
REASONS
[1]The claimant’s alleged disabilities of stress, anxiety and depression are not admitted. Pre-termination discussions and documents[2]At the case management preliminary hearing held on 20 April 2022, before Employment Judge Cowen, the claims and issues were clarified, and the case was set down for a final hearing this week. The issue of the admissibility of the without prejudice correspondence and pre-termination discussion was listed for a public preliminary hearing on 10 October 2022.[3]The Judge at that preliminary hearing is the Judge in this case. It was ruled that the without prejudice and pre-termination references were inadmissible. Mr Guiltenane, who represented the claimant, withdrew the claims of direct disability discrimination and harassment related to disability. Accordingly, those claims were dismissed upon withdrawal.
The issues
[1]“Unfair dismissal 1.1 Was the claimant dismissed? 1.2 What was the reason or principal reason for dismissal? The respondent says the reason was conduct [or some other substantial reason]. The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct. 1.3 If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether: 1.3.1 there were reasonable grounds for that belief; 1.3.2 at the time the belief was formed the respondent had carried out a reasonable investigation; 1.3.3 the respondent otherwise acted in a procedurally fair manner; 1.3.4 dismissal was within the range of reasonable responses.[2]Remedy for unfair dismissal2.1 If there is a compensatory award, how much should it be? The Tribunal will decide:2.1.1 What financial losses has the dismissal caused the claimant?2.1.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?2.1.3 If not, for what period of loss should the claimant be compensated?2.1.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?2.1.5 If so, should the claimant’s compensation be reduced? By how much?2.1.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?2.1.7 Did the respondent or the claimant unreasonably fail to comply with it by [specify alleged breach]?2.1.8 If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?2.1.9 If the claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct?2.1.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?2.2 What basic award is payable to the claimant, if any?2.3 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?[3]Wrongful dismissal / Notice pay3.1 What was the claimant’s notice period?3.2 Was the claimant paid for that notice period?3.3 If not, was the claimant guilty of gross misconduct?[4]Disability 4.1 Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:4.1.1 Did she have a physical or mental impairment?4.1.2 Did it have a substantial adverse effect on her ability to carry out day-to-day activities?4.1.3 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?4.1.4 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?4.1.5 Were the effects of the impairment long-term? The Tribunal will decide:4.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?4.1.5.2 if not, were they likely to recur? …..[6]Reasonable Adjustments (Equality Act 2010 sections 20 & 21)6.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?6.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 6.2.1 The requirement to attend disciplinary procedure meetings in person.6.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that;6.3.1 On 16 November 2020, the respondent failed to allow the claimant to attend the disciplinary meeting by telephone and/or to provide her with written questions,6.3.2 On 26 November 2020, the respondent continued to refer to the meeting occurring via Zoom, despite the claimant requesting that it be conducted by telephone,6.3.3 On 22 December 2020 the respondent again failed to allow the claimant to attend the disciplinary meeting by telephone and/or bey providing written questions,6.3.4 On 25 February 2021, the respondent failed to provide written questions to the claimant,6.4 Did the respondent know, or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?6.5 What steps could have been taken to avoid the disadvantage? The claimant suggests: 6.5.1 The meetings should have been held by telephone and/or provided the claimant with written questions in advance.6.6 Was it reasonable for the respondent to have to take those steps and when?6.7 Did the respondent fail to take those steps?[8]Remedy for discrimination8.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?8.2 What financial losses has the discrimination caused the claimant?8.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?8.4 If not, for what period of loss should the claimant be compensated?8.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?8.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?8.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?8.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?8.9 Did the respondent or the claimant unreasonably fail to comply with it ?8.10 If so, is it just and equitable to increase or decrease any award payable to the claimant?8.11 By what proportion, up to 25%?8.12 Should interest be awarded? How much?” The evidence 5. The tribunal heard evidence from the claimant who did not call any witnesses. The respondent called Ms Angela Galloway, School Business Manager; Ms Suzanne Hamilton, Human Resources Professional; and Mr Martin Beard, Co-opted Governor. 6. In addition to the oral evidence, the parties adduced four bundles of documents comprising of 1,780 pages, as well as a correspondence bundle of 285 pages. References will be made to the documents as numbered in the bundles. Requests for documents 7. The claimant told the tribunal that on 10 December 2020, she emailed Ms Galloway and Ms Enright requesting the school should disclose documents relevant to the allegations. This was repeated on 14 December 2021, to the respondent’s legal representatives, and there was a later request. The respondent did not disclose the documents as requested. A further request to the tribunal was made on 23 May 2023 for the respondent to disclose specific documents relevant to the allegations the claimant faced resulting in her dismissal. 8. The application came before Employment Judge Quill who directed the following: “There is danger of the final hearing having to be postponed, or running out of time, if the parties are still xxx about bundle contents. For items which the claimant has not identified, the respondent cannot add those. For other items, since the respondent is going lack of relevance rather than privilege or confidentiality then parties should consider the option of adding the disputed items to the bundle, and if they are not relevant then the tribunal will be able to make its own mind up. Failing that, it will be dealt with at the start of the hearing, but that will reduce time available for other matters.”
The evidence
[9]We were told by Mr Watson, counsel on behalf of the respondent, that Mr Guiltenane, the claimant’s husband and acting on her behalf, was emailed at least a week prior to this hearing and invited to provide a list of the documents he required. Such a list was not provided by him, and the position could not be advanced any further.[10]This tribunal invited Mr Guiltenane, on the first day of the hearing, to provide a list of the documents he wanted to include in a bundle for the respondent to disclose. The hearing was adjourned on that day to give Mr Guiltenane time to prepare his list.[11]The next day, 11 July 2023, Mr Guiltenane told the tribunal that he was unable to provide a list. As this case was listed for hearing in April 2022, 15 months ago, an adjournment would lead to it being relisted in the summer of 2025.[12]With that in mind, Mr Guiltenane asked the tribunal whether he could put to each witness to be called by the respondent, what he considered to be weaknesses in the respondent’s case against the claimant in relation to the alleged performance and conduct issues. He was told by the Judge that he could do so as cross-examination is at large. The only issue being one of relevance. He was content to proceed on that basis. The issue of recusal[13]As the Judge in this case was the Judge at the public preliminary hearing, it was put to the parties whether there may be the appearance of bias as the Judge had ruled on the admissibility of evidence. Both parties did not have any objections. The matter having been considered by the tribunal there was no reason for the Judge to recuse himself applying Porter v Magill [2001] UKHL 67, House of Lords, of a fair-minded, informed observer, possessed of all relevant information. The Judge did not make findings of fact which would influence the judgment in this case and this hearing comprised of a tribunal of three.
Findings of fact
[14]The respondent is an Academy Trust and a charitable company. It operates the Queens Park Community School, in Brent, providing education to students between the ages of 11 to 19 years. It receives funding from the Education and Skills Funding Agency, “ESFA”, and must, at all times, comply with the provisions in the ESFA’s Academy’s Financial Handbook as a condition of its funding agreement.[15]It has a disciplinary policy entitled Disciplinary Code for Employees, version March 2019, which sets out the approach to be taken in relation to disciplinary matters. Paragraph 4.1 states that: “In the employment relationship between the line manager and the employee, it will be necessary for the line manager to define the performance standards and codes of accepted behaviour assisted by appropriate advice and training. Should the employee’s standard of behaviour and work performance fall short of that required the employee should, in the first instance, be counselled and given appropriate training, assistance and time to enable them to correct or improve on their behaviour/work performance, lateness, unacceptable levels of sickness absence or work performance below an accepted standard.”[16]In relation to its disciplinary procedure, Paragraph 5.1.1 states: “Except in cases of gross misconduct the Disciplinary Procedure will only be brought into use after the disciplinary problem has been fully discussed with the employee. Advice and support should be provided initially by the appropriate line manager or head teacher.”[17]Paragraph 5.1.2 states: “If the use of informal measures does not result in a sufficient improvement in the employee’s conduct or performance, the line manager will report the matter to the Head and first inform the employee in writing. If the matter does not lead to a disciplinary interview, the employee will have the right to see the Head Teacher and be told of the decision. The employee has the right to be told that disciplinary action has been contemplated.”[18]Paragraph 5.1.3 sates: “In order to decide if there is a case for invoking the formal disciplinary procedure, it will be necessary for the Head to assess the information which is at hand concerning the case and to decide if there is sufficient information to justify disciplinary action. This must take account of fairness, objectivity and reasonableness having regard to the circumstances.”[19]It is the sole responsibility of the Head Teacher to initiate disciplinary action, paragraph 5.1.6.[20]In paragraph 5.1.7, it states the following: “No disciplinary action will be taken against an employee until the case has been fully investigated.”[21]Paragraph 5.1.8, provides for, “A formal interview at which the employee maybe accompanied by a friend or representative will always precede any decision regarding disciplinary action.”[22]In relation to gross misconduct, “The employee in question may be suspended by the Head Teacher or deputy in charge [and] that suspension should not be regarded as a disciplinary action.”[23]There four stages in the Disciplinary Procedure, Stage 1 being the formal oral warning; Stage 2, the formal written warning; Stage 3, the final written warning; and Stage 4, dismissal.[24]In relation to dismissal, the employee could only be dismissed by a decision of the Staff Committee of the Governing Body, 5.3.7.[25]The powers of the Committee of the Governing Body are either to take no further action; to carry out disciplinary action less than dismissal; or to dismiss the employee.[26]The employee has the right to appeal against the disciplinary action (pages 610 to 614 of the joint bundle).[27]In Appendix 1 of the Disciplinary Code, a non-exhaustive list is given of examples of gross misconduct. This is followed by a non-exhaustive list of other misconduct. It states: “The following misconduct, although not regarded as gross misconduct, will be regarded as unacceptable at work. The list is neither exclusive nor exhaustive, and there may be other offences of a similar nature which may be regarded as unacceptable. Serious incidents of this type may be treated as gross misconduct.”[28]Of relevance are the following examples of misconduct capable of being treated as gross misconduct: “Refusal to carry out duties which are a reasonable requirement of the employee’s job, and have been brought to the employee’s attention”; “Neglect of duty, carelessness (where any loss, damage or injury to any person or property is caused by such neglect) or failure to report any matter that is the employee’s duty to report”; “Persistent failure to comply with school policies and agreed procedures”. The claimant’s duties[29]The claimant commenced employment on 9 October 1995. At that time Queens Park Community School was not an Academy. It became an Academy in 2012. At all material times she worked as a Finance Officer and was one of two Finance Officers, the other being, Ms Jasbir Sehmbipatel Patel. The Head Teacher of the school was Ms Judith Enright. Ms Angela Galloway was School Business Manager and the claimant’s line manager.[30]As Finance Officer the claimant’s duties were: processing purchase orders; the control of petty cash; the receipt, recording, safekeeping and banking of all departmental cash income; responsibility for maintenance of the school’s unofficial fund; to oversee financial arrangements for school trips, events, maintaining records of income and expenditure in line with finance procedures; providing guidance to staff and associate colleagues in regard to purchasing, ensuring that the School’s purchasing policy was adhered to at all times; monitoring income and expenditure in relation to budgets, providing reports to the School Business Manager, as required; assisting year-end procedures and preparation of the budget; assisting the School Business Manager in the production of financial reports for internal, external and local education authority use; liaise as required with external providers of services; maintain accounts filing system suitable for auditing purposes; contribute to the continued maintenance of the School’s FMS ensuring that relevant documentation was up to date and relevant; and operate relevant equipment/ICT packages.[31]Her other responsibilities included, being the authorised user of the school’s corporate business card; overseeing hospitality/catering arrangements for school events, liaising with relevant staff/providers, as appropriate; to be aware of and comply with policies and procedures relating to child protection, health and safety and security; be aware of and support difference and ensure equal opportunities for all; contribute to the overall ethos/work/aims of the school; and appreciate and support the role of other professionals (894). The claimant’s performance[32]In or around September or October 2019, Ms Enright’s Personal Assistant was on long-term sick leave. She was during that time, responsible for opening her own post in her PA’s absence. In doing so she became aware of a number of final demands for payments due to unpaid invoices which had been left unpaid for some time. The claimant was responsible for paying these invoices as the Finance Officer. Ms Enright asked Ms Galloway to investigate the matter. It transpired that a significant number of invoices went unpaid for some time.[33]The respondent’s supplier of books, Bookpoint, made it aware on 18 September 2019, by email, that an order for books had been placed on hold because of an outstanding balance of £285.40. The email was forwarded to the claimant on the same day it was received for it to be actioned. (191)[34]On the same day, the respondent was chased for payment of another overdue invoice from JFS School after having sent several reminders. The email was forwarded to the claimant on the same day to be actioned (192).[35]On 2 October 2019, the claimant was chased by another company, BlueSky Education, for another outstanding invoice after the company had tried unsuccessfully to contact her by telephone. On the same day the claimant alleged in her email response, that the invoice had been lost and then found and a cheque in the sum of £2,163 was in the post (193).[36]Of note, Ms Galloway discovered that a school trip organised by a member of the Physical Education staff was to be on 2 December 2019. This was to the Body Worlds exhibition in central London. The exhibition displayed graphic images of the human body. The claimant had been made aware of the invoice for the cost of the trip and was asked to make payment on 21/22 November 2019. An invoice was sent to her on 26 November 2019 with payment to be made on 28 November 2019. The supplier then chased payment on 29 November and then called the school several times to speak to her. They stated that if payment was not received by 5pm on 29 November, the trip would be cancelled. This trip was for 17 pupils and 3 adults who had already paid. Later on 29 November, Body Worlds emailed to say that they would proceed to cancel the trip and instructed staff and students not to attend on 2 December 2019. Following this email Ms Enright and Ms Galloway became involved and agreed with Body Worlds that payment could be made in the morning of the trip for it to go ahead. Ms Enright then emailed the claimant the same day instructing her to action payment urgently on 2 December 2019. (165,171,205,177 to 178, 186, 200)[37]The claimant’s response was to say that a cheque had been sent to Body Worlds, but this was not accepted by Ms Galloway as there was no record of it in the file as having been sent. The payment was made on the 2 December by credit card and those who had paid for the trip were allowed to attend. (194, 199)[38]On 3 December 2019, the Head of Modern Foreign Languages was notified that an invoice relating to the school’s subscription for the supply of GCSE materials for students, had not been paid. The invoice had been outstanding since 7 October 2019 and the school was warned that if payment was not made within 10 days its access to books on Spanish would be lost. The books were essential to the school’s GCSE students’ studies and necessary to allow its staff to deliver the curriculum. The Head of Modern Foreign Languages emailed the claimant stating he believed that he had authorised payment and asked her to confirm whether the product had been renewed (195).[39]We find that there were further unpaid invoices to companies, such as, Veritas, Elevated Minds, Pearson, Cleenol and Oxford University press. (198 to 225).[40]Ms Galloway and some members of staff also had concerns about the claimant’s whereabouts during her working hours. Staff had reported to Ms Galloway and to Ms Enright, between 18 and 22 November 2019, and from 22 to 25 November 2019, that there was no one in the finance office when they attended. Ms Galloway tried to contact the claimant on her mobile phone to find out where she was and to check on her well-being as she did not notify her that she would be away from her desk or would be away from the premises. Despite her attempts the claimant did not respond. Meeting with the claimant on 6 December 2019[41]On 6 December 2019, Ms Galloway met with the claimant together with Ms Enright, and discussed their concerns about the unpaid invoices, in particular, the Body Worlds invoice and how it could have negatively impacted on the children had Ms Enright not become aware of it. They took the claimant through the documents and their concerns. A brief note of their meeting was taken. The claimant gave no explanation as to why the invoices had not been paid on time, or why she had not made a note of the due date for the payment of the Body Worlds invoice. Ms Galloway told us, and we accepted her evidence, that the claimant failed to acknowledge the severity of her actions and to appreciate the potential serious consequences. She had no insight into her own wrongdoing. She was asked whether she required any support or assistance in performing her duties or any other aspects of her work. She responded by saying “No”. It was agreed that there would be a monitoring period of three months at which point a review meeting would take place in March 2020. The claimant acknowledged in evidence that there was a discussion on the 6 December 2019 regarding unpaid invoices.[42]In relation to her not being on site during working hours, Ms Galloway was cross-examined and asked whether she had checked the school’s swiping in and out system to ascertain whether the claimant had swiped in and out. She replied that she had not, but if the claimant did not sign in there would not be a record of it, therefore, she would not check the system. No evidence was produced of the claimant having signed out and in when staff could not find her in her office.[43]She was asked about her absence by Ms Galloway. On one occasion she replied, dismissively, she had been on “union business” and walked away.[44]The anticipated three months review in March 2020 did not take place because of the Covid-19 pandemic and the national lockdown imposed by the Government.[45]Following the 6 December 2019 meeting, further failures in the claimant’s duties as Finance Officer came to light. Peripatetic teachers/casual staff and other suppliers were not being paid on time and were having to repeatedly chase the claimant for payment to the point that it was becoming embarrassing for the school. The Peripatetic teachers are taken on a casual basis to teach certain subjects to the students. Several of these teachers, in some instances, had not been paid for months, and when they attended the office to speak to the claimant in person, she was dismissive and rude to them which Ms Galloway had observed and felt very uncomfortable on witnessing the claimant’s behaviour and was a matter that she needed to address with the claimant formally.[46]In Ms Galloway’s view, not paying Peripatetic teachers on time could lead to significant risks and costs to the respondent, not least, because of possible claims for breach of contract and unauthorised deductions from wages. There was also the risk that the teachers would refuse to work at the school since they were not being paid on time, thereby affecting the quality and delivery of education provision. There was no good reason, in her view, why they were not being paid on time as the school had a budget which included payment of wages for Peripatetic teachers, and it was a requirement that the claimant should process their invoices in a timely manner. (226 – 228, 230 – 232)[47]On 12 March 2020, Ms Galloway was informed of an outstanding balance of £3,780 to a tutoring supplier used by the school, Fleet-Tutors. Their invoice had been outstanding since January 2020. (233 – 234)[48]On 31 March 2020, a supply agency, Enlighten-Supplypool, chased the claimant for payment of an outstanding balance of £3,629.94. As the school’s email address was copied in Ms Galloway became aware of this invoice and actioned it straightaway but it was not her job to do so. (236)[49]There were further outstanding invoices from 31 March to 17 April 2020, which were the claimant’s responsibility to pay. (238-239)[50]Ms Galloway was concerned that a pattern was emerging of suppliers trying, unsuccessfully, to contact the claimant, and when that failed the calls were either directed to her or to Ms Enright.[51]There was also a concern on the part of Ms Galloway that the claimant was not attending work in compliance with the rota as she was a Keyworker during Covid. She neither produced a letter stating that she was required to isolate, nor any other evidence to support that she should not come into work. She had made a unilateral decision not to come into work during this time. Despite this, the respondent accommodated her working from home. She was asked to carry out key tasks which Ms Galloway had assigned to her, namely the input of information on the school’s Financial Management System (FMS), its computer system, remotely from home. She was also required to keep it updated as the school was moving to a paperless system and was stopping cheque payments. Therefore, all invoices, suppliers and bank details, were to be uploaded onto FMS and kept up to date. (241, 242,245,261)[52]Ms Enright and Ms Galloway wanted to discuss these matters with the claimant, but she was refusing to attend on site, and made a unilateral decision to work from home despite being a Keyworker. She provided no evidence that she was in a vulnerable category. Reasonable attempts to line manage her were extremely difficult as she was combative and refused to engage. Ms Galloway and Ms Enright decided to wait until she return to work to address their concerns.[53]Ms Galloway was also of the view that the claimant was not completing the FMS tasks assigned to her which was affecting the ability of other members of the team to complete their own work. This also added to Ms Galloway’s own workload (257).[54]At no point did the claimant suggest to Ms Galloway that she was unable to complete the tasks assigned to her or that she needed help or training. As an experienced Finance Officer of 25 years’ service, what was being asked of her to do was well within her capabilities.[55]On 4 June 2020, a supplier anzUK.education, chased five outstanding invoices suggesting that they had been chasing the claimant since May 2020 and threatening further action They issued a letter of intent to the school (246 – 249).[56]Having received no evidence from the claimant that she should be selfisolating and not attending work, Ms Galloway and Ms Enright sought to arrange a meeting to discuss their concerns and how matters could move forward. They also wanted to complete a risk assessment to understand the claimant’s specific concerns and or risks around attending school, and to encourage her to return. Her working from home was not fair to other staff who were on rota and attending school. As a Keyworker and given the nature of her role, it would have been far more effective if she was working on site. All Keyworkers across the country were attending work throughout Covid-19. On 11 June 2020, Ms Galloway suggested to her that there should be a meeting in person, but the claimant proposed in her email response the same day, to have the meeting either by Skype or by Zoom. She wrote, “Can this risk assessment meeting be held by Skype or by Zoom?” (260).[57]Ms Galloway became aware during subsequent disciplinary proceedings that the claimant had stated, contrary to her 11 June email, that she did not know how to use either Skype or Zoom. (259 – 260).[58]Ms Galloway had proposed that the meeting should take place on Wednesday 17 June 2020 at 1:30pm. The claimant respondent by asking whether the risk assessment meeting could be held either by Skype or Zoom. Ms Galloway’s response was to say that she would make enquiries to find out whether or not it was possible to set up a Zoom meeting and that if it was possible, details would be sent to her. Ms Galloway also asked that medical evidence be provided from a doctor or from NHS England, in relation to the claimant’s mother’s medical conditions as this would be taken into account as part of the risk assessment.[59]The claimant had said in evidence that she was her mother’s principal carer.[60]The meeting on 17 June did not take place by Zoom as arranged by Ms Galloway because the claimant did not join.[61]There were again continuing issues over unpaid invoices. (262-263, 264,265-267,268).[62]The school was also having difficulties accessing its Amazon account because the password was no longer working. When Ms Galloway enquired of the claimant about the password, she was told that it was the same as before. It later transpired that there were two Amazon accounts, both controlled by the claimant which Ms Galloway and the school were not aware of. This created a significant risk to the respondent and its ability to properly account and control expenditure. The school’s credit card was linked to at least one of the Amazon accounts. Investigation into the claimant’s performance and conduct[63]By late September 2020, Ms Galloway, in discussion with Ms Enright, jointly decided that the claimant’s conduct, her failure to properly discharge her duties, and the effects this was having on the school and other staff, were no longer acceptable. They agreed that a formal disciplinary investigation should take place into these matters as well as the claimant’s conduct. They made attempts to raise some of their concerns informally in December 2019 but there was no change. In fact things had become significantly worse and the matter was plainly so serious that informal action was not appropriate. They agreed that there should be a formal investigation as there was a catalogue of potential misconduct on the part of the claimant including but not limited to:63.1 not paying outstanding invoices, leading to accounts being put on hold;63.2 failing to input bank details of suppliers onto FMS despite two email requests being sent;63.3 not ordering requests;63.4 cancellation of the school credit card without authorisation;63.5 unsigned checks being left on the desk on the last day of summer term;63.6 late payment of invoices, including to Peripatetic teachers;63.7 not following up statements; incorrect information put on FMS;63.8 failure to check correct supplier details;63.9 stock return;63.10 not recording bank statements:63.11 ordering heaters for school without authorisation;63.12 not following the correct process when reporting sickness absence and going a wall from school;63.13 late payment of invoices; and63.14 non-payment of invoices.[64]In the respondent’s view the investigation would not be in the nature of a capability investigation because the claimant’s behaviour appeared to be deliberate and wilful. It was a conduct issue. In support of this they bore in mind that the claimant was asked during the meeting on the 6 December 2019, whether she needed support including training in the performance of her role and she replied that she did not. She had also unreasonably refused to engage in the appraisal process Ms Galloway had reinstated. She did not ask for support, assistance or training at any time, and when training was offered, she refused to become engage in it.[65]She was aware at a meeting held on 6 October 2020, with Ms Galloway, that the respondent was contemplating a disciplinary investigation into her conduct.[66]She was signed off from work from 27 October 2020 with stress-related problems and remain on sick leave until her dismissal. (78, 1512)[67]Around October 2020, it came to Ms Enright’s attention that heaters had been purchased by the claimant to be used in offices across the school but were not authorised by any of the respondent’s budget holders. This was a serious matter and potentially gave rise to a breach of the school’s financial procedures as well as raising a health and safety issue as all electric appliances must be approved by Ms Galloway, as School Business Manager, before being purchased and used on school site due to potential fire risks. Ms Enright, according to Ms Galloway, had spoken to the claimant about this in October 2020 and informed her that she should not have ordered the heaters without authorisation from a budget holder or a purchase order. In evidence, Ms Galloway’s understanding is that the claimant refused to accept that she had done anything wrong, and was rude and brusque towards Ms Enright, as the school’s Head Teacher.[68]The respondent’s Financial Regulations Policy states in paragraph 113, the following:- “All orders must be made, or confirmed in writing using an official order form, stocks of which are held by the Finance Department. Orders must bear the signature of the budget holder and must be forwarded to the finance department where the finance officer (2) will check to ensure adequate budgetary provision exists before placing the order.” (1107)[69]In October 2020, Ms Galloway discussed the claimant’s unilateral decision to treat certain Amazon transactions as fraudulent and to cancel the school’s credit card without any discussion either with Ms Galloway or with Ms Enright.[70]On 5 November 20202, Ms Galloway was aware that an order for headphones had not been actioned by the claimant, leaving only enough headphones for one class of pupils which was affecting the delivery of education.[71]In the period when the claimant stated she was working from home, she failed to input correct details on to FMS. During that time Ms Galloway was processing orders and paying invoices which was the claimant’s responsibility. In relation to a failure to input an invoice on to FMS correctly this could have cost the school £3,774. The amount on the invoice payable to the supplier, AnzUK, was £780. The claimant inputted on FMS was £4,554. Had Ms Galloway not corrected the amount it would have meant an over payment of £3,774. According to Mr Galloway, this was not a oneoff mistake as there were many others.[72]It also came to light that the claimant had left approximately 20 blank cheques on her desk which was discovered at the end of the simmer term 2020. This was, potentially, a significant financial risk to the school and to the respondent. It was also a breach of its financial rules and procedures as cheques should be kept locked away at all times. The investigation by Ms Suzanne Hamilton[73]Ms Suzanne Hamilton, a human resources professional, worked for CEFM, a consultancy providing human resources, finance, legal and education advice services to schools, academies and multi-academy trusts. She began working as a human resources officer in 1998. During her career, she carried out in the region of 50 human resources investigations. She stated that in all the years she had been carrying out human resources investigations, she had never experienced an employee, such as the claimant, who had been repeatedly obstructive, combative and who had refused to attend an investigation meeting.[74]In or round the end of October 2020, or the beginning of November 2020, she was asked by Ms Galloway to undertake a disciplinary investigation into the claimant’s conduct. She had no prior involvement in the matters which formed the basis of the investigation, nor had she advised the respondent in relation to the claimant previously. She was aware that her colleague, Mr Vincenzo Casamassa, had given legal advice to the respondent in relation to the claimant. That was the reason why she had been instructed to carry out the investigation because she was independent of what had occurred previously. In doing so, the respondent had to pay her fees which could have been avoided had the investigation been carried out internally. It was, therefore, clear to Ms Hamilton that it was important to the respondent that a fair and impartial investigation be conducted and to pay for her services. She had been briefed on the concerns raised about the claimant’s conduct.[75]In a letter dated 10 November 2020, from Ms Enright to the claimant, the claimant was notified of the disciplinary investigation and the nature of the allegations against her. There were four in total: “1. Refusing to carry out duties which are a reasonable requirement of the employee’s job and have been brought to the employee’s attention. 2. Neglect of duty, carelessness (where any loss, damage or injury to any person or property is caused by such neglect or failure to report any matter that is the employee’s duty to report. 3. Persistent failure to comply with school policies and agreed procedures. 4. Causing harm to the school’s reputation.” (286)[76]The letter did not go into specific examples of the claimant’s behaviour as that was not the purpose. The purpose was to notify the claimant of the pending investigation. The intention was for Ms Hamilton to discuss the allegations with her in more detail as part of the investigation process. In a follow up letter inviting her to a meeting on 25 November 2020, further information was given under each of the 4 heads. (295, 296).[77]The meeting was arranged for 25 November 2020 because the claimant’s sick note covered her up to 15 November 2020. However, she was subsequently signed off as not fit for work from 16 November to 31 December 2020 and did not attend. (1512,1538).[78]Ms Hamilton had already commenced her preliminary investigations. The Peripatetic teachers provided information willingly to her. She was also provided with various documents to go through with the claimant in anticipation of a meeting with her. She met with Ms Galloway who went through her concerns and provided a folder of documents in support of her concerns. These were included in the evidence pack sent subsequently to the claimant in December 2020. What were in Ms Hamilton’s possession were identical to those sent to the claimant.[79]In a letter from the claimant dated 18 November 2020, addressed to Ms Janet Gordon, Chair of Governors, the claimant wrote that she was raising a grievance primarily in relation to the admissibility of evidence. (362 – 364).[80]The claimant later wrote to Ms Enright that she would not be fit to attend the investigation meeting as she had raised a grievance and suggested that she give written responses to Ms Hamilton’s questions. (329-321)[81]In Ms Enright emailed the claimant on 24 November 2020, asking whether she would be attending the meeting the following day. The claimant replied on the same day stating that she would not be attending as she was unwell. (373-374)[82]We find that from 25 November 2020 to 29 March 2021, Ms Hamilton tried to engage with the claimant in the investigation, but the claimant did not respond positively. On 24 November 2020 at 21:54, the clamant emailed saying that she was too unwell to attend the meeting scheduled on 25 November 2020. On 5 December 2020, she confirmed that she had received the evidence pack. On 7 December 2020, she emailed to say that she was too unwell to attend the meeting scheduled to take place on 11 December 2020. On 11 December 20202, she sent a written response to some of the allegations. Subsequent scheduled meetings resulted in them not taking place because the claimant was too unwell to attend despite the fact that one of the meetings, on 11 December 2020, was scheduled to take place at another school but the claimant still did not attend.[83]The occupational health nurse, Ms Amandy Tan, in her report dated 22 December 2020, sent to the respondent, she wrote that the claimant was not fit for work as she was suffering from work-related stress and that, “The lack of resolution could impact on her illness and subsequently her ability to undertake her work role in the longer term.” She stated that the claimant met the definition of disability under the Equality Act 2010, and suggested adjustments, such as, time off for rehabilitation, assessment or treatment when available outside of working hours, and the provision of supervision with regular one-to-one meetings as a supportive measure would be of benefit to her. She was assessed as fit to attend a disciplinary, operational, and management meeting. She wrote that the claimant told her that she was unable to operate Zoom. Ms Tan suggested that the meeting be by telephone which the claimant was fit to participate in but management should take into account her current levels of distress; that she be given ample notice of meetings; that, where possible, she should be sent materials in advance to give her time to read an assess them; she should be accompanied by an appropriate person; if distressed, she should be allowed a break; and she should not be required to give answers on the spot but be given time to formulate her answers taking into account her level of distress at the time. (1514-1516)[84]The claimant had abdominal surgery on 29 December 2020.[85]On 6 January 2021, Ms Hamilton emailed her asking her to confirm whether someone from the school’s ICT department could call her to talk her through on how to download the Zoom application and how to use it. Ms Hamilton also wrote that she would be willing to set up a Zoom test in advance of the meeting. Her preferred approach was either to meet with the claimant or to see her either by Zoom or by Microsoft Teams. She was anxious to hear and or possibly see her without being influenced by her husband in the background.[86]The claimant also made a data subject access request followed by numerous emails requesting certain information be sent to her. The Governors were also emailed, on two occasions, the details of the investigation. The claimant was reminded by Ms Hamilton that the process was confidential, and she should desist from contacting those not involved in the investigation. Her response was that Ms Hamilton should not dictate to her who she could contact. Her husband also sent lengthy emails questioning the investigation process.[87]Ms Hamilton did ask the claimant whether it was possible to have a telephone conversation as she had not heard from her in relation to the suggested Zoom training and/or testing call. She invited the claimant to confirm her attendance at the rescheduled meeting on 15 Janurary 2021. Mr Guiltenane sent a fit note covering the date of the scheduled meeting which stated that she was unfit to attend. The meeting was again rescheduled by Ms Hamilton in her letter dated 26 January 2021, for the 3 February 2021 at 09.30. She was entitled to be accompanied. Again, Ms Hamilton suggested that assistance could be provided on how to use Zoom or Microsoft Teams. (567)[88]Mr Guiltenane wrote on 29 January 2021, that the claimant would need a further two weeks post-operative recovery. As a result, the rescheduled meeting did not take place. (565)[89]In her second occupational health report dated 25 February 2021, Ms Tan again repeated that a resolution of the investigation would be a benefit to the claimant. She wrote: “Progression of the ongoing formal procedures would be helpful in addressing the situation; however, Ms Guiltenane may require support at any meetings arranged. I understand that Ms Guiltenane has made some request that has written material/questions to be provided in advance so that she has time to read, assess and prepare for the answer. Please liaise further with her.” (1518-1519).[90]On 1 March 2021, Ms Hamilton wrote to the claimant inviting her to an in person meeting on 10 March 2021, as the school was due to reopen. This was a change to the requested telephone meeting. Ms Hamilton wanted to meet with the claimant without her husband being present in background of a telephone call. The claimant did not attend the meeting on 10 March. (610-617)[91]As the claimant had not engaged with Ms Hamilton, Ms Gordon, Chair of Governors, wrote to her on 26 March notifying her that the grievance could not be progressed and was closed. (623-624)[92]The claimant had contacted, on more than one occasion, the supplier who had provided evidence in Ms Hamilton’s investigation despite her being instructed by Ms Hamilton not to engage in such conduct. Ms Hamilton’s report[93]On 29 March 2021, Ms Hamilton concluded her report and informed the clamant. It is fairly lengthy, covering 22 pages with supporting evidence of over 300 pages. (847-1231)[94]Her recommendations were based on the evidence she had collected and heard. She acknowledged that the investigation was concluded without meeting with the claimant and that proceeding in that way was consistent with the ACAS code. She concluded that there was a disciplinary case to answer, and that the claimant would have the opportunity to respond to the allegations in a subsequent disciplinary hearing.[95]Under recommendations, Ms Hamilton wrote the following: “I have reached a genuine belief based on reasonable grounds and on the balance of probabilities, after having carried out as much investigation into the matter as was reasonable in the circumstances, including providing PG with five opportunities to meet with me for an investigation meeting, either in person or remotely. There is a pattern of conduct, including concerns over financial irregularity. Each individual issue is an example of misconduct and, in some cases, gross misconduct, according to the school’s Disciplinary Code. Given the number of allegations and the amount of evidence provided for each allegation, it is my view that PG’s actions constitute gross misconduct. It is recommended, based on the investigation, that this matter proceeds to a disciplinary hearing. I would also recommend that given PG refused to cooperate with my investigation, at the disciplinary hearing, she is asked for information about: The use of a Nectar card by PG when purchasing school items from Sainsburys. Is this a school Nectar card, or is it in PG’s name? Are the Nectar points, which amount to £123, being used to make further purchases by the school? The reasons why two Amazon Prime accounts were set up by PG. I would also recommend that: The appraisal process in place for support staff is always followed and is followed for all colleagues. Where staff do not engage with the appraisal process, managers should follow this up in line with the school’s Disciplinary Code. The school updates its credit card policy. The staff training opportunities within the Finance Department are made mandatory, rather than voluntary.” (868) The disciplinary hearing[96]The Board of Governors is the body authorised to conduct the disciplinary hearing.[97]Mr Guiltenane, on behalf of the claimant, told this tribunal that he did not have any concerns about the way in which the Governors conducted proceedings and their conclusions. His concern was that they were provided with false and inaccurate information by the school. In his words, it was a case of “rubbish in, rubbish out.”[98]In a letter from Ms Enright dated 8 April 2021, the claimant was invited to attend the disciplinary hearing scheduled to take place on 20 April 2021. It set out the 4 allegations against her and reminded her of her right to be accompanied either by a colleague or trade union representative. She was allowed to bring witnesses, could make written representations, and was warned that should she fail to attend, the hearing may proceed in her absence. Ms Hamilton’s full investigation report accompanied the letter. She was reminded to the contents of the occupational health reports that a resolution of the workplace issues would alleviate her work-related stress and that the respondent was following the suggestions made in the reports in relation to the conduct of the hearing. (641-642)[99]The claimant emailed Ms Enright on 16 April 2021, alleging errors in her letter and stated that she would go through the documents sent in a “fair and reasonable way, and prepare an adequate response.” She asserted that the purpose of the meeting was to give Ms Enright and her team the opportunity to, “continue and extend your bullying, harassment and intimidation of me.” She concluded by stating that she was declining the invitation to attend the hearing. (651-652)[100]In a letter from Ms Enright dated 19 April 2021, the claimant was informed that the meeting had been rescheduled would take place on 27 April 2021. The claimant responded stating that she would not be attending for the reasons given in her response on 16 April. A further letter was sent by Ms Enright to her dated 23 April 2021, in which she was informed that the hearing would proceed in her absence and was encouraged to reconsider her decision not to attend. She was reminded of her right to submit written representations to the panel, but she did not co-operative. (654-655, 656, 659)[101]The claimant did not request any adjustments for the disciplinary hearing and did not ask that it be conducted remotely.[102]The Board of Governors comprising of a panel of 3, found that the claimant did not provide a good and sufficient reason for not attending the disciplinary hearing and conducted it in her absence. They had the same pack of documents as was sent to the claimant, namely Ms Hamilton’s investigation report and supporting documents. (847-1231)[103]Ms Hamilton presented management’s case and was questioned by the panel. Notes were taken at the hearing. There was no response from the claimant to the specific allegations, nor did she provide evidence to challenge the allegations and Ms Hamilton’s findings and conclusions.[104]We were satisfied, having heard the evidence given by Mr Martin Beard, Co-opted Governor on the panel, that the panel members took into account all the evidence presented including management’s case. He told us and we find as fact, that the panel were not persuaded that the claimant acknowledged or appreciated the impact of her actions on the school and the pupils, such as: the trips that were nearly cancelled because of the nonpayment of invoices; teacher requests which were not fulfilled; a risk that Peripatetic teachers may not want to be engaged by the school as they were not paid on time; and damage to supplier relationships as they threatened not to offer credit to the school. Her actions also caused significant disruption to the school’s operations in relation to the accurate forecasting and financial reporting to the Finance Committee, and the potential to cause financial loss to the School.[105]Although there was no dishonesty or personal gain, there was a clear and consistent failure by the claimant to conscientiously administer public funds and act in accordance with the requirements of her role as Finance Officer.[106]Having considered the evidence before them, the panel came to the conclusion that allegations 1, 2 and 4 amounted to gross misconduct, and allegation 3 constituted misconduct. We find that, in so doing, the panel did not rubber stamp management’s case put to them by Ms Hamilton. We were also satisfied, after having heard the evidence given by Mr Beard, that the panel engaged in a detailed discussion of the allegations and evidence in support and came to unbiased, independent conclusions.[107]The panel then considered the appropriate sanction. They took into account the effect of the claimant’s misconduct on the school and the school community; the difficulties her behaviour had created for Ms Galloway and Ms Enright in executing their own important functions; the risks to which the misconduct exposed the school, in particular, financial risks; its ability to order essential supplies; and securing the services of Peripatetic teachers as the non-payment of their invoices was a serious issue exposing the school to potential legal claims. The suppliers’ relationships with the school had been so severely damaged that, in some cases, several would not do business with it. The fact that Ms Enright had to intervene to save the school’s Body Worlds trip, was unacceptable.[108]The panel were further concerned that the school’s database which the claimant had been asked to update while working remotely from home, had not been updated and that Ms Galloway had to undertake this task herself away from her commitments as the School Business Manager. It was also clear that the workloads of the other staff members were adversely affected by the claimant’s failures to adhere to reasonable management instructions and to the school’s procedures.[109]The panel also took into account the failure on the part of the claimant to account for the Sainsbury’s Nectar card, as well as the refusal to provide passwords for the Amazon accounts. These further heightened the panel’s concerns that the claimant was wilfully continuing in her misconduct and that the school was being exposed to unnecessary financial risk and was unable to meet its own obligations in respect of the administration of public funds. Further, they found that the claimant’s conduct during the investigation and disciplinary processes, as well as her conduct towards Ms Galloway, Ms Enright and Ms Hamilton, was consistent with her behaviour to which the disciplinary allegations related.[110]The panel considered mitigating circumstances, namely the claimant’s length of service, being 25 years, and her hitherto clean disciplinary record. However, given the findings of gross misconduct and that her behaviour had caused an irreparable breakdown in the relationship between her, Ms Galloway, and Ms Enright, and being mindful of their duty to apply the Disciplinary Code for Employees fairly and consistently, they determined that the claimant should be dismissed for gross misconduct with immediate effect without notice or payment in lieu of notice. The claimant held the role of Finance Officer which is a position of trust. The panel were not confident that the claimant could be trusted to remain in that post in the light of her conduct and behaviour in general during the disciplinary process.[111]There was no discussion about the claimant’s stress, anxiety, and depression, nor did they play any part in the decision to summarily dismiss her.[112]The outcome decision was put in writing on 30 April 2021 and sent to the claimant by Ms Janet Gordon, Chair of Governors. (707-709)[113]Despite the claimant being informed in writing of her right to appeal she did not appeal her dismissal.[114]The respondent did not have similar concerns about Ms Patel’s performance and conduct as a Finance Officer. Credibility[115]We considered the issue of credibility and were mindful that claimant gave evidence for the first time before us in response to the concerns raised by the respondent which ultimately resulted in the termination of her employment. At no stage during the internal procedures did she give a detailed account in response to the respondent’s concerns about her performance and conduct. In evidence, she referred to the views and decisions taken by her husband in her dealings with the respondent. It was difficult for the tribunal to form a view as to what part she played in her interactions with the respondent as most of the correspondence with the respondent came from her husband. Her behaviour was not influenced by medication as she told the tribunal that she was not under medication during the investigation and disciplinary processes.[116]In relation to Ms Galloway’s evidence, we found her to be a reliable witness who gave a very detailed and accurate account of events. She was most anxious to ensure that the school conducted itself on a professional footing in its dealings with the Peripatetic teachers, suppliers, and members of staff. She acknowledged that there was the lack on an effective appraisal system and was keen to reinstate it for it to be monitored. She tried to engage the claimant in it, but she did not get engaged. She accepted that the lack of an effective appraisal system was the failure of her predecessor.[117]As regards Ms Hamilton, she came across as an experienced human resources professional who wanted the claimant to participate effectively in the investigatory process. She told the tribunal that if the claimant had appeared in front of her and gave her account of events which were relevant, she, that is Ms Hamilton, would have investigated the issues raised by her. Her report is detailed and well-reasoned. She recommended that the school should update its credit card policy. She was, in our view, an impartial investigator.[118]In relation to Mr Beard, he was reliable as a witness and gave a factual account of events and the Governors’ unsuccessful attempts to engage the claimant in the disciplinary process. He told the tribunal that had she attended the disciplinary hearing and put forward her case, it would have been considered by the panel.[119]The respondent had serious concerns about the claimant but had to deal with matters without input from her in response to those concerns.[120]The respondent’s witnesses were credible and reliable. Where there was conflict between their evidence and the claimant’s, we preferred their evidence. Submissions[121]We have taken into account the submissions by Mr Watson, counsel on behalf of the claimant, and by Mr Guiltenane, on behalf of the claimant. We do not propose to repeat their submissions herein having regard to rule 62(5) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. In addition, we have taken into account the cases they have referred us to. The law The duty to make reasonable adjustments 121. Section 20, EqA on the duty to make reasonable adjustments, provides: “(1)Where this Act imposes a duty to make reasonable adjustments on the person, this section, sections 21 and 22 and the applicable Schedule apply; for those purposes a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion of practice of A’s put a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as is reasonable to have taken to avoid disadvantage.”
The law
[122]Langstaff J, President, Employment Appeal Tribunal, Nottingham City Transport Ltd v Harvey [2013] EqLR 4, held, “Practice” has something of the element of repetition about it. It is, if it relates to a procedure, something that is applicable to others than the person suffering the disability…disadvantage has to be by reference to a comparator, and the comparator must be someone to whom either in reality or in theory the alleged practice would also apply.”, paragraph 18.[123]Guidance has been given in relation to the duty to make reasonable adjustments in the case of Environment Agency v Rowan [2008] IRLR 20, a judgment of the EAT. An Employment Tribunal in considering a claim that an employer had discriminated against an employee by failing to comply with the duty to make reasonable adjustment, must identify:(1) the provision, criterion or practice applied by or on behalf of an employer, or(2) the physical feature of premises occupied by the employer;(3) the identity of a non-disabled comparator (where appropriate), and(4) the identification of the substantial disadvantage suffered by the claimant may involve consideration of the cumulative effect of both the provision, criterion or practice applied by or on behalf of an employer and the physical feature of premises. Unless the tribunal has gone through that process, it cannot go on to judge if any proposed adjustment is reasonable because it will be unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage.[124]A tribunal in deciding whether an employer is in breach of its duty under section 20 EqA 2010, must identify, with some particularity, what “step” it is that the employer is said to have failed to take.[125]The employer’s process of reasoning is not a “step”. In the case of General Dynamics Information Technology Ltd v Carranza [2015] ICR 169, the EAT held that the “steps” an employer was required to take by section 20(3) to avoid putting a disabled person at a disadvantage, were not mental processes, such as making an assessment, but practical actions to avoid the disadvantage. In order to decide what steps were reasonable, a tribunal should, firstly, identify the pcp. Secondly, the comparators. Thirdly, the disadvantage. In that case disregarding a final written warning was not considered to be a reasonable step.[126]In relation to the shifting burden of proof, in the case of Project Management Institute v Latif [2007] IRLR 576, EAT, it was held that there must be evidence of a reasonable adjustment that could have been made. An arrangement causing substantial disadvantage establishes the duty. For the burden to shift, “…it would be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not.”, Elias J (President).[127]Paragraph 6.10 of the Code 2011 provides: "The phrase ‘provision, criterion or practice’ is not defined by the Act but should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one off decisions and actions."[128]In relation to the comparative assessment to be undertaken in a reasonable adjustment case, paragraph 6.16 of the Code states: “The purpose of the comparison with people who are not disabled is to establish whether it is because of disability that a particular provision, criterion, practice or physical feature or the absence of an auxiliary aid disadvantages the disabled person in question. Accordingly and unlike direct or indirect discrimination - under the duty to make adjustments there is no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person’s.”[129]The proper comparator is readily identified by reference to the disadvantage caused by the relevant arrangements. It is not with the population generally who do not have a disability, Smith v Churchills Stairlifts plc [2006] IRLR 41, Court of Session.[130]In the case of Kenny v Hampshire Constabulary [1999] IRLR 76, a judgment of the Employment Appeal Tribunal, it was held that the statutory definition directs employers to make reasonable adjustments to the way the job is structured and organised so as to accommodate those who cannot fit into existing arrangements.[131]The test is an objective one. The employer must take “such steps as….is reasonable in all the circumstances of the case.” Smith v Churchills Stairlifts plc [2006] IRLR 41.[132]The duty to make reasonable adjustments applies when the employee who is on sickness absence, is expected to return to work, “the trigger point”, Home Ofice v Collins [2005] EWCA Civ 598, in which Pill LJ, held that since the claimant had not provided a return-to-work date consideration of parttime work did not arise, paragraph 31. This was supported by Ousely LJ, paragraph42. Other cases in support of the “trigger point” are NCH Scotland v McHugh [2006] 12 WLUK 396; Tarbuck v Sainsbury Supermarkets UKEAT/0136/06, and Doran v Department of Work and Pensions, UKEAT/007/14. In Doran the EAT emphasized that the duty to make reasonable adjustments was not triggered as there was no prospect or indication of a return to work. Unfair dismissal, section 98(4) Employment Rights Act 1996 (“ERA”),[133]Section 98(1) ERA, provides that it is for the employer to show what was the reason for dismissing the employee. Dismissal on grounds of conduct is a potentially fair reason, s.98(2)(b). Whether the dismissal is fair or unfair having regard to the reason shown by the employer, the tribunal must have regard to the provisions of s.98(4) which provides: “Where the employer has fulfilled the requirements of subsection (1), and the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -(a) depends on whether in the circumstances (including the size and administrative resources of the employees undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case."[134]In the case of British Homes Stores v Burchell [1980] ICR 303, the EAT’s judgment was approved in the Court of Appeal case of Weddel & Co Ltd v Tepper [1980] ICR 286. The following must be established:a. First, whether the respondent had a genuine belief that the misconduct that each employee was alleged to have committed had occurred and had been perpetrated by that employee,b. Second whether that genuine belief was based on reasonable grounds,c. Third, whether a reasonable investigation had been carried out,[135]Finally, in the event that the above are established, was the decision to dismiss reasonable in all the circumstances of the case. Was the decision to dismiss within the band of reasonable responses?[136]The charge against the employee must be precisely framed Strouthos v London Underground [2004] IRLR 636.[137]Even if gross misconduct is found, summary dismissal does not automatically follow. The employer must consider the question of what is a reasonable sanction in the circumstances Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854.[138]The tribunal must consider whether the employer had acted in a manner a reasonable employer might have acted, Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT. The assessment of reasonableness under section 98(4) is thus a matter in respect of which there is no formal burden of proof. It is a matter of assessment for the tribunal.[139]It is not the role of the tribunal to put itself in the position of the reasonable employer, Sheffield Health and Social Care NHS Trust v Crabtree UKEAT/0331/09/ZT, and London Ambulance Service NHS Trust v Small 2009 EWCA Civ 220. In the Crabtree case, His Honour Judge Peter Clark, held that the question "Did the employer have a genuine belief in the misconduct alleged?” goes to the reason for the dismissal and that the burden of showing a potentially fair reason rests with the employer. Reasonable grounds for the belief based on a reasonable investigation, go to the question of reasonableness under s.98(4) ERA 1996. See also Secretary of State v Lown [2016] IRLR 22, a judgment of the EAT.[140]The range of reasonable responses test applies to the investigation as it does to the decision to dismiss for misconduct, Sainsbury's supermarket Ltd v Hitt [2003] ICR 111 CA.[141]In the case of Taylor v OCS Group Ltd [2006] ICR 1602 CA, it was held that what matters is not whether the appeal was by way of a rehearing or review but whether the disciplinary process was overall fair.[142]The seriousness of the conduct is a matter for the employer, Tayeh v Barchester Healthcare Ltd [2013] IRLR 387 CA. In the case of Mbubaegbu v Homerton University Hospital UKEAT/0218/17, the EAT held that applying the label of misconduct is not determinative. “A series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee…..There is no authority to suggest that there must be a single act amounting to gross misconduct before summary dismissal would be justifiable or that it is impermissible to rely upon a series of acts, none of which would, by themselves, justify summary dismissal.”, Choudhury J, paragraph 32.[143]The Court of Appeal acknowledged that employment tribunals are entitled to find whether dismissal was outside the range of reasonable responses without being accused of placing itself in the position of being the reasonable employer or of adopting a substitution mindset. In Bowater-vNorthwest London Hospitals NHS Trust [2011] IRLR 331, a case where the claimant, a senior staff nurse who assisted in restraining a patient who was suffering from an epileptic seizure by sitting astride him to enable the doctor to administer an injection, had said, “It’s been a few months since I have been in this position with a man underneath me” was the subject of disciplinary proceedings six weeks later. She was dismissed for, firstly, using an inappropriate and unacceptable method or restraint and, secondly, for the comment made. The employment tribunal found, by a majority, that her dismissal was unfair. The EAT disagreed. The Court of Appeal, overturned the EAT judgment, see the judgment of Stanley Burnton LJ, paragraph 13. See also Newbound v Thames Water Utilities Ltd [2015] EWCA Civ 677, in which the Court of Appeal held that the tribunal is required to consider section 98(4) ERA 1996, when considering the fairness of the dismissal.[144]The level of inquiry the employer is required to conduct into the employee’s alleged misconduct will depend on the particular circumstances including the nature and gravity of the case, the state of the evidence and the potential consequences of an adverse finding to the employee. “At the one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end, so the amount of inquiry and investigation which may be required, including the questioning of the employee, is likely to increase.”, Wood J, President of the EAT, ILEA v Gravett [1988] IRLR 497.[145]In the ACAS Guide to Discipline and Grievance at Work, paragraph 4.15 states, “Where an employee continues to be unavailable to attend a meeting the employer may conclude that a decision will need to be made on the evidence available. The employee should be informed where this is to be the case.” Breach of contract/wrongful dismissal[146]A wrongful dismissal claim is a common law action based on a breach of contract. It has to be established that the employer was in breach of the contract of employment by dismissing the claimant summarily. However, if it can be shown that the employee committed the misconduct in question thereby repudiated the contract of employment, the claim will fail, British Heart Foundation v Roy (debarred) [2015] UKEAT/0049/15, Langstaff J. It is for the tribunal to decide what happened and not the employer, Enable Home Support v Pearson UKEAT/0366/09, and Adesokan v Sainsbury’s Supermarkets Ltd [2017] ICR 390, Elias LJ. Conclusion Disability and failure to make reasonable adjustments
Conclusion
[147]Was the claimant at all material times a disabled person suffering from stress, anxiety and depression? She was ordered to provide a disability impact statement and supporting medical evidence of her stress, anxiety and depression. A disability impact statement was not provided nor was there any supporting medical evidence. It was difficult for the tribunal to form a view that at all material times she was a disabled person, having regard to section 6, schedule1 Equality Act 2010. Ms Tan, the Occupational Health Nurse, did not explain why the claimant was, in her view, disabled under the Equality Act. The use of medical terms, such as, stress, anxiety and depression, without more, does not mean that a person has a mental impairment and disabled under the Act, J v DLA Piper. The tribunal has to decide on the evidence whether a claimant is protected under the Equality Act as a disabled person. Her oral evidence was limited and did not assist the tribunal in coming to a conclusion on this issue. We were mindful that the respondent would not have had the opportunity to rebut her evidence.[148]In this case there was no evidence given as to the substantial adverse effects on the claimant’s ability to carry out normal day-to-day activities. She did not call any family members or friends to testify as to the effects her medical conditions had on normal daily activities. It appears that her workrelated stress was temporary because Ms Tan stated that a resolution of the workplace issues would alleviate her condition. There was no evidence that her medical conditions were long-term.[149]We agree with Mr Watson, counsel for the respondent, that the claimant experienced a reaction to an adverse life event, that being, the investigation and disciplinary processes and not a mental illness or illnesses, J v DLA Piper.[150]The respondent did not know, nor could it reasonably have been expected to know that the claimant was disabled as there was very little evidence to support disabled status.[151]In any event, even if she was disabled under the Act, did the respondent applied the pcp of requiring her to attend the investigation and disciplinary meetings in person? The claimant initially requested that the meeting with Ms Hamilton be either by Skype or by Microsoft Teams. She later resiled from that and suggested that it be conducted by telephone. On 16 November 2020, she was invited to a meeting with Ms Hamilton on 25 November, which was before Ms Tan’s December 2020, occupational health report. The claimant’s response on 18 November 2020, was to state that she was not fit to attend and later on 20 November, suggested that the best way was for her to submit written responses to questions. There was no evidence that this was to be a reasonable adjustment.[152]Similarly, in relation to the 26 November, 22 December 2020, and 25 February 2021, there was no suggestion that a meeting by telephone and/or written representations, were to be reasonable adjustments. Ms Tan did not state these should be reasonable adjustments. She was of the opinion that the claimant was fit to attend meetings and it was only a suggestion that it could be by telephone. Ms Hamilton wanted a meeting with the claimant in person because she feared that a telephone conversation would hide the fact that it would be Mr Guiltenane who would be conducting it out of sight out of sight of Ms Hamilton, rather than the claimant speaking herself without being influenced by him.[153]The invitation to the disciplinary hearing expressly reminded the claimant that she could make written representations, but she chose not to do so and did not attend.[154]The respondent did make adjustments, such as allowing the claimant to work from home; time off for treatment outside of working hours, and when fit to return to work, and was prepared to make provision for supervision with regular one-to-one meetings as a supportive measure would be of benefit to her.[155]We have come to the conclusion that the respondent did not apply the alleged pcp of requiring the claimant to attend the investigation and disciplinary meetings in person. Her claim of failure to make reasonable adjustments is not well-founded and is dismissed. Unfair dismissal[156]We are satisfied that the reason for the claimant’s dismissal was her conduct in the performance of her role as Finance Officer and her relationship with Ms Enright and Ms Galloway, as set out in the dismissal letter sent to her on 30 April 2021.[157]There was a reasonable investigation into the four allegations by Ms Hamilton. The claimant was invited, on more than one occasion, to meet with her to discuss them but did not do so. She had first suggested a meeting by either Skype or by Zoom but later retracted from that position when a possible Zoom meeting was being considered by Ms Hamilton. Ms Galloway, Ms Enright and other staff were interviewed in connection with the concerns raised about the claimant’s performance, conduct and behaviour. The claimant was sent a pack containing the information Ms Hamilton had gathered in preparation for a meeting with her. At no point in the process did the claimant provide to Ms Hamilton a detailed response to the allegations, nor did she attend any meetings with her. It was important to Ms Hamilton that she had the claimant’s account, not influenced by her husband who was not one of its employees. One way in which it could be done was a face-to-face meeting. It must be borne in mind that much of the correspondence with the respondent were from Mr Guiltenane.[158]Based on the evidence obtained by Ms Hamilton, she came to an independent conclusion that there was sufficient evidence in support of allegations of gross misconduct.[159]The claimant was invited to attend a disciplinary hearing before the panel of Governors but declined to do so and did not provide her version events to the panel knowing that one potential outcome was dismissal.[160]The panel members had a genuine belief, based on reasonable grounds, in the claimant’s guilt in relation to all the allegations. They found three out of the four as constituting gross misconduct and one misconduct. They concluded that there was a breakdown of trust and confidence in the claimant in her ability to carry out her role as Finance Officer. We accepted the evidence given by Mr Beard in this regard. The claimant did not challenge the way in which the panel came to their decision.[161]The panel took into account mitigating circumstances, such as, the claimant’s length of service, and her clean disciplinary record. They did not consider her, and had no reason to believe, that she was a disabled person. They considered what would be a reasonable sanction, BritoBabapulle v Ealing Hospital NHS Trust. They concluded that, in addition to taking into account their findings of gross misconduct and misconduct, there was a significant breakdown of trust and confidence in the claimant as a Finance Officer. The conclusion was summary dismissal without pay.[162]It is not the role of this tribunal to put itself in the shoes of the reasonable employer. It may be that an employer possessed all the information before the respondent may have taken a different course by issuing a final written warning. Another may agree with the respondent and summarily dismiss. All the tribunal can say, having regard to the case of Newbound, is that both outcomes, objectively considered, are not outside of the range of reasonable responses. Accordingly, the claimant’s unfair dismissal claim is not well-founded and is dismissed. Breach of contract/Wrongful dismissal[163]In relation to the wrongful dismissal claim, this is where the tribunal considers the evidence before it to determine whether the claimant’s conduct constituted a fundamental breach of the terms of her employment entitling the respondent to terminate without notice or pay in lieu of notice.[164]We were satisfied, on the balance of probabilities, that in the absence of any participation by the claimant in the investigation and disciplinary processes, taking into account the evidence she gave the tribunal orally, there were grounds, as stated by Mr Beard, in support of summary dismissal. Also, the relationship between the claimant, her immediate line manager, and the Head Teacher, had broken down irretrievably. It was due entirely to the claimant’s conduct. We were satisfied, having regard to paragraphs 104 and 107 of our judgment above, that the claimant’s conduct was so serious that summary dismissal was justified, British Heart Foundation v Roy (debarred), Enable Home Support v Pearson, and Adesokan v Sainsbury’s Supermarkets Ltd applies.[165]Accordingly the wrongful dismissal claim has not been proved and is dismissed.[166]The provisional remedy hearing listed on the 11 December 2023, is hereby vacated.