Miss H Smith v Secretary of State for Justice: 3312195/2023

EMPLOYMENT TRIBUNALS

Case No 3312195/2023

Between

Miss H SmithClaimant

Secretary of State for JusticeRespondent

Before

Employment Judge M Warren

Members

Ms J Costley and Mr B Lynch

In person for claimant

Mr T Holloway (instructed by Counsel) for respondent

Date 31 December 2024

JUDGMENT

The Claimant’s claims that she was discriminated against contrary to s.15 of the Equality Act 2010 and in breach of contract for wrongful dismissal and notice pay, each fail and are dismissed.

REASONS

[1]Miss Smith was employed by the Respondent as an Operational Support Officer at HMP Bure from 13 February to 6 September 2023. After Early Conciliation between 7 and 22 September 2023, she issued these proceedings on 20 October 2023 claiming disability discrimination and notice pay.

[2]The Respondent did not immediately accept that Miss Smith was a disabled person as defined in the Equality Act 2010. By an email to the Tribunal of 12 July 2024, it accepted that she was at all material times disabled by reason of Autism, Dyspraxia, Depression and Anxiety.

[3]There was a Case Management Hearing before Employment Judge Tynan on 29 May 2024. At that point disability had not been conceded and Employment Judge Tynan listed a Public Preliminary Hearing on the issue, as well as the Final Main Hearing. A List of Issues was agreed and set out in Employment Judge Tynan’s Hearing Summary.

[4]Miss Smith had been represented by a solicitor at all times, but was not represented at the Final Hearing before this Tribunal. However, during the course of the hearing, Miss Smith had access to her solicitor for advice and as we shall see below, her solicitor assisted on a number of occasions during the hearing. Reasonable Adjustments

[5]The Tribunal discussed with Miss Smith what it might be able to do to assist her with the hearing, having regard to the fact that she is an Autistic person. Tribunals are well aware that every such persons’ needs are different. We agreed a pattern of mid-morning and afternoon breaks and in addition, we made clear to Miss Smith that she could request a break at any other time. She requested such additional breaks on a number of occasions. The Tribunal, (and Mr Holloway) tried to ensure that the questions asked of Miss Smith were short and appropriate, avoiding open questions and hypothetical questions. Where we or Mr Holloway failed in that endeavour, we sought to correct ourselves.

[6]During cross examination, Miss Smith reported that she was upset by the facial expressions and what she perceived as suppressed laughter from some observers, (we understand them to be members of the Respondent’s Human Resources Department). These were not people who would be giving evidence. The Tribunal Members observed inappropriate facial expressions, although they heard nothing. I made it clear to the observers that their conduct was not acceptable. We made arrangements for a screen to be erected between the witness table from which Miss Smith was giving her evidence and the people attending the Tribunal, other than Mr Holloway. We ensured that those present in the room left before Miss Smith at the end of each session and that Miss Smith entered the Tribunal before everyone else at the start of each session.

[7]At the conclusion of the hearing, Miss Smith was kind enough to be complementary of the arrangements that we had made. Strike Out Application

[8]At the start of the hearing, the Respondent pursued an application to strike out Miss Smith’s claims. The application was made pursuant to a written application by letter dated 4 December 2024, which Employment Judge Quill had directed should be dealt with at the outset of this hearing. In short, the Respondent set out a timetable of Miss Smith, through her solicitors, failing to comply with the Tribunal’s Case Management Orders in relation to disclosure in October 2024, in relation to preparation of the Final Hearing Bundle in November 2024 and in the exchange of witness statements at the end of November 2024.

[9]Miss Smith’s solicitors provided a written response to the strike out application in an email dated 5 December 2024, to which we had regard.

[10]Further, the Respondent referred to an Ill Health Retirement Report which it said Miss Smith had failed to disclose, which they say had been requested on 29 November 2024. Miss Smith through her solicitors, told the Respondent that she did not have and had not received this report.

[11]In oral submissions, Mr Holloway took us to minutes of a meeting on 6 September 2024, (the meeting at which Miss Smith was dismissed) the notes of which record her as acknowledging that she had received the report.

[12]In response, Miss Smith told us that she had not received the report, but that it had gone directly to Mr Adrian Bateman. She said the advice given had been harmful. She said she had not received the report, but merely a letter which was a receipt. She said that in the meeting quoted, it had not registered with her that the Respondent was referring to the actual report. She said she believed that her solicitor had tried to obtain a copy, but had been unsuccessful.

[13]Both parties agreed that the report was potentially useful evidence that the Tribunal should see. There had been no application for specific disclosure. Relevant Law as to Strike Out

[14]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; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).

[15]On an application to strike out at this stage the leading authority is Blockbuster Entertainment Ltd v James

[2006] IRLR 630

CA. Sedley LJ said in that case, (at paragraph 5): "This power [that is this power to strike-out], as the employment tribunal reminded itself, is a draconian power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response."

[16]In Chambers-Mills v Allied Bakeries

[2008] UKEAT 0165/08

Burton J clarified that these 2 cardinal conditions are alternatives. If either is established, the Tribunal must then consider whether the draconian remedy of a strike out is a proportionate response.

[17]Sedley LJ in Blockbuster said that the first object of any system of justice is to get triable cases tried, the courts are open to the difficult as well as the compliant, (so long as they do not conduct their cases unreasonably) and that it takes something very unusual indeed to justify the striking out on procedural grounds of a case that has reached the point of trial. One particular question to ask will be whether there is a less drastic means to an end for which the strike out power exists, (paragraphs 18-21).

[18]In exercising discretion, a Tribunal should have regard to the overriding objective. Rule 2 sets out the Overriding Objective 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;

(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.

[19]In Blockbuster Sedley LJ approved the guidance from Richardson J in Weir Valves & Controls (UK) Ltd v Armitage [2003]

UKEAT/0296/03

(paragraph 17) : “But it does not follow that a striking out order or other sanction should always be the result of disobedience to an order. The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused and, still, whether a fair hearing is still possible. It should consider whether striking out or some lesser remedy would be an appropriate response to the disobedience”

[20]In exercising discretion, one must also balance the relative prejudice to the parties. Discussion and Conclusions

[21]The following is what we said to the parties in giving our decision not to strike out. The Tribunal has before it witness statements and a Bundle containing both sides’ documents. Notwithstanding the difficulties that have been encountered with adherence to the Tribunal’s Orders, the case is ready to go and a fair hearing is possible. However, there is the question of the undisclosed report which it would seem, the Tribunal should have before it. We note that disclosure did not take place until 14 October 2024 and the Respondent did not seek disclosure of the report from Miss Smith until 29 November 2024. There is no specific disclosure application. The report may give evidence as to Miss Smith’s ability to perform her role, at the time or in the future. Documents appear to indicate that she had received the report. We have in mind that as an Autistic person, there is the scope for misunderstanding. Having regard to Rule 37, the Blockbuster case and the overriding objective, we concluded it is not in the interests of justice to strike the claim out, which would be a disproportionate step to take, particularly as the issue over the undisclosed report is capable of resolution by the Tribunal making an Order requiring the Occupational Health provider to disclose it. There appears to be culpability on the part of both parties for the report not being before us at the beginning of the hearing. Order for Third Party Disclosure

[22]After discussion, we left it to both parties’ solicitors to make contact with the Occupational Health provider for the report to be made available. They were not sufficiently co-operative and we therefore made an Order for disclosure on Day 2, 10 December 2024. The report was made available later that day. Miss Smith was able to consider it overnight and notwithstanding that she was in the middle of cross examination, we gave permission for her to discuss the matter with her solicitors. She was asked questions about the report on the morning of Day 3, 11 December 2024.

The Issues

[23]As we have noted above, the issues were identified at the Preliminary Hearing before Employment Judge Tynan and the List of Issues appears in his Hearing Summary. Since then, by letter dated 6 December 2024, Miss Smith’s Solicitors on her instructions, withdrew the claim of failure to make reasonable adjustments. Miss Smith confirmed that was her wish on Day 1 of this hearing. The Tribunal issued a Judgment dismissing the reasonable adjustments claim upon withdrawal, dated 10 December 2024.

[24]The issues as identified by Employment Judge Tynan are set out by way of cut and pasting for ease of reference, below: Jurisdiction / time limits

The Issues

[1]Were the Claimant's disability discrimination claims in her ET1 presented within 3 months of the conduct complained of, taking into account the effects of ACAS Early Conciliation?a. The Claimant entered into ACAS conciliation on 7 September 2023;

b. The ACAS Certificate was issued on 22 September 2023; and

c. The ET1 was issued on 20 October 2023.

[2]In respect of any claims prima facie out of time, did the relevant conduct extend over a period of time in respect of which the Claimant timely presented a claim in her ET1?

[3]If not, is it just and equitable to extend time? Disability [SUBSEQUENTLY CONCEDED]

[4]The relevant period for the purpose of the Claimant’s disability discrimination claims in her ET1 is 13 February to 6 September 2023.

[5]During that period, did the Claimant have a disability as defined in s.6 of the Equality Act 2010? In particular:

[6]First, did the Claimant have the following impairments:a. autism;

b. dyspraxia;

c. anxiety; and

d. depression.

[7]Second, if she did, did the relevant impairment(s) have a substantial adverse effect on the Claimant’s ability to carry out any normal day-to-day personal and/or work activities?

[8]Third, if it did not, would the relevant impairments have had substantial adverse effects on the Claimant’s ability to carry out any normal day-to-day personal and/or work activities save for the Claimant’s medical treatment, medication, or other measures taken to correct the impairment?

[9]Fourth, was any such substantial adverse effect long-term, ie:a. had it lasted at least 12 months;

b. was it likely to last at least 12 months; and

c. was it likely to last for the rest of the Claimant’s life? Claim #1: Failure to make reasonable adjustments (ss.20-21 EQA 2010) [SUBSEQUENTLY WITHDRAWN]

[10]During the relevant period, did the Respondent apply the following provision, criterion or practice (PCP) to the Claimant:(i) PCP that all operational support staff have to work night shifts from time to time;

(ii) PCP that all operational support staff have to work 7 consecutive night shifts from time to time;

(iii) PCP that all operational support staff must be able to close the gate on their own;

(iv) PCP that all operational support staff must wear starched blouses; and

(v) PCP to not offer alternative roles or teams to probationary staff on long term sick? The PCPs at sub-paragraphs (i) to (iv) are conceded by the Respondent.

[11]Did the application of the relevant PCP put the Claimant to one (or more) of the following substantial disadvantages compared to someone without her disabilities:(i) because of her Fluoxetine depression medication (a side effect of which is drowsiness), the Claimant was at increased risk of falling asleep during night shifts;

(ii) owing to her Dyspraxia, the Claimant struggled to close the gate on her own;

(iii) owing to her Autism (and hypersensitivity), the Claimant experienced sensory overload when her work uniform changed from polo shirts to starched blouses;

(iv) increased risk of being long term sick; and

(v) increased risk of being unable to transfer to an alternative role or team?

[12]If the Claimant was put to those disadvantages, did the Respondent at that time:a. know (or ought reasonably to have known) that the Claimant was disabled because of the relevant impairment(s); and

b. know (or ought reasonably to have known) that the application of the relevant PCP put the Claimant to the disadvantage?

[13]What reasonable steps could the Respondent have taken to avoid these disadvantage(s)? The Claimant will say the following adjustments were not made but should have been:(i) permit the Claimant not to work night shifts (she will say a previous adjustment subsequently removed); (i) not require the Claimant to close the gate on her own;

(ii) ensure the gate was well maintained so the Claimant could close it on her own;

(iii) allow the Claimant to wear an alternative blouse or previous uniform; and

(iv) allow the Claimant to work in an alternative team.

[14]Was it reasonable for the Respondent to have to make those adjustments for the Claimant, and if so:a. when did the duty arise; and

b. when did the Respondent breach that duty? Claim #2: Discrimination arising from disability (s.15 EQA 2010)

[15]Did the Respondent treat the Claimant the following way:a. on 28 July 2023, when the Claimant attempted to return to work 4 weeks earlier than she was signed off for, the Respondent refused to allow this;

b. on 6 September 2023, the Respondent dismissed the Claimant; and

c. on 6 September 2023, the Respondent subjected the Claimant to a formal attendance review at which it took into account the 12 weeks she had had off, when she sought to return after 8 weeks?

[16]If the conduct occurred, was that unfavourable treatment of the Claimant?

[17]If it was, was that treatment because of the following “somethings”:(i) between 19 June 2023 and 7 September 2023 (12 weeks) the Claimant was signed off work; and

(ii) the Claimant was either unfit or perceived to be unfit to return to work as an Operational Support Officer.

[18]If yes, did the relevant “something” arise in consequence of one (or more) of her disabilities?

[19]If yes, did the Respondent know (or ought reasonably to have known) that the Claimant was disabled because of the relevant disability at the time?

[20]If yes, were the following legitimate aims of the Respondent:a. ensuring an acceptable level of staffing at all times to ensure the smooth running of the prison; and

b. ensuring the safety of prison staff, prisoners and the wider public?

[21]If yes, was the treatment a proportionate means of achieving one (or more) of those aims? In particular:a. was the treatment an appropriate and reasonably necessary way to achieve the relevant aim; and

b. could the Respondent have done something less discriminatory instead which would still have achieved the relevant aim. Claim #3: Breach of contract (wrongful dismissal/notice pay)

[22]Did the Respondent dismiss the Claimant on 6 September 2023?

[23]At the time of dismissal, what period of notice of dismissal was the Claimant contractually entitled to be given?

[24]At the date of dismissal, did the Respondent give the Claimant that period of notice (and pay her during it)?

[25]If not, has the Respondent paid the Claimant less than her correct notice pay entitlement (or pay in lieu of notice) she was contractually entitled to be given? If yes, by how much? Remedy 1. How much damages in lieu of notice should the Claimant be paid? 2. What financial losses has the discrimination caused the Claimant? 3. Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job? 4. If not, for what period of loss should the Claimant be compensated? 5. What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that? 6. Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result? 7. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 8. Did the Respondent or the Claimant unreasonably fail to comply with it? 9. If so, is it just and equitable to increase or decrease any award payable to the Claimant? 10. By what proportion, up to 25%? 11. Should interest be awarded? How much? Evidence 25. We had before us a witness statement from Miss Smith prepared by her solicitors. We also had witness statements for the Respondents from: 25.1. Mr Adrian Bateman, Miss Smith’s immediate Manager; 25.2. Mr Simon Rhoden, Prison Governor; and 25.3. Mr Kevin Smith, colleague.

Remedy

[26]We did not hear evidence from Mr Smith. We were asked to take his statement into account and attribute to it such weight as we considered appropriate, having regard to the fact that he was not here to be cross examined. We heard evidence from Miss Smith, Mr Bateman and Mr Rhoden.

[27]We had before us a paginated and indexed bundle of documents which ran originally to page number 495. During the course of the hearing, the above mentioned report from Optima Health was provided and included in the Bundle at pages 496 – 499.

[28]In addition to a paper copy, we were also provided with a PDF version of the Bundle. Unfortunately, the page numbering in the PDF Bundle did not match that of the paper Bundle. Whilst an inconvenience, it did not matter greatly, except that Miss Smith had questions prepared for her by her solicitors and the page references were incorrect. As best as we could tell, the reason for that was that the solicitors had not unreasonably, relied on the PDF Bundle supplied by the Respondent’s representatives. It was unhelpful that during adjournments, Miss Smith had to take time to cross check her page references and make sure that they accorded with the paper copy of the Bundle, which she and the Tribunal were working from. It is to her credit that she was able to do that successfully.

[29]During the course of the hearing, from time to time Miss Smith sought advice from her solicitors. At the close of Day 3, our attention was drawn by Mr Holloway to an email that Miss Smith’s solicitors had sent to the Tribunal, timed at 13:58 and of which we should make the following observations: 29.1. At no point was Miss Smith told she should hurry her questioning as otherwise the case would go part heard. She was not told to hurry her questions. She was warned that there would be a danger of the case going part heard. The case was listed for five days but unfortunately, the Tribunal was unable to sit on Day 5. We therefore had to ensure that we completed the evidence by the close of Day 4. That target was entirely achievable, having regard to the adjustments made for Miss Smith’s disability. 29.2. Miss Smith was not cross examined for two and a half days. Cross examination began on the afternoon of Day 1 at 2pm and concluded at 1130 on Day 3. 29.3. We absolutely agree the danger of going part heard should not, and it did not, take precedence over the Claimant’s right to a fair hearing. 29.4. The questions Miss Smith was asking were prepared by her solicitors. She told us that she had about one hundred questions for Mr Bateman. I did suggest that was disproportionate and that she ought to give some thought to those questions, having regard to the issues and the importance of focusing on those issues which I had stressed during the hearing. 29.5. Miss Smith’s solicitors commented that all of the questions they had prepared were relevant. That is without the benefit of having been in the hearing and being able to react to and take into account the oral evidence Miss Smith had given and the observations the Tribunal were making. I did intervene on occasion when I considered a question was not of assistance or perhaps repeating a point already made, as I did with cross examination of Miss Smith by Mr Holloway.

[30]Both parties produced written submissions at the conclusion of the case, for which we are grateful. Miss Smith’s solicitors prepared her written submissions for her. As with the letter referred to above, the Tribunal recognises that Miss Smith’s solicitors have been seeking to assist her and the Tribunal as best they can in the circumstances. However, we do feel that we must correct their suggestion that the tribunal had to remind Mr Holloway not to bully Miss Smith. That is not correct and it is unfair to suggest that at any time, Mr Holloway’s conduct toward Miss Smith could in anyway could have be described as bullying. The Tribunal would not have countenanced such behaviour.

The Law

[31]Disability is a protected characteristic pursuant to s.4 of the Equality Act 2010.

[32]Section 39(2)(c) and (d) proscribes discrimination by an employer by either dismissing an employee or subjecting her to any other detriment.

[33]Disability Related discrimination is defined at s.15 as follows:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[34]Determining whether treatment is unfavourable does not require any element of comparison, as is required in deciding whether treatment is less favourable for the purposes of direct discrimination. There is a relatively low threshold of disadvantage for treatment to be regarded as unfavourable. It entails perhaps placing a hurdle in front of someone, creating a particular difficulty or disadvantage for a person, see Williams v Trustees of Swansea University Pension and Assurance Scheme [2019] UKSC.

[35]Simler P, (as she then was) reviewed the authorities and gave helpful guidance on the correct approach to s15 in Pnaiser v NHS England

[2016] IRLR 170

which may be summarised as follows: 35.1. The tribunal should first identify whether the claimant was treated unfavourably and if so, by whom. 35.2. Secondly, the tribunal should determine what caused the treatment, focussing on the reason, (not motive) in the mind of the alleged discriminator, possibly requiring consideration of the conscious or unconscious thought processes of that person, but keeping in mind that the actual motive is irrelevant. There may be more than one cause of the treatment, the “something” need not be the main or sole reason, but it must have a significant, (more than trivial) influence and amount to an effective cause of the unfavourable treatment. 35.3. Thirdly, the tribunal must then determine whether the reason for the unfavourable treatment arose because of the claimant’s disability. There could be a range of, more than one, causal links. However, the more links there are, the harder it may be to establish the required connection. The question of causation is an objective test and does not entail consideration of the thought processes of the alleged discriminator. There is no requirement that the respondent know of the causal link between the disability and the, “something arising”.

[36]If there has been such treatment, we should then go on to ask, as set out at s.15(1)(b), whether the unfavourable treatment can be justified. This requires us to determine: 36.1. Whether there was a legitimate aim, unrelated to discrimination; 36.2. Whether the treatment was capable of achieving that aim, and 36.3. Whether the treatment was a proportionate means of achieving that aim, having regard to the relevant facts and taking into account the possibility of other means of achieving that aim.

[37]The test of whether there is a proportionate means of achieving a legitimate aim, (often referred to as the justification test) mirrors similar provisions in other strands of discrimination, such as in respect of indirect discrimination under s19 of the Equality Act. There is however, a difference, in that in the context of disability related discrimination, one is looking at the effect on the individual, whereas with indirect discrimination, one is looking at the effect on a group of people.

[38]In an indirect discrimination case, Hensam v Ministry of Defence UKEAT/10067/14/DM, the EAT applied the justification test as described in Hardys & Hansons Plc v Lax

[2005] EWCA Civ 846

. In respect of disability related discrimination, in Gray v University of Portsmouth

UKEAT/0242/20

Mrs Justice Eady said that employment tribunals should carry out a critical evaluation, adopting the same approach as in indirect discrimination cases, following Hardys & Hansons. The test is objective. In assessing proportionality, the tribunal uses its own judgment, which must be based on a fair and detailed analysis of the working practices and business considerations involved, particularly the business needs of the employer. It is not a question of whether the view taken by the employer was one a reasonable employer would have taken. The obligation is on the employer to show that the treatment complained of is a proportionate means of achieving a legitimate aim. The employer must establish that it was pursuing a legitimate aim and that the measures it was taking were appropriate and legitimate. To demonstrate proportionality, the employer is not required to show that there was no alternative course of action, but that the measures taken were reasonably necessary.

[39]The tribunal has to objectively balance the discriminatory effect of the treatment and the reasonable needs of the employer.

[40]“Legitimate aim” and “proportionate means” are 2 separate issues and should not be conflated.

[41]The tribunal must weigh out a quantitative and qualitative assessment of the discriminatory effect of the treatment, (University of Manchester v Jones

[1993] ICR 474

[42]The tribunal should scrutinise the justification put forward by the Respondent, (per Sedley LJ in Allonby v Accrrington & Rosedale College

[2001] ICR 189

[43]In respect of the burden of proof, s.136 reads as follows: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred; (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

[44]In the context of section 15, this means that the claimant will have to show: 44.1. That she was disabled at the relevant time; 44.2. That she had been subjected to unfavourable treatment; 44.3. A link between the unfavourable treatment and the, “something”, and 44.4. Evidence from which the tribunal could properly conclude that the, “something” was an effective cause of the unfavourable treatment.

[45]It the claimant proves facts from which the tribunal could conclude that there was section 15 discrimination in this way, the burden of proof shifts to the respondent to prove a non-discriminatory explanation, or justification.

Findings of Fact

[46]HMP Bure is a Category C men’s Prison located between North Walsham and Norwich in North Norfolk. At any one time it has approximately 600 prisoners and is staffed by approximately 300 people. Sometime during the Autumn of 2022, Miss Smith applied for and was interviewed for a vacancy for a position the job title of which was, ‘Operational Support Grade General’. A summary of the duties is set out in the job description at page 120 and includes gate procedures, visitor checks and monitoring, censorship of mail, telephone and reception duties. There was also the potential for flexible deployment to cover other support service activities.

[47]At interview, Miss Smith disclosed she was an Autistic person and has Dyspraxia.

[48]Prior to offering her employment, the Respondent arranged for an Occupational Health Assessment, which is at page 131 dated 6 December 2022. This stated that Miss Smith was fit for the role, subject to the recommendation that on commencement of employment she be assessed and her specific learning styles taken into consideration whilst learning the job role.

[49]By letter dated 9 January 2023, Miss Smith was offered employment to commence on 13 February 2023. The employment was to be subject to six months’ probation. The principle Terms and Conditions of Employment provided with the offer letter make clear the probationary period is to enable the employee to demonstrate the ability to meet in full the normal requirements of the position. During the period of probation, the individual’s performance, conduct and attendance would be assessed. If any of those were not satisfactory, the appointment could be terminated. An extension of probation is said only to be granted in exceptional circumstances.

[50]The Terms and Conditions at page 137 provide that during periods of sickness in the first year of service, sick pay would amount to one month on full pay followed by one month on half pay.

[51]The Terms and Conditions also explain at Clause 15: “Because of the constitutional position of the Crown, employees cannot demand a period of notice as of right when their appointments are terminated. Normally, however, unless you are dismissed on disciplinary grounds or because you are no longer eligible to work in the Civil Service or in the United Kingdom, and provided you have served continuously for one month or more the following minimum periods of notice will apply: Staff with less than four years continuous service: 5 weeks…”

[52]The Respondent made an Occupational Health Referral on 4 May 2023, (page 145) and the consequent report dated 10 May 2023 is at page 151. The referral was made by her manager, (job title Custodial Manager) Mr Bateman. He explained that Miss Smith had raised some concerns about specific job tasks. The report by an Occupational Health Advisor confirms that Miss Smith is fit for work with adjustments. She wrote: “I believe there is requirement for her to carry out 7 night-shifts in a row for her current job role and in a singleton post / lone working. Miss Smith reports she is willing to carry out night-shift work if it was occasional and if there was a role where she was not lone working for example in the Control Room area working with colleagues. I would advise Management to be mindful of this and that she avoids working in night-shift if it requires several shifts in a row or lone working due to the declared symptoms of drowsiness and safety concerns.” By way of explanation, the reference to drowsiness would be as a consequence of medication that Miss Smith was taking. The report explains Miss Smith’s anxiety about her colleagues’ reaction as she is not carrying out certain aspects of her role. The advisor suggests that Management should continue to offer her support in this regard. The report also recommends a Specialist Clinical Assessment to ensure that she receives the appropriate support. This is an assessment at the place of work referred to by the Respondent as a CAT (Clinical Assessment Team).

[53]Mr Bateman immediately made a referral for a CAT Assessment on 10 May 2023, that is at page 148. The referral expressly states the assessment should take place at HMP Bure.

[54]On 13 May 2023, Mr Bateman met with Miss Smith and together they completed a document called a ‘Risk Assessment’. This was completed in discussion between Miss Smith and Mr Bateman and with Miss Smith’s agreement. We note that it included at page 156 that she was not fit to do rub down searches of visitors due to tactile difficulties, she was fit to supervise offenders / visits from the Camera Room only and that she was not fit for lone working. The key hazards were noted as: “Main hazards identified are prisoner and public facing roles due to tactile difficulties. Risk of self-injury with Gate duties and vehicle escorts due to Dyspraxia. Control measures to counter would be recommending no duties involving these tasks.”

[55]On 28 May 2023, Miss Smith emailed Mr Bateman with a subject heading ‘Reasonable Adjustments’. In this email, she complains about the attitude toward her from her colleagues, including complaints that she had to be baby sat, that she was incompetent, that she should resign, that she should work elsewhere, that she was being excluded from social activities, that she had been told to expect the sack soon because that is what happens to disabled members of staff. She explains that this had made her feel miserable, that she was taking the maximum amount of anxiety pills before mid-day because she is on edge about what somebody might say to her.

[56]An incident occurred on 9 June 2023. The following is what Miss Smith says happened: 56.1. She was told to work in the Camera Room and perform searches by a colleague, KT. 56.2. She attempted to decline the instruction by saying, “no”. She attempted to explain that this was not in accordance with her risk assessment and that she had not undertaken searches in this capacity or visits before. She was shouted at and told to, “get down to visits now” and threatened with being reported if she disobeyed. 56.3. She complied with her instructions. 56.4. She and KT performed searches together. 56.5. She was then posted to oversee the visiting from the Camera Room on her own. 56.6. A visitor left the visiting room to use the toilet after which, the requirement was that the visitor should be searched. As Miss Smith was on her own she did the search herself, on her own. She had no gloves. She called a colleague KS to check whether she could leave to get the necessary PPE, or if somebody could bring gloves for her, KS refused the request and laughed telling her that she could not leave her post. 56.7. In fear of getting into trouble, she conducted the search without gloves. The visitor searched had soiled herself, so Miss Smith had urine on her hands. 56.8. Because her hands were soiled, she did not wish to touch any surfaces and allowed the visitor to open the door back into the visiting room herself. KS telephoned her and told her that she was going to get a “bollocking” for allowing the visitor to open the door. 56.9. Miss Smith asked KS if she could leave to go to the bathroom and clean herself, he laughed at her and said, “I wouldn’t if I were you”. 56.10. She was told by another colleague MR who was in the background, that allowing the visitor to open the door was a big security risk. 56.11. Later KS and KT told her that as she used to be a Care Assistant, she should be used to dealing with bodily fluids and they laughed at her.

[57]To be clear, if this account is accurate, the conduct described is dreadful. It does not form the basis of any claim before this tribunal.

[58]By email to Mr Bateman dated 15 June 2023, Miss Smith set out her account of what she said had happened.

[59]An alternative account of events is provided by the individuals concerned, (page 199). As we explained in the hearing, we do not need to make a finding of fact about what happened on 9 June 2023, those events or alleged events, are not relied upon as allegations in the issues before the Tribunal. What matters is that something happened on 9 June 2023 that upset Miss Smith. That is our finding of fact.

[60]The 9 June 2023 was a Friday. Miss Smith worked the following Saturday and Sunday and had a rotared rest day on Monday 12 June 2023. She was absent from work with a migraine on 13 June 2023, she had annual leave on 14 June 2023 and continued working as normal for the rest of that week.

[61]On 20 June 2023, Miss Smith began a period of absence from which she did not return. The first Fit Note is at page 168 and states that the reason for her absence is, “work related stress”. The period of absence is initially certified to 2 July 2023.

[62]Miss Smith did however go to work on 20 June 2023. The CAT Assessment was due to take place and she met with Mr Bateman. Dealing with the CAT Assessment first, Miss Smith understood the assessment was to take place at her place of work. Whilst at work, she received a telephone call from Optima House asking her where she was? They told her that the appointment was at Ipswich. She explained that it would not be possible for her to get from HMP Bure to the location in Ipswich. The document at page 325 is a screen print from the Occupational Health provider’s IT system, which shows that the place of the appointment was to be at HMP Bure. However, it also records that the employee did not attend the appointment, which is unfair and misleading.

[63]In a meeting with Mr Bateman on 20 June 2023, he discussed with her the events of 9 June 2023. He also confirmed to her that he would be making a further Occupational Health Referral.

[64]Mr Bateman made a further Referral to Occupational Health on 21 June 2023 which is copied at page 163. The Report of 22 June 2023 is at page 172. It is provided by a Mental Health Advisor. She states as follows: “It is my clinical opinion based on the assessment today that Miss Smith is currently unfit for work in any capacity. I cannot identify at present any adjustments which can facilitate a return to work or indicate a return date at this stage because of the extent and severity of some of the symptoms reported. However, the outstanding workplace issues will be a barrier to her recovery and return to work. These issues will not have a medical solution and need to be addressed by management by supported discussions with Miss Smith. I recommend that an important first step in this process is a meeting with an appropriate manager to begin a constructive and supportive dialogue to readdress the problems she has been experiencing.”

[65]Also on 21 June 2023, Miss Smith was provided with a letter explaining to her that with effect from 20 July 2023, she would be paid half pay by way of her paid sick leave.

[66]A further Fit Note was provided on 3 July 2023, copied at page 177 which certifies her as unfit because of work related stress until 15 July 2023.

[67]On 11 July 2023, Mr Bateman made a further referral for a CAT Assessment which is copied at page 184. The document at page 325 referred to above, refers to four attempts being made to make contact with Miss Smith in June 2023 without success.

[68]Also on 11 July 2023, Mr Bateman completed a Grievance Form on behalf of Miss Smith, cutting and pasting her above mentioned emails to him of 28 May and 15 June 2023. He then proceeded to investigate the grievance himself, interviewing the three individuals named in respect of the 9 June 2023 incident. The Grievance Form begins in the Bundle at page 186.

[69]A further Fit Note was provided on 17 July 2023, (page 202) certifying Miss Smith as continuing to be unfit for work due to work related stress until 27 July 2023.

[70]By letter dated 19 July 2023, Miss Smith was informed that her sick pay would go down from half pay to zero as of 18 August 2023, (see page 206). On the basis of this letter, we observed that the note at the top of page 219 to which our attention had been drawn must be incorrect, there it was noted that her half pay stopped on 20 July 2023.

[71]Mr Bateman held a meeting with Miss Smith, known as an ‘Informal Review Meeting’, on 28 July 2023. There are two sets of minutes from this meeting, the second set in the Bundle at page 217 are those incorporating amendments proposed by Miss Smith. We take those minutes to be an accurate representation of the gist of what was said at that meeting. We note the following: 71.1. Asked how she was, she replied that she was not fantastic, but not awful. Asked whether she wanted to return to HMP Bure for work, she responded that she loved the job but found it extremely hard working for 37 hours with people who did not like her and that she did not like working with unprofessional people who made a point of putting her in unsafe positions; 71.2. Mr Bateman asked Miss Smith to provide a new Fit Note as the previous one had expired the day before, she confirmed that she would do so; 71.3. We note the following at page 219: “Ade told her that he would not push her to return to work and she would need to return when she was ready. Harriett said that she would like something in place for when she returned and something to change. Ade discussed the phased return and explained how this would mean reduced hours until she was confident. They discussed work arounds like Harriett being met at the Gate on her days back”; 71.4. It was confirmed that Miss Smith’s probation would be extended due to her ongoing absence; 71.5. They agreed to meet again on 10 August 2023; and 71.6. We note the following: “Ade explain that we need the Clinical Assessment results so we can move forward and look at support, explaining that we can’t do one without the other. The assessment will look at Harriett ability to do the OSG role.”.

[72]By way of summary, during this meeting Mr Bateman explored with Miss Smith what adjustments might be required. Miss Smith was not yet fit to return to work. Miss Smith was concerned about how she might be treated by her colleagues on her return to work. Importantly, she did not state that she was fit to return to work. She did not intimate that she was fit to return to work. Mr Bateman confirmed that he would rebook the CAT Assessment and arrange for it to take place at HMP Bure.

[73]On 9 August 2023, Mr Bateman provided an Outcome to the Grievance, which is at page 192. He accepted the accounts that had been provided to him by the other individuals concerned and he wrote: “…it evident that they were offering advice and guidance for you on completing your duties and also highlighting that you could wash your hands in the wash basin in the female toilets. I am satisfied that there was no form of berating, intimidation or declining of requests towards you. It is my opinion that the members of staff I spoke with have all at some point offered you support, advice and guidance within your role as an OSG.”

[74]Mr Bateman made a further Occupational Health Referral on 9 August 2023, (page 237) this was for a particular type of report called an Ill Health Retirement Advice Report. Such a Report is required by the Respondents procedures before conducting a Formal Absence Review Meeting. The referral asks whether there were any reasonable adjustments that would allow Miss Smith to give full and effective service? What barriers were preventing her return to work? Would she be able to complete full and effective service in the future, in relation to her job description, which includes lone working and night duties?

[75]In the meantime, Mr Bateman conducted a further Informal Review Meeting with Miss Smith on 10 August 2023, the notes of which are at page 241. Miss Smith said that she was feeling, “not bad”. She said that she wanted to state, “very clearly” that she is fully intending to return to work. She was asked and agreed to provide a further Fit Note for her continuing absence. She confirmed that she had an appointment with the Occupational Health Advisor on 14 August 2023.

[76]A telephone conference took place on 14 August 2023 between an Occupational Health Physician, Dr Elizabeth Lau, and Miss Smith. Dr Lau indicated that she would be advising the Respondent that Miss Smith was fit to return to work on a phased return to work which should include regular Line Manager meetings to review progress and the preparation of a Stress Risk Assessment. Dr Lau produced a written report to that affect, which is the new document in the Bundle at page 496. She expresses the view that Miss Smith is fit for full and effective service, including lone working and night duties. She recommended referral to the Clinical Assessment Team (CAT) for further evaluation of her overall medical conditions to ensure she had a detailed adjustment plan in place. We note that on 17 August 2023, the Occupational Health Advisors wrote by email to Mr Bateman, (page 243) to say that Miss Smith had prior sight of the report and Miss Smith had withdrawn her consent for the report to be released. We also note that in the subsequent Formal Absence Review Meeting (FARM) on 6 September 2023, the following exchange between Mr Rhoden who conducted the meeting and Miss Smith, (page 275): “SR – So there was a Report, but it was poor. HS – It was yes. So, she sent it to me, but I had withdrew it because of what she was saying. And they read the report and they sent me a copy and they said… I wouldn’t disagree with the fact that she was saying I was fit to come back but I would disagree with the fact that I’d be fit to come back with absolutely nothing in case [sic] whatsoever…”

[77]Our finding is that Miss Smith was provided with a copy of the report and after she had seen it, withdrew her consent for the report to be released to the Respondent.

[78]A further Fit Note was provided on 15 August 2023, (page 245) which certified Miss Smith as unfit due to work related stress until 24 August 2023.

[79]By letter dated 24 August 2023, Miss Smith was invited to attend a FARM scheduled for 4 September 2023. The letter makes clear the meeting will consider her fitness for her role, whether there was any indication of a likely return to work in the near future, whether there were any reasonable adjustments possible, whether a regrade was appropriate, whether she was eligible for Ill Health Retirement and potentially, dismissal on the grounds of failed probation due to attendance.

[80]The FARM was rearranged for 6 September 2023. A CAT Referral was made by Mr Bateman on 4 September 2023, (page 258). Also on 4 September 2023, Mr Bateman chased a further Fit Note as the previous one had expired.

[81]As noted above, the FARM was chaired by Mr Rhoden and took place on 6 September 2023, the notes of this meeting begin at page 264. We have already recited the discussion about the Occupational Health Report and the fact that it was not made available to Mr Rhoden. We must also record Miss Smith’s anger at the Occupational Health Doctor, questioning her qualifications and taking exception to the suggestion that she should return to work without adjustments, that she should stop consulting with her Mental Health Nurse and stop taking medication. Miss Smith appeared to suggest that she was fit to come back to work and had been before now, Mr Rhoden said his understanding of her conversations with Mr Bateman had been that he had said to her if she was ready to come back to work she should come back and if not, continue the Fit Notes. Miss Smith confirmed that she had such a conversation with Mr Bateman.

[82]After a break, Mr Rhoden noted that after 0.56 years’ of service, Miss Smith had 80 calendar days of absence, being the equivalent of 139 days a year. He pointed out that normally, he would have the benefit of an up to date report, but in this case he did not. He noted that the one report he did have, identified severe anxiety and moderately severe depression. It had said that she was not fit for work in any capacity and they could not identify any adjustments that would facilitate her return to work because of the severity of her symptoms, (page 279).

[83]After a further break, Mr Rhoden concluded that after a significant period of sickness absence, the likelihood of her returning successfully to work was in his view low and therefore he concluded that she should be dismissed on the grounds of failed probation due to sickness absence. He explained her last day of service would be that day.

[84]The decision to dismiss was confirmed in a letter dated 8 September 2023. In that letter, Mr Rhoden noted the Occupational Health Report of 22 June 2023 which stated the Advisor could not identify at present any adjustments which would facilitate a return to work. Mr Rhoden had of course been deprived of the benefit of the advice he would have received in the letter of 14 August 2023, had Miss Smith not withheld her consent to its release.

[85]We should record that the Respondent was unable to recruit into Miss Smith’s position whilst she remained on the establishment. Her continued absence created pressure on the Respondent in safely operating HMP Bure. There were no alternative roles to which she could be transferred.

Conclusions

[86]We approach our conclusions by reference to the List of Issues.

[87]Our first point for consideration are the alleged incidents of unfavourable treatment set out at paragraph 15.

[88]The first of such at 15a. is the allegation that on 28 July 2023, Miss Smith attempted to return to work four weeks earlier than she had been signed off for and that the Respondent refused to allow this. That is a misdescription of what happened on 28 July 2023. She did not attempt to return to work. The Respondent did not obstruct her return to work. Miss Smith and Mr Bateman had a discussion about what adjustments could be made, when she was ready to return to work.

[89]What Miss Smith’s Solicitors said at paragraph 31 of their written submissions is correct, in that Mr Bateman did say that a Clinical Assessment would be required before they could move forward, they could not do one without the other. That is not the same as refusing to allow Miss Smith to return to work. Miss Smith had not said that she wanted to return to work, she was not presenting herself as fit to return to work. Mr Bateman’s position was a reasonable position for the Respondent to take. There was no unfavourable treatment.

[90]The Occupational Health Report to which Miss Smith objected, stated that she was fit to return to work. In our judgement, Miss Smith objected to the report because having seen it, she saw that it suggested she was able to return to work. The withdrawal of her consent to the report being provided to the Respondent deprived it of that essential information, upon which it could have acted, instead of dismissing her. Had Mr Rhoden had the benefit of that report, it is very unlikely that he would have dismissed her on 6 September 2023.

[91]It is not correct for Miss Smith to characterise the report as recommending a return to work with no reasonable adjustments. It recommended a phased return to work, a further risk assessment and a CAT assessment, to identify what further adjustments may be required. The Respondent was deprived by Miss Smith, of the benefit of this advice.

[92]The second incident of alleged unfavourable treatment, (15b) is that Miss Smith was dismissed. She was dismissed.

[93]The third incident of alleged unfavourable treatment, (15c) was that on 6 September 2023 she was subjected to a Formal Attendance Review Meeting. That is correct, she was subjected to such a Review, which is unfavourable treatment. Issue 15c. goes on to recite that in the Review, account was taken of the 12 weeks absence when in fact, she had sought to return after 8 weeks. That is not correct. This is a repetition of the point at 15a. Miss Smith had not sought to return after 8 weeks.

[94]This poses the question whether the conduct amounted to unfavourable treatment: 94.1. 15a – Miss Smith was not refused an attempt to return to work on 28 July 2023; 94.2. 15b - Dismissal is unfavourable treatment. 94.3. 15c - So is subjecting an employee to a Formal Absence Review Meeting at which the employee’s future employment is at issue.

[95]This sets out the alleged, “something arising”. Miss Smith was dismissed and was subject to a FARM because she had been signed off work from 20 June 2023 to 7 September 2023 and because she was perceived as either unfit or unfit to return to work as an Operational Support Officer.

[96]This poses the question whether that “something arising” was in consequence of Miss Smith’s disabilities. Mr Holloway sought to argue not, for a number of reasons but notably, he said if Miss Smith was saying she was fit to return to work, it is illogical to say that her absences were caused by her disability. In the Tribunal’s judgement, it is self-evident, obvious, that Miss Smith’s absence was caused by her Autism, her anxiety and her depression, by reaction to events which had taken place at work as she perceived them, for which she is less resilient.

[97]Thus far, Miss Smith has identified unfavourable treatment in the FARM and dismissal, which was because of her absence, which arose from her disability, that is her anxiety and depression, to which she was more susceptible because she was an Autistic person. The burden of proof swings to the Respondent to demonstrate that its actions were a proportionate means of achieving a legitimate aim.

[98]This sets out the Respondent’s legitimate aims relied upon. Miss Smith accepted in cross examination these aims are legitimate and rightly so. For the sake of completeness, we set them out: 98.1. Ensuring an acceptable level of staffing at all times to ensure the smooth running of the Prison; and 98.2. Ensuring the safety of Prison Staff, Prisoners and the wider public.

[99]The key question then becomes as set out at paragraph 21a. and 21b. of the List of Issues. Was subjecting Miss Smith to a FARM and her subsequent dismissal, a proportionate means of achieving those aims? This pose the questions whether the treatment was appropriate and reasonably necessary to achieve those aims and whether the Respondent could have done something less discriminatory instead, which would have achieved the relevant aim?

[100]To the Respondent, it appeared to be at the end of the line. It did not have the benefit of the 14 August 2023 Occupational Health Report informing it that Miss Smith was fit to return to work, that she could return to work with a phased return to work, an updated Risk Assessment and a CAT Assessment. The information that the Respondent had at the time of that meeting was that Miss Smith was not fit to return to work and adjustments to facilitate her return to work could not be identified. The Respondent had attempted to obtain up to date information and had been frustrated in that endeavour by Miss Smith refusing her consent to the release of the report.

[101]The smooth and safe running of a prison is important and a prison must have a full complement of staff to achieve that objective. Long term shortages threaten the safety of prisoners, visitors, prison staff and the general public. There comes a point for any employer where periods of absence become unsustainable and the imperative is all the greater in an establishment such as a prison.

[102]Mr Rhoden reached a reasonable conclusion, a proportionate conclusion on the facts available to him, that he could not be satisfied Miss Smith would be able to provide a reliable service going forward.

[103]Dismissing Miss Smith enabled the Respondent recruit into her post and restore its establishment.

[104]The holding of a FARM and the dismissal of Miss Smith as an outcome, were proportionate means of achieving a legitimate aim. Miss Smith’s complaint of disability discrimination therefore fails. Issues 22 - 25

[105]That leaves the breach of contract claim for notice pay, set out at paragraphs 22 – 25 of the List of Issues.

[106]It is important to understand that the notice provisions contained in the Employment Rights Act 1996 do not apply to Crown employees. That means Miss Smith’s claim for notice pay must be founded on the terms of her contract.

[107]Under the terms of her contract, Miss Smith’s entitlement to sick pay had come to an end. Under the terms of her contract at Clause 15, she was entitled to five weeks’ pay in lieu of notice.

[108]At 9.2.2 of the Civil Service Code, which we find at page 383 of the Bundle: 108.1. Clause 9.2 provides that a Civil Servant dismissed without notice will receive payment equivalent to the remuneration they would have been entitled to had they been able to work out their notice; and 108.2. Clause 9.2.2 provides that shall be the aggregate of salary allowance and bonuses that the individual was contractually entitled to, had they remained in service during the notice period.

[109]Had Miss Smith remained in service during the notice period she would have continued to be absent from work due to ill health and would not have received any pay. She is therefore not entitled to notice pay.

[110]Miss Smith’s breach of contract claim also therefore fails.