Employment Judge AlliottIn person for claimantMr Alan Williams (instructed by Solicitor) for respondentDate 24 August 2020
JUDGMENT
[1]The claimant’s claim is dismissed.
REASONS
[1]The claimant was employed by the respondent from 3 January 2018 as a regional skills manager. She was dismissed on 2 July 2018 at the end of her probation period having failed to demonstrate her suitability for the role.[2]By a claim form presented on 1 October 2018 she made a claim of disability discrimination (failure to make reasonable adjustments) and raised an issue concerning breach of the Working Time Regulations 1998. The respondent defends the claims.
The issues
[3]The issues were set out in a Case Management Summary by Employment Judge Skehan following a CPH held on 4 March 2019.[4]The issues between the parties which potentially fall to be determined by the tribunal are as follows: “Disability status4.1 Does/did the claimant have a physical impairment at the relevant time?4.2 If so does/did the impairment have a substantial adverse effect on the claimant’s ability to carry out normal day to day activities?4.3 If so is that effect long term in particular, when did it start and:4.3.1 Has the impairment lasted for at least 12 months;4.3.2 Is or was the impairment likely to last at least 12 months or the rest of the claimant’s life, if less than 12 months.4.4 Are any measures being taken to treat or correct the impairment? But for those measures would the impairment be likely to have a substantial adverse effect on the claimant’s ability to carry out normal day to day activities?4.5 The respondent has received a copy of the claimant’s impact statement. The claimant must disclose any medical evidence as set out below. Failure to make reasonable adjustments4.6 Did the respondent know or could it reasonably have been expected to know the claimant was a person with a disability?4.7 Did the respondent apply the following provision, criteria or practice (PCP):4.7.1 Requiring the claimant to drive4.7.2 Requiring the claimant to attend meetings with learners, her manager, clients, team members and senior management meetings.4.8 Did any such PCP put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time?4.9 If so, did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at any such disadvantage?4.10 If so, were there steps that were not taken that could have been taken by the respondent to avoid any such disadvantage. The burden of proof does not lie on the claimant; however, it is helpful to know what steps the claimant alleges should have been taken and they are identified as follows:4.10.1 Holding meeting by Skype or virtually;4.10.2 Making arrangements in particular cases (such as meetings with her manager, Mr Lowry, for the meetings to happen at the claimant’s home); Breach of Working Time and Regulations4.11 To be clarified by the claimant – see below directions.”[5]The Working Time Regulations issue5.1 The claim as originally pleaded clearly relates to being persistently required to work in excess of 48 hours per week in breach of the Working Time Regulations. The claimant told us that at the CPH Employment Judge Skehan told her that the employment tribunal had no jurisdiction to entertain such a claim. Accordingly, the claimant was directed to set out full details of her claim under the Working Time Regulations.5.2 This the claimant did in a document entitled “Clarification of Health and Safety” claim. This document reads mainly as if it is a personal injury claim for negligence. The claimant acknowledges that as regards working in excess of 48 hours is concerned, “… I understand this is not an area covered by the jurisdiction of the employment tribunal”. However, the document does refer in several places to a lack of rest breaks. Obviously, a claim may be made to an employment tribunal that an employer has refused to allow an employee to exercise her right to rest breaks. Accordingly, we have reviewed the position to determine if such a claim is before us.5.3 The respondent pleaded an amended response to the claimant’s further information, denying any breach and requesting details of the dates and times that the claimant was alleging she was not provided with rest breaks.5.4 No such particulars have been provided by the claimant. The issue of rest breaks is not dealt with at all in her witness statement. No application to amend to include such a claim has been made.5.5 The claimant’s contract of employment provides that her place of work was her home and that she was entitled to a daily 60 minute meal break. The claimant spent a considerable time driving and has made reference to taking breaks at service stations. She was a senior manager who had a high degree of autonomy as to how to structure her day, including the taking of breaks.5.6 We decided that there is no pleaded or evidential claim before us of a failure by the respondent to allow the claimant to take rest breaks contrary to the Working Time Regulations. Accordingly, we record that the claimant has not brought such a claim.
The evidence
[6]We have been provided with a bundle running to 324 pages. In addition we heard from the following witnesses:- The claimant Mr Eugene Lowry, the respondent’s operations director Mr Lee Acton, the respondent’s chief executive officer (by CVP) Mr David Whiffing, the respondent’s health and safety consultant[7]In addition we had a witness statement for the claimant from a Mr David Walsh, a former skills coach assessor for the respondent. His evidence was not challenged by the respondent and so we have taken his statement as read.
The law
[8]Disability8.1 Although the respondent initially reserved its position on the issue of disability, on 21 May 2019 the respondent conceded disability but maintained that it did not have actual or constructive knowledge of the claimant’s disability. Accordingly, we have treated the claimant as disabled within the meaning of the Equality Act 2010 at all relevant times.8.2 Due to the respondent’s concession we have not had to deal with the issues raised in relation to the claimant’s disability status.8.3 Paragraph 20(1) of Schedule 8 to the Equality Act 2010 provides as “20. Lack of knowledge of disability, etc. (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know… (b) In any other case referred to in Part 2 of the schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.”8.4 As per paragraph 21.8.5 of the IDS Employment Law Handbook “Discrimination at Work”:- “It is clear from paragraph 20(1) that the employer will only come under the duty to make reasonable adjustments if it knows not just that the relevant person is disabled but also that his or her disability is likely to put him or her at a substantial disadvantage in comparison with a non-disabled person. Knowledge, in this regard, is not limited to actual knowledge but extends to constructive knowledge (ie what the employer ought reasonably to have known). In view of this, the EAT has held that a tribunal should approach this aspect of a reasonable adjustments claim by considering two questions: First, did the employer know both that the employee was disabled and that his or her disability was liable to disadvantage him or her substantially? If not, ought the employer to have known both that the employee was disabled and that his or her disability was liable to disadvantage him or her substantially? – Secretary of State for Work & Pensions v Alam [2010] ICR 665, EAT. It is only if the answer to the second question is “No” that the employer avoids the duty to make reasonable adjustments.”8.5 The EHRC Code of Practice on Employment (2011) provides as “6.19 For disabled workers already in employment, an employer only has a duty to make an adjustment if they know, or could reasonably be expected to know, that a worker has a disability and is, or is likely to be, placed at a substantial disadvantage. The employer must, however, do all they can reasonably be expected to do to find out whether this is the case. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially. 6.20 The act does not prevent a disabled person keeping a disability confidential from an employer. But keeping a disability confidential is likely to mean that unless the employer could reasonably be expected to know about it anyway, the employer will not be under a duty to make a reasonable adjustment. If a disabled person expects an employer to make a reasonable adjustment, they will need to provide the employer – or someone acting on their behalf, with sufficient information to carry out that adjustment.”8.6 As per the IDS Employment Law Handbook at 21.89:- “While knowledge of the disability places a burden on employers to make reasonable enquiries based on the information given to them, it does not require them to make every possible enquiry, particularly where there is little or no basis for so doing.”[9]Reasonable adjustments9.1 In this case we have concluded that the respondent did not know and could not reasonably have been expected to know that the claimant was a person with a disability and that a PCP would be likely to place that employee at a substantial disadvantage. As such, a detailed exposition of the law in relation to a failure to make reasonable adjustments is not necessary.9.2 However, the claimant bears the burden of establishing a prima facie case that the duty to make reasonable adjustments has arisen and that there are facts from which it could reasonably be inferred, absent and explanation, that the duty has been breached.9.3 In this case the claimant relies on the two PCPs set out in the list of issues.9.4 We have to consider whether the PCPs, if established, put the claimant at a substantial disadvantage in relation to a relevant matter and whether the respondent knew or could have reasonably have been expected to know of that disadvantage.9.5 We then need to consider the reasonableness of any proposed adjustment.
The facts
[10]The claimant was employed as Regional Skills Manager for the south-west and Wales on 3 January 2018. She was managing four assessors in her team plus, at some times, part-time/freelance assistants.[11]Her place of work was from home but there were regular management meetings with clients, team members and senior management which required her to travel by car. Latterly, when the claimant became responsible for a departing team member’s caseload, her travels included meetings with learners. After March 2018 approximately 80% of her time was spent working away from home. Mr Acton told us and we accept that it was open to the claimant to stay overnight in hotels at the respondent’s expense and to cut short her working days whilst travelling.[12]On 15 January 2018 the claimant unfortunately had an accident whilst descending stairs at the respondent’s offices in Croxley Green, Watford. She stumbled and twisted her right knee and, after sitting through a meeting, her knee swelled up badly. Later that evening she attended A&E. In her witness statement the claimant states that she was told that she had torn the meniscus ligament in her knee. We doubt that at that stage she knew of the tear to her meniscus ligament or cartilage as it appears to have been diagnosed following an MRI scan that took place on 24 January 2018.[13]Whether or not she was at that stage aware of the tear in her meniscus ligament or cartilage, she does not appear to have reported it to her employers. Mr Lowry states that on 16 January 2018 she only reported that she had been advised to rest her leg and keep it elevated.[14]On 16 January 2018 at 8:43 the claimant sent an email to the respondent (name redacted) stating:- “Meanwhile I twisted my right knee yesterday coming downstairs at Skillet. It’s swollen and very painful and I went to A&E last night and they’ve given me a crutch to aid walking. I’ve notified Eugene and I’ll take the day off today to rest and will reschedule my diary so that I can work from home until I regain some mobility.”[15]Later on 16 January 2018 at 11.54 the claimant sent another email to a member of her team which stated as follows:- “… I’m afraid I’m going to have to revise our meeting and the observation tomorrow as I managed to twist and sprain my knee yesterday and spent the evening in A&E. It’s now very swollen and painful so I’m having to rest and I’m not allowed to drive. … I’m going to rest today and get back to work tomorrow as I should be able to work from home until I regain some mobility.”[16]Later on 16 January 2018 at 13:15 the claimant sent an email to two other members of her team as follows:- “I managed to twist and sprain my knee yesterday while coming down the stairs at Skillnet so as a result my mobility is going to be restricted for the next few weeks. At the moment my knee is really swollen and very painful and I’ve been told not to drive and I’ve been told to rest. I don’t however plan to take much time off work and hope to get back either tomorrow or Thursday as I’ll be able to work from home and I how (sic – hope) to do our 1-2-1 meetings by Skype and I’ll just have to postpone the planned observations until I can get back on the road.”[17]On 17 January 2018 at 07:53 the claimant sent an email to Mr Lowry as “Just to let you know that my knee is still very painful and I’m unable to weight bear so I’m planning to rest and keep my leg elevated again today.”[18]Later on 17 January 2018 at 09:19 Mr Lowry sent an email to Mr Whiffing which states as follows:- “I hope you are well. One of my new managers Jane Hyde-Walsh twisted her knee on the stairs on Monday at Croxley not technically an accident but she did injure herself enough to end up in hospital and took a half day sick yesterday as a result. Anything I need to do?”[19]At 09:36 on 17 January 2018 Mr Whiffing replied to Mr Lowry as follows:- “It is classed as an accident and you need to record it in the accident book at Croxley and make sure a copy is scanned to me so that I can record it.”[20]On 17 January 2018 at 10:20 Mr Lowry emailed Mr Whiffing again stating:- “Let me know if I need to do anything else please. She is off again today so two days off. Advised rest and elevation of leg as some fluid on the knee. Taking painkillers no other medication.”[21]Later that day Mr Whiffing replied:- “Thanks Eugene, I have recorded the accident and left it open until she makes a full recovery and return to work. If she goes past seven days off can you let me know so that I can do the HSE paperwork to notify them. On the other hand if she makes a full recovery and returns to work within seven days also please let me know and I will close the accident log.”[22]The accident report was filled in on 17 January 2018. This records:- “Give details of how the accident occurred with cause if known: Twisted knee as turning corner on stairs… Give details of any injury suffered by person involved: Twisted and sprained knee required hospital visit rest recommended and painkillers advised MRI scan not booked.”[23]The claimant resumed working from home on 18 January 2018.[24]Mr Lowry completed a return to work interview by telephone on 19 January 2018. This contains the following:- “Discussed reasons for absence: Twisted knee in workplace on Monday 15 January. Sprained knee resulted in hospital appointment. Recommended to rest and ice knee to reduce swelling. Provided with crutch and now able to move and walk.” “Summarise agreements and next steps. Jane has returned to work slightly restricted mobility. Two days absent. Review again on Monday.”[25]On 23 January 2018 at 15:44 the claimant sent an email to Mr Lowry concerning one of her team, Mr Walsh. This states:- “I been working on profiling [Mr Walsh’s] learners and have found that 26 of them should be terminated. … This termination exercise leaves [Mr Walsh] with a current and I feel manageable workload of 31 at the moment. I therefore don’t think it’s worthwhile looking for another skills coach at this point in time…”[26]Also on 23 January 2018 at 15:45 the claimant sent an email to Mr Lowry, “Subject: update about knee injury”. This stated:- “I just wanted to update you on my knee injury, which is getting a bit better but is still very painful. I have been offered a cancellation appointment for an MRI scan tomorrow so I’ll be out of my office for a maximum of three hours…”[27]The claimant had the MRI scan on 24 January 2018.[28]On 25 January 2018 the claimant sent an email at 10:56 stating:- “It’s improving slowly but surely. I had an MRI scan yesterday so I should know the extent of the damage soon.”[29]We have a chain of emails between 17 January and 25 January 2018 wherein the claimant was requesting assistance from the respondent’s IT department to hold meetings by Skype or other platform. The respondent’s IT department provided the claimant with Webex login and password details along with advice and follow up help. It would appear this was not pursued as the claimant’s team members had not downloaded the necessary software to link in to it. However, the respondent was clearly endeavouring to offer Skype following a request from the claimant for it.[30]It is clear to us that the claimant had been advised to rest at home and not drive following her accident. This the respondent allowed her to do.[31]In her witness statement at paragraphs 8 and 9 the claimant sets out that she had to alter her workplans to accommodate her injury so that she would not need to undertake one-to-one meetings with her team and that she dealt with them remotely rather than face-to-face. In a Month 1 review form completed on 21 February 2018 the claimant reported to the respondent:- “This has been a challenging first month partly since I tore a ligament in my right knee on 15 January 2018 – this has really slowed me down and has meant that I have had to adjust my plans accordingly as I haven’t been able to make the face to face visits I originally planned with each of my team members. However, I feel I have adjusted quite well to the limitations caused by my injury and have spent a lot of valuable time building relationships with both team members, colleagues, clients and learners.”[32]We find that the claimant had a high degree of autonomy as to how she did her work and was allowed and able to restructure her working day around her injury. She was allowed to miss a meeting due to be held on 30 January due to a footbridge making access difficult.[33]On 3 February 2018 Mr Whiffing emailed the claimant stating:- “As I have not heard anything I am just checking to see if you are well and at work after your accident? Please let me know”[34]On 5 February 2018 the claimant replied:- “Many thanks for checking in and I was back at work within two days of my accident as I am able to do my work from home. I’ve torn the cartilage in my right knee and I’m waiting to see what the doctor recommends in terms of treatment. In the meantime I am being treated by a private physio and have some exercises to do and it’s improving.”[35]On or about 9 February 2018 a member of the claimant’s team, Mr Walsh, resigned. His case load reverted to the claimant as was the respondent’s policy. How the claimant dealt with the extra caseload we find was down to her. Mr Acton told us the options were:-35.1 Recruit a new team leader35.2 Utilise peripatetic resources (freelance/part-timers)35.3 Allocate existing resources. The expectation was that the caseload per team member would be 55. However, Mr Acton told us and we accept that that figure could rise and fall seasonally and Mr Walsh’s caseload could have been distributed amongst the remaining team members.35.4 Borrow resources from other regions.[36]The claimant did recruit a temporary assistant for one month in February and this temp was approved for a second month in May.[37]The claimant did interview two candidates for team member but neither were deemed suitable. However, it is clear to us that the respondent was making the resource available to the claimant. The claimant does not appear to have reallocated Mr Walsh’s caseload to her team members and took on most of them herself. This did involve the claimant in some extra travel. However, as manager of the team we find that that was her decision.[38]The claimant was required to meet Mr Walsh to conduct an exit interview. She arranged this at a pub 30 minutes’ drive from her home. She was able to attend but tells us it was difficult and painful as she was still on crutches. We note that Mr Walsh, as junior to the claimant, could have been instructed to attend her home. Be that as it may, had the claimant been too unfit to drive it was open to her to decline on sickness or health grounds.[39]On 12 March Mr Whiffing emailed the claimant as follows:- “Just checking on how your recovery is going after your accident. Are you fully recovered now? Please let me know.”[40]On 12 March 2018 the claimant replied as follows:- “Many thanks for your email and I’m making good progress. I had an MRI scan which revealed a major tear in my meniscus ligament on my right knee. I have seen a consultant and have been treated by a private physio and I’m now in the NHS system receiving regular physio appointments and have a series of exercises to do which I am doing. The prognosis is that it should be fully healed by the end of April all being well. I’ll keep you posted about any changes to this but I am able to walk around alright although not massive distances and stairs are difficult of [sic] me to navigate and it’s still painful but nothing like it was before.”[41]On 20 April 2018 Mr Whiffing emailed the claimant as follows:- “How are you? Are you recovered yet?”[42]On 20 April 2018 the claimant replied as follows:- “Thanks for asking and I’m getting there. Still under the care of physio and although I had a setback earlier this month from overdoing things it seems to be healing slowly but surely.”[43]On 2 May 2018 the claimant’s probation period was extended.[44]As regards the two PCPs recorded in the list of issues, there is no real dispute that they did form part of the claimant’s job. She was required to drive and she was required to attend meetings with learners, her manager, clients, team members and senior management meetings.[45]The substantial disadvantage alleged by the claimant to flow from these PCPs is not set out in the list of issues. At the outset of this hearing we invited the claimant to identify the substantial disadvantage that she claims she was put at as a result of the PCPs. She explained to us that the extent of driving that her job entailed caused an exacerbation of the pain in her right knee which made it very difficult. She says that she was in constant pain and could not straighten her leg.[46]It is fair to say that in her claim form the claimant set out:- “The increasing amount of travel and hours I worked in order to meet KPIs caused increased…?... discomfort to my right leg and had a severe impact on my wellbeing.” (On every copy part of the sentence is obliterated)[47]However that quote was very much in the context of working excessive hours.[48]In her witness statement the claimant barely alludes to the alleged difficulties in driving. The meeting with Mr Walsh on 9 February 2018 was clearly difficult as she was still on crutches and she says she suffered pain driving there and back. However, apart from that, the only incident she refers to is one in early June when she had to go to Plymouth for three days of delivery time. She states:- “My knee injury made it daunting for me to repeat this journey, which I’d previously undertaken in April…”[49]In a bid to mitigate the effects of driving a long way the claimant’s partner drove her. Again the context of this complaint is very much being required to work excessive hours.[50]We have considered whether the requirement to drive considerable distances for considerable periods of time put the claimant at a substantial disadvantage compared with persons who weren’t disabled. We find that the claimant steadily increased her driving time between March and June 2018 from 1,050 miles to 2,097. Apart from the initial month from her accident, there is no contemporaneous documentation indicating that the claimant at any stage informed the respondent that driving caused an exacerbation of pain and discomfort, the substantial disadvantage that she now claims.[51]On 22 June 2018 Mr Whiffing emailed the claimant as follows:- “How are you? Are you fit and well or still under recovery? Please let me know.”[52]On 22 June 2018 the claimant replied as follows:- “Many thanks for checking in and I’m lots better thank you. I’ve been discharged from the physio and have an exercise regime to follow so I continue to strengthen the muscles around the injury. It can still ache from time to time but I can walk quite far now but just have to be careful – no marathon walks for me any me [sic]! On another subject I’m finding I’m working major hours and have raised this with Eugene. I got home at 8pm last night having clocked 55 hours for the week. Still working again today – so will probably clock 63 or 64 hours for this week. Can you please give me some guidance on how to manage this as I haven’t opted out of the working time directive and know I’m in breach?”[53]Once again it appears to us that the nature of the claimant’s complaint is not so much the fact of having to drive but the fact that she was having to drive excessive hours. Nevertheless, since it may be said that establishing a substantial disadvantage represents a relatively low threshold, we accept that being required to drive and attend meetings did place the claimant at a substantial disadvantage compared with an able bodied individual in that it caused her pain.[54]We go on to consider whether the respondent knew or ought to have known that the requirement to drive and attend meetings was likely to place the claimant at such a disadvantage.[55]We note that the claimant was well able to complain about having to work for excessive hours. We find that had she suffered significant problems with driving then she would have raised it with the respondent. That she did not suggests that she did not suffer the claimed disadvantage to any great extent. In any event we find that the respondent was unaware of any such alleged disadvantage. The impression we have formed is that the claimant was initially advised not to drive but then gradually increased her mobility, increasing the number of miles covered per month steadily. This was all against a background where every time she was asked how she was progressing she was positive and suggesting steady progress.[56]It is now clear that the claimant’s injury has not progressed as initially expected. In her witness statement the claimant states that:- “Medical staff were optimistic that it could improve over time with physiotherapy treatment and adjustments in my lifestyle.”[57]It is noticeable that in her claim form the claimant states:- “I was unaware at the time that the severity of my injury met the definition of a disability under the Equality Act and I was entitled to have reasonable adjustments made to my job role.”[58]She also states in her claim form:- “As I was still on probation and given the way staff were treated in the business I was loathe to complain or ask for any special treatment.”[59]Indeed Mr Acton reports the claimant as stating during her appeal hearing that she had not “shouted loud enough” about what she felt she needed.[60]Whether or not an employee knows she is disabled and whether or not the employee asks for adjustments does not, in our judgment, absolve the employer from making reasonable enquiries if circumstances warrant such enquiries. However, it does provide some context as to both the claimant’s and the respondent’s knowledge of her injury and the likely prognosis. We find that the claimant was optimistic about making a recovery and that this was what she was reporting to the respondent.[61]Following a review of the claimant’s probation period on 25 June 2018 the claimant was dismissed on 2 July and her appeal was unsuccessful.
Conclusions
[62]We find that the claimant was disabled within the meaning of the Equality Act 2010.[63]We find that the respondent did not know that the claimant was disabled at any relevant time within the meaning of the Equality Act 2010.[64]We have carefully considered whether the respondent did all they could reasonably be expected to do to find out whether the claimant was disabled and whether a PCP was likely to place her at a substantial disadvantage.[65]We find that the claimant at all times was very optimistic about her prospects of making a full recovery, for example her indication to the respondent on 12 March that the prognosis was for a full recovery by the end of April.[66]It may be that the claimant was underplaying the impact of her injury on her work, but we find that she presented as coping and able to do her job. Regular enquiries were made of her as to her progress and she provided information of ongoing treatment and steady progress. Further, the claimant made no contemporaneous complaints about the driving she was required to do putting her at a disadvantage in the sense that it caused her excessive pain.[67]We find that the enquiries that the respondent made as to the claimant’s wellbeing following her accident were entirely reasonable in the light of the information she was providing to the respondent. We find that the severity and implications of a torn meniscus are potentially variable and could result in a range of outcomes. In our judgment a torn meniscus does not automatically constitute an injury of such severity that disability should be assumed probably to arise. On the facts of this case we find that such enquiries as the respondent made in the context of the information available at the time were entirely reasonable. We find that the claimant did all that it could reasonably be expected to inform itself as to the nature, extent and prognosis of the claimant’s injury. Consequently we find that the respondent could not reasonably have been expected to know of the claimant’s disability and could not reasonably have been expected to know of the specific disadvantage alleged in this case.[68]Accordingly the claimant’s claim is dismissed.[69]We do not go on to consider the adequacy of the adjustments that were in fact provided to the claimant as to do so is unnecessary.