Mrs K MutchClaimantBan-Car Hotel LimitedRespondent
Before
Employment Judge N M HosieDate 26 February 2021
JUDGMENT
The Judgment of the Tribunal is that the application by the respondent’s solicitor to strike out the claim or alternatively for a Deposit Order is refused.
REASONS
Introduction
[1]The claimant brought complaints of disability discrimination and for notice pay. The claim is denied in its entirety by the respondent. Also, it is not conceded that the claimant was disabled in terms of the Equality Act 2010. ETZ4(WR)[2]The respondent’s solicitor applied for the claim to be struck out. This case came before me, therefore, by way of a Preliminary Hearing to consider whether the claim should be struck out as being “vexatious”, or having “no reasonable prospect of success”, in terms of Rule 37(1)(a) in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules of Procedure”); or whether a Deposit Order should be made, on the basis that the claim has “little reasonable prospect of success”, in terms of Rule 39.[3]At the Preliminary Hearing I heard evidence from the claimant and submissions by the parties’ solicitors. Documentary productions were also lodged by the parties’ solicitors (“C” and “R”). Respondent’s Submissions[4]In support of his submissions, the respondent’s solicitor referred to the following cases:- Attorney General v Barker [2000] EWHC 453 Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330 Anyanwu v Southbank Student Union [2001] ICR 391 Chandhok v Tirkey [2015] ICR 527 Ahir v British Airways PLC [2017] EWCA Civ 1392[5]He confirmed that he was not only seeking a strike out on the basis that the claim has “no reasonable prospect of success” but also that it is “vexatious”.[6]He readily accepted that it was clear from the case law, and such cases as Ezsias, that the test for strike out on the basis of a claim having no reasonable prospect of success is a high one and would be the exception but maintained that in the particular circumstances of the present case it was appropriate.[7]He referred to the following passage from the Judgment of the Court of Appeal in Ezsias at para 29:- “It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospects of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation”.[8]The respondent’s solicitor submitted that that “example” was the position in the present case.[9]He referred to the following passage from the Judgment of Lord Steyn in Anyanwu at para 24:- “For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and a proper determination is always vital in our pluralistic society”.[10]He also referred to the Judgment of Lord Hope in Anyanwu at para 39:- “Nevertheless I would have held that the claim should be struck out if I had been persuaded it had no reasonable prospect of succeeding at trial. The time and resources of the Employment Tribunals ought not to be taken up by having to hear evidence in cases that are bound to fail”.[11]The respondent’s solicitor submitted that the more recent case law demonstrated a “more pragmatic and flexible approach”. He referred to the following passage from the Judgment of Mr Justice Langstaff at para 20 in Chandhok:- “There may still be occasions when a claim can properly be struck out – where, for instance, there is a time bar to jurisdiction, and no evidence is advanced that it would be just and equitable to extend time; nor where, on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic which (per Mummery LJ at paragraph 56 of his Judgment in Madarassy v Nomura [2007] ICR 867): “only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”. Other claims may have been brought so repetitively concerning the same essential circumstances that a further claim (or response) is an abuse. There may well be other examples, too: but the general approach remains that the exercise of a discretion to strike-out a claim should be sparing and cautious. Nor is this general position affected by hearing some evidence, as is often the case when deciding a preliminary issue, unless a Tribunal can be confident that no further evidence advanced at a later hearing, which is within the scope of the issues raised by the pleadings, would affect the decision”.[12]Finally, so far as the relevant case law was concerned, the respondent’s solicitor referred to the following passage from the Judgment of LJ Underhill in Ahir, at para 16:- “Employment Tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment”.[13]At para 23, LJ Underhill made reference to the “inherent implausibility” of the claim succeeding. The respondent’s solicitor submitted that that was the position in the present case. Respondent’s submissions on the claimant’s case[14]The claimant maintains that she was dismissed, without notice, on 1 December 2018. She alleges that her dismissal was “intimated” when “Tina”, the Director and proprietor of the respondent Company, “screamed at her to get out” at the conclusion of an allegedly unfair disciplinary process.[15]This is disputed. The respondent maintains that the claimant, “terminated her own employment without notice on Saturday 1st December 2018”.[16]The claimant further maintains that she was, “singled out and subjected to detriments because of her disability”.[17]The respondent’s solicitor referred me to the claimant’s “Facebook entries” (R3). He referred, in particular, to two “posts” by the claimant on Saturday 1 December 2018 to “Tina” (R3/9). The first post at 12:08 was in the following terms:- “Tina I’ll give Teresa my chef’s trousers jackets ect I know I’ve lost my deposit but your out order shouting at me calling me a lier I left my last job get your facts right slander is a bad thing. Susans a lier I’ll proof it see u at court I’m taking to for for having no choice to leave (my emphasis). I have proof of u shouting yelling at me calling me lier. U beleave Susan all you like don’t care but you are not getting away with shouting at me again. Slander speak about me in u kitchen I’ll take u for slander and rest u staff. See u in court you have no idea what goes on but one thing bullying in u kitchen u did nothing. U went to far Tina I have proof my solicitor will hear u yelling at me in Monday u went to far I had no choice to just walk (my emphasis) u listen about gossip u have no idea about me but u will Susan is nothing but a lier enjoy u Christmas u will need it picking on me for no reason bye ” [sic][18]The second post was at 16:18 and was in the following terms:- “Just so u know I’ve contacted my solicitor Tina u were out order today big time u listened to Susan’s gossip I know it was here u told u stuff about me. U need to treat u staff better shouting at me in front other members of staff and calling me a lier u went way to far. And u allow Karen and Susan to still talk about me when u left kitchen. I’m taking u for discrimination u know damn fine I’ve bad depression treating me like that that is disgusting see u in court Tina I have a strong case against u allowing bullying in new kitchen when u knew damn well. I want my wages due holiday pay deposit back and my share of tips u shouted one time to many. Listening to Susan’s lies I have proof did not say all that to her. U and Karen had a pick of me any opportunity glad u protect the bullies at bancar if I here gossip from today from any of u employees my solicitor will deal with it don’t talk about me or u staff. U don’t know how to treat people disgusting people will know what u like I stood up for myself Karen is a bully see that now Susan is gossip u will see when truth comes out. I walked out forced out by your aggressive manner (my emphasis). Out order. U have no idea what happens in kitchen no more messages my solicitor dealing with u bullying allowing it to happen and picking on me in front of staff out order big time” [sic].[19]The respondent’s solicitor submitted that these posts did not suggest that the claimant had been dismissed, as she alleged, and nor was there any reference to a disciplinary process.[20]Further, so far as the allegation of bullying in October 2018 was concerned, the respondent’s solicitor referred me to other communications which the claimant had with “Tina”. He referred in particular, to a post on 29 October 2018 at 10:56 (R3/1/2) and maintained that while this exchange addresses the “tense atmosphere in the kitchen” there is “nothing about bullying”:- “ Morning Tina due to the problem last nite I have put in writing what I said I am still very upset about last nite. Yes I did tell Eileen that chef who I call Karen did tutt at me on Friday nite I never said last nite. Not once did I say tuna your name was never brought up once. Also I said I liked working with Teresa I never once said she was good chef bad chef. Levi was one said she did not like Teresa and did not like working with her. Yes I should of went to chef Karen and told her but it was brushed if as I felt all 3 of us said things not just me. Levi was rude to me 3 times on Sunday nite not once did I say anything to her I ended up in tears Eileen saw this I let it go. Hands feet have been added on to what I said I think feel all the blame was not on me. I under stand u was very angry it showed but I would have liked to have got my side across this has left me very upset. I did send text to Karen telling her my side. Every one was tripping over every one I see Elaine likes to do starters herself. I really don’t know what to say I like chef Karen she’s very good at her job if I upset her it was never my intension. And I would never talk about u Tina never. Thanks for taking time to read this Karen.” [sic][21]The respondent’s solicitor submitted, therefore, that the fundamental facts which provide the basis for the claim are, “misplaced and contradicted by the claimant’s contemporaneous statements”. That is especially so in relation to the issue of whether the claimant was dismissed, as she maintains, or whether she resigned as the respondent maintains. It was submitted that, “these Facebook posts are at odds with the claimant’s assertions. Further, there is no assertion either in these posts that this had anything to do with the claimant’s alleged disability”.[22]It was submitted, that because of these “inherent contradictions” there was, “a lack of any genuine substance” to the claimant’s averments in the ET1 claim form.[23]While the respondent’s solicitor accepted that a strike out is exceptional, he relied on the Judgment in Ezsias, in particular, on the basis of what he maintained were “undisputed contemporaneous facts”, namely the claimant’s Facebook posts. Claimant’s evidence[24]The claimant was referred first of all by her solicitor to the Facebook communications she had with “Tina”, shortly before she started to work at the hotel (R3/1). She accepted that she “might have said” that she has “a slight stammer” but said that this was “just a saying”. She wanted to make Tina aware of this before they met. She explained that she sent a number of Facebook messages as she found it easier to communicate in that way.[25]The claimant accepted that she sent the communication on 29 October 2018 at 10:56 (R3/1/2) which the respondent’s solicitor referred to. She said that the Head Chef was “slagging her off” and when she confronted her about this, “she didn’t take it kindly” and Tina had supported the Head Chef rather than her.[26]I enquired what the Head Chef was “slagging her off” about. She said that she (the Chef) “had problems with her”.[27]In a later post on 29 October the claimant said this (R3/3):- “I’m taking from your reaction. Last nite I have been sacked there for I said what I said but had been picked up wrong way, yes you was very angry at me Tina I’ve never been spoken to like that before. As I know my place I try to tell you what happened but felt best I went as I saw u were angry to talk to. If I am sacked can you please tell me thank you”. [sic][28]Tina responded as follows (R3/3):- “I didn’t sack you Karen. I told you to leave the hotel last night as I wasn’t willing to discuss at that time of night, when we were locking up. Levi was on veg last night not starters. No one talks about each other Karen, we all get on fine, although like normal kitchens tension can run high when busy, but everyone just gets on. Nothing was mentioned to me about depression Karen. When asked about your health and fitness you said nothing. I have asked you to come in and discuss with Karen (Head Chef) and myself therefore it’s up to you. We then will need to pull everyone in to discuss this further. Tina”[29]The claimant was then asked about the post on Saturday 1 December at 12:08 (R3/9) the day her employment ended. She accepted that she was the “Facebook User”. She accepted that she had made this post but maintained that she did not “walk out”. She said that she was telling Tina that she was, “taking her for discrimination”.[30]So far as the post at 16:18 was concerned (R3/9), she claimed that, “Tina and her witness” had “cornered” her and that they were swearing at her, “get out, get out, get out”. She said that she took this to mean that she had been sacked. She said that “the CCTV will prove this”. Claimant’s submissions[31]In support of her submissions the claimant’s solicitor referred to the following cases: Bennett v Southwark LBC [2002] EWCA Civ 223 Attorney General Ezsias James v Blockbuster Entertainment Ltd [2006] EWCA Civ 684 Balls v Downham Market High School & College [2010] UKEAT0343/10/1511 Anyanwu Mechkarov v Citibank NA [2016] ICR 1121 AVB and another [2009] UKEAT0450/08/1305 Ahir Dossen v Headcount Resources Ltd and others [2013] UKEAT0483/1/- Sharma v New College Nottingham [2011] UKEAT0287/11/0112 H v Ishmail UKEAT/0021/16[32]The claimant’s solicitor also referred to her letter of 23 July 2019 to the Tribunal, by way of response to the respondent’s strike out application, the terms of which she adopted as part of her submissions. The letter is referred to for its terms. In the letter she made reference to a number of the above cases. In particular, with regard to the respondent’s contention that the claim was vexatious, she referred to the following passage from the Judgment of LJ Bingham in Attorney General :- “The hallmark of a vexatious proceeding is, in my judgment, that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”.[33]The claimant’s solicitor went on in her letter to say this:- “In our view, the respondent has failed to establish that the claimant has brought a claim of this nature entirely. The respondent has made vague reference to some of the points of the case with which they disagree, namely the circumstances surrounding the cessation of the claimant’s employment including:(a) a question of whether the claimant resigned or was dismissed;(b) the respondent’s knowledge or otherwise of the claimant’s alleged disability;(c) the extent and impact of any impairment; and(d) the extent, if any, to which any disability was a factor in the cessation of the claimant’s employment” These questions which the respondent highlight, are simply matters which would be for the Tribunal to determine in a disability discrimination claim. They are not, by any means, exceptional. It appears that the respondent is objecting to what is an ordinary disability discrimination claim. The grounds upon which the respondent seeks to strike out the claim are ordinary questions for the tribunal.”[34]She also referred to the Judgment of the Court of Appeal in Ezsias, that, it would only be, “very exceptionally, that a case should be struck out without the evidence being tested”.[35]She then went on in her submissions to say this:- “For the claimant, it is evident that there is an arguable case in law. Upon examination of the case, we have identified four heads of claim on the basis of disability discrimination. The claimant suffers from depression and has had a significant speech impediment since birth. Her communication is impaired. It is clear that such a disability would impact all day to day activities which involve talking. The claimant was impeded in her ability to stand up for herself which the respondent took advantage of and exploited. The claimant advises she was the victim of workplace bullying as a result of her communication difficulties. The claimant was held to a completely different standard due to her disability and was discriminated against and eventually dismissed as a result. The claimant was patronised by other employees, who drew on paper rather than speaking to the claimant. The claimant was verbally abused and characterised as a liar and a troublemaker during her employment. Due to these assertions, it is clear that the claimant has an arguable case in law, which must be explored by the Employment Tribunal in line with the overriding objective”.[36]So far as the alternative submission by the respondent’s solicitor was concerned, that the claimant should be required to pay a deposit on the basis that the claim has “little prospect of success”, the claimant’s solicitor submitted that similar considerations to those relating to a strike out application applied (Tree v South East Coastal Ambulance Service UKEAT/0043/17).[37]She submitted, therefore, that a Deposit Order would also not be appropriate.[38]In this connection, she also referred to Sharma and submitted:- “The EAT held that it was wrong for a tribunal to make a deposit order in respect of a race discrimination claim where the contemporaneous documentation did not support the claimant’s version of events. The respondent has suggested that the claimant has made previous statements which contradict her claim. The respondent has neither produced these statements, nor advised the Tribunal of the content.”[39]At the Preliminary Hearing the claimant’s solicitor also amplified her previous written submissions in her letter of 23 July. She referred to para 6 of the Judgment of the Court of Appeal in Ahir where it would have been necessary, for the claimant to succeed with her employment tribunal claim to find that six separate Managers, “had each permitted the background issues of the claimant’s protected acts to taint their decision making, although there was no evidential basis for stating that each of these Managers was aware of those issues (those protected acts) …”. She submitted that the present case was “nothing like that”.[40]She also drew to my attention that there was very little by way of response from the respondent to the claimant’s Facebook posts. The claimant’s employment came to an end “in difficult circumstances” and it was clear from her posts that she felt aggrieved as there was an “aggressive situation at work”. However, the Facebook posts, “are not the entirety of the dialogue” as there were also “face to face” discussions. Discussion and Decision[41]The test for strike out of a discrimination complaint is a high one. Lord Steyn said in Anyanwu that as discrimination cases tend to be “fact sensitive” strike out should only be ordered, “in the most obvious and clearest cases”. Lord Hope also said in that case that, “discrimination issues … should, as a general rule, be decided only after hearing the evidence”. However, I also remained mindful, of the Judgment of LJ Underhill in Ahir, which the respondent’s solicitor drew to my attention, that: “There may be cases where it is instantly demonstrable that the central facts in the claim are untrue; for example where the alleged facts are conclusively disproved by the productions” and that in such circumstances, “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment”.[42]For the purposes of determining the issues with which I was concerned in the present case I took the claimant’s averments at their highest value. In other words, I proceeded on the basis that the claimant would be able to prove all the facts she avers.[43]First of all, I had little difficulty deciding that this claim was not “vexatious”. It was clear that the test in the Attorney General case, to which I was referred, had not been met.[44]What then of the prospects of the claim succeeding? The claimant’s Facetime posts, to which I was directed by the respondent’s solicitor, appeared to be consistent with the respondent’s position that the claimant resigned and was not dismissed as she alleged. However, that related only to the issue of how the claimant’s employment ended. There were a number of discrimination complaints and many other issues to be addressed. Also, so far as the termination was concerned, the posts were not the full picture. As the claimant’s solicitor submitted, the Facebook posts were “not the entirety of the dialogue”. There was relevant evidence to be heard from witnesses of what was done and said on 1 December 2018 that resulted in the claimant leaving (using that word in a neutral sense) and not returning to work for the respondent.[45]While there was undoubtedly some force in the submissions by the respondent’s solicitor on the basis of the Facebook posts in respect of the issue of credibility, in my view, particularly having regard to the case law, it would be misguided to determine that the claim has “no reasonable prospect of success” or even “little reasonable prospect” without hearing and evaluating the full evidence, including evidence about the circumstances leading up to and the events of 1 December 2018 when it is agreed the claimant’s employment ended.[46]Further, the claimant’s alleged dismissal is only part of the claim. The claimant’s solicitor has intimated complaints of direct discrimination in terms of s.13 of the Equality Act 2010, discrimination arising from disability in terms of s.15, a failure to make reasonable adjustments in terms of s.20 and harassment in terms of s.26.[47]I was unable to conclude, therefore, that the claim has either, “no reasonable prospect of success” or “little reasonable prospect of success”. The applications by the respondent’s solicitor, therefore, are refused. Further and Better Particulars of the claim[48]However, the issue of strike out does not end there as in my view the various complaints which the claimant’s solicitor seeks to advance are lacking in specification and Further and Better Particulars are required. Burden of proof provisions[49]Each of the discrimination complaints requires a claimant first to establish facts that amount to a prima facie case. S.136 of the 2010 Act provides, that once there are facts from which an Employment Tribunal could decide that an unlawful act of discrimination has taken place, the burden of proof “shifts” to the respondent to prove a non-discriminatory explanation.[50]Igen Ltd v Wong [2005] IRLR 258 remains one of the leading cases in this area. In that case the Court of Appeal established that the correct approach for an Employment Tribunal to take for the burden of proof entails a two-stage analysis. At the first stage, the claimant has to prove facts from which the Tribunal could infer the discrimination has taken place. Only if such facts have been made out to the Tribunal’s satisfaction (i.e. on the balance of probabilities) is the second stage engaged, whereby the burden then “shifts” to the respondent to prove – again on the balance of probabilities – that the treatment in question was “in no sense whatsoever” on the protected ground.[51]The Court of Appeal in Igen explicitly endorsed guidelines previously set down by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205.[52]Further, in Bahl v The Law Society and others [2004] IRLR 799, the Court of Appeal upheld the reasoning of the EAT and emphasised that unreasonable treatment of a claimant cannot in itself lead to an inference of discrimination, even if there is nothing else to explain it. Although that case proceeded under legislation prior to changes made to the burden of proof, the principle is still valid. In other words, unreasonable treatment is not sufficient in itself to raise a prima facie case requiring an answer. As the EAT said in Bahl at para 89: “… merely to identify detrimental conduct tells us nothing at all about whether it has resulted from discriminatory conduct”.[53]Further, in the recent case, Chief Constable of Kent Constabulary v Bowler UKEAT/0214/16/RN, the EAT held that the incompetent handling of a grievance and a lackadaisical attitude of the investigator was insufficient to give rise to an inference of discrimination. The EAT also reiterated the caution expressed in Igen against too readily inferring discrimination, merely from unreasonable conduct while there is no evidence of other discriminatory behaviour.[54]So far as the present case is concerned, the claimant is required to: “set out with the utmost clarity the primary facts on which an inference of discrimination is drawn”; it is the act complained of and no other that the Tribunal must consider and rule upon” (Bahl).[55]In the Agenda which was attached to her letter of 23 July 2019 the claimant’s solicitor provided by way of an Appendix, Further and Better Particulars of the direct discrimination and harassment complaints. However, the claim form has not been amended in terms thereof. Nor, so far as I am aware, were Further and Better Particulars provided in respect of the complaints of discrimination arising from disability and a failure to make reasonable adjustments.[56]The claimant’s solicitor alleges “workplace bullying”. However, in terms of the burden of proof provisions, the claimant has first to establish a prima facie case and a causal connection between the alleged detriments and her disability. I have reservations as to whether she has done so on the basis of the current pleadings. I have concerns, with reference to Bahl and Madarassy, that all that is being alleged is unreasonable conduct which is insufficient for a discrimination complaint.[57]Accordingly, I direct the claimant to provide Further and Better Particulars of the discrimination complaints. Each of the complaints should be set out under separate headings with details of the act or acts complained of which are said to amount to less favourable/unfavourable treatment; if required in terms of the relevant statutory provision, the identity of the person or persons with whom the claimant compares her treatment; and the basis upon which it is alleged the less favourable/unfavourable treatment is said to have occurred because of her disability.[58]She is directed to do so, by way of an application to amend, within 14 days from the date of issue of this Judgment, in writing to the Tribunal with a copy to the respondent’s solicitor. I further direct the respondent’s solicitor, if so advised, to respond in writing to the Tribunal and at the same time copy the claimant’s solicitor within 14 days of receipt of these Further and Better Particulars.[59]I shall then revisit the issue of the prospects of the claim succeeding on the basis of the pleadings, as amended and any further written submissions which the parties’ solicitors wish to make as to the prospects of the various complaints succeeding.[60]I also remain mindful that the respondent’s solicitor has not conceded that the claimant was disabled in terms of the 2010 Act and if the claim is to proceed it may be necessary to fix a Preliminary Hearing to determine that issue. However, I encourage the parties’ solicitors to liaise in this regard so far as the production of medical evidence and details of the impact of the claimant’s “impairment” on her ability to carry out “normal day - to - day activities” is concerned[1]Karen Mutch brought a number of disability discrimination complaints (direct discrimination in terms of s.13 of the Equality Act 2010; discrimination arising from disability in terms of s.15; a failure to make reasonable adjustments in terms of s.20; and harassment in terms of s.26. The respondent denied the claim in its entirety; they denied that the claimant was disabled in terms of the 2010 Act; they denied that they dismissed the claimant, as she claimed.[2]We heard evidence first from the claimant. We then heard evidence on behalf of the respondent from:• Christina Gibbins, Owner-Manager of Ban-Car Hotel• David Gibbins, Owner-Manager of Ban-Car Hotel[3]Each of the witnesses spoke to written statements.[4]A joint bundle of documentary productions was also submitted (“P”). Disability Status This was the first issue which we considered.[6]In terms of s.6(1) of the 2010 Act a person has a “disability” if he or she has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.[7]Langstaff J, when President of the EAT, in Aderemi v London and South Eastern Railway Ltd [2013] ICR said this about the definition:- “It is clear first from the definition of section 6(1)(b) of the Equality Act 2010, that what a Tribunal has to consider is an adverse effect, and that it is an adverse effect not upon his carrying out normal day-to-day activities but upon his ability to do so. Because the effect is adverse, the focus of a Tribunal must necessarily be upon which that which a claimant maintains he cannot do as a result of his physical or mental impairment. Once he has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-to-day activities, a Tribunal has then to assess whether that is or is not substantial. Here, however, it has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other”.[8]When considering this issue we were also mindful of the “Guidance on matters to be taken into account in determining questions relating to the definition of disability” (2011) and the “Code of Practice on Employment (2015)” which has some bearing on the meaning of “disability” under the 2010 Act. While the Guidance and the Code do not impose legal obligations, the Tribunal must take into account any part that appears to be relevant to the issue of disability status.[9]So far as the present case was concerned, the “impairments” relied upon by the claimant were her “Stammer” and “Depression”.[10]While the respondent’s witness, Mrs Gibbins, said that when she worked for her the claimant’s stammer stammer was much less pronounced than it was when she gave evidence at the Tribunal Hearing, it was clear that stress exacerbated her stammer.[11]The claimant’s solicitor took the claimant through her GP records (P8). Although these were somewhat historic and the claimant had not been prepared to engage in speech and language therapy, we were satisfied that there had not been any material improvement in the claimant’s impairments since then.[12]The claimant also referred in her evidence to a letter from her GP dated 29 May 2019 which recorded that the claimant, “has a long history of ongoing depression and has been on anti-depressants, namely Venlafaxine since 2004 …” (P11). We had no reason to doubt the accuracy of that letter or indeed the medical records. Further, the claimant’s evidence was consistent with these productions.[13]Having regard to the medical evidence in this case and the claimant’s own evidence, the Tribunal is satisfied that the claimant had a physical impairment in the form of her stammer/speech impediment and a mental impairment in the form of her depression. Adverse effect on day-to-day activities[14]The Tribunal accepted the claimant’s evidence that her speech impediment had an adverse effect on her ability to communicate. She avoided using public transport and experienced difficulty using the telephone. That was why, she often had to use written means of communication such as Facebook messages.[15]We also accepted her evidence, in relation to her depression, that this was accompanied by lassitude and lack of motivation in respect of her personal care and dress and, as her solicitor submitted, “poor sleep patterns, an avoidance of mixing with others, anxiety associated with shopping and using public transport, difficulty concentrating to mix with others and lack of concentration”. Was the effect “substantial”?[16]In his submissions, the respondent’s solicitor referred to the claimant’s job application in which she advised the respondent that she had “a slight stammer”. (P13/1). However, we accepted her evidence that she was fearful of not being considered for the job had she advised that her stammer was more significant. Further, as we recorded above, it was clear that her stammer was exacerbated when she was under stress.[17]On the basis of the claimant’s own evidence and the medical evidence, we were satisfied that her impairments had a significant effect on the way the claimant conducted herself and cannot be described as ‘minor or trivial’ (s.212(1) of the 2010 Ac)t. On 27 December 2016 the medical records record that she had “a bad stammer” (P8/5); on 4 August 2013 she was recorded as having, “communication difficulties and has written everything down on paper” (P8/8); she was recorded as having a, “severe speech impediment causing severe communication difficulties” on 16 June 2011 (P8/10). As we recorded above, we were satisfied that there had been no material improvement in her stammer since then.[18]So far as her depression was concerned, she has continued to take medication (P8/3); medical records reveal that on 21 July 2011 she had, “a moderately severe recurrent depressive illness with anxiety and that her presentation is greatly exacerbated by lots of social problems and personality/coping problems” (P8/9); a “recurrent depressive disorder – current episode moderate” on 16 June 2011 (P8/10). Clearly she has a history of depression which is ongoing as she continues to be prescribed medication. “Long term”[19]It was clear that her impairments had lasted for more than 12 months.
Conclusion
[20]Thus, in conclusion, having addressed each of the elements of the definition of disability in s.6, we were satisfied that the claimant had demonstrated that she was a disabled person within the meaning of the 2010 Act. This meant that the Tribunal was able to proceed to consider the merits of her discrimination claim against the respondent. Discrimination Claim[21]Having heard the evidence and considered the documentary productions, we were able to make the following findings in fact, in relation to the various discrimination complaints which were advanced by the claimant.[22]We wish to record, at this stage, that both of the respondent’s witnesses gave their evidence in a measured, consistent and convincing manner and presented as both credible and reliable. While it was clear that the claimant had communication difficulties due to her speech impediment, there were certain aspects of her evidence which we considered to be unreliable and in certain respects neither credible nor reliable.[23]Christina (“Tina”) Gibbins and her husband, David Gibbins, are the “owners/managers” of the Ban-Car Hotel in Lonmay, Aberdeenshire (“the Hotel”). They have run the business together for over 20 years.[24]The claimant commenced her employment at the Hotel as a Chef with effect from 9 October 2018. Her employment ended on 1 December 2018.[25]The claimant worked in the kitchen with the Head Chef, Karen Allan, the “second chef”, Teresa Kelsall, Levi Arthur, Susan Davidson (Levi’s mother), Elaine Beagrie and Aiden”.[26]When Mrs Gibbins interviewed the claimant for the job she told her not to worry about her stammer as she was being employed to cook and this was not an issue. Mrs Gibbins also agreed to provide the claimant with shifts which would suit her child care commitments.[27]The claimant appeared to fit in well when she started work and Mrs Gibbins was not aware of any problems within the kitchen. The kitchen staff all seemed to work well together. A friendship developed between the claimant and her fellow Chef, Teresa Kelsall. Events of 26 to 29 October 2018[28]In the evening of Sunday 28 October 2018, the Head Chef, Karen Allan, approached Mrs Gibbins and told her that on Friday 26 October she had overheard the claimant telling her colleagues Levi Arthur and Elaine Beagrie that she didn’t like working with her (Karen Allan) and that she (Karen Allan) had snapped at her for no reason. Ms Allan was upset. She was in tears. The claimant asked Ms Allan to send a message to the claimant to advise her that she would like to meet her the following day. Unfortunately, the message which Ms Allan sent to the claimant that evening was not one of the documentary productions. However, it was common ground between the parties that Ms Allan sent the message to the claimant on the “kitchen staff’s WhatsApp group chat”.[29]The claimant maintained that she received the message from Ms Allan on Friday 26 October. She believed at that time that it had been Levi rather than Ms Allan who had reported her conversation to Mrs Gibbins. She claimed that as she was worried when she received the message, she drove back to the Hotel that night to speak to Mrs Gibbins.[30]It was common ground that the claimant came into the Hotel at around 10 pm but it was clear to the Tribunal that that was on Sunday 28 October 2018 and not Friday 26 October 2018 as she maintained. We heard evidence from Mrs Gibbins that Karen Allan only raised the matter with her on the Sunday. We also had corroborative evidence from Mr and Mrs Gibbins that it was Sunday night when she came in and, as we recorded above, they both presented as credible and reliable witnesses.[31]Further, and in any event, there was included with the documentary productions “excerpts from Facebook exchanges between 2 October 2018 and 1 December 2018” (P13). These included exchanges between the claimant and Mrs Gibbins on Monday 29 October in which there was reference to “last nite” which was clearly a reference to this particular matter (P13/3).[32]The claimant alleged that she was dismissed when she came into the Hotel. We did not find that to be so on the basis of the evidence which we heard from Mrs Gibbins which was corroborated, to a large degree, by the evidence of her husband.[33]The claimant alleged that Mrs Gibbins called her, “immature”, said that she had been “found out”, and told her she was “pathetic” and a “bitter child”. She claimed that Mrs Gibbins also shouted at her “get out, get out, get out the Hotel now” `which she assumed meant that she, “had been sacked given her words and her demeanour”. She also thought that Mrs Gibbins “might have been drinking”.[34]The claimant’s allegations were strenuously denied by both Mr and Mrs Gibbins and, as we recorded above, we were satisfied their accounts were to be preferred. We find in fact, therefore, that the claimant came into the Hotel, at around 10 pm on Sunday 28 October 2018, when Mr and Mrs Gibbins were, “cashing up at the end of the night”. Mrs Gibbins had not “been drinking”. She had been working in the bar all evening. She does not drink when working in the Hotel. The claimant asked about the purpose of the proposed meeting the following day and Mrs Gibbins told her that it had been alleged that she had spoken out of turn in the kitchen. The claimant then responded by saying that, “Levi and Elaine were lying”. In response, Mrs Gibbins advised the claimant that it had in fact been Karen Allan who had told her and that she had been in tears. She told the claimant that she wanted to speak to everyone. She then said that she expected the claimant, “as a grown woman, to speak directly to her if she had a problem with anyone”. At this point, the claimant started shouting at Mrs Gibbins. They were in the lounge at the time. Mr Gibbins was in the public bar getting ready to lock up. He overheard the shouting and heard his wife having to shout over the claimant to make herself heard as the claimant kept shouting back. Mrs Gibbins then told the claimant that she would, “sort things out tomorrow, that she wasn’t dealing with it tonight and that the claimant should go home”. Mr Gibbins said that, “in all the years I have been in business, I have never heard a member of staff shouting at their employer in the manner that Karen did”.[35]At 10:56, the following morning, Monday 29 October, Mrs Gibbins received a Facebook message from the claimant (P13/1/13/2). Although she said that she was “still very upset about last nite”, her message was fairly conciliatory.[36]Mrs Gibbins replied at 12:48 (P13/2). She advised the claimant again that she was surprised that she had not spoken to her direct. She further advised that she had spoken to everyone concerned that morning and gave some detail about what was being alleged. She suggested that they meet to discuss the matter should she wish to do so.[37]The claimant responded by saying that she thought the, “whole thing was blown out of proportion” (P13/2) and went on in another message to ask if she had, “been sacked” (P13/3). She then advised in a subsequent message that she had, “been battling bad depression for 15 years but I fight it every day. I won’t let it beat me”.[38]Mrs Gibbins responded as follows (P13/3):- “I didn’t sack you Karen, I told you to leave the Hotel last night as I wasn’t willing to discuss at that time of night, when we were locking up. Levi was on veg last night not starters. No-one talks about each other Karen, we all get on fine, although like normal kitchens tensions can run high when busy, but everyone just gets on. Nothing was mentioned to me about depression Karen. When asked about your health and fitness you said nothing. I have asked you to come in and discuss with Karen (Head Chef) and myself therefore it’s up to you. We then will need to pull everyone in to discuss this further. Tina”[39]The claimant responded as follows:- “I don’t see myself being unfit I am 100% fit. So I’m working at 4 ….. As you say I’m not sacked so I’ll be in at 4 for my shift as if I don’t work I don’t get paid thanks”[40]Mrs Gibbins replied by advising the claimant that she would meet her at 4 pm, “to discuss further” (P13/3). Meeting on Monday 29 October 2018[41]Mrs Gibbins met the claimant when she arrived at the Hotel for work at 4 pm. As Mrs Gibbins knew the claimant was friendly with Teresa Kelsall she asked Ms Kelsall to sit in on the meeting. The claimant agreed.[42]During the meeting, the claimant advised Mrs Gibbins that she suffered from depression and anxiety. That was not something that Mrs Gibbins was aware of. She also advised Mrs Gibbins of issues she had outwith work. At around 4.45 pm Karen Allan arrived and joined the meeting. The claimant apologised to Ms Allan for what she had said. She said that she was happy working at the Hotel and what she had said about her was wrong. The meeting ended with everyone agreeing that they should “move on” and not speak about it again.[43]In the circumstances, although the claimant was due to work that evening Mrs Gibbins advised her that she could go home and come back to work on her next shift. A few days later the claimant sent Ms Allan a bouquet of flowers by way of apology.[44]After that matters settled down and the claimant’s employment was uneventful. A minor issue arose on 12 November when the claimant sent a message to Mrs Gibbins by Facebook to say that she did not like working on the carvery by herself (which she had done the previous day) (P13/4). Mrs Gibbins replied shortly thereafter to advise this would not be an issue and that she was, “managing to get the hang of starters now and you’re doing fine” (P13/5).[45]Another minor issue arose on 17 November 2018 when the claimant sent a message to Mrs Gibbins to say that she had spoken to the Head Chef about her concern that one of her colleagues, Susan Davidson, had a problem with her. However, the claimant then advised, “all sorted no drama ta like my job. We all have off days. Hopefully put to bed” (P13/5). Saturday 1 December 2018[46]Once again, we were faced with a conflict in the evidence which we heard. However, the claimant’s evidence was inconsistent and unreliable and in one particular regard neither credible nor reliable. On the other hand, the respondent’s evidence, principally from two credible and reliable witnesses was consistent, corroborative to a degree and convincing. We had little difficulty, therefore, in deciding unanimously, that the respondent’s evidence was to be preferred.[47]We find in fact, therefore, that the day was uneventful until the claimant allegedly overheard “Susan” and the Head Chef, Karen Allan, “whispering”. She thought they were speaking about her. As she put it, she “challenged Susan” and “told her not to speak about me behind my back”. Susan then approached Mrs Gibbins when she was discussing that evening’s menu with the Head Chef and complained to her that she had just been “pulled up” by the claimant and that the claimant “then began slamming doors”. Ms Allan also told Mrs Gibbins that the claimant had asked her what she was required to do that day and when she told her the claimant had “banged the fridge door”. Mrs Gibbins said that she would speak to the claimant. She approached her and asked what was wrong. Mrs Gibbins told her what Susan had told her. The claimant responded by saying that Susan “was lying”. Mrs Gibbins then asked Susan to join them. She was anxious to resolve the matter there and then as she had a busy evening ahead with some 160 “covers” for meals. As Susan started to speak the claimant kept interrupting saying, “she’s lying, she’s lying”. Mrs Gibbins had to tell the claimant to let her speak. However, the claimant then “held up a cucumber and starting shouting that Susan was lying”.[48]Mrs Gibbins said to the claimant that she, “could not understand why Susan would be lying about something like this and Karen repeated that she was”. Mrs Gibbins then walked away and said that they would discuss the matter later as they had such a busy night ahead.[49]A short time later, Mr and Mrs Gibbins were both in the office when the claimant came in. She had her jacket on. She was shouting and “highly agitated”. She slammed a scrap of paper on the desk in front of Mrs Gibbins. Mr Gibbins had seen her writing on the paper shortly before. It said:- “See you in court Tina. You called me a lier. You forced me to leave – Bullying won’t be for Christmas lunch. K Mutch” (P9)[50]In her written statement at para 18 the claimant said this:- “The respondents have provided a handwritten note that is recorded on the index as being dated 1 December 208 [doc 9]. I see no date on this document, so I do not know why they say this to be the case. I did not write this note. It is not my handwriting, nor my signature. I have provided a copy of my driver’s licence dated 18 December 2013 to confirm this [doc 10]. It has my signature on it and shows my signature to be nothing like the writing on [doc 9]”.[51]At first when she was giving evidence at the Hearing, the claimant maintained that position and her solicitor confirmed, for the avoidance of doubt, that that was so: that the note had been fabricated by Mr and Mrs Gibbins. However, when cross examined her position changed. She admitted that she had “scribbled a rough note” but continued to maintain that the document which had been produced was not the note which she had written. She also claimed that the note was “crumpled”.[52]Mrs Gibbins was then able to produce the principal note, rather than the copy which had been included in the joint bundle (P9) and when this was presented to the claimant she accepted that it was the note she had written, even though it wasn’t “crumpled”. However, she continued to maintain that it was not her signature on the note.[53]We had no difficulty, therefore, finding in fact that the document which had been produced at P9 was a copy of the note which she wrote on 1 December 2018.[54]So far as the signature was concerned, the claimant sought to draw a distinction with her signature on her driving licence (P10). However, given her change of evidence in this regard and the fact that we had corroborative evidence from Mr and Mrs Gibbins to the effect that this was the only the note which she had written and that it was her signature, we also find fact that it was her signature.[55]In addition to putting her jacket on the claimant also “signed out”. She claimed that this was because she intended going outside “for fresh air”. However, we accepted Mrs Gibbins’ evidence that there was no need for her to sign out if that was so. We concluded that it was the claimant’s intention to leave and not return to work.[56]When the claimant “slammed” the note on the desk in front of Mrs Gibbins she continued to “shout and scream” to such an extent that Mr Gibbins advised her that, “there were cameras which could pick up her words and actions”. However, the claimant continued to shout, in an aggressive manner, and told Mr and Mrs Gibbins that she would “see them in court”. Eventually, Mr Gibbins asked the claimant, politely, to leave the office and when she did not do so he stood up, said “firmly”, “get out of the office”. When she left, Mr Gibbins closed the office door.[57]The claimant did not return to work at the Hotel after that. She made no attempt to do so.[58]In all these circumstances, we had no difficulty deciding, unanimously, that the claimant was not dismissed, as she maintained. She left her employment voluntarily. She resigned. That was clear from the terms of her note (P9), what she said to Mr and Mrs Gibbins, the fact that she had put her coat on, signed out, left the Hotel before the end of her shift and took no steps to return to work..[59]After the claimant left the respondent’s employment, Mr and Mrs Gibbins received further Facebook posts from the claimant threatening court action. They did not reply to these posts and Mrs Gibbins advised the staff to do likewise. Claimant’s Submissions[60]The claimant’s solicitor spoke to written submissions which are referred to for their terms. Disability Status[61]It is not necessary for us to summarise the claimant’s submissions in respect of this issue as we decided that the claimant was disabled in terms of the 2010 Act and we have set out above, our reasons for that decision. Discrimination Complaints[62]In her written submissions, the claimant’s solicitor first addressed the issue of credibility. She submitted that, “it is evident that she (the claimant) finds pressurised situations, such as giving evidence to exacerbate her stammer” and that she “becomes confused often”. However, she submitted that this did not impact on her credibility.[63]While she accepted that Mrs Gibbins, “comes across as assured and definite” and while she accepted that it “may be the case” that she had never had the need to hold a disciplinary or grievance meeting she did not accept that such Hearings were not necessary, “whether she viewed them to be or not”.[64]She confirmed that the claimant’s position remained that the “incident with Tina” occurred in the evening of Friday 26 October, not Sunday 28 October and that this “certainly calls into question whether the Facebook messages record the events accurately or in full”.[65]She drew to the Tribunal’s attention that Mrs Gibbins was not prepared to accept that her actions, including asking Karen Allan to text the claimant on the workgroup chat, “were anything other than the correct course”.[66]She also submitted that the accounts by David Gibbins and Christina Gibbins, “are so similar that it appears to be a presented position”.[67]She submitted that David Gibbins’ evidence that he did not have knowledge of the “day-to-day dynamics of the kitchen staff and that he had never heard an employee shout at his wife in the way that the claimant did were, extremely unlikely and calls into question whether Mr Gibbins has more knowledge of the kitchen politics which he was not willing to divulge. In my view this undermines his credibility”. Burden of Proof[68]She submitted that the “two-stage approach” which requires a claimant in the first instance to establish a prima facie case, “is not a rigid one” and that, “the burden of proof provisions may be less important than they first appear”. In this regard, she referred to Hewage v Grampian Health Board [2002] UKSC37 in which the Supreme Court observed that, “It is important not to make too much of the role of the burden of proof provisions” (endorsing Underhill J’s remarks to that effect in Martin v Devonshires Solicitors [2011] ICR 352 (EAT). The Court went on to say that the provisions “will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or the other” (Hewage, paragraph 32).[69]The claimant’s solicitor then went on her submissions to assert that the claimant was “subject to 7 incidences of direct discrimination due to his (sic) disabilities”. These related to the events of Friday 26 October 2018 (as maintained by the claimant) and 1 December 2018. In support of her submissions in this regard she referred to the following cases:- Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 (HL) Famy v Hilton UK Hotels Ltd UKEAT/0639/05 Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR Chamberlain Solicitors and another v Emokpae [2004] IRLR 592 Durrant v Chief Constable of Avon and Somerset Constabulary [2017] EWCA Civ 1808[70]The claimant’s solicitor invited the Tribunal to accept the claimant’s evidence about the remarks which Mrs Gibbins allegedly made to her on 26 October and 1 December.[71]She claimed that Karen Allan, “wrote her instructions to the claimant rather than saying them aloud”, that this was done because of the claimant’s disability, that it was “demeaning” and was “less favourable treatment”.[72]The respondent’s solicitor also relied upon the events of 26 October 2018 and 1 December 2018 in support of this complaint. She also relied upon the events of Monday 29 October 2018 when it was alleged that Mrs Gibbins, “verbally attacked the claimant and did not permit her the opportunity to rebut or express her opinion during a meeting”.[73]In support of her submissions, in this regard, the claimant’s solicitor referred to the following cases:- Basildon & Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14 City of York Council v Grosset [2018] EWCA Civ 1105[74]The claimant’s solicitor submitted that the “provision, criterion or practice” (“the PCP”) relied upon was, “not holding disciplinary hearings”.[75]She submitted that two occasions were relied upon, “the first in October 2018 and the second in December 2018”.[76]She submitted that it was clear from Mrs Gibbins’ Facebook message on 29 October 2018 that she, “pre-judged the claimant’s involvement in this incident without receiving her account”.[77]So far as December 2018 was concerned, it was submitted that, “no procedure was followed whatsoever on the claimant’s dismissal. It was assumed that a negative report from the claimant’s colleague, Susan was accurate and the claimant was berated by Tina once again, who told the claimant to leave the Hotel, just as she had before, without following any process. Had the claimant been provided the reasonable adjustment of a full disciplinary process, which included an adequate and fair investigation on both occasions, she would not have been judged as a “troublemaker”. This characterisation led to the claimant’s dismissal. Had the reasonable adjustment been provided the truth of each of the matters would have been established and the claimant would not have been dismissed”.[78]The claimant’s solicitor referred to, “several acts of harassment, including: “(a) Referring to the claimant as having been “found out”, “childish”, “immature” and “pathetic”. (b) Verbally abusing the claimant as being a “bitter child”. (c) Characterising the claimant as a “liar” and a “troublemaker”. (d) Informing the claimant that she was “sick of her” in front of other employees”.[79]The claimant’s solicitor also submitted that:- “Karen Allan engaged in two acts of harassment including:(a) Reporting and exaggerating the claimant’s views to Tina.(b) Drawing on paper rather than speaking to the claimant”.[80]The claimant’s solicitor submitted that these were, “examples of the harassment to which the claimant was subject”. She also submitted that, “the claimant was subject to hypercriticism by Tina for acts which she had not engaged in. As described within the direct discrimination section, Tina formed a view of the claimant during October 2018 that the claimant caused trouble within the workplace. This was evidenced by the fact that she was assumed to be in the wrong following Karen Allan’s report that she had been speaking about her behind her back. Despite the matter being minor and the claimant doing her best to rectify the issue, the view of her as a “troublemaker” persisted. When further issues arose in the workplace and further conflict occurred, the claimant was assumed to have caused the issue. The claimant advises that she was scolded for these matters. This matter is further evidenced by the fact that the claimant was told to “get out” of the Hotel on two occasions, each time reasonably assuming herself to have been dismissed. It is noted that the Facebook messages produced by the respondent show Tina’s anger towards the claimant and the claimant’s assumption that she had been dismissed following the first incidences of harassment”.[81]In conclusion, so far as this complaint was concerned, the claimant’s solicitor submitted that:- “All of the above created a hostile working environment. The claimant was put on edge. She advised Teresa Kelsall to “trust no-one” and this was indicative of how she felt in the workplace. Due to the incidences of harassment she experienced, she did not feel safe in the workplace. Her depression exacerbated the impact of the hostile working environment on the claimant.” Time-bar[82]Finally, the claimant’s solicitor addressed the possibility that the respondent’s solicitor would maintain that a number of the complaints were subject to time bar. However, that was not the case and this was not an issue for the Tribunal. Respondent’s Submissions[83]The respondent’s solicitor submitted that the claimant’s evidence was neither credible nor reliable. He referred in particular to paragraph 18 of her witness statement, where she claimed that she did not write the note (P9). He submitted that this was, “blatantly and patently untrue”. He claimed that she had “lied under oath” and this meant that it was difficult to accept any of her evidence as credible.[84]He also maintained that, “the claimant’s stammer in these proceedings is in marked contrast to her stammer when she worked for the respondent”.[85]The claimant also alleged inconsistencies in the Facebook messages and that they had been “doctored”. However, there was no evidence of this and he submitted that it was “unacceptable that this continues to be alleged”. The allegation that the respondent had invented the Facebook posting on 4 December 2018 (P13/10) was, “wholly without foundation and completely denied”.[86]The respondent’s solicitor submitted that the claimant was not dismissed on 1 December 2018, but rather that she, “quit her post”.[87]He submitted that the claimant’s stammer and depression played no part in the way the respondent treated her. He submitted that the only adjustment the respondent was required to make was to allow her not to work on the carvery on her own.[88]The respondent’s solicitor also invited the Tribunal to reject the claimant’s evidence about what Mrs Gibbins in particular had called her. He submitted that the allegations of discrimination were “an after the event feeling”.[89]So far as any workplace issues which arose among the employees were concerned, Mrs Gibbins tried to “nip them in the bud” and that was what she achieved following the incident on 26 and 28 October 2018. No formal disciplinary action was required, the issue was resolved and “everyone moved on”.[90]So far as the Head Chef writing instructions was concerned, the respondent’s solicitor submitted that she only did so to “label the dishes” and this was not directed at the claimant alone.[91]So far as the events of 1 December 2018 were concerned, Mrs Gibbins intervened again. It was submitted that there was no need for any disciplinary procedure. Her intervention was not discriminatory. The claimant’s issue that day was that she thought people were talking about her.[92]So far as the claimant’s exit from work that day was concerned, it was submitted that the respondent’s position was “clear and consistent”. That was in contrast to the claimant’s oral evidence which was at variance with her written statement. He submitted that the claimant was not dismissed. The respondent’s solicitor submitted that the claimant’s allegation that she was, “mocked and demeaned because of her disability” was ill founded. He invited the Tribunal to prefer the respondent’s “clear and consistent evidence”. He submitted that there was no evidence of discriminatory conduct either on 29 October or 1 December. Mr Gibbins when giving evidence had described the issues amongst the kitchen staff as “tittle tattle”. That was an apt description. These were “day to day issues”. There was no evidence that the claimant had been treated less favourably because of her disability. The respondent’s solicitor also invited the Tribunal to dismiss this complaint. He submitted that the allegations by the claimant that she was verbally abused by Mrs Gibbins were “untrue”. He submitted that if Mrs Gibbins had “said these things”, the claimant would have mentioned them in her Facebook postings. In any event, “name calling is not discrimination”. The respondent’s solicitor submitted that there was no evidence of a PCP not to use a formal disciplinary process. In any event, so far as the present case was concerned, there was no need to use disciplinary procedure.[93]The respondent’s solicitor submitted that this appeared to relate to the events of 26 and 28 October and 1 December. He submitted that the claimant’s contentions “totally fly in the face of the evidence”. He submitted that there was no evidence that the respondent’s conduct related to the claimant’s disability. There was no evidence that the claimant’s “dignity” had been violated.[94]In conclusion, he submitted that the claim should be dismissed. He submitted that the claimant terminated her own employment on 1 December 2018, without notice, and that Mrs Gibbins, in particular, had been trying to defuse matters.[95]The claimant’s speech impediment was never an issue. There was no detriment to her.[96]It was also significant that prior to her leaving her employment the claimant had never made any allegation of discrimination. “The fundamental facts she relies upon are misplaced”. Discussion and Decision[97]It was significant that we were able to make “positive findings in fact on the evidence” (Hewage). These findings and our clear, unanimous, view that the respondent’s two witnesses were credible and reliable, whereas the claimant was not credible and reliable, in respect of certain material aspects of the case, were pivotal to our decision.[98]We arrived at that view mindful of the claimant’s speech impediment and her obvious difficulty communicating. However, she had no such difficulty when it came to recording her evidence in her written witness statement. This was prepared at her leisure, with the assistance of her solicitor, when under no pressure and with sufficient time to gather her thoughts and record her evidence. Despite this, para 18 of her written statement, relating to the handwritten note (P9), a material aspect of the case, was untrue, by her own subsequent admission.[99]Also, the claimant continued to maintain, steadfastly, that the signature on the note was not her signature. That made no sense and we accepted the clear, consistent, corroborative, evidence from the respondent’s witnesses that it was her signature.[100]She also continued to maintain, despite clear documentary evidence to the contrary, in the Facebook messages, and Mr and Mrs Gibbins’ evidence, that she returned to the Hotel to confront Mrs Gibbins on Friday 26 October, when it was abundantly clear that it was Sunday 28 October, as both Mr and Mrs Gibbins maintained. Her position in that regard was also neither credible nor reliable. We had no difficulty finding in fact that it was Sunday 28 October 2018.[101]Further, the claimant’s very serious allegation that Mrs Gibbins had been drinking alcohol when on duty; the contention that Mr and Mrs Gibbins’ evidence was a “presented position” which we took to mean that there had been collusion; and the allegation that some of the Facebook posts which were produced had been “doctored” and some were missing were without foundation. These were scurrilous allegations.[102]Nor was there any evidence of the claimant alleging when she worked at the Hotel that she was being, or had been, discriminated against because of her disability.[103]The relevant statutory provision is s.13 of the 2010 Act:- “13 Direct Discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.[104]The protected characteristic relied upon by the claimant, of course, was disability. We found that she was disabled in terms of the 2010 Act.[105]In her submissions, the claimant’s solicitor alleged “7 incidences of direct discrimination”. It was alleged that the incidences 1–3 occurred on Friday 26 October 2018. We did not find that to be so. We found, in fact, that the Head Chef, Karen Allan, reported to Mrs Gibbins on Sunday 28 October 2018 that she had been upset when on Friday 26 October 2018, she overheard the claimant speaking to others in the kitchen about her; that Mrs Gibbins instructed Ms Allan to send a message that evening to the claimant to advise her that she wanted to meet her the following day; and that on receipt of the Facebook message the claimant made her way back to the Hotel that evening and confronted Mrs Gibbins around 10 pm.[106]So far as “incident 1” was concerned, we did not find in fact that Mrs Gibbins made the alleged comments to the claimant.[107]So far as “incident 2” was concerned, it was Karen Allan who reported her concerns about what she had heard to Mrs Gibbins, not “Levi”. We did not find in fact that she had “misrepresented the claimant’s views”. In any event, matters were resolved at the meeting on Monday 29 October which the claimant had with Mrs Gibbins, with Teresa Kelsall, the claimant’s colleague and friend, in attendance, as invited, helpfully and supportively, by Mrs Gibbins, and Karen Allan later. Also in a supportive and sympathetic manner, Mrs Gibbins did not require the claimant to work her shift that day. The claimant apologised and sent a bouquet of flowers to Karen Allan. The claimant continued to work, as normal, thereafter until 1 December 2018, consistent with a satisfactory resolution for all concerned.[108]While, with the benefit of hindsight, it might have been preferable for Mrs Gibbins to have contacted the claimant herself, privately, about meeting her, asking Karen Allan to do so had nothing to do with the claimant’s disability. Nor did it amount to less favourable treatment. This was a minor matter, not uncommon at the Hotel or indeed in many workplaces. Formalising the matter was not required. Mrs Gibbins acted in a sensible, sympathetic and supportive manner and achieved her aim of “nipping it in the bud” by informal discussion.[109]So far as “incident 3” was concerned, we did not find in fact that Mrs Gibbins “verbally abused the claimant, calling her a bitter child”, either on 26 October 2018, as the claimant alleged, or at any other time.[110]So far as “incident 4” was concerned, Karen Allan only “drew on paper” when labelling food. What she wrote was not directed at the claimant. The claimant was treated no differently from any of the other employees at the Hotel. There was no evidence to suggest that what she did was in any way tainted with discrimination.[111]So far as “incident 5” was concerned, once again we rejected the contention that Mrs Gibbins had “characterised the claimant as a liar and troublemaker”. We made no such finding in fact. Nor did we find in fact that “Karen Allan and Susan Davidson had been discussing the claimant behind her back”. That was no more than supposition on the claimant’s part. She did not know what they were speaking about.[112]So far as “incident 6” was concerned, yet again we rejected the contention that Mrs Gibbins told the claimant that she was “sick of her” in front of other employees. We made no such finding in fact. Further, we did not find in fact that Karen Allan and Susan Davidson, “had been discussing the claimant behind her back”. This was no more than supposition on the claimant’s part. We sensed an element of oversensitivity, generally, on the claimant’s part and an inclination to jump to conclusions and overreact.[113]So far as “incident 7” was concerned, in our unanimous view there was no requirement for Mrs Gibbins to “comply with disciplinary procedure”. That would have formalised and elevated the issues which arose on 26 October 2018 and 1 December 2018, which were relatively minor, described aptly by Mr Gibbins as “tittle tattle”, to an extent which was not merited and not proportionate, in the circumstances.[114]Mrs Gibbins dealt with the issue which arose on 26 October 2018 in an informal manner and this led to a satisfactory resolution. Mrs Gibbins has over 20 years’ experience of dealing with such issues at the Hotel which arise inevitably, from time to time amongst the staff, as they do in any workplace. As we recorded above, in our unanimous view, Mrs Gibbins addressed the issue in a sensible, sympathetic and proportionate manner which was fair to all those involved. Her actions were not tainted with discrimination, in any way.[115]So far as the issue which arose on 1 December 2018 was concerned, once again we were satisfied that there was no suggestion of any discrimination. Mrs Gibbins endeavoured to address the issue in a sensible, fair and reasonable manner with those concerned. However, there was a complete and unjustified overreaction by the claimant and it did not prove possible to resolve the matter there and then due to customer demands that evening and the claimant’s demeanour. We were in no doubt that Mrs Gibbins would have addressed the issue, satisfactorily, in due course when there was time to do so. However, she was not afforded that opportunity as the claimant acted in a precipitate and wholly unjustified manner. She put her jacket on, wrote a note which amounted to a resignation, shouted at Mr and Mrs Gibbins, threatened them with “court”, and left the Hotel when Mr Gibbins told her to leave the office.[116]We might add, for the sake of completeness, that although it appeared surprising, we accepted Mrs Gibbins’ evidence that in over 20 years in business she had never had to conduct disciplinary proceedings or hear a grievance. That, in our view, was to her credit and testament to the manner in which she addressed workplace issues.[117]We decided, therefore, unanimously, that this complaint was not well- founded and should be dismissed.[118]The relevant statutory provision is s.15 of the 2010 Act:- “15 Discrimination arising from disability(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) Sub-section (1) does not apply if A did not know, and could not reasonably have been expected to know, that B had the disability.[119]In her written submissions, the claimant’s solicitor relied upon “4 acts” which she listed in support of this complaint. All of these “acts” related to allegations of what Mrs Gibbins had said to the claimant. It was alleged that each of these “acts” amounted to “less favourable treatment”. In our unanimous view, that submission was not well-founded.[120]We did not accept the allegations about what Mrs Gibbins said to the claimant. We made no such findings in fact. So far as “act 4”, in particular, was concerned, the claimant was not dismissed on 1 December 2018. She left of her own accord. Mr Gibbins did have to tell the claimant to leave but that was entirely reasonable and understandable, given the claimant’s behaviour and her refusal to leave the office. The claimant left the Hotel before the end of her shift and never returned.[121]We decided, therefore, unanimously, that this complaint was not well-founded and[122]The relevant statutory provision is s.20 of the 2010 Act:- “20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and 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 or practice of A’s puts 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 it is reasonable to have to take to avoid the disadvantage.(4) The second requirement is a requirement, where a physical feature puts 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 it is reasonable to have to take to avoid the disadvantage.(5) The third requirement is the requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format”.[123]It was the “first requirement” which was relevant to the present case. The PCP relied upon by the claimant’s solicitor was, “not holding disciplinary hearings”. Once again, the claimant’s solicitor relied upon “two occasions” in October 2018 and December 2018. However, as we recorded above, in our unanimous view there was no requirement for the respondent, and Mrs Gibbins in particular, to formalise and escalate matters to a disciplinary hearing. It was entirely appropriate for her to address the issues in an informal manner.[124]Further, and in any event, we did not find that the respondent applied such a PCP. Although the respondent had never conducted a disciplinary hearing in over 20 years, that is not to say they would not have done so had the need arisen.[125]So far as October 2018 was concerned, as we recorded above, Mrs Gibbins addressed the issue in a sensible, sympathetic and entirely proportionate manner. We were not persuaded, as the claimant’s solicitor alleged, that she had “prejudged the claimant’s involvement in the incident, without receiving her account”. She arranged a meeting with the claimant on 29 October 2018. Helpfully, she arranged for the claimant’s friend and colleague, Teresa Kelsall, to attend the meeting and at a later stage Karen Allan, the other person involved in the “incident” on 26 October joined them. The fact that Mrs Gibbins dealt with the matter in an appropriate manner was evidenced by the fact that the matter was resolved satisfactorily. The claimant even apologised, and thereafter continued to work as normal, until she left voluntarily on 1 December 2018.[126]So far as December 2018 was concerned, once again, there was no requirement to elevate what was a relatively minor workplace issue to a formal disciplinary process. Mrs Gibbins endeavoured to address and resolve the matter there and then but was unable to do so due primarily to the claimant’s conduct. There were pressing business needs, not the least of which was preparing dinner for a number of customers that night. It was entirely understandable that Mrs Gibbins should decide to leave the matter to be addressed when there was more time available. However, as it transpired, the claimant, for whatever reason, remained dissatisfied and overreacted. She put her jacket on, signed out, wrote a note which was tantamount to a resignation, confronted Mr and Mrs Gibbins aggressively in the office, shouted at them, left the Hotel before the end of her shift and never returned.[127]We had no difficulty, in these circumstances, in rejecting the contention that by not “engaging in formal investigation and disciplinary proceedings” the respondent had failed to make reasonable adjustments.[128]We decided, therefore, unanimously, that this complaint was not well-founded and[129]The relevant statutory provision s.26 of the 2010 Act:- “26 Harassment (1) A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B …..”[130]In her submissions, the claimant’s solicitor referred to, “several acts of harassment”. These comprised allegations of what Mrs Gibbins had said to the claimant and the words used. We did not find in fact that any of these words had been used by Mrs Gibbins; nor did we find in fact that Karen Allan had “misreported and exaggerated the claimant’s views to Tina”; or that “drawing on paper rather than speaking to the claimant”, constituted harassment.[131]There was no “hypercriticism by Tina for acts which the claimant had not engaged in”. Nor was Mrs Gibbins unfavourably disposed to the claimant. Indeed, on occasions, she was sympathetic to the claimant and supportive of her. There was no evidence whatsoever to even suggest that anything Mrs Gibbins said to the claimant was discriminatory in nature.[132]We decided, therefore, unanimously, that this complaint was not well-founded and[133]For all these reasons, therefore, the Tribunal is of the unanimous view that the claim should be dismissed in its entirety.