Miss C Jeffcoat v Hudson Business Centre Ltd and Mr Andrew Higgins Gillen: S/4103438/2018
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4103438/2018
Between
Miss C JeffcoatClaimantHudson Business Centre LtdRespondent
Before
Employment Judge J G d’Inverno, QVRM, TD, VR, WSDate 19 April 2019
JUDGMENT
The Judgment of the Employment Tribunal is: (First) At the material times, that is in the period from 1st April 2016 up to and including 12th March 2018, the claimant was a person possessing the protected characteristic of disability within the meaning of section 6 of the Equality Act 2010 by reason of her physical impairment of dyslexia. ETZ4(WR) (Second) Subject to other challenges as to Jurisdiction, the claimant has Title to Present and the Tribunal Jurisdiction to Consider tendered complaints of discrimination because of the protected characteristic of disability arising from alleged acts or omissions of the respondents or of the respondents’ employees for which the respondent is vicariously liable, said to have occurred between those dates.
REASONS
[1.0]This case called for a continued Open Preliminary Hearing at Edinburgh on 28th January 2019. The claimant who was present, was represented by Mr Shafe her partner and a Solicitor. The Respondent Company was represented by Mr Robertson, Solicitor. The Hearing of 28th January 2019 proceeded following postponement of the continued Diet of Open Preliminary Hearing set down in the case for 18th September 2018 in terms of the Tribunal’s Orders and Note of 31st July 2018 issued following the part heard Open Preliminary Hearing which had proceeded before the sitting Judge on 24th July 2018. Those Orders and the Note attached to them, should be read in conjunction with this now issued Judgment and Note of Reasons, and are referred to for their terms which in normal course, for the purposes of brevity, would be held incorporated within these Reasons, by reference. In consideration of the claimant’s dyslexia those parts of the earlier Note of 31st July 2018, considered relevant by the Employment Judge, are reproduced within this Note of Reasons. The Issue[2.0]The Issue requiring investigation and determination at Open Preliminary Hearing was:- Whether, at the relevant and material times, for the purposes of the claimant’s complaints, that is in the period from 1st April 2016 up to and including 12th March 2018, the claimant was a person possessing the protected characteristic of disability within the meaning of section 6 of the Equality Act 2010, by reason of the physical impairment of dyslexia. Procedural History[3.0]The Open Preliminary Hearing of 24th July 2018 had been fixed in terms of Judge Porter’s Interlocutory Orders of 20th June 2018 in terms of which she discharged the Final Hearing, previously set down for 23rd and 24th July 18, and substituted therefore an Open Preliminary Hearing on Disability Status to be followed immediately and on the same day by a Closed Preliminary Hearing (Case Management Discussion) the latter to focus on progressing the case to Final Hearing.[3.1]In paragraph 14 of her Note of Output dated 22nd June 2018 Judge Porter noted that the claimant was to obtain a letter from her Medical General Practitioner which would set out reasonable adjustments recommended for the conduct of the Open Preliminary Hearing on 24th July 2018. In the event, the claimant’s representative, on the morning of the Open Preliminary Hearing, submitted a letter from Dr Iona Dyas, a locum GP in the Practice Durham Road Medical Group of which the claimant is a patient, and on the reverse side of which there had been reproduced an extract from one of the British Dyslexia Association Guidance publications and which, it was confirmed in the course of evidence, the claimant’s representative had provided to the doctor for attachment under the doctor’s signature. In the conduct of the proceedings on 24th July 18 and 28th January 19, the Tribunal sought to act in accordance with the general recommendations insofar as applicable to the claimant’s particular circumstances including in particular the taking of a 10 minute break after each 50 minutes of Hearing or, in the alternative, as requested by the claimant. The claimant’s representative, who disclosed that he had hearing loss in one ear, undertook also to advise the Tribunal if and when he required anyone participating at the Hearing to speak with increased volume.[3.2]Additionally, at first day of Hearing 24th July 18, the claimant’s representative requested that he be allowed to read a witness statement of the claimant into evidence in chief as an alternative to the claimant being required to give evidence in chief orally. There being no objection by the respondent’s representative subject to the imposition of the requirement that the claimant endorse a certificate of veracity on the witness statement and that she make herself available to be cross examined orally, the Tribunal allowed the claimant’s evidence in chief to be received by way of written witness statement read into evidence by her representative. At the conclusion of the reading in exercise, the claimant’s representative confirmed to the Tribunal that he wished that which had been read in to constitute the claimant’s evidence in chief and the Tribunal thereafter moved to the cross examination of the claimant by the respondent’s representative.[3.3]Upon the conclusion of cross examination and upon being asked to confirm whether he wished to put questions in re-examination, the restricted scope of the same having first been explained by the Employment Judge, the claimant’s representative indicated that he wished to put further questions in examination in chief to the claimant stating that he had not realised that he should have sought to do so prior to the commencement of cross examination. Unsatisfactory though proceeding in such an order was, upon the respondent’s representative confirming that, subject to his being afforded the opportunity to further cross examine, he did not object, the Tribunal allowed the examination in chief of the claimant to be reopened and her oral examination to be proceeded with. Summary of the potentially relevant pleadings presented and of the Evidence adduced on the first day of OPH 24 July 2018[4.0]In her Orders and Note of 20th/22nd June 2018 Judge Porter notes, at paragraph 8, a requirement on the part of the claimant, accepted by the claimant’s representative to provide specification of the putative claims of disability discrimination which the claimant’s representative had confirmed, in the course of that Case Management Discussion before Judge Porter, he would seek to advance in terms of section 15 and section 19 of the Equality Act 2010. Judge Porter further records that the claimant’s representative had undertaken, on 20th June, to provide Further and Better Particulars of those claims while explaining that he would not be in a position to do so over the next three to four weeks due to holiday commitments.[4.1]As at the date of the first day of Open Preliminary Hearing, 24th July, those Further and Better Particulars had yet to be provided by the claimant’s representative. In his interpretation of Judge Porter’s Orders her expectation and his undertaking related to the provision of specification of the section 15 and section 19 complaints of discrimination but excluded the provision of any specification of the basis upon which the claimant asserts that she was a person possessing the protected characteristic of disability for the purposes of section 6 of the EqA 2010, at the relevant and material times.[4.2]In the case of Goodwin v Patent Office [1999] IRLR 4 the Employment Appeal Tribunal set out guidance as to the approach to be taken by Employment Tribunals in determining whether or not a claimant was, at the material times for the purposes of the complaints “disabled” within the statutory meaning of that term. The first step, amongst several others, urged upon the Tribunal in that guidance is that it should look carefully at what the parties have said in the pleadings and clarify the issues, in most cases after standard direction to this effect or at a Directions Hearing.[4.3]The claimant’s initiating Application ET1, first presented to the Tribunal on 19th March 2018, by reason of two proforma boxes ticked at section 8.1 contains the composite statement:- “I was discriminated against on the grounds of disability.” Section 8.2, being the section at which in terms of the Form parties are asked to set out the background and details of their claim and are directed that the details provided should include the dates when the events complained about happened is entirely blank. As is envisaged in the section heading as an alternative way of proceeding there is attached to the claim form a paper apart relating to that section. That paper apart contains detail of the complaint of unfair dismissal and of alleged automatic unfair dismissal.[4.4]The only reference to discrimination contained in initiating Application ET1 is to be found at paragraph F of the paper apart which is in the following terms:- “F. MD’s underlying purpose in seeking to remove me from his business may well be discriminatory. I suspect MD harboured some concerns about my dyslexia condition, which is officially a disability. This does not significantly affect my ability to perform my duties as a receptionist/telephonist. I have not received any adverse feedback informally or at annual appraisal and the MD and OM know I have gained a degree in the past and hence my capability is proven. However MD may have felt uncomfortable with tackling any concerns or issues with me about this disability and instead contrived to terminate my employment on an alternative basis. However he failed to establish such justification within his desired timeline and ran up against the requirement to comply with proper procedure, leading to unfair dismissal including for denying the statutory right to be accompanied, with serious consequences.”[4.5]At paragraph 9 of the paper apart there appears the following statement:- “AWARDS FOR DISCRIMINATION I anticipate the Tribunal may find the employer’s underlying motivation to contrive a scheme to terminate my employment is discrimination due to dyslexia disability. In this case the following compensation awards may apply: for financial loss; for injury to feelings; for personal injury”[4.6]The above two paragraphs do not amount to an offer to prove a complaint of discrimination. On their proper construction and according the words used their ordinary English language meaning, they amount, at their highest, to a speculation on the part of the claimant that the reason for the respondent’s dismissal of her, or if more than one the principal reason, was neither the reason asserted by the respondent, that is misconduct, nor the reason asserted by the claimant, that is dismissal because of the claimant’s assertion of a statutory right to be accompanied at a disciplinary meeting, but may be a third reason which, as at 24th July 2018, in terms of the ET1 and or the ET3 in either, its pre or post amended forms, neither party offered to prove.[4.7]As the Open Preliminary Hearing which proceeded on 24th July 18 and 28th January 19 is concerned only with the discrete Preliminary Issue of claimant’s asserted possession, at the material times, of the protected characteristic of disability (“disability status”) absent which the claimant has no Title to Present and the Tribunal no Jurisdiction to hear complaints of disability discrimination, the absence, at that time, of relevant averments of complaints of discrimination is not, per se, material, particularly in circumstances where all parties, including Judge Porter appear to have anticipated that some Further Particulars seeking to introduce such averments in sufficiently specific form are to be brought forward and sought to be introduced by the claimant.[4.8]What is significant and relevant to the determination of the issue at Open Preliminary Hearing was the fact that, as at 24th July 18, the claimant said nothing in her pleadings about her disability status beyond an inference, which may be said to arise from paragraph F of the paper apart and taking its terms at their highest, that the respondents may have perceived her as suffering from dyslexia and may have dismissed her in order to avoid what she postulates may have been an uncomfortableness associated with tackling any concerns which they may have had in that regard; and an inference, arising from her use of the possessive pronoun in the phrase “concerns about my dyslexia condition” that she was suffering from dyslexia as at the time of her dismissal.[4.9]Beyond the statement;- “my dyslexia condition, which is officially a disability.”, whatever that phrase is intended to convey, the claimant does not assert in her pleadings that the impairment which she has, let it be assumed that she is to be taken as meaning one arising from dyslexia, had a substantial and long term adverse effect on her ability to carry out normal day to day activities at the material times, or at all.[4.10]Let it be assumed, however, that an offer to prove such a state of affairs is to be inferred from the linking by the claimant of the words “dyslexia condition” with the word “disability”, the claimant, as at 24th July 18, said nothing in her pleadings about;• the nature of the impairment manifested by her dyslexia,• of the day to day activities which it is said to have adversely affected her ability to carry out or,• of in what way such an adverse effect is to be regarded as substantial in the particular circumstances of her case.[4.11]The one apparently relevant averment made by the claimant in that regard is that contained at paragraph F in the following terms:- “… my dyslexia condition which is officially a disability. This does not significantly affect my ability to perform my duties as a receptionist/telephonist. I have not received any adverse feedback informally or at annual appraisal and the MD and OM know I have gained a degree in the past and hence my capability is proven.”[4.12]That was an assertion acknowledged and relied upon by the respondents, as at 24th July 18, respectively at paragraphs 22 and 23 of its pre and post amendment versions of the paper apart to the ET3, where the respondent states; “It is denied that the claimant is a disabled person within the meaning contained in section 10 of the Equality Act 2010. By her own admission the claimant asserts that ‘my dyslexia does not significantly affect my ability to perform my duties as a receptionist/telephonist’”.[4.13]Let it be assumed that the claimant, at an evidential Hearing, were to prove, as she offers to do, that her dyslexia has no effect upon her normal workplace duties, that would be evidence which although not conclusive of the issue would serve to militate against proof that such impairment as was manifested by her dyslexia had a substantial adverse effect on her ability to carry out normal day to day activities.[4.14]In her witness statement (evidence in chief) the claimant states at paragraph 6 as follows:- “My dyslexia was assessed formally to support my application to the Student Awards Agency Scotland (SAAS) for Disabled Students Allowance (DSA) while studying for an HNC at Jewel and Esk College followed by a degree at Queen Margaret University in Edinburgh between 2000 and 2004. The assessment was carried out at the Access Centre at Stevenson College by Mrs Margaret Bruce, who is a qualified professional but has since retired.” The claimant founds upon that report for the purposes of her assertion that she was at the material times a person possessing the protected characteristic of disability. That report is not produced.[4.15]At paragraph 10 of her witness statement the claimant states “SAAS say that it may take up to a further 20 working days to ascertain whether my original application for DSA in 2000, hopefully together with a copy of the assessment report, is to be found in their archives.”[4.16]The claimant produces with her witness statement a document submitted by the claimant to the Student Awards Agency Scotland and date stamped by them as received on 2nd June 2004 itemising various charges in respect of which the claimant sought reimbursement for 11 x 2 hour sessions of dyslexia tutoring and or proof reading, in the period 5th March to 7th July 2004.[4.17]At page 5 of her witness statement the claimant states:- “As a current” (that is as at 24th July 2018) “real example of substantial adverse effects, I refer to the list of likely difficulties I face in a formal Hearing, that accompanies the recommended reasonable adjustments submitted by my GP at the request of the Employment Judge.”.[4.18]The claimant clarified in the course of cross examination on 24th July 2018 that the list of likely difficulties to which she refers in her witness statement is the general list of potential difficulties/challenges, extracted by her representative from the British Dyslexia Association publication and provided by him to her doctor for reproduction on the obverse side of the doctor’s letter dated 20th July and which related to the claimant’s participation in the Open Preliminary Hearing of 24th July.[4.19]At paragraph 12 of her witness statement the claimant states:- “I have attached a copy of the British Dyslexia Association’s screening test I have completed now for the benefit of the Tribunal. My score at 69 indicates moderate or severe dyslexia at this time.”[4.20]The claimant confirmed in cross examination on 24th July 2018 that the document so produced had been completed by her some time in the week commencing 16th July 2018.[4.21]At paragraph 13 of her witness statement the claimant recounts a general description of the difficulties/challenges which she faces, as at the date of her statement 24th July 2018, in the following terms:- “13 My main areas of difficulty include but are not limited to: reading and writing, slow speed of processing information, sequencing, short term memory, working memory, expressing thoughts verbally and in writing, orientation and visual stress. Not all of these difficulties apply all of the time and though the cumulative effect is significant much of the time. Over time I have developed a range of coping strategies to try to minimise the effects. I try not to display or make an issue of persistent challenges involved in writing but they are always there, whether spelling when leaving a short message or structuring thoughts in a lengthy report. I have needed significant help with this statement just as I received one to one scribing assistance when attending lectures, writing essays and undertaking exams at university.”; and continues at paragraphs 14 and 15 in the following terms:- “14. Coping strategies cease to work in some situations and then my impairment becomes much more pronounced. Additionally, under stress I can lack awareness of what I am saying and the consequences, or can even “shut down”. 15. All of the above apply day to day throughout my home and work life.”[4.22]The claimant’s witness statement contains no evidence of the way in which her asserted impairment had a substantial and adverse effect on her ability to carry out normal day to day activities during the period of her employment with the respondents 1st April 2016 to 12th March 2018.[5.0]In summary the claimant’s position, in evidence before the Tribunal on the 24th July 18, appeared to be, and was in the course of submission on that day confirmed by her representative to be:-(a) That she had been assessed as being dyslexic in 2000 by a qualified professional, in a degree and to an extent not covered by her in her evidence but, sufficient for the purposes of qualifying her for a Disabled Students Allowance while at College and University in the years 2000 to 2004.(b) That dyslexia is numbered amongst the conditions identified via the Schedule to the Equality Act 2010 and the Secretary of State’s subsequently issued guidance, that may give rise to a disability for the purposes of the Equality Act.(c) That notwithstanding the non-production of the diagnostic professional assessment, her own evidence that she had been in receipt of a Disabled Students Allowance should be regarded as sufficient proof of the fact, not only that she had satisfied the SAAS criteria for the making of a grant of DSA in 2000, but also of the fact that she was a person possessing the protected characteristic of disability in terms of section 6 of the Equality Act 2010, as at the year 2000 and in the period 2000-2004.(d) That dyslexia is widely recognised as a lifelong condition; and that accordingly and notwithstanding the absence of evidence of the impact of her dyslexia upon her ability to carry out day to day activities at the material times, that is in the period 1st April 2016 to 12th March 2018, she should be regarded, on the balance of probabilities, as having proved that at those times she was a person possessing the protected characteristic of disability in terms of section 6 of the 2010 Act, in relation to the first day of Hearing for the purposes of her claims. The Relevant Legal Framework and Guidance[6.0]Disability can arise from a wide range of impairments which amongst others can be developmental impairments such as Autistic Spectrum Disorders (ASD) dyslexia, dyspraxia and learning disabilities.[7.0]It is not necessary to categorise an impairment as physical or mental.[8.0]It is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded from those which can amount to disability.[9.0]Not all impairments are readily identifiable, for example mental health conditions and learning disabilities, and it is therefore important that clear and discernible evidence of the same be produced.[10.0]The Equality Act 2010 (Schedule 1 para 6) specifies certain conditions by virtue of which a person diagnosed with them is declared by statute to be a disabled person. Dyslexia is not one of the conditions included on that list but rather it is a condition which, depending on the particular circumstances of the case and of the individual concerned, may or may not constitute an impairment which has a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities.[11.0]The 2010 Act (Schedule 1 para 7) provides that certain people, in certain circumstances, will be deemed to meet the definition contained in section 6 of the 2010 Act these being persons who are: certified blind, severely sight impaired, sight impaired, or partially sighted, by a Consultant Ophthalmologist. Anyone else, including those who rely upon a diagnosed condition of dyslexia, require to show that they meet the requirements of the definition set out in section 6 of the 2010 Act in order to demonstrate that they had relevant disability status for the purposes of their claims. That is to say they require to demonstrate that, at the relevant and material times for the purposes of their claims, they were a person possessing the protected characteristic of disability.[12.0]As was heralded by the terms of section 6(5) of the 2010 Act, the Secretary of State has issued guidance on matters to be taken into account by Adjudicating Bodies when determining questions relating to the definition of disability.[13.0]Contrary to the assertion made by Mr Shafe in the course of his submissions on 24th July 2018, that guidance is not the law. The guidance does not impose any legal obligations in itself, nor is it an authoritative statement of the law. Rather, an adjudicating body determining the question of disability status must take into account any aspect of the guidance which it appears to it to be relevant.[14.0]The self-assessment checklist questionnaire completed by the claimant in the week commencing 16th July 2018 and produced and relied upon by her as demonstrating by reason of the score, brought out by her responses, of 69 that she is moderately or severely dyslexic, does not constitute diagnostic evidence that the claimant was, at the material time, moderately or severely dyslexic.[15.0]The self-assessment checklist completed by the claimant and produced and relied upon by her was not completed by her at the material time but rather in the week commencing 16th July 2018. Further, while the interpretive notes which accompany the assessment contain a statement to the effect that research results have indicated that all those who recorded scores of more than 60 when taking the self-assessment test in advance of a diagnostic assessment were subsequently diagnosed as moderately or severely dyslexic, it also cautions those completing the test:-(a) That the research and development of the checklist test makes clear that every individual is different and should be treated and assessed as such.(b) That a number of the questions, the answers to which are said to be characteristic of dyslexic adults, are commonly found in the answers of non-dyslexics.(c) That it is important to remember that the test does not constitute an assessment of one’s difficulties.(d) That it is just an indication of some of the areas in which “you” or the person you are assessing may have difficulties. Observations on the Evidence adduced and pleadings presented on 24th July 2019[16.0]The statements contained in the claimant’s witness statement when taken together with her averment at paragraph F of the paper apart to her initiating Application ET1, viz; “My dyslexia condition which is officially a disability. This does not significantly affect my ability to perform my duties as a receptionist/telephonist. I have not received any adverse feedback informally or at annual appraisal and the MD and QM know I have gained a degree in the past and hence my capability is proven.” If they were to be accepted at their face value and to be unchallenged, would tend to show, on their objective construction, that what the claimant is offering to prove is on the one hand that she has suffered, at least from the year 2000, from the diagnosed condition of dyslexia which is a lifelong condition and which numbers amongst those which are recognised as having the potential to constitute impairment giving rise to disability, but, on the other hand, that at the material times, that is to say the period of her employment with the respondent as a telephonist/receptionist, her dyslexia did not have a substantial adverse effect on her ability to carry out the normal day to day activities associated with her employment. That of itself would not be determinative of the issue of status matter in that normal day to day activities, at the material time, will have included a number which were not associated with the claimant’s employment and or the performance of her duties as a telephonist/receptionist. On the other hand, her witness statement contains no evidence about the manner in, or degree to, which the impairment asserted and relied upon by the claimant, at the material times, adversely affected the claimant’s ability to carry out normal day to day activities.[17.0]When asked by her representative in the course of oral examination in chief on the 24th July to provide such evidence the claimant appeared unable to do so. Her evidence relating to the workplace at the material time focused, rather, upon what she described as the inappropriate or inadequate responses, of the respondent’s Managers, to her.[18.0]When asked by the Judge on 24th July 18 to try to recollect and describe in evidence difficulties which she encountered at the material time that is in the period 1st April 2016 to 12th March 2018, the claimant, on 24th July 18, identified one instance only, said to have occurred in the first two weeks of her employment during which when attempting to create, by word processing, a note of a telephone message for a fellow employee, she found a large incidence of spelling and grammatical errors highlighted, by the software spellchecker, in red on the screen which circumstance caused her to feel stressed when a colleague was looking over her shoulder at the screen. The claimant linked that incidence of spelling and grammatical errors in the document and the stress which she felt in relation to it being viewed on screen by a colleague, to her condition of dyslexia; That is to say she offered that instance as evidence of her impairment of dyslexia having a substantial adverse effect, at the material time, upon her ability to carry out a normal day to day activity associated with her duties of receptionist/telephonist namely, the extension and generation of a note of a telephone message taken by her, to be passed to a colleague.[18.1]The position set out above is one which is directly contradicted by the averment (the assertion), made by the claimant at paragraph F of the paper apart to her ET1, that her (impairment of) dyslexia did not significantly affect her ability to perform her duties as a receptionist/telephonist. The claimant proffered no explanation on 24th July 18, either in the course of evidence in chief, cross examination or re-examination of the direct conflict arising between her averments on the one hand and the evidence which she gave in answer to the Judge’s questions, on the other. Submissions For the Respondent on 24th July 2018[19.0]In submission on 24th July 2018, Mr McCusker for the respondent, who had put squarely to the claimant in cross examination the proposition that at the material times her ability to carry out normal day to day activities was not substantially adversely affected and that her attempt to include complaints, as yet unspecified, of disability discrimination along with her complaint of automatic unfair dismissal were entirely and inappropriately opportunistic, submitted that that contradiction, of necessity, called into question the reliability and or credibility of the claimant’s evidence. The same insofar as it might be said to amount to evidence of substantial adverse effect upon her ability to carry out normal day to day activities at the material times. He submitted that evidence which was so undermined should be regarded as insufficient of itself to discharge the onus of proof, regarding disability status at the material time, an onus which sat squarely with the claimant.[20.0]He submitted that the approach adopted thus far by the claimant/her representative to proof of relevant possession of the protected characteristic, at the material times, was one unlikely to lead to the discharge of the burden of proof in that regard.[21.0]There was, in his submission, no other relevant evidence before the Tribunal and he accordingly invited the Tribunal to hold that the claimant had failed to discharge the onus of proof in respect of disability status at the material time and that the claimant accordingly lacked Title to Present and the Tribunal Jurisdiction to Consider, any complaints of discrimination, however subsequently specified, and that any such complaints should be dismissed. Submission for the Claimant on 24th July 2018[22.0]The proposition advanced by Mr Shafe in submission, on the claimant’s behalf on 24th July 18 and echoed by the claimant in her written witness statement and oral evidence on that day, is one predicated upon a number of assertions and or apparent assumptions viz:- “a. that dyslexia is a lifelong condition (an assertion which for the purposes of the Open Preliminary Hearing the respondent’s representative has indicated is not regarded as being, of itself, contentious) b. that dyslexia “is a disability according to the terms of the Equality Act 2010” as opposed to dyslexia being recognised as a condition which may or may not constitute an impairment which may give rise to a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities c. that the claimant’s evidence that she had been assessed in the year 2000 by a qualified professional as eligible for receipt of Disability Students Allowance, when taken together with her evidence that she was in receipt of such an Allowance in relation to her condition of dyslexia in the period 2000 to 2004, constitutes proof without the need for any further evidence, of the claimant’s possession of the protected characteristic of disability for the purposes of section 6 of the Equality Act 2010 in the period 1st April 2016 to 12th March 2018 inclusive.
Discussion
[23.0]The last two assumptions were fallacious and the conclusion which Mr Shafe invited the Tribunal to draw in reliance upon them, on 24th July 2018, was unsound.[24.0]The guidance on the definition of disability (2011) issued by the Secretary of State and to which Mr Shafe in submission and the claimant in her written witness statement refers the Tribunal, makes clear a number of matters including; at paragraph 6 that:- “The definition of disability set out in the Act and described in this guidance is the only definition relevant to determining whether someone is a disabled person for the purposes of the Act.”; and, at paragraph 7 “There is a range of services, concessions, schemes and financial benefits for which disabled people may qualify. These include, for example: local authority services for disabled people; the blue badge parking scheme; tax concessions for people who are blind; and disability related social security benefits” (although not specifically listed amongst the examples given Disabled Students Allowance of which the claimant asserts she was in receipt is equally illustrative) – “However, each of these has its own individual eligibility criteria and qualification for any one of them does not automatically confer entitlement to protection under the Act nor does entitlement to protection under the Act confer eligibility for such benefits or concessions. Similarly, a “child” (or person) “who has been identified as having special educational needs” (or learning difficulties/disabilities) “is not necessarily disabled for the purposes of the Act. However, having eligibility for such benefits may assist a person to demonstrate that they meet the definition in the Act”. Discussion and Interim Disposal[25.0]The view reached by the Employment Judge following the part heard OPH of 24th July 2018 was; were he to determine the issue of disability status at that juncture in proceedings based upon the evidence presented at the Open Preliminary Hearing of 24th July 2018, he considered it likely that he would be constrained to determine it in the negative; namely, that he would have been likely to hold that the claimant had not discharged the burden of proof in respect of relevant possession of the protected characteristic of disability in terms of section 6 of the Equality Act 2010 at the material times.[26.0]Issues of discrimination are important matters which reach into the heart of society and the rights, conferred by Parliament upon persons possessing the relevant protected characteristics, to be protected from discrimination, are important rights. As was submitted by Mr McCusker complaints of discrimination are not to be advanced in an opportunistic or tactical way in the absence of relevant averments or of evidential basis. Nor is it appropriate that the Tribunal be required to determine such issues in circumstances where it is prevented from taking into consideration relevant independent evidence which it is advised exists and upon which one party asserting possession seeks to found. To so require the Tribunal is inconsistent with the Overriding Objective governing Procedural Rules which in terms of paragraph 2 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, is to enable Employment Tribunals to deal with cases fairly and justly. The same Rule requires that parties and their representatives assist the Tribunal to further the overriding objective.[27.0]The Employment Judge declined to determine the Preliminary Issue at that juncture in proceedings upon the wholly inadequate evidence presented and in circumstances where the claimant bore to found upon a professionally qualified diagnostic report, which may have been the source of independent relevant evidence which goes to inform the consideration of the Preliminary Issue, but which was not (yet) produced; and in the absence of any potentially relevant medical or appropriate expert evidence which has the potential to likewise inform the consideration and determination of Preliminary Issue.[28.0]In the course of her oral evidence the claimant had stated variously on the one hand that her medical records would not include any reference to her dyslexia and its effects upon her ability to carry out day to day activities and, on the other hand that her General Practitioners were aware of her dyslexia, a matter which appears confirmed by the letter dated 20th July 18 emanating from the practice.[29.0]In accordance with the guidance delivered by the higher courts it is also appropriate, before requiring the Tribunal to determine such an issue, that parties and in particular the party upon whom the burden of proof rests, in the instant case the claimant, give fair notice of the particular substantial and long term adverse impact upon the claimant’s ability to carry out normal day to day activities at the material time, which they offer to prove; and do so by incorporating within their written pleadings sufficiently specific averments of particular instances/occurrences of the same within the material time period. That was, in the Employment Judge’s view, particularly important when the only potentially relevant averments given notice of by the claimant were averments which, if proved, would tend to contradict rather than support the otherwise bald assertion which the Tribunal was asked to infer from the claimant’s position, that her asserted impairment did have substantial and long term adverse effect upon her ability to carry out normal day to day activities.[30.0]Accordingly The Employment Judge, in terms of his Interlocutory Orders of 31st July 2018:- “(a) Appointed the case to a continued Diet of Open Preliminary Hearing to proceed before the sitting Judge, as a continuation of the OPH, at Edinburgh on the 18th of September 2018 at 10 am. (b) Ordered the claimant to furnish the respondent’s representative and the Tribunal with a copy of the diagnostic report prepared by Mrs Margaret Bruce in 2000 and relied upon by the claimant, together with the claimant’s General Practitioner’s medical records for the period 1st March 2016 to 1st April 2018. (c) Ordered the claimant’s representative to provide Further Particulars of Claim not only in relation to the section 15 and section 19 EqA 2010 discrimination complaints which he indicated before Judge Porter he would seek to advance, but also Further Particulars, pertaining to the claimant, as opposed to the general assertions thus far made, in relation to the issue of disability status, the same within 28 days of 31st July 2018. (d) The Employment Judge allowed to the respondent’s representative a further period of 14 days thereafter within which to consider the Further Particulars produced and to adjust the Form ET3 in response if so advised. (e) Issued direction regarding the updating (supplementing) of the Joint Bundle of Documents (including the witness table and Judge’s copy Bundles which are retained by the Tribunal) and, have reserved to myself the Interlocutory Case Management of and referral for directions in the case, during the intervening period prior to the continued OPH fixed for 18th September; and meantime (f) Reserved the making of formal Findings in Fact in relation to the Preliminary Issue until after the conclusion of the continued Open Preliminary Hearing.” Further Particulars of Claim and Report[31.0]Paragraph 31 Application for Extension of the Time Allowed for Compliance with those Orders and Consequential Postponement of the Continued Diet of OPH fixed for 18th September 18 having occurred, the claimant’s representative subsequently lodged with the Tribunal a Dyslexia Assessment Report by Dr Sionah Lannen dated 28th September 2018, the original Report not having been recovered, together with Further Particulars of Claim in, respect of, amongst other matters, the claimant’s asserted possession of the protected characteristic of disability.[32.0]At paragraph 32, those tendered Further Particulars although, in relation to the complaints of discrimination given notice of focusing potential Preliminary Issues of Jurisdiction by reason of Time Bar and of the requirement for Leave to Amend, were, incorporated into the pleadings, insofar only as relating to specification of the claimant’s asserted possession of the protected characteristic of disability, on 7th January 19 together with the respondent’s response and the case continued to the rescheduled Continued Open Preliminary Hearing which proceeded before the sitting Judge at Edinburgh on 28th January 2019. Continued Open Preliminary Hearing 28th January 2019[33.0]In respect of the continued Hearing the claimant was afforded the opportunity, should she elect to so proceed, of presenting her evidence in chief by way of a written witness statement bearing a “Certificate of Veracity”; and the claimant’s representative the opportunity of being attended by a note taker to assist in the noting of evidence and conduct of the case. In addition the adjustments made at the first day of OPH in respect of the taking of breaks and providing assistance to the claimant while accessing documents referred to in the Bundle as required, were put in place.[34.0]In the event the claimant opted to give her evidence in chief in the conventional oral fashion while also relying upon her original witness statement which remained before the Tribunal. Oral Evidence[35.0]The claimant gave evidence in chief on oath and answered questions put by the respondent’s representative in cross examination and questions from the Tribunal. Documentary Evidence[36.0]There was lodged by the respondent’s representative a Joint Bundle of Documents numbering pages 1 to 411 to which there was added to pages 413 and 414 produced by the claimant’s representative at the commencement of the Hearing and to a limited number of pages of which, including Dr Lannen’s Dyslexia Assessment Report, the Tribunal was referred in evidence and submissions. Findings in Fact[37.0]On the oral and documentary evidence presented across both the First & Second days of OPH ( 24 July 2018 and 29 Jan 2019) the Tribunal makes the following essential Findings in Fact, restricted to those relevant and necessary to the determination of the Preliminary Issue of Disability Status.[38.0]Disability can arise from a wide range of impairments which amongst others can be developmental impairments such as Autistic Spectrum Disorders (ASD), dyslexia, dyspraxia and learning disabilities. Dyslexia is a condition which, depending on the particular circumstances of the case and of the individual concerned, may or may not constitute an impairment which has a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities. Dyslexia is a lifelong condition which is developmental and pervasive. There are a wide range of symptoms which can be experienced by those who have pervasive developmental disorders and these may vary for each individual and can range from mild to severe difficulties.[39.0]The claimant was first diagnosed with dyslexia by a relevant professional practitioner, Mrs Margaret Bruce in or around 2000.[40.0]The claimant was tested on 5th September 2018 by Dr Sionah Lannen, a Chartered Educational Psychologist whose diagnostic report, produced in the Joint Bundle at pages 139 to 156 is relied upon by the claimant.[41.0]In her Report, Dr Lannen confirms:-(a) in relation to the claimant, a diagnosis of dyslexia which she defines as a lifelong condition.(b) that the claimant exhibited, on the day of testing and amongst other characteristics and scores, scoring in the low average range in relation to numerical reasoning ability to recall auditory information in proper sequence and detail and working memory and attention.(c) Scoring below average range on measures of her ability to duplicate abstract designs, processing speed and visual attention, reading, spelling and sentence comprehension scores respectively in the 14th, 12th and 14th percentiles which she described as significantly weak when compared to the claimant’s chronological age and cognitive ability.(d) A significantly slow free writing speed of 11 words per minute.(e) Indicators of mixed laterality which causes difficulties in both language arts areas (in terms of orientation and visual tracking often resulting in reversals, loss of place and lack of fluency in reading) and the maths/science areas (in terms of directionality, orientation, special awareness and visual discrimination).(f) The claimant’s comprehension skills are significantly stronger than her visual perceptual processing abilities, a difference of a magnitude which can result in information processing difficulties.(g) A weakness in the area of short term auditory memory processing.(h) Significant difficulties on visual motor integration tasks involving visual tracking and that the claimant’s ability and performance within a work situation will be adversely affected by an interaction between the following factors.(i) A significant weakness in the area of short term working memory processing.(j) Significant auditory processing difficulties.(k) Significant difficulties with tasks requiring fine motor, visual tracking and speed of information processing abilities.(l) Significantly weak literary skills.(m) Mixed laterality.(n) Light sensitivity.(o) High anxiety and stress over her performance.[42.0]In her Report Dr Lannen defines the term “significant”, as used in the Report, as indicating either a performance or processing score below a standard score of 85 and a percentile of 15 which scores would be termed “severe”; and that individuals with such severe results would require access arrangements in terms of academic study and support within the workplace.[43.0]During the period of her employment with the respondent the claimant experienced difficulties in transferring the audio received contents of telephone conversations into word processed records of the conversation messages for onward transmission to colleagues. That difficulty was evidenced by the large number of spellcheck and grammatical errors highlighted in the word processed draft documents which she generated which incidents was in turn witnessed by and remarked upon by colleagues.[44.0]One such incident occurred in or around September 2016 when the person whom she was shadowing during her first two weeks noticed the length of time it took the claimant to deal with the generation of an email and, on another occasion, when a Manager who was able to oversee her computer screen noticed the number of spelling and grammatical errors highlighted by the automatic spellcheck such that she required the claimant to shut the screen down.[45.0]The claimant experienced difficulty in working for sustained periods of time at a computer screen without a break. She developed a coping mechanism of offering to make a cup of tea for colleagues which had the effect of providing her with a break.[46.0]The claimant found that reading incoming messages and daily instructions in relation to the various customers on whose behalf she was functioning as a telephonist/message taker to be very hard work and found that she did not always achieve effective processing of that information.[47.0]In relation to the placing of an Order for batteries and light bulbs the claimant became confused believing that she had processed and placed an Order on the preceding day in circumstances where she had not.[48.0]She had difficulty in placing outgoing mail alphabetically in the correct slots which in turn determined when and with what frequency it was issued.[49.0]She experienced difficulty in catching a bus by reason of the fact that although she recognised the number of the bus she became confused by the destinations displayed which were different depending on the direction in which the bus was travelling such that she got onto the wrong bus.[50.0]She required to read and re-read incoming emails and, before being able to compose a response required to process the information and then check and recheck the drafts that she generated, all of which took additional time.[51.0]When shopping in John Lewis the claimant was and is unable to navigate to the required floor by use of the signs displayed at escalators, lifts and stairwells in which the various departments are described (was and is unable). She required to ask fellow shoppers or members of staff for directions.[52.0]She experiences inability to tell left from right, to understand or give directions and to concentrate in relation to working at the computer.[53.0]The claimant experienced learning difficulties from an early age. She could not read or write until she was aged 23. Her condition of dyslexia was first potentially identified in the context of her attending a College of Further Education but was not tested for and formally diagnosed until the year 2000.[54.0]Those difficulties, experienced by the claimant, at the material time, constitute relevant matters to be taken into account in determining questions relating to the definition of disability in terms of the ministerial guidance set out in the Appendix to the Equality Act 2010, including difficulties in the categories of:-(a) Difficulty understanding or following simple verbal instructions(b) Persistent and significant difficulty in reading or understanding written material where this is in the person’s native language, for example because of a learning disability; and(c) Persistent distractibility or difficulty concentrating.[55.0]At the material times the claimant had developed and applied coping mechanisms in relation to the discharge of her work duties. The coping mechanisms employed by the claimant worked during the initial periods of her employment but gradually became less effective as she in turn became stressed by her failure to cope.[56.0]In the course of examination in chief on 28th January 2019 the claimant reaffirmed and reasserted and confirmed that she relied upon the statement set out at page 14 of the Bundle at paragraph F of section 8.2 of her initiating Application ET1 and made by her in relation to “my dyslexia condition” in which she states; “This does not significantly affect my ability to perform my duties as a receptionist/telephonist.” When asked in cross examination whether that remained her position in the context of the apparent contradiction between that statement on the one hand and the position which she now asserted, namely that her dyslexia had a substantial adverse impact on her ability to carry out day to day activities the claimant stated “I do stand by the statement with added bits, I would add if there were significant reasons of which there became many”.[57.0]The claimant was suffering from Dyslexia in the period 1st April 2016 up to and including end March 2018 that is in a period which included that of her employment with the respondent. Submissions For the Claimant on 29th January 2019[58.0]In submission for the claimant Mr Shafe sought to rehearse the difficulties which the claimant had experienced from an early age including the period of her education.[59.0]He relied upon the assessment said to have been carried out by Mrs Brown in the year 2000. The Report from that assessment was not produced but, under reference to the invoices for payment by the Scottish Awards Agency in respect of learning support services provided to the claimant he submitted that that should be regarded sufficient evidence to establish that the claimant was a person possessing the protected characteristic of disability in the year 2000.[60.0]He relied upon the Report now produced of Dr Lannen in respect of the tests carried out by her of the claimant in September of 2018 and in terms of which Dr Lannen diagnosed the claimant as suffering from dyslexia which she described as “a lifelong condition”.[61.0]Mr Shafe invited the Tribunal to find in fact that the claimant had been suffering from the mental impairment of dyslexia at the material times, namely in the period 1st April 2016 up to and including March 2018.[62.0]Under reference to the claimant’s oral evidence in terms of which she had given some examples of actual difficulties encountered by her both in the course of performing her work duties and in her general life these being examples which she had described as occurring within the material period of time; and further under reference to the ministerial guidance which specifies matters to be taken account of in determining issues relating to the definition of disability, the claimant’s representative invited the Tribunal to find that at the material times the impact of the claimant’s mental impairment of dyslexia upon her ability to carry out day to day activities was adverse, substantial and long term, such as to satisfy the requirements of section 6 of the Equality Act 2010. Submissions for the Respondent on 29th January 2019[63.0]For the respondent, Mr Robertson submitted that the stark contradiction between the position advanced by the claimant in evidence as to possession at the material time of the protected characteristic of disability and the positive averment, contained at paragraph F of section 8.2 of Form ET1 which, she had affirmed in cross examination that she continued to stand by, was a contrast which, in the absence of any adequate explanation raised questions as to the credibility and reliability of the claimant’s evidence. Particularly so in relation to the supposed contemporaneous examples of the adverse impact which she had ultimately and on the second day of Hearing she had advanced in evidence which evidence he urged the Tribunal to reject for those reasons.[64.0]Separately and in the alternative, even if the claimant’s evidence about adverse impact was not to be rejected, when taken together with her positive assertion that her dyslexia did not affect her ability to carry out her duties as a telephonist/receptionist when in the respondent’s employment, it should be construed as indicating that such adverse impact as the impairment of dyslexia may have had upon her ability to carry out day to day activities was not substantial that is to say was, in the claimant’s case was minor.[65.0]On the basis of the above submissions Mr Robertson submitted that the claimant should be regarded as having failed to discharge the onus of proof, incumbent upon her, such as to bring herself within the definition of a person possessing the protected characteristic of disability for the purposes of section 6 of the 2010 Act. Response by the Claimant’s Representative[66.0]By way of response, and in relation to the contradictory positions being advanced by the claimant and although not an explanation itself advanced by the claimant in evidence, Mr Shafe invited the Tribunal to hold that the averment referred to at paragraph F of section 8.2 of the Form ET1 was an averment which fell to be read as relating not to the claimant’s employment with the respondents but rather a general averment relating to the claimant’s ability, let it be assumed that she was employed not by the respondents but by some other employer. Discussion in relation to the Continued Hearing of 29th January 2019[67.0]In contrast to the previous day of Hearing there was before the Tribunal on the second day, 28th January 2019:-(a) a diagnostic report on the claimant’s condition of dyslexia, which is a condition with the potential to give rise to disability for the purposes of the 2010 Act; and,(b) oral evidence of the claimant of specific examples of difficulties encountered by her in relation to her carrying out of normal day to day activities, including at work and in her general life.[68.0]That evidence, although sharply contrasted with her offer to prove that her condition of dyslexia did not significantly affect her ability to perform her duties as a receptionist/telephonist, was not challenged per se in cross examination and I have, on balance, accepted the claimant’s evidence in that regard as both credible and reliable and have made Findings in Fact regarding the difficulties experienced by the claimant within the material time period while also making a Finding in Fact regarding the claimant’s apparently conflicting adherence to what, at first glance at least appears to be her contradictory statement in the pleadings.[69.0]I have also found in fact that the claimant was, at the material times, a person who had the mental impairment of dyslexia.[70.0]It is the case that Dr Lannen in her Report, although having the opportunity to do so, expresses no professional opinion based upon the test results obtained by her in September of 2018, to the effect that the claimant was on the balance of probabilities similarly affected by the condition of dyslexia at the material times. Mr Shafe, however, asks me to infer the same from Dr Lannen’s statement that dyslexia is a “lifelong condition”. Mr Robertson for his part did not seriously suggest that I would not be entitled to take such inference from the Report and taking the totality of the Report together with what is the generally acknowledged prevalent academic view that dyslexia is indeed a “lifelong condition”, I am prepared to and do draw that inference.[71.0]Regarding the contradiction in positions highlighted by the claimant’s continuing adherence to the position given notice of by her at paragraph F of section 8.2 of Form ET1, I make clear that I reject entirely Mr Shafe’s submission that upon its proper construction that averment is to be read as one relating not to the claimant’s employment with the respondents but rather to her potential employment with another employer. The claimant gave no hint of such an explanation in her evidence despite having several opportunities to do so. Upon its proper construction the averment falls to be read as giving notice of its application to the claimant’s employment with the respondent and to that extent I accept Mr Robertson’s submission falls to be regarded, in part at least, in direct contradiction of the claimant’s assertion that she was, at the same time a person possessing the protected characteristics of disability for the purposes of section 6 of the 2010 Act.[72.0]I accept Mr Robertson’s contention in that regard, insofar as it goes, and further that included among the possible true explanation for its inclusion in the pleadings was that postulated by Mr Robertson, namely that its purpose was to bolster a complaint of unfair dismissal in the context of criticism of performance at a time when advancing complaints of discrimination were not seriously in the claimant’s contemplation, these being added after the event as it were on an opportunistic basis, all as contended for by Mr McCusker in submissions made at the first day of Hearing. Whether that is or is not the true explanation however is not a matter in respect of which the Tribunal is seized of Jurisdiction at the continued Open Preliminary Hearing and separately, and in any event, there is to be found in the claimant’s oral evidence, as advanced on the 28th of January 2019, although never expressly stated by her, a potential alternative explanation which has the effect of rendering the two positions, albeit sharply in contrast, as positions which are not fundamentally incompatible. That potential explanation lies in the fact that the claimant, as reflected in the Findings in Fact made, has developed coping mechanisms to ameliorate the adverse impact of her impairment of dyslexia upon her ability to perform the duties of her employment. Those mechanisms, while partially effective were not wholly effective nor were they effective throughout the entirety of her employment with the respondents. Separately, and in any event as already observed, “normal day to day activities” are not restricted, for statutory purposes to those associated with the performance of work duties and the fact that someone encountered no difficulty in the performance of their duties at work by reason of their impairment, would not of itself mean that their ability to carry out other normal day to day activities was not adversely impacted.[73.0]I am accordingly satisfied that the claimant’s physical impairment of dyslexia was one which, it being a lifelong condition, she was affected by during the material time period. I am further satisfied, on the combination of the claimant’s own oral evidence and the test results, observations and opinions expressed by and contained in Dr Lannen’s Diagnostic Report, that there was a causal connection between the difficulties experienced by the claimant in the carrying out of normal day to day activities during the material time period on the one hand and her impairment of dyslexia on the other.[74.0]The above brings me to the last of Mr Robertson’s submissions namely that even, let it be assumed that the claimant’s impairment of dyslexia was the cause of long term adverse impact upon her ability to carry out day to day activity. That impact did not fall to be regarded as substantial but rather minor when one weighed in the scales the claimant’s oral evidence on the one hand with her positive averment to the contrary in relation to her work time duties. While I recognised that there is some merit in that approach I was not on balance persuaded by it, chiefly because, as with any medication, the coping mechanisms developed by the claimant to ameliorate adverse impact fall to be taken out of account in determining whether the requirements of section 6 of the 2010 Act have been met. Having so done, I am satisfied that the adverse impact suffered by the claimant, in terms of the evidence advanced by her which I have accepted and in the context of Dr Lannen’s Report, is impact which does not properly fall to be described as either minor or trivial and thus is “substantial” for the purposes of a section 6 EqA 2010 definition.[75.0]Accordingly, I find that the claimant has discharged the burden of proof such as to establish and I find in fact and in law that at the material time, that is in the period 1st April 2016 up to and including 12th March 2018, she was a person possessing the protected characteristic of disability, by reason of her mental impairment of dyslexia, in terms of section 6 of the Equality Act 2010. Accordingly subject to any other challenges to jurisdiction by reason of time bar and of requirement to seek Leave to Amend given notice of by the respondents in their updated ET3, I further find has Title to Present and the Tribunal Jurisdiction to Consider complaints of discrimination because of the protected characteristic of disability. Further Procedure[76.0]As conditionally identified at paragraph 1.4 of the Note appended to the Tribunal’s Orders of 7th January 2019 which was issued following the Closed Preliminary Hearing held on that day, the Preliminary Issue of Disability Status having been resolved the case should now proceed to a Closed Preliminary Hearing to determine further procedure in respect of the potential preliminary issues, focused by the respondents in their updated response, of requirement for Leave to Amend and of Jurisdiction (Time Bar) in respect of the complaints of discrimination.[77.0]To the above end, date listing stencils should be issued forthwith to parties’ representatives for the purposes of fixing a Closed Preliminary Hearing before the sitting Judge in the months of April/May 2019.