Mrs L Mackenzie v G.O.L.D. Healthcare Solutions Ltd: 4103447/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4103447/2023
Between
Mrs Lisa MackenzieClaimantG.O.L.D. Healthcare Solutions LtdRespondent
Before
Employment Judge J M Hendry
Members
Mr R DearieMrs D MassieMrs Lisa Mackenzie ClaimantDate 14 March 2024
JUDGMENT
The claims for disability discrimination, in particular, the making of reasonable adjustments, not being well founded are dismissed.
REASONS
[1]The claimant in her ET1 contended that she was disabled. She had a combination of conditions principally that she was Peri-Menopausal (with E.T. Z4 (WR) certain difficulties arising from that) and ADHD. The respondent company accepted that the claimant had ADHD but did not accept the other conditions amounted to a disability.[2]The case proceeded to a case management hearing before Judge O’Donnell on 11 September 2023. Judge O’Donnell sought Better and Further Particulars of the claimant’s conditions.[3]These were provided. The case proceeded to a further case management hearing on 30 November before Judge Sutherland. At that point disability status was not accepted and there was an open preliminary hearing on disability status was envisaged to take place on 1 February 2024. The claims at that point were envisaged as being direct disability discrimination, discrimination arising from disability, indirect discrimination and a failure to 15 make reasonable adjustments.[4]Ultimately any other claims fell by the wayside and the Tribunal was left with a claim for a failure to make reasonable adjustments (indirect discrimination). The respondent wrote to the Tribunal on 22 December admitting that the claimant suffered from ADHD and that this was a disability within the meaning of the Equality Act. No admission was made in relation to other health issues (Peri-menopause, chronic pelvic pain and depression).[5]The claimant had completed a health declaration form on commencing employment indicating that she had never been treated or assessed for any mental health problems nor any stress-related illness. This did not reflect her evidence at the hearing. The claimant also indicated that she had pelvic pain which had at a later point been diagnosed as Endometriosis. Her complaint ultimately was that the respondent should have stopped her working as many shifts as she did because of the impact these had on her health. The respondent’s position was that irrespective of being disabled the claimant was given both support and provided with reasonable adjustments to take account of her health. Their position was that the claimant could book her shifts through an “APP” and would often book shifts with third parties and advise then of this retrospectively.
Evidence
[6]The Tribunal had the benefit of a Joint Bundle and a Supplementary Bundle, to which, as the case progressed additional documents were lodged by consent.[7]The Tribunal heard evidence from the claimant on her own behalf and from Mrs Louise Heddle, the Managing Director and Owner of the business. The respondents also called as witnesses Mrs Sharon Reid, her Clinical Lead Manager and Mrs Kirsty Mackintosh, Allocations (Bookings) Manager.
Issues
[8]The Tribunal confirmed the issues with parties at the start of the hearing. There was a factual dispute as to when the respondents were made aware of the claimant’s ADHD. The claimant was adamant that this was at the time of diagnosis in November. The respondent’s position, supported as it turned out by contemporaneous documents was that they knew sometime in October. Their position was to the claimant’s benefit but made no difference at the end of day. The principal issue for the Tribunal to determine was whether or not the respondent should have made reasonable adjustments to prevent the claimant working more than four shifts per week.
Facts
[9]The claimant became a Support Worker in the care sector in 2015. She enjoyed the work and the challenges it presented. She was enthusiastic about providing care. She initially worked for the NHS and then for an Agency and finally started employment with the respondent on 27 June 2022. The claimant had left the NHS as she had wanted more control over her work. She did not enjoy working in care homes as she preferred providing one-toone care.[10]The respondent company both staffed care facilities on a permanent basis and also had through their agency work, an ability to offer the claimant such work. The agency provided health care workers to various organisations in the Inverness area.[11]When the claimant was recruited by the respondent she was provided with a written statement of particulars (JB17). The respondent has a small management staff. Mrs Heddle is the Managing Director. Mrs Mackintosh deals with the allocation of staff (bookings unit) and Mrs Sharon Reid deals with clinical matters such as training. They have approximately 149 staff (the exact figure varies) and a substantial turnover. They do not have dedicated HR staff but rely on their solicitors for advice.[12]Mrs Reid was involved in the recruitment of the claimant. The claimant completed a health declaration form (JB18). The claimant indicated that she took HRT at present and did not disclose that she had been treated for any mental health problems. She did not indicate that she regarded herself as in any way disabled.[13]Throughout her life the claimant had been periodically diagnosed with depression. In hindsight she believed there had been a failure by health professionals to diagnose ADHD and that depression and anxiety was a side effect. She waited on an NHS waiting list for some time for an assessment as to whether or not she had ADHD but eventually paid for a private assessment. This took place in a private clinic in December 2022.[14]The claimant produced a letter from her G.P. Dawn Westwood (JB9) corroborating that for many years she’d been treated for stress related illness, anxiety and depression. The Doctor also recorded that she had significant ongoing problems with chronic pelvic pain and a number of urinary tract infections. She had been experiencing symptoms of the peri-menopause for some time. The G.P. wrote: “Lisa has been stoical in trying to manage difficult physical and mental health symptoms concurrently and current lengthy NHS waiting lists have been a source of frustration for all involved in her care. She reached a crisis point in July of this year (2023) and has been signed off work since 26 July 2023."[15]The claimant had various difficulties in addition to her health problems. At the start of her employment her son was often ill and she experienced personal difficulties. The respondent’s staff had noted that on a number of occasions the claimant had to cancel shifts either because she was unwell or because her son was ill or for other reasons. These are recorded in document 19.[16]The claimant would keep in touch with the Allocations/Booking unit by text and WhatsApp message. She also had access to an App on her telephone and could book her own shifts. The claimant often agreed to work shifts with clients of the respondent and retrospectively tell the respondents that she had agreed to work these shifts. In addition, she would periodically work shifts for the NHS without reference to the respondent.[17]The respondents kept a record of the claimant’s hours and shifts (JB23) for January, February, March and April 2023.[18]When the claimant initially began working for the respondent she worked long hours. The respondent’s managers were not too surprised at this as they understood that the claimant saving up of a trip to London and later paying for an ADHD assessment at a private clinic. The claimant later came to believe that it was a symptom of her ADHD that she found it difficult to let people down and not take work that was offered.[19]The claimant paid for a private clinic to carry out an assessment on whether she had ADHD. By the end of October she was aware that the initial assessment was that she had ADHD. She told her GP by telephone about the assessment on the 26 October 2022 (p75).[20]The claimant had an appraisal/supervision meeting with Mrs Sharon Reid on 1 November 2022. The appraisal/supervision index document was completed (JB24). The claimant cancelled a planned supervision in February. The supervision noted that the first supervision had taken place on 30 June 2022. The claimant’s training was up-to-date and she felt confident in her role. She was keen to do a SVQ qualification. The claimant required to complete the SVQ qualification in approximately a year of that date. She indicated under “self-evaluation” the following: I enjoy working with GOLD. I need to cut back my hours maybe work 4 days a week. Was saving up for my trip to London. Looking forward to it. I have recently been diagnosed with ADHD, have loads going on. I need to get a better work life balance.”[21]The claimant discussed these matters in some detail with Mrs Reid. Mrs Reid is a qualified nurse. The claimant told her about believing she had ADHD and about the assessment being planned. She disclosed difficulties in her private life and discussed her health problems including peri-menopause. Mrs Reid did not record everything that was discussed in the conversation because she thought that the claimant was confiding personal information to her and she feared that the form would be available in the claimant’s file and not confidential. They agreed a target of four shifts per week and that the claimant would “not to pick up too many shifts and enjoy time at home”. Mrs Reid told the claimant that she could pick up the telephone at anytime to her and that they would provide her with support if she had any issues or concerns.[22]In the course of her work the claimant had a number of incidents which she found upsetting. The claimant would contact Mrs Sharon Reid or other members of staff when such difficulties arose.[23]On 4 November an issue arose with providing one to one support for a client AM. She wrote: “I start my meds next week so things will improve. I can only apologise for the mess I have put myself in. If I can have tomorrow off I will go back to work on Sunday, after next week I will do 4 days and listen to what everyone has to say. It’s just overwhelming everything at the minute xx”[24]The ‘meds’ the claimant referred to were in relation to her peri-menopausal condition. In response to the claimant was: "Hi Lisa You’re having a hard time. Please phone me anytime day or night if you need to talk or scream. Don’t feel alone. You’re a lovely person. Are you free next week and we can meet for coffee?xx”[25]The claimant completed her SVQ during her time working with the respondent.[26]The claimant’s GP received a letter from the clinic the claimant had attended on the 6 January 2023 ( JB 70/71).[27]In relation to one client the claimant texted (p.132): "I’m struggling, I need to be moving about xx.”[28]The response from the booking team was: ‘I will pass to Claire you are struggling. Are you booked in for more hours with him?xx”[29]The claimant responded: "Yes I will do the ones I’m booked for and after that I will not pick anymore.”[30]The claimant periodically worked at a facility The Orchard providing support. On occasion she would attend for work and find that she was asked to carry out work in a different location and with different clients than she had expected. She found this disruption to her expected routine upsetting and stressful.[31]The claimant raised an issue about not having a good relationship with a particular service user who was supported by Highland Home Carers. Mrs Heddle e-mailed them: “Due to a particular service user” (JB.141) asking that the claimant was not put on any further shifts with the person concerned. This was acknowledged by the client. Mrs Heddle wrote (JB.143): “Thank you so much for your understanding, Lisa was worried that if I spoke to you regarding this she would not be offered any more shifts. She can struggle to say “no” as we all do at times, she is a good support worker but does need to manage her time so that she gets a break from work.”[32]The claimant e-mailed Kirsty Mackintosh on 9 February (JB.143): “Thank you for talking me down. I try to think positive, it was just a shock seeing the young adult crying. I always try and make everyone feel good, I just hate the thought of people not liking me for no reason. I have to be realistic though so everyone close tells me, please don’t think like me. Anyway I’m fine. At this rate USE will be charging me for the therapy sessions. Soon I get settled on the right meds I will calm down. So coming off the Elvanse and going on to Concerta. Hope it works better for me."[33]Mrs Mackintosh responded: “Hi Lisa Honestly, anytime it’s really not nice for you to be in that situation but always remember you can’t control how people behave or react to you but you can control how you are. Rise above them, you know you’ve done the right thing. Don’t put everything down to your meds. You were justified in the way you were feeling today and even on meds you are going to be feeling like this. Just have more confidence in yourself. Always here though if you need to, it’s always better to chat through these things."[34]On 16 March the claimant e-mailed Ms Mackintosh (JB.147): “I’m guessing you know I called on-call this morning. I spoke to one boss last week and explained I didn’t want to work with H8. It was a real struggle for me. I was put in the house last week, one of the managers her name was Angie, I think. She wasn't too happy with me been moved because it was my first shift. Yesterday I was messed about, then put to Alness. I was told not to leave the office. The help button went off plus had to stay in Invergordon until another member of staff could take the keys and help button. I was meant to be at Alness Service for 10, then it was 11. I didn’t hand the keys over till 11.30. Then I get a call from Claire saying the Manager is looking for me. I feel they made me look like a fool. Today I came in at 7:45 to see I had my first two hours with H8 who didn’t like me. Played up the whole time I was there. And if a key staff member was a bit cheeky, well it’s your job to go where the company want you to go to. I explained this isn’t how it works. I came out to speak to Louise, wasn’t a good signal. Key staff don’t want to work with her and that’s why I ended up having H8 again.......I feel like everyone wants to take advantage of me.”[35]On 16 March Mrs Mackintosh explained to the claimant that it was difficult when she was asked to change location/client. She wrote: “I really think you should ask if support work is for you because these issues will keep arising where you think you are working in one house and you move to another. All care workers have to be adaptable when staff shortages etc. Maybe you should consider going back to work in Care Homes where you are working alongside other staff who can support in difficult situations. It would be a shame to give up your support work because you get amazing feedback but just until you feel stronger with your own personal situation.”[36]The claimant took umbrage at terms of the letter: “ I understand that all the ladies in the GOLD office aren’t here. To babysit me or others. You do say though it’s our choice to go where it suits us. I feel from this e-mail it’s like ? GOLD I am more a pest than a help. I will try and get my SVQ finished at the end of the month. At least it won’t have been wasted then. I will finish up my shifts I have been booked in for and try and find another job as soon as I can. Thank you for your support over the time I’ve been with GOLD.”[37]Mrs Mackintosh did not see the email immediately. She emailed back on 23 March (JB.150):- “Sorry for my late reply but I’ve been off ill the last couple of days. I think you have just misread what I was meaning in my email. I probably could have written it out better. It was just services like Key and HHC it’s harder for us to always ensure 100% things are not going to change for you and by suggesting care homes it was just that we always know that that is where you are going to be. I really appreciate your email though and I really do just want the best for you as you’re such a wee star and when you are in the correct work environment you do thrive. Kind Regards.”[38]The claimant replied (JB.151): 11Hope you’re feeling better. Yes you’re right. I think I will definitely feel more settled knowing what I’m doing from day-to-day. I am truly grateful for all your support and I do mean that. My last day with GOLD will be the 19 May.”[39]The claimant e-mailed Mrs Heddle on 9 April with her experiences of working with the company. She was disappointed that Mrs Heddle did not immediately respond. Mrs Heddle did respond on 14 April indicating that her resignation was accepted. She offered to meet the claimant to discuss her concerns. Mrs Heddle had offered to treat the claimant’s email as a grievance and have a grievance hearing.[40]The claimant responded (JB.158):- “Thank you for the same day reply, I’m grateful for this however I think the damage has been done. In one of my previous emails sent I have said all that can be said. I have taken note of the response time and the pay that I have received in the last month. Going forward I don’t have a desire to attend a meeting on Thursday 20 to discuss how you feel when my own feelings haven’t been met or considered in the last four to five weeks. I have no support. No one wants to pick up the phone up and have a simple conversation, but everyone wants to safeguard themselves in case they say the wrong thing. I have personal feelings and was made to feel unwanted for speaking how I feel. I just want to get my SVQ completed and you never have to deal with me again. I do think it’s important to support and understand everyone has issues and disabilities out of their control. I have spend 9 years working in care and won’t be giving it up cos things get a bit hard. The people I support and continue to support has no reflection on my disability or women’s troubles and how I conduct myself at any work place. I think you have seen that on all the feedback I’ve had in the past year. I will continue to be the best person I am not matter what people have to say. Maybe if more people spoke out the care industry would thrive again. Going forward I would appreciate when the time comes and what job I decide to take I would appreciate given me a reference for the work I have carried out while at GOLD to be positive and in my ability to help others not because I have stated some true facts” Witnesses[41]We found the claimant a genuine and honest witness and one who could generally be relied on in relation to her recollection of events, with one significant exception namely when she first told her employers about the possibility she had ADHD, but whose perception of events was both subjective and subject to hindsight. The catalyst for her resignation was a email from a manager that was intended to help her by suggesting she would get more of a routine and be less subject to late changes required of her if she worked in aa care home. The claimant took this as a suggestion, which it clearly wasn’t, that she was not good at her preferred work which was delivering one to one care. This impacted on her credibility as a witness to fact. We do not criticise her personally and there was no intent to mislead us. As her GP put it she was stoical in the face of numerous difficulties particularly in relation to her health but it seems clear that the run up as it were to the ADHD assessment during which time she was convinced that she had ADHD (subsequently verified by the assessment) led her to discuss the condition with her employers prior to the condition being confirmed later in the year. The diagnosis came as a relief to the claimant who then seemed to focus very much on that condition.[42]We found the respondent’s witnesses both credible and reliable. They were professional in their approach and evinced no antagonism towards the claimant. Submissions[43]Mrs MacKenzie indicted that she thought that her employers owed her a duty of care. They knew she had been diagnosed with ADHD. They should have been aware that the condition led her to be unable to say no and to take on too much work. They knew she should work less and were aware she was struggling but did nothing in her view.[44]Ms Beedie submitted that her witnesses’ evidence should be preferred to that of the claimant. The claimant had not demonstrated that there was a PCP, nor any particular disadvantage nor that the proposed adjustment was reasonable. The claimant was a competent adult who took on too much work at points despite the advice of her family and of Mrs Reid. The respondent could not cancel shifts the claimant had arranged. To do so would have damaged the relationship with the client and a substitute might not be found.[45]To succeed the Tribunal would have to be able to make explicit findings identifying the PCP, the persons who are not disabled with whom comparison is made, the nature and extent of any substantial disadvantage suffered by the claimant and any step or steps it would have been reasonable for the Respondent to take. Secretary of State for Work & Pensions (Job Centre Plus) -v- Higgins UKEAT/579/12, [2014] ICR 341, [2013 All ER (D) 351 (Oct).[46]The Equality Act Sch 8, Part 3) provides that an employer is not subject to a duty if he does not know or could not reasonably be expected to know that a person has a disability and is likely to be placed at the relevant substantial disadvantage. In Wilcox -v- Birmingham CAB Services Ltd [2011] EqLR 810 the EAT took the view that unless the employer had actual or constructive knowledge of the disability, the question of substantial disadvantage did not arise. The Employer will be taken to have requisite knowledge provided they are aware of the impairment and its consequences. Discussion and Decision
Relevant Law
[47]Sections 20 and 21 of the EA are in these terms: “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. 4102151/2020 Page 10(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....” “21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person....”[48]In relation to an employer’s knowledge Schedule 8 EA paragraph 20 says as follows: “Lack of knowledge of disability, etc. (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know ... (b) [in any case referred to in Part 2 of this Schedule] that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.”[49]Time limits are dealt with in Section 123 (1): “Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of -(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable”.[50]We have taken into account the well-known guidance given by the Court of Appeal in Igen Ltd v Wong [2005] ICR 931. It was approved by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054. In Ayodele v Citylink Ltd [2018] ICR 748, CA confirmed that differences in the wording of the Equality Act 2010 have not changed the test or undermined the guidance in Igen Ltd. It is insufficient to pass the burden of proof to the respondent for the claimant to prove no more than the relevant protected characteristic and a difference in treatment. That would only indicate the possibility of discrimination and a mere possibility is not enough.[51]In Project Management Institute v Latif [2007] IRLR 579, the EAT established that the claimant must establish not only that the duty to make adjustments has arisen, but also that there are facts from which it could be inferred, absent a lawful explanation, that the duty had been breached by the respondent. There must be evidence of some apparently reasonable adjustment that could have been made. Once a potentially reasonable adjustment has been identified the burden shifts to the respondent to prove that the adjustment could not reasonably have been achieved.[52]The level of detail required will change from case to case, but it is necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to be able to engage with the question whether it could reasonably have been achieved or not.[53]The Tribunal also had regard to the Guidance published by the Secretary of State on matters that should be taken into account in determining questions about disability.[54]The respondent accepted that prior to the diagnosis the claimant had ADHD. She had suspicions and had confided in Mrs Reid that she was paying for a private assessment. The initial assessment was that she had ADHD but it is clear from the medical records that this was an initial assessment. It appears as if the GP only received the assessment in January. This seems to tie up with the claimant’s evidence that the full results were only available in December. The claimant also had problems with her medication for the perimenopause having received HRT medication in May but discovering it was incorrect (and presumably less effective than it should have been). This difficulty was only rectified in January 2023.[55]It was also clear that she was suffering a number of other heath related difficulties connected to the Peri-menopause. We have not made separate findings in relation to this condition, which in fact seems to be a label for the cause of various matters such as pelvic pain/endometriosis. We heard very little evidence as to the day to day impact these conditions alone had on the claimant’s ability to carry out day to day activities but they clearly exacerbated other problems in the claimant’s life. In any event the even if we had found that the claimant was disabled by this particular condition the adjustment she sought did not relate to any of the symptoms but to her ADHD.[56]The claimant faced numerous difficulties in her claim. The first is that she found it difficult to identify a PCP. The claimant was not employed for set hours and was not expected to work any particular number of hours. She was free to choose what shifts she worked. Her position was that he condition, ADHD, made her unable to say no to offered work. This position was impossible for us to accept because she had the choice of asking for work though the App. In addition, it was not always the respondent who persuaded her to take on additional work but the managers of the care facilities who spoke to her direct or the shifts she arranged herself with the NHS. The claimant could not argue that the PCP was a requirement for her to work x hours and that the reasonable adjustment was for her to work the agreed target of four shifts per week. In approaching the matter the claimant sought to argue that the employers should effectively save her from her own decisions.[57]The employers state of knowledge is also relevant. They might well regret that they did not get an Occupational Health report on whether the claimant’s diagnosis of ADHD had implications for her work or ask her formally if she thought that it did. It would have been wise in retrospect to have monitored the position formally. They relied on being a small team and not giving the claimant too much work but they also relied on her good sense not to accept too much work. The background was important in that there were no complaints about the claimant’s work or any indication that she was not coping with work. Her absences were for a number of reason and were not solely heath related or related to any one condition.[58]We can understand how these matters developed the way they did. The claimant did not mention that she believed that it was a feature of her ADHD that she felt compelled to accept work. Our view is that this is that this is the claimant looking back with hindsight. The hours she actually worked from January 2023 onwards were produced and do not seem excessive (JBp113). She was in control of the hours she worked through the App.[59]Mrs Reid's understanding, and the evidence the claimant gave to us was that working was an escape from her own difficulties, both health and domestic, which she welcomed at the time. She also explained the wish to work long hours as saving up for a trip to London and later for payment of her private ADHD assessment. It was only in hindsight she realised that working shifts particularly long shifts of up to 15 hours might have had a detrimental effect on her mental health. The employer may have ben aware of the disability but as Ms Beedie submitted they were unaware of the possible consequences of having ADHD disability. It was not good enough in our view to suggest as the claimant does that the respondents working because they work in the care sector they should have been aware of all the possible symptoms of ADHD including the one the claimant says predisposed her to work long hours. No detailed medical evidence was produced suggesting that this was a feature in the claimant’s particular situation. We noted for example that in the letter from the ADHD 360 clinic reporting the condition to the GP there was no reference to difficulties the claimant was having at work (JBp70-72) or her working excessively. Indeed, there was reference to the condition impacting her education and social life but no mention of her employment. There is for example no suggestion she should work less hours. There is some reference to impulsivity and low assertiveness which might be a factor in the claimant agreeing with managers to do shifts when she was in their unit by using the App to seek less work. There was no evidence of the claimant trying to cancel work. Accordingly, we rejected that the claimed effect of the condition would be sufficient to materially affect her ability to choose or reject work. At it’s highest the only time the claimant’s wish to please others seems to have been a factor was when she was accepting work direct.[60]That said the supervision that took place alerted the respondent that the claimant as perhaps doing too much and a suggestion was made to limit shifts to four per week. The respondent did not put in place any formal mechanism to police the amount of hours the claimant was working, although in practice this would have been difficult if not impossible to enforce as they did not control all the shifts the claimant could sign up for. In the circumstances of this case the claimant had the means and ability to limit her own working hours and it is again with hindsight that she concludes that she would have been better off working less hours. From the employer’s point of view they thought they were supporting the claimant appropriately, and she told them this, and that she enjoyed work as a distraction for other problems she had.[61]For the reasons we have set out the claim fails and is dismissed.