Case No 4105459/2022Venue GlasgowHearing 12 July 2023
Between
NClaimantGreater Glasgow Health BoardRespondent
Before
Employment Judge S MacLeanMr G Bathgate (instructed by Solicitor) for claimantMs S Wood (instructed by Solicitor) for respondentDate 22 April 2024
JUDGMENT
The Judgment of the Employment Tribunal is that:(1) the claimant was a disabled person between August 2017 and December 2021 in terms of section 6 of the Equality Act 2010; and(2) the claimant’s age discrimination claim is stuck out under rule 37(a) of schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. ORDER OF THE EMPLOYMENT TRIBUNAL Under rule 29 of schedule1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 the Employment Tribunal orders that the claimant’s application to amend dated 19 July 2023 is allowed and the respondent has 21 days from receiving this order to respond by providing additional information to the response.
REASONS
[1]This public preliminary hearing was listed to determine the following issues:a. Whether the claimant is “disabled” as defined in section 6 of the Equality Act 2010 (EqA).b. The respondent’s application for strike out under rule 37 of schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the ET Rules of Procedure) or failing which, an application for deposit order under rule 39 in respect of the sex and age discrimination claims.[2]The claimant was represented by Mr Bathgate, solicitor. She gave oral evidence on her own account about the first issue. She also referred to a file of documents that included a disability impact statement, GP records and occupational health reports.[3]Ms Wood, solicitor represented the respondent. She cross-examined the claimant. No witnesses were called for the respondent.[4]It was agreed that we would deal with the first issue as it involved hearing evidence. The representatives would then make submissions on the first issue and the second issue.[5]In respect of disability status Ms Wood referred to the case of Morgan Stanley International v Posavec UKEAT0209/13/BA. It was agreed that Mr Bathgate would be given an opportunity to comment on the respondent’s submission in relation to this case within seven days. I suggested to Ms Wood that she should only provide further comments to Mr Bathgate’s comment if she did not feel that it was adequately addressed in her original submissions. In the meantime, I reserved judgment.[6]I subsequently invited comments from the parties as I was considering issuing an anonymity order. This is dealt with separately.[7]By email sent on 19 July 2023, Mr Bathgate provided comments on the respondent’s submission in relation to Morgan Stanley International and the proposed anonymity order. He also made an application to amend the sex discrimination case as set out in an amended statement of claim. By email sent on 24 July 2023, Ms Wood advised that the application to amend was opposed and set out the reasons for so doing.[8]I decided to deal with the issue of disability status first. I then considered the application to amend before considering the respondent’s applications for strike out or deposit order. Disability status[9]In the claim form the claimant alleges acts of disability discrimination (subjecting her to a disciplinary process in respect of allegations in the disciplinary outcome letter and imposing a disciplinary sanction). The alleged discriminatory acts followed an investigation into a collective grievance (made on 24 November 2020) under the respondent’s Once for Scotland Workforce Investigation Process culminating in an investigation report on 7 November 2021 recommending referral to the respondent’s Once for Scotland Workforce Conduct Policy under which a disciplinary hearing took place in March/April 2022; a disciplinary sanction issued in the outcome letter dated 29 April 2022; an appeal hearing on 10 and 11 November 2022 and outcome letter dated 21 December 2022.[10]The claimant also asserts that “at all material times” she is and was a disabled person within the meaning of the EqA. She suffers from symptoms relative to the menopause. In particular she suffers from dysregulation of temperature, inconsistent behaviour, anxiety, insomnia and inability to focus.[11]In relation to the disability status, the issues that I had to determine were:a. Did the claimant have a mental or physical impairment? The claimant asserts that she experienced symptoms relative to the menopause. She refers to physical and mental impairments. The respondent did not dispute that the claimant suffered from symptoms relative to the menopause. However the respondent did not accept that all the symptoms to which the claimant referred in her disability impact statement were attributable to the menopause in particular symptoms of painful and heavy bleeding. The respondent accepted that the claimant had physical impairments relative to menopause but not mental impairments.b. Did the impairment affect the claimant’s ability to carry out normal day to day activities?c. Was the adverse condition substantial? The respondent says that the impairments do not meet the statutory test.d. Was the adverse condition long term in that it has lasted 12 months; it is likely to last for at least 12 months; or is likely to last the rest of the life of the person affected? The respondent says that the impairments do not meet the statutory test.
The relevant law
[12]Section 6(1) of the EqA provides that a person has a disability if they have ‘a physical or mental impairment; and the impairment has a substantial and long term adverse effect on the person’s ability to carry out normal day to day activities.’ The burden of proof is on the claimant to show that she satisfies the definition.[13]The statutory definition of ‘substantial’ in section 212(1) of the EqA is, ‘more than minor or trivial’.[14]Supplementary provisions for determining whether a person has a disability are found in part 1 of schedule 1 to the EqA. For example, schedule 1, paragraph 2 provides that the effect of an impairment is long-term if it has lasted at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person. Further if the impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day to day activities, it is treated as continuing to have that effect if it is likely to recur.[15]Schedule 1 paragraph 2(2) provides that if an impairment ceases to have a substantial adverse effect, it is treated as continuing to have that effect if that effect is likely to recur. In that context, “likely to” has been defined as “could well happen”, rather than “more likely than not” (SCA Packaging Limited v Boyle [2009] ICR 1056).[16]Schedule 1 paragraph 5 provides that an impairment is treated as having a substantial adverse effect on the ability of the person concerned if measures are taken to correct it and, but for that, it would be likely to have that effect.[17]The definition of disability in section 6(1) of the EqA requires that the adverse effects on a person’s ability to carry out normal day to day activities arises from some ‘physical or mental impairment’.[18]There is no statutory definition of either ‘physical impairment’ or ‘mental impairment’ nor is there government guidance.[19]The Court of Appeal held in McNicol v Balfour Beatty Rail Maintenance Limited [2002] ICR 1498 that ‘impairment’ in this context bears its ordinary and natural meaning. “It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the [claimant] has a physical or mental impairment with the stated effects.”[20]The Government has issued ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011) (the Guidance) under section 6(5) of the EqA. This stresses that it is important to consider the things that a person cannot do, or can do with difficulty (the Guidance, B9, confirmed in Aderemi v London & Southeastern Railway Limited [2013] ICR 391).[21]Day to day activities are things people do on a regular or daily basis, such as shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing an eating food, walking and travelling by various forms of transport, and taking part in social activities. This includes work related activities, such as interacting with colleagues, using a computer, driving, keeping to a timetable etc. (the Guidance, D2-D7).[22]The Equality and Human Rights Commission (EHRC) has published a Code of Practice on Employment (2011) (the Code), which has some bearing on the meaning of ‘disability’ under the EqA. Like the Guidance, the Code does not impose legal obligations, but tribunals and courts must take into account any part of the Code that appears to them relevant to any questions arising in proceedings.[23]The time at which to assess the disability (i.e. whether there is an impairment that had a substantial adverse effect on normal day to day activities) is the date of the alleged discriminatory act Cruickshank v VAW Motorcast Ltd [2002] ICR 729, EAT. This is also the material time when determining whether the impairment has a long-term effect.[24]The long term requirement relates to the effect of the impairment (which must be a substantial adverse effect on the ability to carry out normal day to day activities), rather than merely the impairment itself (Seccombe v Reed in Partnership Ltd EA-2019-000478-OO).[25]Where there is more than one condition causing an adverse effect, the claimant must plead each condition (see Morgan Stanley International v Posavec UKEAT 0209/13). Findings in fact in relation to disability status[26]The claimant was born in 1975.[27]The respondent has employed the claimant for more than twenty years and continues to do so.[28]When the claimant first developed a menstrual cycle at age 12 her periods were heavy. In her early 20s she was prescribed a contraceptive pill during which time her periods were regular and light. When she got married in her early 30s the claimant came off the contraceptive pill as she wished to start a family. She underwent IVF treatment. The claimant has not given birth.[29]Around April 2015 the claimant, aged 40, consulted her general practitioner (GP) as her periods had become insufferable. They were heavy and painful. She experienced flooding, hot flushes, sleep disturbance and difficulty concentrating.[30]By April 2016 the symptoms were intensifying. Her periods lasted up to three weeks with acute pain. She experienced flooding regularly and would bleed through her clothing. The claimant became anxious about this occurring. The claimant found this humiliating especially when it happened in meetings with colleagues or members of the public. The claimant had difficulty sleeping. She had hot flushes and sweating. She was tired during the day and had difficulty concentrating.[31]The claimant’s GP referred her to a gynaecology clinic for assessment. Her blood pressure was within normal range. The claimant was also prescribed Tranexamic acid tablets 50mg for bleeding and pain. The claimant was advised that she was perimenopausal.[32]The claimant received a gynaecology scan in October 2016. The gynaecologist recommended a Mirena intra uterine device to manage her pain and menorrhagia. This was attempted but was unsuccessful as the claimant could not tolerate the procedure. The symptoms persisted.[33]The claimant and her husband adopted a young child in autumn 2016. The claimant took adoption leave until summer 2017.[34]The claimant’s continued to have disturbed sleep at night. She was hot, uncomfortable, and sweating profusely. She had to change her bedclothes during the night. She became anxious and ruminated about what she had to do. She was tired during the day. Her periods were irregular and she suffered regular hot flushes during the day. Around March 2017 the claimant’s mood dipped. She consulted her GP.[35]By August 2017 the claimant found that her symptoms were exacerbated. She continued to experience painful heavy bleeding. She had hot flushes several times a day resulting in feeling nausea and sweating profusely. Her face would turn beetroot red in colour. Her sleep was disturbed. She was anxious and pondered repeatedly about what she had to do. The claimant became chronically fatigued and anxious.[36]The claimant’s mental health deteriorated to the extent that she was prescribed antidepressants by her GP. She did not take the tablets as she felt that it they were “a sticking plaster” rather than dealing with the underlying cause of her symptoms which she considered was hormonal. The claimant was at the end of her tether. She asked her GP to refer her to a specialist menopause clinic.[37]The claimant continued to sweat profusely at night. Her bedclothes would be drenched in sweat. She did not feel herself. She lacked confidence in doing previously routine tasks that she had been undertaking for years. She continuingly checked and rechecked any work.[38]The claimant continued to experience severe flushing and sleep disturbance. The claimant was fatigued and had difficulty concentrating on activities. She would literally cry over spilt milk.[39]The claimant’s husband was compassionate. He was aware of the claimant being anxious, tearful and fearful of doing things wrong. The claimant would overreact and become upset about insignificant matters such as dropping eggs on the kitchen floor. She was irritable and was less tolerant. He would attempt to put situations into perspective for her.[40]The claimant found that her disturbed sleep during the night caused her to struggle to get out of bed to get her child ready for school. The claimant became too anxious to drive. Having chosen adoption she felt that she was letting the family down. She lacked confidence in undertaking activities like shopping. She became increasingly isolated from friends and family. The claimant felt terrified for her child. She pinned her hopes on hormone replacement therapy (HRT).[41]Around November 2019 the claimant’s periods stopped. She continued to experience severe flushing, sleep disturbance and abdominal pain. The claimant spoke again to her GP about referral to a menopause clinic. The GP agreed that the claimant should be on HRT for bone/CV protection and symptom control until the age of natural menopause. The claimant made an appointment with her GP to start on HRT. At the consultation the claimant was advised that her blood pressure (which has always previously been stable) was very raised.[42]In late November 2019 the claimant had a panic attack at work. The claimant was hyperventilating, her clothes were soaked with perspiration. The claimant was signed off as being unfit to work from 26 November 2019 to 6 January 2020. The claimant could not cope with the mounting pressures at work.[43]The claimant underwent renal tests to exclude secondary causes for the increase in BP. The claimant had no significant past medical history for high BP. The tests were normal. The claimant tried lifestyle changes.[44]On 3 January 2020, the claimant’s GP recorded that if the claimant’s BP came down a bit the claimant “could try HRT cautiously as menopause symptoms/anxiety problems are contributing to BP”.[45]The claimant returned to work in January 2020. She discussed reducing her workload with her line manager.[46]By February 2020 it was agreed that the claimant would commence medication for her BP so that she could commence HRT. The claimant was unable to receive optimal treatment (HRT) due to medical contraindications with her high BP. The medication prescribed had limited success in reducing her BP.[47]The claimant continued to have very disturbed sleep. She had to sleep alone as she could not tolerate any other body heat. She had to sleep with windows open which was uncomfortable for her husband. She had trouble falling asleep and would jump about the bed.[48]During the day she would feel tired and struggled to concentrate. Her tasks at work took her longer as she continually checked and rechecked her work. The claimant avoided driving where possible as she was overly cautious which was likely to cause an accident. The claimant was flushed and her face was red.[49]As the claimant and her husband were key NHS workers their child attended a hub during the COVID restrictions so that they could work. The claimant felt guilty and terrified about the risks that she was placing their child. After work she would rush to the hub and then go home to put her child to bed.[50]The claimant was anxious about making decisions and giving her opinion. She constantly rechecked her work.[51]The claimant continued to have hot flushing making her face red. She was conscious of this and felt anxious and paranoid about it. She would go for the weekly shop and forget items like bread and milk. She would burst out crying for something incidental like dropping eggs on the floor. She would respond by being uptight and frustrated until it was pointed out that it was just a mess on the floor or not a big deal. That was not how the claimant felt in the moment.[52]The claimant struggled to concentrate in meetings. If she had hot flushing she would pause, breathe, and try to get herself under control.[53]Around November 2020 a collective grievance was raised against the claimant. There followed an investigation.[54]The claimant avoided social interaction with friends and close family. She did not reply to text messages as she had no interesting conversation and did not feel. She did not visit her mum often. She lacked motivation. She was not up for social events. She just about managed to do “Santa”.[55]The claimant continued to experience nightly sleep disturbance, flushing and sweating profusely. The disturbed sleep had an impact on her ability to function the following day. She felt tired, anxious and had “brain fog”. She was mortified when people commented on her flushing.[56]The claimant found it difficult to manage the stress at work. Her mood was low. She took longer to produce work and lacked confidence in what she was producing. The claimant’s symptoms persisted.[57]An investigation report was submitted in November 2021 which resulted in disciplinary proceedings and a disciplinary sanction.[58]The claimant continued to have disturbed sleep and sweats. The intensity abated from around December 2021 and was less troublesome.[59]The claimant was absent from work from May to October 2022 due to anxiety and depression.[60]The claimant stopped flushing towards the end of 2022.[61]Around May 2023 the claimant started HRT. She continued to have sleep disturbance. Her sweating has reduced in frequency and intensity. Her anxiety and low mood have become worse for which she is taking medication. Observation on evidence[62]I considered that the claimant gave her evidence in a straightforward measured manner. She did not seek to sensationalise her symptoms or their effects. She made reference to the medical evidence that was available to me. While she elaborated on the disability impact statement that she had provided earlier, this was in response to direct questions in relation to day to day activities beyond those undertaken while at work. I considered that she answered these questions honestly and candidly and I found her to be overall an honest witness.[63]Ms Wood had prepared her outlined submissions before the preliminary hearing which focused on the disability impact statement and medical records which she had analysed forensically.[64]While the medical records were an important relevant factor, I noted that they referred to a selection of healthcare professionals. I did not consider that the absence of repeated consultations with her GP in 2020 to 2022 was enough to infer that the claimant’s oral evidence was not reliable. I was mindful that it was challenging to obtain a consultation with GPs during this period and they tended to be telephone consultations. By 2020 the claimant knew that she was unable to receive optimal treatment for her menopausal symptoms because of the interactions with the medication that she had to take for her high BP. The claimant knew that until her BP was lower, there was little that her GP could do for her. Once her BP was under control the claimant was prescribed HRT which has reduced the intensity and frequency of her flushing. Her sleep has improved but is still disturbed.[65]Ms Wood submitted that the medical records made reference to certain preexisting gynaecological conditions. I considered that the medical records reflected a summary of what was discussed at ten minute consultations. I accepted the claimant’s evidence that the referral to the gynaecological clinic contained some inaccuracies. For example, that the claimant had undergone two unsuccessful IVF attempts rather than one. I therefore considered that the claimant’s evidence about her gynaecological history was more reliable. She explained that in her youth, she had heavy periods. This changed when she was on the contraceptive pill in her early 20’s. The claimant did not describe her periods being painful in her youth or that they were painful and heavy when she came off the contraceptive pill in her early 30’s. There was no reference to painful periods until 2015. The painful and heavy periods occurred in her late 30’s/early 40s when accompanied with clots and flooding lasting five to six days in every 21 days.[66]Ms Wood also made submissions in relation to the claimant’s condition of hypertension in November 2019. She submitted that there was no evidence that the claimant’s symptoms of hypertension were attributable to the menopause. She referred to the disability impact statement in which the claimant said the hot flushing also manifested itself on a daily basis with her face appearing red, exacerbated by ongoing hypertension symptoms. These hypertension symptoms impacted what treatment her GP was able to prescribe for the menopause. The claimant also said in the disability impact statement that, “in addition my high blood pressure caused nausea, dizziness and impacted on my concentration”.[67]My understanding of the medical records was that the claimant had no prior family or personal history of hypertension. Indeed, at various stages, her blood pressure had been tested and was often well within normal parameters. It was only around November 2019 when the claimant was to be placed on HRT that unexpectedly her blood pressure was found to be high. Tests undertaken to ascertain whether there was some secondary cause for this but none was identified. The claimant’s GP recorded in January 2020, “the menopausal symptoms/anxiety were probably contributing to raised blood pressure.”[68]There was evidence in relation to the extent to which the claimant’s flushing was attributable to hypertension. The claimant (who is not a doctor) said that the flushing was exacerbated by the high BP and the hypertension was exacerbated by the flushing. My difficulty in relation to this was that there was no medical evidence and from the facts, it appeared that the flushing/red face occurred well before the claimant was diagnosed with hypertension. I was unable to make any assessment as to what extent, if any having hypertension would contribute to or exacerbate the red face. Indeed, many people are often unaware that they have hypertension as there are no obvious symptoms. There was no suggestion that the claimant (or her GP) thought that the claimant had hypertension. To the contrary, the GP was intending to prescribe HRT at that consultation where the claimant was shocked to discover she had hypertension.[69]It was also apparent that the claimant became anxious. Once again, there was no evidence that the claimant had any prior medical history of this or indeed low mood. The claimant first mentions anxiety in April 2016 in the context of break through heavy bleeding. She also refers to this in March 2017 and August 2017 as other symptoms (flushing and heavy painful periods) were intensifying. The claimant also refers to anxiety in November 2019 in the context of work related stress and being diagnosed with hypertension. The claimant referred to her BP being stabilised on medication and to other symptoms (disturbed sleep/sweating) other than anxiety abating since being prescribed HRT.[70]Ms Wood said that there was no direct evidence that the claimant was experiencing anxiety or that since 2019 that anxiety was as a result of the menopause rather than work related stress or distress that she was feeling due to hypertension.[71]I accepted that there was no reference in the medical records or the medical report to the claimant having a condition of anxiety. There was reference however in January 2020 to the claimant’s “menopausal symptoms/anxiety probably contributing to BP”.[72]I considered from the medical evidence there was an interrelationship between the claimant’s experience of the perimenopause and menopause and her medical condition of hypertension. The claimant was going through the perimenopause from April 2015 during which she was experiencing heavy and painful periods, flooding, flushing, sweating, sleep disruption and anxiety and the menopause since 2019 during which she was experiencing flushing, sweating, sleep disruption, fatigue and anxiety. She has also had hypertension from November 2019 which caused nausea and dizziness. This condition impacted on her ability to take HRT for the menopausal symptoms. This no doubt impacted on her feelings of anxiety that she felt about the menopausal symptoms. Deliberation[73]The material time for establishing disability (i.e., whether there is an impairment which has a substantial and long-term adverse effect on normal day to day activities) is the dates of the alleged discriminatory acts. This is also the material time when establishing whether the impairment has a longterm effect.[74]The test is functional and not a medical test, directed to what a claimant cannot or can no longer do at a practical level.[75]The burden of proving disability lies with the claimant. My assessment of her situation must be taken at the time she says the claims arose. The alleged discriminatory acts took place after the raising of the collective grievance in November 2020 until the conclusion of the disciplinary proceedings in December 2022. My understanding is that the claimant alleges that the behaviours for which she was disciplined arose in consequence of her disability. It was not clear to me exactly when the behaviours occurred, but my understanding is that it was between 2018 and 2020.[76]Impairment bears its ordinary and natural meaning and may result from an illness or consist of an illness. There is no need to establish a medically diagnosed cause for the impairment. What is important to consider is the effect of the impairment not the cause. Disability may include someone who is not in fact disabled if without medical treatment they are receiving they would suffer that disability.[77]This case relates to “menopause” which means “the last menstrual period”. Menopause is a natural event. However, the timing and symptoms are different for everyone. Menopause can occur due to certain surgeries or cancer treatments. This can sometimes cause symptoms to be more sudden and in some cases more severe.[78]Perimenopause is the time from the start of the menopausal symptoms until after the last period. Periods will usually start to become less frequent over a few months or years before they stop altogether. They might become more irregular or become heavier or lighter. For some they can stop suddenly. Post-menopause is the time after the last period. A person is said to be postmenopausal when they have not had a period for 12 months.[79]People experience the menopause in different ways. Some experience minimal or no symptoms going through the menopause. However, many experience menopausal symptoms that can significantly impact their quality of life.[80]I did not understand there to be a dispute that the claimant has been going through the menopause. As it is not an illness it is difficult to identify a precise date for the onset of her symptoms. I accepted the claimant’s evidence that she was perimenopausal from April 2015.[81]The claimant stopped reporting having heavy, painful periods from 13 November 2019. She explained that she went for say ten months and then would have a period and the clock would be reset. It was unclear at what exact point the claimant became post-menopausal. This was likely to be in late 2020/2021.[82]The claimant has had menopausal symptoms since April 2015. The symptoms varied depending on the stage of the menopause. Some occurred at the perimenopausal stage such as flooding, painful and heavy periods. Other symptoms occurred throughout such as sleep disruption, flushing, sweating and anxiety although the frequency and intensity varied. There were occasions where she experienced all the symptoms at the same time. Some have continued continue such as disturbed sleep, sweating and anxiety despite being on HRT. These symptoms (other than anxiety) have been alleviated by HRT. Some of the symptoms such, as anxiety and flushing, may have contributed to hypertension. Other symptoms such as nausea and dizziness were associated with hypertension rather than the menopause.[83]I refer to the list of issues that I had to determine. Did the claimant have a physical or mental impairment?[84]The claimant’s position is that the symptoms relative to the menopause for which she suffered composed both physical and mental impairments. The respondent accepts that the claimant suffered from some symptoms relative to the menopause. The respondent’s position is however that not all symptoms are attributable to the menopause.[85]While the respondent maintained that the claimant had heavy and painful periods, this was a pre-existing gynaecological condition. I did not accept that evidence for the reasons stated above.[86]The respondent also argued that the hot flushing experienced by the claimant in 2017 is attributable to the menopause. The respondent did not however consider that the hot flushing described by the claimant in 2019 was attributable to menopause rather than the separate condition of hypertension.[87]As explained above, there was no underlying cause for the claimant hypertension. From the medical evidence the claimant’s menopausal symptoms/anxiety may have contributed to it. Further, while the claimant indicated in her evidence that an increase in her BP may have affected her hot flushing and red face (or vice versa), that did not explain why she had these symptoms when her BP was in normal range and why they continued when her BP was under control.[88]In relation to sleep disturbance, the respondent’s position was that there was no direct medical evidence of the claimant’s fatigue and impairment of concentration, agitation or anxiety, ability to focus and hypertension being attributable to the claimant going through the menopause.[89]I agreed that there was no evidence that the claimant’s hypertension was cause by the menopause. She did, however in my view, have symptoms which predated her hypertension and postdated when it was under control. These were all symptoms associated with going through the perimenopause, the menopause, and post menopause.[90]The respondent’s position was that the only symptoms attributable to the claimant’s “pled” disability were those of hot flushing in 2017. I did not agree. It appeared to me that the symptoms were interrelated. The claimant was having heavy and painful periods with flooding. She had disturbed sleep with hot flushes and sweats which led to having to get up during the night. The following day she would be tired and have difficulty concentrating. She became anxious. She continued having a disturbed sleep, flushing, and sweats.[91]The issue for me was whether or not the claimant had a mental or physical impairment rather the specific medical causes of it. I was satisfied that in relation to physical impairment, the claimant’s physical impairment was sleep disturbance and profusely sweating. Her mental impairments were lack of concentration and anxiety. Did the impairments have an adverse effect on her ability to carry out normal day to day activities?[92]My focus was not on what the claimant could do but what she could not do or could only do with difficulty.[93]For the most part the claimant was able to attend work. This was not definitive in my view. She worried about making mistakes. She could not concentrate, checking and rechecking her work. The claimant struggled getting out of bed and getting her child ready for school. She avoided driving as she was overly cautious. She had difficulty completing household tasks like doing the shopping and dealing with routine mishaps in the kitchen. She avoided social interaction. These are normal day to day activities. Was the effect substantial?[94]In my view the claimant started to experience symptoms caused by the onset of the menopause in April 2015. The symptoms varied depending on the stage of the menopause. There was an uptick in the intensity and severity of the symptoms from August 2017. While the claimant did not have significant absences from work, that itself is not conclusive. Throughout the period from August 2017 to December 2021 her disturbed sleep, flushing, sweating profusely, anxiety and inability to focus was more than minor or trivial. There was evidence as to how disturbed sleep during the night caused her to struggle to get out of bed and to get her child ready for school. The claimant became too anxious to drive. She had difficulty coping with being at work while her son was at the hub; emotionally dealing with routine chores and her reluctance to socialise and isolating from friends and family. The fact that the claimant did not wish to take medication that was prescribed for her anxiety (antidepressant) did not in my view mean that the effect was not more minor or trivial. The claimant explained her reluctance to take medication was because she did not consider that it would be anything other than a sticking plaster.[95]In my view, when the cumulative effects of the claimant’s impairments on the alleged activities is considered, the claimant has established this point. Was the substantial adverse effect long term?[96]I must also consider if the substantial adverse effect was long term. The claimant started to suffer symptoms caused by the onset of menopause in April 2015. While I did not doubt that the painful and heavy periods along with flooding was debilitating and had a significant impact on her quality of life, it was from August 2017 that the cumulative effect of the menopausal symptoms caused an adverse effect on her day to day activities.[97]Based on the evidence provided this substantial adverse effect continued and the intensity of the symptoms increased until sometime after November 2019 when her periods stopped. Other symptoms particularly the sleep disturbance, flushing, sweating, and anxiety continued in intensity and had a substantial adverse effect on the claimant’s day to day activities. The evidence is that from the end of 2021 the claimant symptoms, other than anxiety, had abated and were much less troublesome.[98]As I am considering the period November 2020 until the conclusion of the disciplinary proceedings in December 2022 this is more than long term.[99]I concluded that the claimant met the criteria of disability in the period August 2017 to December 2021. Application to amend the sex discrimination claim
Relevant law
[100]Rule 29 of the ET Rules of Procedure 2013 provides that the Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order.[101]The general approach to be taken by a Tribunal in exercising its discretion is set out in Cocking v Sandhurst (Stationers) Limited [1974] ICR 650. In Selkent Bus Limited v Moore [1996] ICR 836, the EAT drew on that part of the guidance in Cocking which referred to the need to consider the balance of the justice or hardship which would result from the amendment or the refusal to allow. The EAT went on to give guidance of the relevant factors.[102]The importance of the paramountcy of the test of weighing the balance of hardship or the prejudice to either party on granting or refusing the amendment has recently been stated by the EAT in Vaughan v Modality Partnership [UKEAT/0147/20], it is reiterated that the Selkent factors should not be taken as a checklist but were factors to be taken into account in conducting the fundamental exercise of balancing the justice and hardship of allowing or refusing an amendment. The application and objection[103]The claim form presented on the claimant’s behalf on 7 October 2022 includes claims of discrimination relying on the protected characteristics of age, disability, and sex. The alleged discriminatory acts took place between November 2020 and December 2022.[104]The case was initially sisted for the conclusion of internal procedures. There have been two preliminary hearings for case management (8 March 2023 and 5 May 2023). The parties provided additional information to the claim form and the response. This preliminary hearing was arranged to decide, among other things, whether the age and sex claims should be struck out or a deposit order made. The respondent asserted that the hypothetical comparators identified by the claimant were flawed. A final hearing has not been arranged.[105]At this preliminary hearing there was discussion about the comparator relied upon for the direct sex discrimination claim set out in paragraph 9 of the statement of claim. The claimant asserts that she was disciplined as result of behaviours which she says were in the main caused by her symptoms of her menopause. The claimant says that the respondent would not have treated a male in the same age bracket as the claimant in the same way. The claimant says that any such male would not have exhibited the same behaviours as the claimant. She was therefore treated less favourably because of her sex.[106]On 19 July 2023 the claimant applied to include an actual comparator in relation to the sex discrimination claim. The claimant invited me to grant the application as it would be consistent with the overriding objective in dealing with the claim justly and fairly. Further, that the claim is at an early stage with no final hearing fixed. The respondent would not be prejudiced in replying to the claim now asserted given that the main comparator is their employee and that the respondent conducted the investigation into his asserted behaviours. Should the amendment not be granted, then there was a risk that the claimant’s discrimination claim on the grounds of sex would be struck out on the grounds of no reasonable prospect of it succeeding.[107]The respondent objected to the amendment on the basis that the claimant’s representative was not invited by the Tribunal to make an application to amend following the preliminary hearing. The claimant’s representative had given no indication as to why the application for amendment was not made earlier. The respondent’s position was that the claimant ought to have known about the comparator’s conduct before the preliminary hearing on 12 July 2023 and this is not a case where new facts or information have only just come to light. It was argued that had the amendment been made timeously, the respondent would have dealt with the appropriateness of the proposed comparator at the preliminary hearing which included consideration of the issues to strike out or order a deposit in relation to the complaints of direct discrimination on the grounds of sex and/or age. The respondent argued that allowing the application would not be in keeping with the overriding objective to deal with cases fairly and justly. Deliberation[108]In determining whether to grant an application to amend, I must carry out a careful balancing exercising of all relevant factors having regard to the interests of justice and to the relative hardship that would be caused to the parties granting or refusing the application. The relevant factors include the nature of the amendment, the applicability of time limits, and the timing and the manner of the application. I was mindful that the Selkent factors are a list of examples of factors which are likely to be relevant in striking the fundamental balance of injustice and hardship in allowing or refusing the amendment. It is not a checklist.[109]I started by considering the claim form to which I was referred at the preliminary hearing on 12 July 2023 at which there was discussion about the hypothetical comparators relied upon by the claimant. There was no suggestion by Mr Bathgate that there was an actual comparator upon which the claimant could rely. I reserved my judgment. The representatives were aware that I would not be issuing a judgment in the intervening period. Further, during that time, I raised on my own initiative the issue of an anonymity order.[110]While I did not invite Mr Bathgate to make an application to amend, I have power to consider such an application under rule 29 at any stage in the proceedings. While I appreciate Ms Wood’s frustration at the timing, she has been given an opportunity to comment not only in relation to the anonymity order but also in relation to the application to amend.[111]While it might have been helpful to have been aware of the proposed amendment application at the preliminary hearing, my impression from Mr Bathgate’s comments at the time was that he was unaware of an actual comparator. Had he been so, I consider that it was highly likely that he would have sought to amend the claim form given the comments being made in relation to the hypothetical comparators. Had that application been made, I consider it highly unlikely that the respondent would have been in a position to immediately respond and would need time to do so.[112]While there has been a preliminary hearing, this case is at an early stage and no final hearing has been fixed. If the application is refused, then for the reasons set out below, it is highly likely that the claimant’s sex discrimination claim will be struck out. If the application is allowed, then the respondent will still have an opportunity to amend its response and make further submissions in relation to the prospects, reasonable or otherwise, of the sex discrimination claim.[113]In all these circumstances, I considered that the balance of hardship was in the claimant’s favour and that it was appropriate to allow the application to amend subject to the respondent having an opportunity to respond by providing additional information to the response within 21 days of receiving this order. Application for strike out[114]Having allowed the application to amend, I did not consider that it was appropriate to go on to consider the submissions that were previously made in relation to the sex discrimination claim.[115]However, I did not understand that the amendment related to the comparator in the direct age discrimination claim. That is set out in paragraph 10 of the statement of claim: “hypothetical female colleagues in younger and older age brackets not suffering from menopausal symptoms would not have been treated in the same way as the claimant as they would not have exhibited the same behaviours as articulated” and the respondent therefore treated her less favourably because of her age.
The relevant law
[116]Rule 37 of the ET Rules of Procedure deals with striking out. It states that a Tribunal may strike out all or part of a claim if it has no reasonable prospects of success.[117]The test is not whether there is absolutely no chance of success, but whether there is no real or reasonable chance of success (Balamoody v United Kingdom Central Council for Nursing [2002] IRLR 289 at 39).[118]Tribunals ought not to be deterred from striking out claims, including discrimination claims, on the basis of no reasonable prospects of success, even where a dispute of facts is involved “if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context” (see Ahir v British Airways plc [2017] EWCA Civ 1392 at paragraph 16, per Underhill J).[119]In Sivanandan v Independent Police Complaints Commission and another UKEAT/0436/14, the EAT upheld a Tribunal’s decision to strike out a claim on the basis that even on the claim as pled at its highest, there was no reasonable prospect of establishing discrimination had occurred.[120]Rule 39 of the ET Rules of Procedure provides that a Tribunal may make an order requiring a party to pay a deposit as a condition of continuing to advance an allegation or argument in a claim that has little reasonable prospects of success.[121]Section 13 of the EqA sets out the definition of direct discrimination. The section requires that the claimant has been treated (by the respondent) less favourably than the respondent treat or would treat others, because of a protected characteristic.[122]Section 23 of the EqA provides that on a comparison of cases for the purposes of section 13, there must be no material difference between the circumstances relating to each case.[123]Section 136 EqA deals with the burden of proof and provides that where a claimant proves primary facts from which the Tribunal could conclude in the absence of other explanation that there has been an act of discrimination, the burden will pass to the respondent to show that the protected characteristic played no part whatsoever in their reason for acting. The application and the objection[124]The comparator relied upon for the direct age discrimination claim is set is out in paragraph 10 of the statement of claim. The claimant asserts that she was subject to the disciplinary process and disciplined and this was less favourable treatment because of her age. She says that the respondent would not have treated female colleagues in younger and older age brackets not suffering from menopausal symptoms in the same way as they treated the claimant. In particular the hypothetical comparators would not have appeared angry when they were not, they would not have been irritable on account of sleep deprivation. They would not have been guilty of inconsistent behaviour nor appeared anxious or disturbed. They would not have appeared defensive and intimidating as they were not suffering from the same symptoms as the claimant.[125]The respondent argued that the hypothetical comparator identified by the claimant was fundamentally flawed. In terms of section 23 of the EqA, that on a comparison of cases for the purposes of section 13, there must be no material difference between the circumstances relating to each case.
Deliberations
[126]I did not understand the claimant to dispute that she was disciplined because of her behaviours (which she says was caused by her symptoms of the menopause).[127]I considered that if the Tribunal found that a female in a different age bracket from that of the claimant, who was not exhibiting the menopausal symptoms was treated in the same way as the claimant it would be difficult to infer that was because of age and not because of the behaviours. I therefore agreed with Ms Wood’s submission that in relation to the direct age discrimination claim the hypothetical comparator proposed by the claimant was flawed and that the correct hypothetical comparator would be someone in a different age bracket than the claimant who had exhibited the same behaviours as she did and were treated more favourably than her.[128]I considered that the direct age discrimination claim which the claimant was offering to prove did not have reasonable prospects of success. Accordingly, I concluded that the age discrimination claim should be struck out as having no reasonable prospect of success.[129]Having reached that conclusion, I did not go on to consider the application under rule 39 of the ET Rules of Procedure.
Law
[130]The question of whether an employer could reasonably be expected to know of a person's disability is a question of fact for the Tribunal (Jennings v Barts and The London NHS Trust UKEAT/0056/12). In that case the Employment Appeal Tribunal suggested that an employer should concentrate on the impact of the impairment, not on any particular diagnosis.[131]Langstaff P in Donelien v Liberata UK Ltd UKEAT/0297/14 (affirmed by the Court of Appeal 2018 IRLR 535) warned that when considering whether a respondent to a claim 'could reasonably be expected to know' of a disability, it is best practice to use the statutory words rather than a shorthand such as 'constructive knowledge' as this might imply an erroneous test. The burden is on the employer to show it was unreasonable to have the required knowledge.[132]The importance of a Tribunal going through each of the constituent parts of section 20 was emphasised by the Employment Appeal Tribunal in Environment Agency v Rowan 2008 ICR 218 and reinforced in Royal Bank of Scotland v Ashton 2011 ICR 632.[133]As to whether a “provision, criterion or practice” (“PCP”) can be identified, the Commission Code of practice paragraph 6.10 says the phrase is not defined by the Act but “should be construed widely so as to include for example any formal or informal policy, rules, practices, arrangements or qualifications including one off decisions and actions”. The question of what will amount to a PCP was considered by the Employment Appeal Tribunal in Nottingham City Transport Limited v Harvey UKEAT/0032/12 in which the President Mr Justice Langstaff (dealing with a case under the Disability Discrimination Act 1995 and the Disability Rights Commission’s Code of Practice from 2004, both now superseded by the provisions summarised above) said of the phrase “provision, criterion or practice” in paragraph 18: “Although those words are to be construed liberally, bearing in mind that the purpose of the statute is to eliminate discrimination against those who suffer from a disability, absent provision or criterion there still has to be something that can qualify as a practice. "Practice" has something of the element of repetition about it. It is, if it relates to a procedure, something that is applicable to others than the person suffering the disability. Indeed, if that were not the case, it would be difficult to see where the disadvantage comes in, because disadvantage has to be by reference to a comparator, and the comparator must be someone to whom either in reality or in theory the alleged practice would also apply. These points are to be emphasised by the wording of the 1995 Act itself in its original form, where certain steps had been identified as falling within the scope to make reasonable adjustment, all of which, so far as practice might be concerned, would relate to matters of more general application than simply to the individual person concerned.”[134]This was applied in Ishola v Transport for London [2020] EWCA Civ 11, LJ Simler, whose reasoning we have applied. It is possible for a PCP to be a “one off” provided it has the character of a PCP, in other words it could be something the employer might well adopt as a PCP. Just because it has not been applied before does not, by itself, mean it is not a PCP.[135]For the duty to arise, the employee must be subjected to “substantial disadvantage in comparison to a person who is not disabled” and with reference to whether a disadvantage resulting from a provision, criterion or practice is substantial, section 212(1) defines “substantial” as being “more than minor or trivial”. The question is whether the PCP has the effect of disadvantaging the disabled person more than trivially in comparison to those who do not have the disability (Sheikholeslami v University of Edinburgh, 2018 IRLR 1090).[136]The obligation to take such steps as it is reasonable to have to take to avoid the disadvantage is one in respect of which the Code provides considerable assistance, not least the passages beginning at paragraph 6.23 onwards. A list of factors which might be taken into account appears at paragraph 6.28 and includes the practicability of the step, the financial and other costs of making the adjustment and the extent of any disruption caused, the extent of the employer’s financial or other resources and the type and size of the employer.[137]Paragraph 6.29 makes clear that ultimately the test of the reasonableness of any step is an objective one depending on the circumstances of the case. Examples of reasonable adjustments in practice appear from paragraph 6.32. Submissions[138]Both parties provided detailed submissions which were supplemented by oral submissions (and reference to each other’s submissions), which were fully taken into account. Decision and discussion[139]The Tribunal spent a considerable period of time considering the evidence that had been led and the submissions made by both parties which were fully taken into account. Having considered the evidence led, the Tribunal was able to reach a unanimous view. We shall deal with each relevant issue in turn. Discrimination arising in consequence of disability Knowledge of disability[140]The respondent accepts that it was aware of the fact of the claimant’s disability at the relevant time for the purposes of this complaint. Unfavourable treatment[141]It was not disputed that the decision to demote the claimant and issue a First and Final Warning amounted to unfavourable treatment. Did the something arise as a consequence of disability[142]The first issue is to determine whether or not the “something”, the perception of the claimant’s behaviour, arose as a consequence of the claimant’s disability. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.[143]It is important to focus on the pleaded claim. In this case the ”something” which is said to arise as a consequence of the claimant’s disability is that the claimant “would appear angry and red faced” and “she would appear irritable”. The claimant’s agent confirmed that the case was not the claimant was angry, red faced or irritable but (only) that she would appear to be so. That was an important issue and something which had been carefully considered by the claimant and the Tribunal considers the complaint on that basis.[144]The Tribunal was satisfied from the evidence that the claimant appearing to be red faced was something which arose from her disability. This was something that had been raised by the claimant at the time and was known to be a consequence of the menopause.[145]The Tribunal next considered whether the disability was in some sense linked to her “appearing angry”. It is understood that the way in which the claimant is said to have appeared to be angry is having a red face (and nothing else as such. It is notable that the claimant is not asserting her disability led to her actually being angry (which was something the claimant denied). Given the claimant did have a red face as a result of the disability, the Tribunal was prepared to accept the red face did make her look angry and both were as a consequence of the disability.[146]The final “something” relied upon in the pleaded case was “appearing irritable”. Again the pleaded case is that the claimant appeared to be irritable (not that she was irritable). It was quite clear from the evidence that the claimant was extremely anxious as a result of the disability. The Tribunal found that being anxious and sleep deprivation (which both stem from the disability) did lead to the claimant appearing to be irritable.[147]The parties’ submissions were not precisely focussed on the pleaded case and on this particular issue. Having carefully considered the evidence before the Tribunal (including the judgment following the preliminary hearing on disability status) the Tribunal concluded that appearing to be red faced and angry and appearing to be irritable was something arising in consequence of disability.[148]The respondent’s agent noted that while the claimant may have had symptoms of the menopause from an earlier date, she was legally disabled between August 2017 and December 2021. Any behaviour arising prior to August 2017 cannot have been something arising in consequence of a disability. The Tribunal considered that to be meritorious.[149]The respondent had argued none of the “things”, assessed objectively, truly arose in consequence of the disability. The medical evidence before the Tribunal is unclear as to whether the cause of any of the claimant’s behaviours was symptoms of the menopause. While that may have been so, it was clear to the Tribunal that given the pleaded case was appearing to be red faced and angry and appearing to be irritable, it was more likely than not that such appearances arose as a consequence from the disability (from November 2019 which was when the medical evidence suggested was more likely).[150]The respondent’s agent noted the investigation had disclosed evidence that showed that a substantial amount of the behaviours covered in the investigation and the disciplinary process occurred before November 2019. While that was correct, as set out below, the treatment that occurred was not because the claimant appeared to have the characteristics relied upon but because the claimant had in fact acted in a way that was inappropriate (expressly not taking account of the fact the claimant had appeared to have a red face).[151]The Tribunal concluded that the evidence showed that it was more likely than not that the claimant’s disability had led to her appearing red faced, angry and irritable. Was the treatment because of the something arising?[152]The Tribunal must consider the case that has been presented before it. In this regard the next issue arising is whether or not the treatment relied upon was because of the “something”. In other words, did the claimant’s appearing to have a red face and be angry and appearing to be irritable lead (in some way) to the outcome of the conduct hearing (the issuing of the warning and demotion). The “something” must more than trivially influence the treatment but it need not be the sole or principal cause[153]The claimant’s agent argued this issue is made difficult by the fact that the respondent did not set out which incidents of behaviour falling within the generic allegations set out in the grievance and the Investigation Report have been established. The only support for particular findings is in respect of the incidents that are set out in the outcome letter involving 2 individuals and looking however at the behaviour in the round, it was argued there is a causal link between the symptoms of the menopause as set out in her evidence and in the Judgment following the Preliminary Hearing, namely that she would appear angry, red faced and irritable which caused her to interact in a way with her colleagues which caused them, in turn, eventually, to initiate the collective grievance.[154]It was also submitted that the appeal officer “touched upon” the symptoms of the menopause impacting on the claimant’s behaviour in his evidence. The behaviour exhibited to her colleagues was therefore “something” arising from her disability of the menopausal symptoms.[155]The respondent’s agent provided detailed submissions noting that matters relating to the claimant’s red face were explicitly discounted by the disciplinary panel. Even if the claimant did get a red face because of the menopause, it did not form a reason for the unfavourable treatment in any respect. The Tribunal was satisfied the claimant having a red face (and thereby appearing angry) was expressly discounted by the panel and not in any sense a reason for the treatment relied upon.[156]The respondent’s agent noted that the only other matters said to arise in consequence of the disability are appearing to be angry or irritable, rather than actually being so. The claimant appearing angry or irritable was not in any way an operative factor on the minds of the disciplinary panel. It was the claimant actually indulging in a campaign of systemic bullying; her actually being angry, manipulative, and aggressive towards her subordinates, undermining and humiliating them, leaving them in a state of constant and continuous fear, that led the disciplinary panel to impose a sanction on her. The Tribunal found that to be a sound proposition.[157]The claimant’s agent had accepted in submissions that if the respondent had found the claimant to have actually been guilty of the behaviour (rather than upon a perception) the claim would not succeed since the claimant’s case was based upon her assertion that she was not guilty of the behaviour and it was the perception of the behaviour that had led to the actions. The Tribunal was satisfied the treatment was not in any sense (that is in no more than a minor or trivial way) connected to the claimant appearing to have a red face and be angry or appearing to be irritable.[158]The Tribunal considered the evidence carefully. The respondent found the claimant had been responsible for the behaviour which was because of how she had actually conducted herself. It was not related to the claimant appearing angry, irritable or red faced. The incident with Ms Clancy provided a cogent example. The claimant had deliberately and calmly made an implied threat to curtail Ms Clancy’s career. It was that intentionality that in part caused the disciplinary panel to issue a sanction. The treatment was entirely unconnected to the consequences of the claimant’s disability.[159]The respondent’s agent noted that Dr Egan also spoke of, and demonstrated for the Tribunal, a witness to the disciplinary panel talking about how the claimant behaved - shaking her arms. The panel considered that the claimant was angry, and visibly so, rather than simply appearing to be so. The reason for the sanction was not the claimant appearing, but her actually being, angry. The Tribunal found this to have merit and underlined the fact the treatment was not in any sense related to anything arising from the claimant’s disability (but instead was solely related to the claimant’s management style and approach to interacting with her staff).[160]The respondent’s agent noted the witnesses who gave evidence on behalf of the respondent talked about the significant human impact of the claimant’s actions. That clearly was a major part of the disciplinary panel’s reasoning for imposing the sanction it did. This was not because the claimant appeared to be angry or irritable. The claimant was angry, aggressive, abusive, and critical of those she did not favour. She undermined and humiliated them and created a culture of fear. Those were the reasons the sanction was imposed. It had nothing to do with her appearing, but not actually being, angry or irritable.[161]The Tribunal found that the respondent’s submissions had merit. The reason for the treatment was because the respondent genuinely believed the claimant had engaged in a repeated pattern of behaviour towards her colleagues. That was plainly evidenced from the testimony provided at the investigation and conduct panel stages.[162]The panel expressly excluded any behaviour that related to the symptoms the claimant had told the respondent stemmed from her disability. The outcome was solely because the respondent genuinely and honestly believed the claimant had been guilty of the behaviours alleged and had seen evidence of it from a number of different people, some of whom were not management witnesses. The evidence supported the conclusion that was reached. While the outcome letter had not set out each individual interaction that had been considered, the panel was clear as to its reasons and in not having taken into account the fact the claimant appeared to be red faced (and thereby angry). It was clear that appearing to be red faced and angry and appearing to be irritable did not feature at all in the reasoning of the panel.[163]The Tribunal took into account that the claimant’s witnesses suggested they had never seen her behave inappropriately, but that was because the claimant’s witnesses were in the “favoured” group and said they never witnessed such behaviour because they were treated well by the claimant and could not square the complainers’ perception of her with their own. That did not support the assertion that the treatment was in some sense linked to the disability. It was the claimant making clear decisions as to how she treated her staff – not at all because she appeared to be angry or irritable.[164]The claimant was able to pick and choose who she behaved poorly around, treating some people well and some less well. That was redolent of a conscious choice to behave poorly. It is not indicative of uncontrollable symptoms leading to poor behaviour. That demonstrated that the treatment was not because of the symptoms or consequences of the disability.[165]The Tribunal took a step back to assess the evidence carefully. The Tribunal was satisfied that the treatment was in no sense whatsoever related to (or caused by in any way that was more than minor or trivial) the fact the claimant appeared to be red faced or angry or appeared to be irritable.[166]It was relevant in considering whether the consequences of the disability led to the behaviours relied upon that the behaviour had been exhibited by the claimant for a number of years before the impact of the claimant’s disability. In other words it appeared that the way in which the claimant conducted herself at work in relation to staff interactions predated the onset of the disability. The same themes and types of behaviour had remained relatively constant prior to the impairment on which the claimant relies. If the behaviour was demonstrated before the impairments took effect it would be unlikely the impairments caused the behaviour and management style, given such behaviour and management style was already in existence. There was no evidence that the disability exacerbated or in some way changed how the claimant dealt with people. It was the way she conducted herself at work.[167]The Tribunal appreciated the huge challenges the disability presented for the claimant, not least as evidenced in the judgment following the preliminary hearing. But the issue for this Tribunal was whether the consequences of the disability in some way led to the treatment complained of.[168]The behaviour relied upon was consistent in terms of being displayed to the same group of staff. Had the impairment affected the claimant’s behaviour, it was more likely than not to have affected the claimant in each of her interactions. In other words it was more likely than not that the behaviours would have been displayed to all staff at different stages, rather than only those staff who were considered to be “out of favour”. That supports the fact the behaviours were the result of a conscious choice rather than caused by the disability. Absent any medical evidence that assists the Tribunal in this question, the Tribunal can only proceed on the balance of probabilities from the evidence it had.[169]The nature of the behaviour exhibited by the claimant (which was the behaviour that led to the outcome) was redolent of a particular style of management and leadership. This was the part of the claimant’s job she liked least and one in respect of which she had not been properly supported or trained. She had limited ways of understanding how her interactions should be, irrespective of the positive results she was securing. The fact she was excelling in her role clearly affected how the claimant perceived the acceptability of her behaviour, particularly where it went unchallenged. It was more likely than not that the claimant’s disability was not in any sense a cause of her management and leadership style which was how the claimant had conducted herself, having achieved positive outcomes.[170]Having assessed all the evidence carefully, the Tribunal did not find, on the balance of probabilities, that the treatment was (in any sense whatsoever) because of the claimant appearing to be red faced or angry or irritable (the something that arose in consequence of disability).[171]On that basis the section 15 claim is ill founded. Objective justification[172]Even if the treatment had been a result of something arising in consequence of disability, the Tribunal would have had found the treatment to be a proportionate means of achieving legitimate aims.[173]The aims relied upon were managing workplace conduct appropriately, managing services appropriately and managing staffing levels and morale. These were clearly legitimate aims (and not disputed to be otherwise).[174]The real issue was whether the outcome was a proportionate means of achieving those aims. The claimant’s agent argued that there were less discriminatory ways in which the respondent could have treated the claimant. In particular, the Harassment Policy outlined a process for early resolution.[175]The claimant’s agent emphasised that an important part of the evidence in this section is the assertion by the claimant that she was not found guilty of any behaviour that would warrant a finding of gross misconduct. It was submitted that a less discriminatory approach would be the holistic approach that early resolution would have resulted in the claimant being able to remain in the service or not be subject to a disciplinary sanction.[176]The respondent’s agent submitted that the aims are not “hermetically sealed; factors can be relevant to more than one”. Thus the impact on staff, staff leaving due to the claimant’s behaviours, and staff being unwilling to work with the claimant any longer, for instance, are relevant to all of the legitimate aims.[177]With regard to the first aim relied upon, managing workplace conduct appropriately, the respondent genuinely believed the claimant had committed gross misconduct. The respondent believed the claimant had acted deliberately, and had been negligent. The claimant had engaged in systemic bullying of colleagues which is gross negligence in a managerial position. The outcome was proportionate means of managing workplace conduct appropriately.[178]The claimant argued a more proportionate means would have been to have entered mediation or had a lesser sanction. It was clear that this had been considered and the trade union representative of the complainants had made it clear that the complainants were not prepared to proceed with that given the time that had passed and the seriousness of the behaviour. The policy permitted proceeding as the respondent did in light of that.[179]It is relevant that the claimant accepted in cross examination that, by that stage, it was not appropriate for her to be in a management position, agreeing when the point was put to her that she “needed time”. The fact the claimant continued to lack some insight into the significance of her behaviour was also relevant.[180]Given the seriousness of the allegations, the strength of feeling on the part of the complainers, and the fact that some of them were still working in the Anchor, it was not possible for the claimant to remain there or in her post and the outcome was a proportionate means of managing workplace conduct. The outcome had already been adjusted form dismissal which was a distinct possibility given the importance and seriousness. Dismissal may well have been a proportionate means of achieving the aims in this case on the facts.[181]The Tribunal considered that having no disciplinary sanction (as was suggested by the claimant) would not have achieved the legitimate aim since it would not have enabled the respondent to appropriately manage workplace conduct. The respondent’s submission that having a disability does not excuse someone from any consequences for any behaviour is well made.[182]The Tribunal considered that a disciplinary sanction was both appropriate and inevitable. Given the scale and gravity of the misconduct, some form of sanction had to be issued. The respondent’s submission that the respondent weighed up the various mitigating factors, and issued a measured outcome is sound. The written warning was a necessary marker of the significance of the claimant’s conduct, and has now expired. The claimant can apply again for promoted posts, having completed the Supported Improvement Plan. She has a job. She was not dismissed, when she might well have been. The respondent balanced the discriminatory impact on the claimant against the legitimate aim, and came to the correct, proportionate response. The Tribunal balanced the discriminatory effect upon the claimant with the impact upon the respondent. The outcome a proportionate means of achieving the aim.[183]With regard to the second aim, managing services appropriately, the Tribunal accepted that the respondent has a duty of care towards its employees and cannot place individuals in a situation where they will suffer from systemic bullying. That is a core component of appropriately managing a service. The claimant had engaged in systemic bullying of staff over several years. Demoting her and moving her was a proportionate way of achieving that aim. Doing so was the least intrusive available option. It was proportionate having balanced the discriminatory effect upon the claimant with the impact upon the respondent.[184]Finally, with regard to managing staffing levels and morale, staff had left because of the claimant’s actions and had been seriously affected. Demoting the claimant and removing her from a leadership position was a proportionate way to address that concern. Taking a step back[185]The Tribunal carried out the intensive analysis required in assessing proportionality, bearing in mind the onus is on the respondent and the Tribunal makes it decision from the evidence before it. The Tribunal carefully balanced the impact upon the claimant with the impact upon the respondent in light of the specific legitimate aims relied upon. The Tribunal was satisfied the claimant had been guilty of conduct that could reasonably be considered to amount to gross misconduct. The evidence before the respondent was clear and compelling. The respondent had a duty not just to the claimant but to all its staff. The impact upon the respondent was extreme given how staff had been affected by the claimant’s behaviours, with some of whom still at the service. The impact was intense and long lasting.[186]The Tribunal was satisfied there was no less discriminatory approach the respondent could have taken given the context. The balance the respondent undertook was fair to the claimant. Dismissal was seriously considered but the respondent chose an alternative that was intended to allow the claimant time to acquire the skills and knowledge to allow her to return to roles with management and leadership responsibilities. The claimant is able to progress her career given the measures that were put in place and support given.[187]The Tribunal balanced the impact upon the claimant and the effect upon the respondent and intensely analysed the evidence. The key point in assessing justification, in carrying out the critical analysis, is for the Tribunal to assess what the impact upon the respondent was and balance that against the impact upon the claimant. From the facts found, the treatment was a proportionate means of achieving the respondent’s legitimate aims. In reaching this decision the Tribunal examined the evidence and intensely analysed the impact upon the claimant as against the respondent from the evidence presented to the Tribunal. Having intensely analysed the measure the Tribunal is satisfied that the treatment was objectively justified from the evidence presented. Had it been necessary to do so, the Tribunal would have found the treatment to be a proportionate means of achieving the legitimate aims relied upon.[188]For the above reasons, the section 15 claim is ill founded. Failure to comply with the duty to make reasonable adjustments Knowledge of disability[189]The first issue to determine was whether or not the respondent knew of the disability.[190]The respondent accepts that the claimant was disabled by reason of menopausal symptoms (in terms of physical impairment) between August 2017 and December 2021 but disputed actual or constructive knowledge of the disability at the relevant time. The respondent’s agent submitted that the respondent became aware of the fact of the claimant suffering from the menopause by the time of her response at the end of January 2021 and did not know about the fact of disability before that point.[191]The claimant asserted she told Ms Stocks about her medical condition including her symptoms of the menopause, namely sleep disturbance, sweating, anxiety, tiredness, low mood, nausea, hot flushes and a red complexion and irritation and lack of tolerance when she met with her during 2019 and at the very latest she told her of the impact of her menopausal symptoms at the one-to-one meeting that she had with her on 8 January 2020 and so the respondent had actual knowledge in 2019.[192]In the alternative the claimant argued the respondent ought to have known in 2019 that the claimant was suffering from symptoms relative to the menopause. While the fit note submitted by the claimant made no mention of symptoms of menopause, it referred to work related stress and high blood pressure which it was said ought to have alerted the respondent to symptoms of the menopause and conduct further enquiry.[193]The respondent’s agent argued that the position advanced by the claimant at the time, that she was suffering work related stress and high blood pressure, did not put the respondent on notice as to symptoms of the menopause. Any employer in such a situation would reasonably assume the symptoms were a consequence of the high workload and stressful work environment.[194]The Tribunal preferred the respondent’s position given the facts. There was no basis upon which a reasonable employer would be placed on notice that the claimant was suffering from the symptoms now relied upon from the information presented to the respondent at the time until January 2021. Given the stressful workload the claimant was managing and the issues arising at work, the symptoms set out by the claimant in her email to Ms Stocks – high blood pressure and stress - were suggestive of stress at work and did not reasonably support the position advanced by the claimant.[195]The respondent accordingly knew of the disability in January 2021 which was when the respondent first reasonably could have known about it. Knowledge of substantial disadvantage[196]The respondent’s agent submitted that the respondent was not aware of any purported substantial disadvantage until shortly before the appeal hearing. The extent of the respondent’s knowledge as to any symptoms the claimant might suffer from was limited to the matters she included in her submission, namely flushes and a red face. There was no suggestion that the claimant suffered from any symptoms that might make her liable to demonstrate behaviours that might be perceived as misconduct.[197]The claimant argued Ms Stocks knew about the symptoms but this was not accurate as she only learned that the claimant was suffering from symptoms of the menopause after the disciplinary hearing, when she spoke to a solicitor acting for the respondent.[198]The respondent did not know of any substantial disadvantage until after the disciplinary hearing and so the steps relied upon that pre date the appeal hearing (proposed steps 1, 2 and 3) are not well founded as the duty was not engaged until the respondent knew of the substantial disadvantage.[199]The Tribunal found the respondent did not know (and could not reasonably have known) about the substantial disadvantage relied upon after until after the disciplinary hearing. The reasonable adjustments that pre date the appeal hearing are therefore ill founded. The PCP[200]It was not disputed that the respondent applied a provision, criterion or practice (‘PCP’) to the claimant, namely the Workplace Conduct Policy. The key issue is whether that PCP placed the claimant at substantial disadvantage compared with persons who were not disabled.[201]The claimant asserted it did because she exhibited certain behaviours on account of the symptoms caused by the menopause, which may be perceived as behaviour demonstrative of misconduct. The claimant’s agent submitted that because of the claimant’s disability, and the symptoms she exhibited, she would be placed at a disadvantage in being able to successfully respond to the allegations of the behaviour set out in the grievance and the Policy. That disadvantage is that her behaviour was likely to have been perceived by those she was interacting with as being hostile or confrontational which made it more likely that she would be found guilty of behaviour set out under the Policy which would fall under the umbrella of bullying.[202]The claimant’s agent emphasised that care is needed as the claimant did not concede that she was guilty of deliberate behaviour which could be classified as gross misconduct. She gave an apology to the Conduct Hearing, which was reiterated at the Appeal Hearing, to the effect that she was sorry for any upset and stress that she might have caused her colleagues in the way in which she presented herself when suffering from menopausal symptoms. What she did not apologise for is conduct that she did not commit.[203]The respondent’s agent argued the claimant was not placed at any comparative substantial disadvantage. No behaviours were caused in part or at all by the menopause or symptoms arising from the menopause. The appropriate comparative exercise is therefore with a non-disabled person who also systemically bullied their subordinates. The claimant was no more likely to be the subject of conduct proceedings than such an individual. All of the reasonable adjustments claims ought to be dismissed.[204]The Tribunal concluded that the claimant was not placed at any comparative disadvantage as a result of the PCP which was applied to her. The claimant’s submission that the claimant was more likely to exhibit symptoms that could be perceived as misconduct had not been established on the facts. The Tribunal found on the balance of probabilities that the behaviours that led to the disciplinary sanction (on which this complaint was based) were not caused (or influenced) at all by the disability. As set out above, the disability did not have any connection with the behaviours that led to the disciplinary action. The respondent found the claimant had in fact been guilty of the behaviour (which was chosen acts of the claimant, her normal management and leadership style and how she chose to interact with her colleagues). The respondent’s submissions have merit. The complaint that the respondent failed to comply with the duty to make reasonable adjustments is ill founded. Steps to be taken[205]If the Tribunal was wrong in its conclusion, the Tribunal considered whether the steps relied upon by the claimant would have been reasonable. Proposed step 1 - Early resolution[206]The claimant’s agent argued the disadvantage could have been removed by a reasonable adjustment whereby the respondent moved to deal with the grievance in a way which supported the claimant and allowed her to remain in her role all as set out in the Bullying and Harassment Policy providing a constructive resolution to what was an upsetting situation for both sides.[207]The respondent’s agent noted that the policy allows for this in certain circumstances but the trade union representative acting on behalf of the complainers stated that neither he nor any of the complainers would agree to enter into any mediation and so it would not have been reasonable for the respondent to force individuals to engage against their will particularly given the behaviours were serious, and occurred over a significant period of time.[208]The Tribunal did not consider that would have been reasonable to proceed to early resolution when none of the complainers would agree to it and given the nature of the conduct alleged. The Tribunal would also have upheld the respondent’s assertion that the proposed step would not have alleviated the substantial disadvantage. No complainer would have agreed to early resolution. The impact upon the affected staff was long standing and ongoing. The Tribunal would not have found that early resolution would have changed the position and the claimant would still have suffered from the disadvantage.[209]The step relied upon would not have been a reasonable step to have taken. Proposed adjustment 2 - Ms Stocks telling the investigation about the claimant’s menopausal symptoms in January 2021[210]As the respondent’s agent pointed out, Ms Stocks could not have told the investigation about the symptoms as she did not know about them. The Tribunal would also have upheld the respondent’s agent’s submission that this step would not have been reasonable. The claimant had a trade union representative. That was her advocate. The claimant was able to tell the investigation about the menopause, and did so. She was able to present her case to the disciplinary hearing. She chose not to advance any case based on the menopause. It would not have been reasonable to expect Ms Stocks, acting outwith the claimant’s instructions or wishes, as a separate third party, to disclose sensitive medical information to the investigation panel which went well beyond that which the claimant herself had chosen to disclose.[211]It is correct for the respondent’s agent to note that the claimant was able, with advice and support from her trade union, to make her case. It was not Ms Stocks’ role to second-guess or circumvent that. Indeed, viewed from another angle, Ms Stocks doing so would have been a serious breach of confidence.[212]Ms Stocks was not the claimant’s advocate and had to remain impartial. She was professional lead for the psychology department as a whole. It was her job to ensure professional support was available to everyone. She could not intervene in any kind of management investigation.[213]Finally as the respondent’s agent submitted, the proposed step would not have alleviated any substantial disadvantage. The chairs of the conduct and appeal panel made it clear that, even if the claimant’s behaviours were caused in part by the menopause, they remained wholly unacceptable. If the menopause was having such a significant impact on her ability to even speak with people, she ought to have recognised that and done something about it. Her failure to do so demonstrates a significant lack of insight. She would still have received a disciplinary sanction.[214]The second step relied upon would not have been a reasonable step. Proposed adjustment 3 - Disciplinary panel not considering claimant’s symptoms[215]The panel considered the symptoms they were aware of. On that basis, the step relied upon was in fact taken. The Tribunal would also have upheld the respondent’s agent’s submission that insofar as the claimant suggests that the panel ought to have taken into account additional symptoms, the proposed adjustment would not have been reasonable. The claimant was able to present her case. She drafted lengthy written documents for the conduct hearing. She had advice from her trade union. She did not, at any time, mention the menopause in anything other than passing. She did not rely on it as a potentially mitigatory factor having relied upon other factors, all of which were taken into account.[216]At the conduct hearing the claimant did not present her disability as anything other than a side issue. She did not rely on it as a cause of any behaviours, and did not present it as mitigation at any stage. It would not have been reasonable to expect the panel to consider something that was not before it and could not reasonably have been foreseen. The claimant, who was represented and had taken advice, gave the panel relevant information that she thought supported her case. The panel were entitled to rely on that.[217]The proposed step would not have alleviated the substantial disadvantage. The claimant would have been subject to a disciplinary sanction even if the menopause was considered to the extent the claimant suggests it ought to have been. The claimant ought to have had the insight to raise the impact her behaviour had upon to ensure staff were not placed in that environment. The step was not therefore a reasonable step to have taken. Proposed adjustment 4 - The appeal panel not considering the claimant’s symptoms[218]The appeal panel was cognisant of the claimant’s symptoms. They requested advice from an occupational physician and took that into account together with the points the claimant had raised. The proposed step relied upon was taken. The panel considered the claimant’s symptoms and decided that they did not provide significant mitigation (which was a reasonable conclusion to reach on the facts).[219]The proposed step would not have alleviated the substantial disadvantage. Demotion would still have occurred given the impact upon staff and the consequences. The proposed step would have made no difference.[220]In all the circumstances the respondent did all that was reasonable on the facts to remove any substantial disadvantage. Summary as to duty to make reasonable adjustments[221]The Tribunal is satisfied, taking a step back, that there was no breach of the duty to make reasonable adjustments pursuant to section 20. The claim in relation to section 20 is therefore ill founded. Time bar issues do not arise[222]The Tribunal also considered that as the complaints had no merit, issues as to time bar did not require to be considered given it is only acts that had been found to be unlawful can form an act extending over a period (South West Ambulance v King 2020 IRLR 168). D Hoey