Mrs S Cannon v South Lanarkshire Council: 4106361/2022
JUDGMENT
The judgment of the Employment Tribunal is that the claim is lodged within a period which the Tribunal finds just and equitable in terms of section 123(1)(b) of the Equality Act 2010.REASONS
[1]The respondent, a local authority, has employed the claimant as a social worker since 15 April 2019. Early conciliation started on 18 July 2022 and ended on 28 August 2022. The claim form was sent to the Tribunal’s office on 22 November 2022.[2]The claim is about the respondent’s alleged disability discrimination by association in relation to the length of special leave it granted to the claimant. The respondent concedes that at the claimant cared for her son who was at the relevant time a disabled person under section 6 of the Equality Act 2010 (EqA).[3]This preliminary hearing was arranged to determine whether the Tribunal has jurisdiction to consider the claim under section 123 of the EqA.[4]The preliminary hearing was conducted remotely by Cloud Video Platform. The claimant was represented by her husband, Mr Cannon. She gave evidence on her own account. The respondent was represented by Mr O’Neill, solicitor, instructed by Faye Meldrum, personnel advisor who observed the proceedings.[5]I received two sets of productions from the parties. Mr O’Neill provided me with a written submission and both representatives made closing submissions.[6]For the avoidance of doubt, the findings in this judgment relate only to the preliminary issue and do not bind a future Tribunal dealing with the merits of the claim. The issue[7]The preliminary issue to be determined was whether the discrimination complaint was made within the time limit in section 123 of the EqA?[8]It was agreed that I had to decide:a. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? The claimant says that the claim was presented in time. The respondent asserts that the claim was presented out of time.b. If not, was there conduct extending over a period? The claimant says that there was a continuing act as she was involved in the grievance process. The respondent asserts that the alleged discriminatory act was a one off act.c. If there was a continuing act, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?d. If not, was the claim made within a further period that the Tribunal thinks is just and equitable? This involves deciding: i. Why were the complaints not made to the Tribunal in time? ii. In any event, is it just and equitable in all the circumstances to extend time?The relevant law
[9]A claim concerning work-related discrimination under Part 5 of the EqA must be presented to the tribunal within the period of three months beginning with the date of the act complained of or such other period as the Tribunal thinks is just and equitable (section 123 EqA).[10]Section 18A of the Employment Rights Act 1996 requires the claimant to contact ACAS before instituting relevant proceedings.[11]Section 140B of the EqA provides the formulae around the extension of time limits where there has been ACAS conciliation.[12]In exercising their discretion to allow out-of-time claims to proceed, tribunals may also have regard to all the circumstances of the case; the prejudice each party will suffer as a result of the decision reached; the length of, and reasons for, the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has cooperated with any requests for information; the promptness with which the claimant acted once she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once she knew of the possibility of taking action - British Coal Corporation v Keeble and others 1997 IRLR 336, EAT. Findings in fact[13]The respondent, a local authority, has employed the claimant as a social worker since 15 April 2019.[14]Early conciliation started on 18 July 2022 and ended on 28 August 2022. The claim form was sent to the Tribunal’s office on 22 November 2022.[15]The claimant is married. She has two children. The claimant is the main carer of her son who is a disabled person in terms of section 6 of the EqA at the relevant time.[16]The respondent has a special leave policy which in the case of the emergency hospitalisation of a child or critically ill or injured relative, leave with pay for up to five days will normally be granted. Additional time off may be agreed at the line manager’s discretion.[17]In August 2021, the claimant’s son was diagnosed with a life-threatening illness. He was admitted to hospital for treatment.[18]On 23 August 2021 the claimant contacted her line manager (team leader) to advise her of the situation. The team leader reassured the claimant that she was not to worry. The claimant was not offered special leave.[19]Having heard no further the claimant contacted her trade union representative at the end of August 2021 who advised the claimant to request special leave. The trade union representative informed the respondent of the nature and severity of the claimant’s son’s illness and the treatment he was receiving.[20]In September 2021 the fieldwork manager, who was the team leader’s line manager, informed the claimant in writing that she would be granted special leave from 23 August to 17 September 2021.[21]The claimant felt harassed by the field work manager who contacted her for weekly updates. Around 14 September 2021 the field manager telephoned the claimant who was unable to discuss the situation as she was at the hospital with her son and under significant stress. The fieldwork manager extended special leave until 26 September 2021.[22]The field manager sent a text to the claimant on 24 September 2021 advising that he would send an email the following week. The claimant asked that he text as she was at the hospital and not able to access email.[23]On 30 September 2021 the fieldwork manager sent a text to the claimant advising that the options going forward were working from home, which he acknowledged was unpractical given the claimant’s situation; unpaid leave; or accessing an unfit to work note. The field manager offered to discuss this with the claimant on the telephone.[24]The claimant was concerned by the approach taken by the fieldwork manager. Her impression was that he was going through the motions; and continually asking how long it was going to take. The claimant considered that the fieldwork manager was not fully engaged in the process.[25]The claimant contacted her trade union representative for advice. The claimant understood from that advice that she required to undergo the grievance procedure.[26]With the assistance of her trade union representative, the claimant completed a grievance form on 19 December 2021. A grievance hearing was held on 26 January 2022 attended by the head of children and justice services. The outcome letter was issued on 3 March 2022.[27]Again with the assistance of her trade union representative, the claimant appealed that decision on 5 April 2022. The appeal hearing was conducted on 27 June 2022 at which the claimant was represented by her trade union representative. The appeal outcome letter was received by the claimant on 5 July 2022.[28]Having exhausted the internal grievance procedure, the claimant discussed with her trade union representative the lodging of a complaint with the Tribunal. The claimant was informed that she first required to participate in early conciliation with ACAS. The claimant understood that the she should initiate this process. Her trade union representative was liaising with the union solicitors with a view to the claimant being legally represented.[29]The claimant started early conciliation on 18 July 2022. The claimant heard no further from ACAS but was proactive in making enquiries. The claimant was informed that there had been no contact from the respondent and that a certificate was being issued. The early conciliation certificate was sent to the trade union representative on 29 August 2022. The claimant received the early conciliation certificate from ACAS on 5 September 2022. The claimant understood that from receipt of the ACAS early conciliation certificate she had three months minus a day to lodge her claim with the Tribunal.[30]The claimant was still pursuing matters with her trade union representative and, in particular, whether her trade union representative and/or the union solicitors were going to send the claim form on the claimant’s behalf or whether she would do so herself. In the absence of any response and as the time limit which the claimant understood was approaching, the claimant decided to present the claim herself (with the assistance of her husband) to ensure that the time limits were met.[31]From 4 October 2021 until 31 July 2022, the claimant was absent to work owing to ill health due to the stress and anxiety associated with caring for her son. The claimant returned to work following annual leave on 12 August 2022.[32]Throughout this period the claimant was caring for her son who was in hospital until January 2022 and continues to be admitted to hospital and receive weekly treatments. The claimant has additional caring responsibility at home with her husband’s health condition as well as having another child. Observations on evidence[33]I consider that the claimant gave her evidence in a straightforward and dignified manner. She did not seek to embellish her evidence and endeavoured to answer questions in cross-examination as best she could.[34]I did not understand it to be disputed that from August 2021 the claimant was the main carer for her son who was and continues to be admitted to hospital and receives weekly treatment for his condition. The claimant absence from work related to the stress and anxiety associated with her son’s medical condition and caring for him. The claimant returned to work on 12 August 2022 but continues to have caring responsibilities which were further exacerbated by her husband’s medical condition.[35]Mr Cannon did not give evidence. It was put to the claimant that she had the benefit of independent advice from her trade union representative and her husband who is a depute clerk in the Scottish Courts and Tribunals Service (SCTS). The claimant could not comment on the experience of her trade union representative. She could only comment on the advice that she received at the time and her understanding of it. While she acknowledged that her husband worked for SCTS, he had no understanding or experience of Employment Tribunals and employment law.[36]From the correspondence, the trade union representative was a branch secretary. I considered that from the outset the claimant sought advice from her trade union representative. I was in no doubt that the claimant was guided by and sought to follow the advice he gave as she understood it.[37]There was no evidence to suggest that the claimant was advised that there was a one off act of alleged discrimination and/or she should be presenting a claim to the Tribunal in parallel with raising a grievance. My impression was to the contrary; the claimant was represented throughout the grievance procedure by her trade union representative. It was understandable that she should endeavour to resolve matters internally. She understood that any claim to a Tribunal could only be presented after the internal grievance and ACAS early conciliation procedures had been exhausted.[38]While I acknowledge that Mr Cannon is familiar with Sheriff Court proceedings, while acting as a representative in these proceedings he has candidly explained that while he has familiarity with criminal and civil proceedings in the Sheriff Court, he has no experience of the Employment Tribunals/employment law and that throughout the process the claimant was guided by her trade union representative. Mr Cannon’s role appeared to be assisting the claimant presenting her claim form once the grievance and conciliation processes were exhausted and representing her in these proceedings.[39]During cross-examination, the claimant was also asked about the fieldwork manager’s motivation when exercising his discretion; and that the comparators she had mentioned were from different departments and the decisions may have been made by different managers. The claimant, who had not anticipated giving evidence about the substantial merits of her claim, endeavoured to answer these questions as best she could. I considered that it was difficult for the claimant to comment about the motivation of the fieldwork manager. She readily conceded that the text exchanges were polite, but her impression was that the fieldwork manager was going through the motions. It was unclear to her why in terms of the special leave policy the decision was not being taken by her line manager who knew her best and what was the involvement/influence of the HR department.[40]While various outcome letters were produced, I did not have sight of the special leave policy or the grievance policy. While I understood that line managers had discretion, there was no evidence before me of management guidelines setting out factors which line managers should take into consideration when exercising their discretion under the special leave policy.[41]In the documentation there was no explanation why the fieldwork manager had exercised his discretion in the manner that he did. From the claimant’s perspective the fieldwork manager’s decision was based on her son’s disability; the ongoing hospitalisation; and treatment that he was to receive. The claimant was contacted frequently regarding this during the five/six week period she was on special leave. She is aware that others have been granted special leave for extended periods. She considers that she was not offered special leave in the first place and/or given extended special leave because of her son’s disability. Deliberation[42]I first considered what was the act to which the complaint relates. The act was the fieldwork manager’s decision not to exercise his discretion and extend the period of the claimant’s special leave beyond six weeks.[43]On the evidence before me it was unclear when the claimant became aware of this decision. The claimant ceased to be on special leave on 4 October 2021. On this basis I agreed with the respondent’s submission that a timely claim ought to have been presented by 3 January 2022, being three months less one day from the date when the alleged discrimination took place. On that calculation the complaint was out of time.[44]I then turned to consider whether there was conduct extending over a period. The claimant’s position was that there was as she raised a grievance in relation to the decision not to extend her special leave beyond 4 October 2021. There was no dispute that the claimant did raise a grievance and that those internal proceedings were not finalised until the claimant received a copy of the appeal outcome letter on 5 July 2022.[45]The claimant’s argument was that the discrimination ended when she returned to work on 31 July 2022. By that stage she had returned to full time employment and therefore the effect of the decision not to extend her special leave stopped on that date. I did not consider that this was the correct approach.[46]I did, however, ask whether the claimant’s involvement in the grievance process was conduct extending over a period. The respondent’s position was that the claimant’s continuing sense of grievance did not mean that the act claimed of was continuing conduct. It was taken at a single point in time, albeit that a sense of grievance over it continued.[47]While the claimant had referred me to the case of Secretary of State for Work and Pensions v Jamil UKEAT0097/13 the respondent said that this case could be distinguished because there was no continuing duty to keep either the special leave request or its refusal under review.[48]The respondent also argued that the decision to refuse the claimant’s special leave request and the grievance procedure which followed did not create a continuous state of affairs as in Hale v Brighton and Sussex University Hospitals NHS Trust UKEAT/0342/16 which involved instigation of disciplinary procedures which was held to be the discriminatory act complained of and the discriminatory act was held to be continuous until the disciplinary procedures had concluded. In this case, the respondent said the decision was a one-off act of refusing a request to further extend a period of paid special leave. The raising of the grievance some months later did not mean therefore that the act became a continuous act.[49]My understanding of the special leave policy was that the decision to grant special leave was at the discretion of a line manager with no right of appeal. While the claimant raised a grievance about the application of the special leave policy and the manner in which the fieldwork manager’s discretion was exercised, I did not understand the grievance process to involve a reconsideration or review of the decision. That said, my understanding was only based on the outcome letters. From the information before me I considered that it was not conduct extending over a period but rather a oneoff discriminatory act.[50]Having concluded that the application was out of time, I then went on to consider why the complaint was not made to the Tribunal in January 2022.[51]I was satisfied that the claimant had sought advice from her trade union representative in September 2021. He interceded on her behalf and then advised her to raise a grievance.[52]The respondent argued that between January and July 2022 the claimant was engaged in the grievance process and attending two meetings. By comparison lodging the claim form was less of an undertaking and she could have raised proceedings.[53]The claimant followed the advice of her trade union representative and raised a grievance with a view to resolving matters. Given the circumstances, including the ongoing working relationship, it was in my view understandable that the claimant sought to resolve matters internally rather that litigating.[54]I considered that it was highly unlikely that in late 2021 the raising Tribunal proceedings was at the forefront of the claimant’s mind. There was no evidence that at that stage the trade union representative was giving advice to the claimant about time limits and the need to raise proceedings before January 2022. Indeed, the claimant’s understanding from his advice was that she required to go through the grievance procedure and ACAS conciliation before raising any Tribunal proceedings.[55]My impression was that she was advised and assisted in the grievance process by her trade union representative who accompanied her at all the meetings. The internal process took a significant amount of time. The claimant was not working and focussing on the care of her son.[56]Once the grievance process concluded the claimant’s understanding was that her trade union representative or the union’s solicitors would be dealing with matters on her behalf. She was aware that she required to instigate ACAS conciliation which she did. The ACAS conciliation appeared to take a significant amount of time which was surprising given that the claimant understood that the respondent had not engaged in the process. On receipt of the early conciliation certificate, the claimant was aware that there were time limits. However, she thought that there was a continuing act and appeared to be under the impression that she had three months less one day from the date of receipt of the ACAS early certificate in which to send the claim to the Tribunal. She did not do so immediately because she was still waiting to hear from her trade union representative. Eventually, because she thought that the time limit was about to expire, she submitted the claim form herself.[57]In my view the claimant has tried throughout to obtain appropriate professional advice and has followed that advice to the best of her understanding. It may be the claimant has been under such significant stress and anxiety that she has perhaps misunderstood the situation. That was not, however, the impression that I had which was that she genuinely believed that the claim had been presented on time because she had followed the advice that she had been given.[58]There was no suggestion that she had been advised to raise proceedings prior to January 2022 in order to protect her position notwithstanding the ongoing grievance proceedings. There was no suggestion that when the grievance proceedings terminated that she had been given any advice to suggest that her claim may be out of time. To the contrary, she had been advised that her trade union representative would be in touch and, for reasons that were not entirely clear to me, no further advice or support was provided by him. While Tribunal claim forms are designed for completion by unrepresented parties, I do not underestimate how challenging this can be, particularly in a period where the claimant was trying to return to work full-time and had ongoing caring commitments to her son who remains in a critical condition.[59]There was no evidence before me to suggest that the cogency of the evidence had been affected by the delay. The respondent alluded to the fieldwork manager retiring in the summer. However, he currently remains an employee and is aware of these proceedings. The claimant’s team leader and those involved in the grievance process are still employed by the respondent. Indeed, Ms Meldrum who conducted the grievance appeal was observing the preliminary hearing. The respondent accepted that this was not a case where there is a myriad of facts to be considered.[60]The respondent said that there was no obvious direct discrimination claim. The claimant accepted in cross examination that the comparators to which she alluded had different line managers from her; the texts from the fieldworker manager expressed sympathy for the claimant’s son.[61]If the comparators are not in similar circumstances to the claimant the Tribunal may consider a hypothetical comparator. The fieldwork manager’s interaction with the claimant was not restricted to texts. The claimant described the frequency and manner of his requests for updates and information about the length of time her son would be in hospital. The claimant has not been provided with an explanation why the fieldwork manager exercised his discretion in the manner that he did. Having gone through the grievance process the claimant still believes that the decision was because of her son’s disability. Although during the grievance process the head of children and justice services considered that the decision was a reasonable one, it is unclear from the outcome letter the basis upon which that assessment was made.[62]Weighing all these factors I concluded that, notwithstanding that the claim was out of time, it was just and equitable to allow the claim to proceed.[1]The claimant presented a claim to the Employment Tribunal on 22 November 2022 in which she complained that she had been discriminated against on the grounds of disability by the respondent.[2]The respondent submitted an ET3 response in which they resisted all claims made by the claimant. ETZ4(WR)[3]A Hearing was listed to take place at the Glasgow Tribunals Centre on 5 to 7 September 2023. The claimant attended and was represented by her husband, Mr M Cannon. Mr O’Neill, solicitor, appeared for the respondent.[4]A joint bundle of productions was presented to the Tribunal and relied upon by both parties in the course of the Hearing.[5]The claimant gave evidence on her own behalf, and called as witnesses Stephen Smellie and Sandra Garry. The respondent called as witnesses: Lyn Boag, Paul Murphy, Liam Purdie, Andrea McIntosh and Faye Meldrum.[6]Based on the evidence led and the information presented, the Tribunal was able to find the following facts admitted or proved. Findings in Fact[7]The claimant commenced employment with the respondent as a Social Worker on 15 April 2019. Her date of birth is 12 July 1972.[8]On 16 August 2021, the claimant’s son, Mark, who had just turned 11 years of age, collapsed, and required to be taken to hospital. Following blood tests the claimant was informed that her son appeared to be suffering from leukaemia. He required to be taken to the Royal Sick Children's Hospital in Glasgow from Hairmyres Hospital, where they had originally taken him, and so the claimant and her husband drove him to Glasgow for this purpose. Her son, Mark, was admitted to the Schiehallion Ward, and he was an inpatient there for some 7 months while he was treated and kept under close observation by medical and nursing staff.[9]The claimant contacted her friend and colleague, Sandra Garry, by telephone to let her know what was happening. She then contacted Lyn Boag, her line manager and team leader, on 17 August 2021 to advise her of Mark’s diagnosis. The claimant was very anxious and upset about the situation which her son was facing.[10]Ms Boag sent the claimant a text message at 10.09am on 17 August 2021 (64): “Sandra shared with me your news about your boy. Thinking of you and I’m here if need to talk or need anything else. X”[11]On 17 August 2021, the claimant met with the treating medical staff and were advised that her son was suffering from an aggressive form of leukaemia, confirming that this was a very serious situation. Sandra Garry came to the hospital with gifts from colleagues for Mark as a mark of support for her. Ms Garry mentioned special leave to the claimant. She had not previously been aware of the concept of special leave, so Ms Garry confirmed that she would raise this with Ms Boag. She told the claimant that she had heard of someone who had been granted 6 months’ special leave. The claimant was too concerned about her son to do anything about special leave at that point.[12]Ms Boag contacted the Fieldwork Manager, Paul Murphy, to confirm that the claimant’s son was unwell, and that the claimant was therefore unable to work. She did not, at this stage, advise Mr Murphy of the diagnosis of what the claimant had been told about her son’s condition. She told him that the claimant’s current sickness absence was about to come to an end, having been absent for the previous week for unconnected reasons, and said that they needed to work out what kind of leave the claimant should be on.[13]Ms Boag sent a text message to the claimant on 20 August 2021 (65) in which she said “Paul didn’t get back to me before end of today, I will chase up again for you on Monday…don’t be worrying about work, will get sorted next week.” On 23 August, she texted again (65): “Hi, Paul has come back and advised personnel worker off until tomorrow. If u want to give me call tomorrow when you have a minute can have a chat about time off and what’s best.”[14]Ms Boag then contacted Personnel herself, and told them that the claimant’s son was significantly unwell. She asked for advice about what kind of leave should be granted to the claimant, and was advised that she should give her 5 days’ special leave, then review and have a further discussion with her. At this point, Ms Boag was not familiar with the Special Leave Policy, but sought advice from Personnel due to her unfamiliarity with the provisions available to her and the claimant.[15]The respondent operates, and operated at that time, a “Scheme of Special Leave” (85ff). The scheme provided that Special Leave was available to all employees of the respondent “for a wide range of reasons which may be with or without pay”. It also stated in the introduction that when approving requests for special leave, managers should consider the operational requirements of the respondent as well as any requests which had previously been granted, outstanding annual leave and requests governed by legislation.[16]The scheme then set out a number of provisions under different headings. Under “Family Emergencies”, paragraph 1 set out the following guidance:1.1 “If employees are required to be absent from work to make alternative arrangements arising from family emergencies leave with pay for up to one day will normally be granted for each incident. Family emergencies may include incidents such as the sudden and unexpected illness of a relative, partner or child, disruption to the care of a dependant or an incident involving children at school/childcare.1.2 In the case of the emergency hospitalisation of a child and an employee has been advised by medical staff to remain with their child whilst they are in hospital, leave with pay for up to 5 days will normally be granted. Additional time off may be agreed at the line manager/Head Teacher’s discretion.1.3 In the case of a critically ill or injured relative/partner, an employee may be granted up to 5 days leave with pay. Additional time off may be agreed at the line manager/Head Teacher’s discretion.1.4 Where the illness of a near relative or partner is of a serious nature and an employee wishes time off work to allow them to care for that person, an employee with one year’s continuous service may be granted leave of absence without pay, subject to monthly review.”[17]The scheme sets out, under paragraph 4, a separate section relating to bereavements.[18]The claimant was assisted at this time by her trade union representative, Stephen Smellie. He contacted Ms Boag on the claimant’s behalf on or around 25 August 2021 following the granting of 5 days’ special leave, to confirm that the claimant would require a longer period. Ms Boag understood that it was not for her to make such a decision, but that she should consult both Personnel and Mr Murphy about this.[19]Mr Smellie sent Ms Boag an email dated 25 August 2021 to Ms Boag (109): “Lynn, I was contacted yesterday by Sharlene re her son and the question of Special leave. I understand Caroline Murray at Personnel has said she can get 5 days Special leave. She will be referring to the formal Corporate Policy. However, there is within the policy and in the practice discretion where Resources and managers can be more supportive than that. I will pick this up with Personnel and Caroline. I tried to explain to Sharlene that there can be no set rule that says you can have months of paid special leave. The best practice is to discuss what support she needs immediately and will need in future and to keep this under review as the situation develops with her son and the treatments that he will be going through. However, understandably, she was not able to discuss this at the moment. She also referred to others who have had longer periods of special leave, which is true, but each case is different, and discretion applied by managers can vary. I will contact you after I have spoken to Personnel to see if we can get a more sensitive and sympathetic response and guidance for you as the manager. I advised Sharlene, as I am sure you have too, to take what ever time she needs to look after her son and we will worry about whether it is special leave for her. Stephen”[20]Mr Smellie advised Ms Boag that he had discussed the matter with Personnel, and that they had told him that discretion could be exercised by management about granting a further period of special leave.[21]Ms Boag responded by saying that she was trying to be as supportive as she could be, and had explained that she did not want the claimant to be worrying about work, and that they would support her as well as they could.[22]On 26 August 2021, the claimant sent a letter to Soumen Sengupta, Head of Service (111). This was a letter which was composed for her by colleagues who considered that she was not being supported as well as she should have been. The claimant signed the letter herself.[23]The letter stated: “Dear Soumen Sengupta, COMPASSIONATE LEAVE/SPECIAL With regard to the above and following recent discussions with Lyn Boag Line Manager, I write to confirm that my son Mark aged eleven has recently been diagnosed with Acute Lymphoblastic Leukaemia which I am sure you will appreciate is devastating news and of great concern to us as parents and indeed to Mark. Mark will be subject to four weeks of intensive Chemotherapy. It is anticipated that Mark will remain an inpatient for a minimum of six weeks, with regular treatment intervention required for a period of some three years thereafter, with periods of further admission. As Mark’s mother, I will be supporting him unconditionally throughout his treatment and that is not something I will in any way compromise on. Given the aforementioned I was in disbelief to learn that my standard entitlement from South Lanarkshire Council for ‘Compassionate’ leave is a mere five days, this would appear to be in stark contrast to the meaning of the word ‘compassionate’! I stress my son does not have a minor condition that will routinely pass, he finds himself in a life-threatening situation, with only fifty children per year diagnosed with this disease. Given I am not personally ill, though I am under an unfathomable level of stress and anxiety this compounded with having to deal with employment related matters that could not be further from my mind. I feel vexed that the reason and need for my absence is not appropriately acknowledged and recorded, which should be reflective of a profound situation that in no way could have been foreseen. I respectfully suggest that if you were unfortunate enough to find yourself in my position, how you would feel and what your priorities would be? It is disappointing that South Lanarkshire Council has not moved forward in their procedures, as is the case with the NHS, North Lanarkshire Council and Court Services to make appropriate provisions for those that find themselves catapulted into the throes of a situation such as this, which I would not wish on anybody. I ask that the matter be given consideration as a matter of priority, in order to gain resolve and a satisfactory outcome as soon as possible, in order that I can concentrate on all that is of importance to me at this time being my son and the ‘battle’ ahead. Yours sincerely, Sharlene Cannon”[24]Following a reminder on 30 August 2021, Ms Boag emailed Mr Smellie on 31 August 2021 to confirm that “I have spoke to Sharlene today and advised that it has been agreed that she will have special leave (paid) for last week and this week and then for a further 2 week period. It will then be reviewed further at that time.”[25]Ms Boag sent a text message to the claimant on 31 August (67) to ask her to call when she was not so busy so that she could let the claimant know the outcome of the discussions with Personnel about special leave.[26]The claimant had requested that contact in these early stages of her son’s illness should be by text message rather than by telephone, as it was often difficult for her to call while she was in the ward with her son.[27]On 3 September 2021, Mr Sengupta replied to the claimant’s letter of 26 August 2021 (81) to confirm that he had shared the letter with Paul Murphy, for him to consider and then respond directly.[28]Having received the letter from Mr Sengupta, Mr Murphy then wrote to the claimant himself (82) on 3 September 2021: “Dear Sharlene, I write in reply to your letter sent to the Executive Director dated 26th August 2021. Firstly, I would wish again to extend my thoughts to you and your family regarding the distressing situation you are facing, as you support your son thorough this difficult time with his health. The Council fully appreciates your family situation and will of course offer all available supports to assist you during this time. Given the immediate stresses and strains impacting on your family, I have already authorised 4 weeks paid special leave effective from the 23 August 2021. I will then arrange to meet with you prior to the end of this four week period, to discuss your current circumstances and consider any further supports that the Council can offer you. As you may be aware, the Council has various policies designed to support employees during events such as these. This includes the Special Leave and Parental Leave Policies, which you may wish to review prior to our discussion. They can be accessed on the interanet or I can send them onto you directly upon request. The Council also has an Employee Assistance Programme which you may wish to look at, and I have attached some information. In the meantime, please do not hesitate to contact me directly if you require any further supports or information. Yours sincerely, Paul Murphy”[29]The claimant did not receive that letter until 14 September 2021. It is not clear why the letter was delayed in this way.[30]Mr Murphy telephoned the claimant on 14 September 2021 to ask how long she though the situation would be ongoing for. She advised that she did not know how long, but that the doctors had told her that Mark would need 6 weeks’ intensive chemotherapy, up until approximately 19 September 2021.[31]The claimant felt that Mr Murphy did not understand the situation which she and her son, and family, were in, and that he did not demonstrate sympathy towards her.[32]On 24 September 2021, Mr Murphy contacted the claimant again, by text message (71): “Hi Sharlene contacting you on my own phone the workers one stopped working. Hope you’re son had a good week. When you have the opportunity please give me a call on this number Paul.”[33]The claimant replied: “Hi Paul my son has ecoli infection and is very ill as he is fighting both cancer and this infection. I cannot speak as I am in the hospital with him now and I cannot form words without crying and I don’t want him to know I am terrified. He is in a lot of pain he is going to get an x Ray and surgery today his Hickman line is getting removed as the ecoli is now in this line he will not be leaving hospital anytime soon and is fighting for his life. Can you let everyone know in the office how much I appreciate their kind well wishes. If you require me to take sick leave that is fine as I am absolutely terrified my son may Die. Many thanks Sharlene.”[34]Mr Murphy texted in response: “Sharlene only concentrate on the important things the rest will take care of itself I will send you an email next week Take care” The claimant asked him to text her rather than email, because she was in the hospital. She said she was trying to stay strong for her boys (she has two sons), and described it as a “living nightmare”. (72)[35]On 30 September 2021, Mr Murphy texted the claimant again: “Hi Sharlene I can only pray that news was better this week and that your boy is making progress. If you are finding to difficult to talk I fully understand. The options going forward are working from hom but unsure how practical this is for you, unpaid leave or you accessing unfit for work note. If you think it is best to access an unfit for work note it should be dated from the 27 September. If you want to discuss I am available on the phone Paul.” (72)[36]The claimant responded later that day: “Thanks so much he is still in. Very ill got ecoli infected his Hickman line they had to take that out and now his kidneys are not working it is actually torture watching your kid go through this knowing I can’t help. His cancer treatment cannot progress as he is so ill and although he’s has ALL he has a rarer form where chromosomes 4 and 11 have reattached so it’s more aggressive. Just his luck I am staying at the hospital with my son therefore working from home is not an option right now so it will be sick leave. Thanks again for your kind thoughts please let the team know as I am too exhausted to individually Sharlene.”[37]On 4 October 2021, the claimant commenced a period of sick leave, submitting a fitness for work certificate citing stress as the reason for her absence. Her sick leave ended on 31 July 2022, and after taking a period of annual leave she returned to work on 12 August 2022. She remains at work to date.[38]On 4 January 2022, the claimant submitted a Stage 2 grievance (50) in which she complained about(1) the unfair treatment she had received from the Fieldwork Manager, and(2) the inconsistent application of the Council’s Special Leave policy.[39]In her grievance, she wrote: “The Grievance relates to how I was treated when my son was ill and required emergency hospitalisation due to a life threatening condition. I was required to be by his bedside whilst he fought for his life. I contacted my manager to advise of the situation and requested special leave. I was initially told I would get one week’s leave. After contacting UNISON this was extended to 6, although I was not notified of this till the fourth week. During this time, whilst my son was still at risk of dying, my manager and Paul Murphy, Fieldwork Manager, contacted me weekly wanting updates. This added to the considerable stress I was under and felt like harassment. After 6 weeks I submitted a sick line. Since then, I and my husband have had to alternate staying with my son in hospital. I believe I had to fight to get a limited amount of Special Leave agreed when my son was at risk of dying. I am aware of other members of staff, in similar circumstances, that had much more support, did not have to fight for Special Leave and were granted considerably more Special Leave than I was.”[40]The outcome she sought was(1) an acknowledgement that she was not given the support she was entitled to, including extended Special Leave;(2) Special Leave to be backdated so that she would not have to be reduced to half pay after being absent on sick leave for more than 6 months; and(3) a review of the Special Leave policy.[41]The claimant’s grievance was heard by Liam Purdie, Head of Children and Justice Services, on 26 January 2022, with feedback on 3 March 2022, both by Microsoft Teams. The claimant attended and was accompanied by her trade union representative, Mr Smellie. Ms McIntosh, Personnel Officer, accompanied Mr Purdie.[42]Following the meetings, Mr Purdie wrote to the claimant confirming the outcome of her grievance and his investigations (54). He set out his findings, and then confirm his decision.[43]In the course of his findings, Mr Purdie stated: “Your line manager Lyn Boag then contacted Personnel immediately to gather some further information about what your entitlement would be and how to record the absence. Lyn at that point in the interest of confidentiality did not divulge the seriousness “of your son’s condition and personnel’s response was the standard that is held within the policy of one week.”[44]He also noted that Mr Murphy, as Fieldwork Manager, took advice from Personnel and following discussions, reached the decision to exercise his discretion to grant the claimant a further 4 weeks.[45]In his Outcome, Mr Purdie said he believed that the Special Leave policy had been applied appropriately. He went on: “…the purpose of the Special Leave Policy is to allow employees to have grace period during an unpredictable or unforeseen time in their life to determine the most appropriate way forward. The purpose of the policy unfortunately is not for an indeterminate period of paid extended leave and if an employee finds themself (sic) unable to come to work for a period of time that extends into months, then it is appropriate that alternative options are looked at.”[46]Mr Purdie could not find any evidence to support the claimant’s claim that she had been treated unfairly in the interpretation of the policy nor in the way in which the managers had treated her. He was satisfied that the management discretion to extend the leave to a 6 week period was in keeping with the policy. In addition, Mr Purdie said “The review of the other staff members referenced also does not indicate that you were treated differently or unfairly in relation to the policy.”[47]He did say: “I do agree that employees in your position should be granted special leave beyond 1 week without feeling that they have to challenge management to receive it and if this is how you felt at the time then on behalf of the service, I would like to offer my apologies. We will take learning from this and implement change to ensure that the experience of others is better in the future.”[48]Prior to issuing his decision, Mr Purdie had carried out some further investigations. In particular, the claimant had advised him of the identity of 3 individuals whom she believed to have been treated better than she was, in the length of special leave granted to them.[49]The 3 individuals whose names were mentioned by the claimant and her representative were Karen McDonald, Keli Alexander and Sandra Garry. Mr Smellie provided these names with information to Mr Purdie by email dated 28 January 2022 (134): “Liam, Andrea Here are the screenshots of text messaging from Sharlene. She believes the colleagues who got additional special leave are Karen McDonald and Keli Alexander who she thinks are both home carers. Sandra Garry, Family Support Worker, who she believes got 3 weeks special leave when she had a marital break up. The worker in East Kilbride Justice was called Nic. There are a number of social workers in EK called either Nicola or Nicole. Nicola Meiklejohn is listed as in the Justice Team but we do not know for sure if she is the worker. Sharlene has this information from colleagues.”[50]Andrea McIntosh, Personnel Officer, checked the information available on these 3 individuals, leaving “Nic” out as there was no identifiable information as to who she was.[51]On 28 January 2022, Ms McIntosh emailed Mr Purdie to confirm the following information (133): “Hi Liam A couple of interesting finds: Karen McDonald: 13-31 December (18 days) – family emergencies 01-26 January (25 days) – bereavement leave Keli Alexander 08-NOV-2019 – 26-MAY-2020 (100 days) – bereavement leave loss of her son Sandra Garry 01-JUL-2019 – 1 days special leave – did have a long term stress sickness absence”[52]None of these decisions were made by Mr Murphy or Mr Purdie, neither of whom had granted special leave for a period as long as the claimant’s.[53]The claimant remained dissatisfied with the outcome of the grievance, and decided to appeal against Mr Purdie’s decision. She submitted an appeal form on 4 April 2022 (60), and asked for the same outcomes she had sought in the original grievance.[54]The respondent’s Grievance Procedure (100ff) provides for the appeal process as the final stage, as follows: 5.3.1. “Where an employee remains dissatisfied, a written appeal may be submitted to Personnel Services through the trade union within 14 days of the date of the letter, requesting that the matter be heard by the Grievance & Disputes Panel. The Grievance & Disputes Panel will be held in accordance with the terms of reference… 5.3.2. The Panel hearing the grievance will normally be convened within 28 days and the employee should normally be accompanied by a trade union representative or companion. At the hearing the employee will be asked to state their grievance to the Panel. 5.3.3. The employee’s Head of Service (or nominated Officer) will also attend and having heard both sides, the Panel will decide on a course of action which will be advised in writing to all parties, as soon as possible. This is the end of the internal procedure. NB Prior to the appeal being heard by the Panel, a meeting of the parties concerned will be convened in an attempt to resolve the matter. this will be co-ordinated by Corporate Personnel. If it is not within the Appeal panel’s powers to grant the resolution sought, or is contrary to existing Council policies and/or agreements, this will be deemed as the end of the internal process.”[55]This last section, after “NB”, was known as a “Stage 3a” appeal.[56]Faye Meldrum, a Personnel Adviser, decided that since the appeal related to a management decision, which the Corporate Appeals Panel (CAP) would not be able to overturn, she should review the appeal as a stage 3a appeal.[57]She met with the claimant and Mr Smellie on 27 June 2022, and following that meeting, having also spoken with Mr Purdie, she wrote to the claimant on 5 July 2022 (58).[58]In that letter, Ms Meldrum stated: “I outlined at our meeting that my role was to ensure that any relevant policy and procedures have been adhered to, and that a reasonable decision has been made at the previous stages of the Grievance Procedure. I also confirmed that I am responsible for reviewing your appeal to ensure that what you are looking for as an outcome is in line with Council policy, and is therefore something that can be presented to the Corporate Appeals Panel for their consideration… It was outlined in the Stage 2 decision by Liam Purdie, that you had been granted 6 weeks paid special leave to be with your child in hospital and that this period increased from an initial 5 days to 4 weeks and then to 6 weeks during the course of your absence. I have reviewed your People Connect Record and note that you are recorded as being on paid special leave from 23 August 2021 to 27 September 2021. This falls short of the agreed 6 weeks detailed on your outcome letter and I have therefore asked for this to be rectified and your paid special leave will now be from 23 August 2021 to 3 October 2021… I have reviewed the information presented to me to determine what further outcomes you are seeking that can be provided by the appeals panel. Therefore, given my comments above, I would advise that it is not within the gift of the Appeals Panel to grant your required outcome, and this now concludes the internal grievance process.”[59]Mr Smellie disagreed with this conclusion, and he and the claimant were of the view that the appeal should have been remitted to the CAP for their decision. That option was not open to them, however.[60]The claimant notified ACAS of her intention to submit a claim to the Tribunal on 18 July 2022; and the ACAS Early Conciliation Certificate was issued by email on 28 August 2022. She presented her claim to the Tribunal on 22 November 2022.[61]The claimant has returned to work, in a different department to that within which she worked prior to her son’s illness. Her son was able to respond to the treatment he received, leave hospital and begin to resume his life. Submissions[62]Parties made short oral submissions to the Tribunal at the conclusion of the evidence. We took these submissions into account in full in our deliberations, and reference is made, where relevant and appropriate, in the decision section below.The relevant law
[63]Section 13(1) of the 2010 Act provides: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” Discussion and Decision[64]The issues in this case were set down by Employment Judge Maclean in her Note following Preliminary Hearing dated 20 January 2023 (33): 1. Did the respondent fail to consider or decline extending the claimant’s period of special leave? 2. Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. if there was nobody in the same circumstances as the claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated. 3. If so, was it because of the claimant’s son’s disability?[65]The first issue which we address is whether the respondent failed to consider, or declined, extending the claimant’s period of special leave.[66]The evidence on this is a little unclear. It seemed to us that there was no specific discussion about extending the period of special leave beyond the end of September 2021. Mr Murphy sent a text message to the claimant on 30 September 2021 (73) in which he set out the options he considered to be open to her. There was no mention of extending the special leave already granted to her. In reply, the claimant indicated that since working from home was not an option, she would take sick leave.[67]There is no evidence that as at 30 September 2021, the claimant or her union representative sought to have the special leave period extended further. It is understandable that the claimant may not have done so, given that she was so caught up with her son’s illness, but it means that there is simply no evidence that the respondent declined to extend the claimant’s special leave, since they were not asked to do so.[68]Mr Murphy did not clearly give evidence that he had considered extending the special leave. It seems to have been his understanding that the length of the special leave granted to the claimant was exceptional, and longer than he had heard of before. As a result, it appears that he may have proceeded on the basis that no such extension was going to be granted.[69]The reality, therefore, is that while it cannot be said that the respondent clearly failed to consider or declined extending the special leave period, it is clear that they did not extend it, and that when 30 September arrived, they were of the view that extending it would not be appropriate.[70]It may have been helpful if both parties had sought to have a specific discussion about this, but this did not happen at that time.[71]We have found that the respondent did not consider extending the period of special leave beyond 30 September 2021, nor were they asked to do so.[72]The second issue for us to determine is whether the claimant was less favourably treated than others were in relation to the granting of special leave.[73]The 3 comparators who were named were Karen McDonald, Keli Alexander and Sandra Garry. We consider that the information which the claimant had about these individuals was slightly vague, perhaps as a result of having come from third parties, other than Sandra Garry.[74]Karen McDonald was given two periods of special leave, totalling 43 days (not 43 working days), relating to family emergencies and bereavement leave. Neither of these periods was longer than the 6 weeks granted to the claimant as special leave. We have very little information as to the precise reasons for the grant of special leave in Ms McDonald’s case, as there was no witness who gave direct evidence about this.[75]As a result, we are unable to conclude that Ms McDonald’s circumstances were not materially different to those of the claimant. The provisions in relation to bereavement leave are different, though similar, to those for family emergencies such as the one the claimant was facing, and it would not be safe for the Tribunal to conclude that the circumstances were not materially the same as the claimant’s.[76]In any event, it is not clear that the claimant was granted less special leave than Ms McDonald. The total of special leave granted to each appears to have been approximately the same, but in our view it is each grant of special leave which must be taken into account, and in that regard, Ms McDonald was not granted more time off than the claimant. As a result, it cannot, in our judgment, be found that the claimant was treated less favourably than Ms McDonald.[77]Keli Alexander was granted 100 days’ special leave due to the death of her son. The evidence confirmed that the manager who granted this period of paid leave was no longer employed by the respondent, and accordingly it is not clear why such a long period of time was allowed to this individual. The circumstances are not known in any detail, in the absence of any direct evidence, and accordingly no conclusion can be drawn that the circumstances of Ms Alexander and the claimant are not materially different. We formed the impression that such a period of special leave was granted without the knowledge of the managers from whom we heard, and that had they been aware of it they would have questioned it with the manager involved. As a result, we cannot conclude that the claimant was treated less favourably than Ms Alexander.[78]Sandra Garry gave evidence to the effect that she was granted special leave when a relative died and also when her marriage broke down. She did not say in evidence exactly how long her period of special leave was. The claimant suggested that she was granted a period of 3 weeks for the breakdown of her marriage, but there was no direct evidence to this effect.[79]In any event, the information provided by Personnel confirmed that Ms Garry only had one day of special leave, but had an extended period of sickness absence thereafter. As a result, it appears that the claimant was or may have been mistaken as to the nature of leave granted to Ms Garry, and Ms Garry’s evidence did not make the matter clear for us.[80]Accordingly, there is no convincing evidence that the claimant was treated less favourably than Ms Garry.[81]What the evidence never addressed was whether or not any of the individuals concerned were disabled or not, and therefore whether it could be said that the difference in treatment was as a result of the claimant’s son’s disability. It may be, for example, that Ms Alexander was absent for a lengthy period of time due to a depressive illness following a tragic bereavement, but the Tribunal cannot draw any conclusion either way owing to the absence of evidence before us about that. What it does undermine, however, is the claimant’s contention that she was treated less favourably than others were because her son was disabled.[82]As a result, we are unable to uphold the claimant’s argument that the reason for her treatment was on the grounds of her son’s disability, based on the evidence before us.[83]Further, we concluded that the claimant’s claim cannot succeed because it is plainly stated in the respondent’s policy that granting special leave, or any extended period of special leave, is a matter for the manager’s discretion. A Tribunal must be very slow to interfere with the exercise of a discretion, and in this case we see no reason to suggest that Mr Murphy was not entitled to grant special leave for no more than 6 weeks.[84]The claimant has been very critical of a number of aspects of the respondent’s handling of this matter. We find ourselves sympathetic to some of those criticisms. For example, it is plain that the claimant felt that she had to press for an answer about special leave at the earliest stages when she was having to cope with a frightening diagnosis for her young son, involving her trade union representative. There is no doubt that the communications between management and the claimant were at times rather sparse and not helpful, but we do not consider that those criticisms amounted to unlawful discriminatory acts on their part.[85]She also suggested that there is no guidance for managers in how to exercise discretion under the policy. Our conclusion on that was simply that managers must be left to exercise discretion according to the individual circumstances with which they are confronted. We do not consider that the granting of 6 weeks’ special leave and no longer than that was unreasonable, in the circumstances. There are a number of factors which a manager has to take into consideration, and we were of the view that Mr Murphy, with the advice of Personnel, sought to exercise his discretion in a way which fitted the circumstances. Clearly the claimant would have preferred to have paid leave for longer, but it did not amount to discrimination on the grounds of disability to terminate the special leave at the point which they did.[86]The proposition that the terms of the policy under bereavement should be read over into the relevant section for the claimant is not one which we considered to have any merit. It is reasonable for an employer to apply the provisions of their own policy to the circumstances which fit that part of the policy said to apply to it.[87]The claimant also placed considerable emphasis on the fact that she had to seek trade union representation in order to obtain special leave in the first place. She was plainly upset that, at a time of great stress, she needed to harness the resources of the trade union to persuade her employer to grant her a period of absence from work.[88]We understood and sympathised with the claimant, to a degree, about this, but ultimately we could not find that this amounted to unfavourable or less favourable treatment on the grounds of disability.[89]It was our impression that the managers involved in this process were more or less inexperienced in the handling of an application for special leave, or, more particularly, in the decision to grant special leave when circumstances such as the claimant’s arise. Each of the managers involved tended to defer to the views of Personnel, and although Mr Murphy insisted that he took the decisions himself, it was clear that he only did so after checking the position with Personnel. We understood why managers were anxious to do this, and in particular why they would want to ensure that their dispositions were consistent with the overall picture within the organisation. Certainly, few of the managers involved had had to make such a decision before, and none of the managers who gave evidence before us had any direct experience of such a long period of special leave being granted by the respondent before.[90]What was unfortunate was the failure to communicate clearly with the claimant that her initial period of absence was being treated as special leave. Had the respondent ensure that she was told this at an early stage, and kept her advised as to the status of her leave, it would have provided reassurance to her at such a time of distress and anxiety. It seemed to us that the respondent accepted that, in hindsight.[91]We have therefore concluded that while matters could have been handled more sensitively, in relation to the grant of special leave to the claimant, the respondent did not discriminate against the claimant on the grounds of her son’s disability, and as a result, her claims must fail, and be dismissed.[92]We appreciate that this will come as a disappointment to the claimant, who was passionate in her belief that she had been unfairly treated by the respondent. However, we would wish to repeat the observations made at the conclusion of the Hearing, namely, that the claimant and her husband conducted themselves before us in a dignified and respectful manner, particularly having endured such a difficult and distressing experience with her son; and to convey to them the relief of the Tribunal in discovering that their son had made a recovery and was able to resume school and other normal activities, and our very best wishes for young Mark, and for them all as a family, for the future. We are also grateful to Mr O’Neill for the assistance which he gave both to the claimant and her husband, and to the Tribunal, in presenting his case.