[1]The respondent’s application for strike out for want of jurisdiction is refused.[2]The respondent’s application for strike out on the grounds that the claim has no reasonable prospects of success is refused.[3]The respondent’s application for a deposit order is refused. ETZ4(WR)
REASONS
[1]This preliminary hearing was set down at a case management preliminary hearing which took place on 20 April 2021, to consider the following preliminary matters:[1]Whether the claim should be struck out for want of jurisdiction;[2]Whether the claim should be struck out on the grounds of no reasonable prospects of success;[3]Whether a deposit order should be made on the grounds that there is little reasonable prospect of success. 2. At the outset of the hearing, I confirmed that I had received an electronic file of productions, which are referred to in this judgment by page number. 3. I did not hear evidence from any witnesses, although it was agreed that in the event that I decided that a deposit order should in principle be made, that the claimant would require to submit information about her means. Respondent’s submissions[4]I first heard from Mr McGuire who made oral submissions on the respondent’s applications. Jurisdiction[5]Mr McGuire argued that this Tribunal does not have jurisdiction to hear this claim because it does not fall within the scope of Part 5 of the Equality Act 2010 which relates to work. This is by reference to section 39, with section 39(2)(b) particularly in contention, relating to the receipt of any other benefit, facility or service.[6]As Mr McGuire pointed out, the claim is set out in the ET1 form at page 10, which confirms that this is a claim arising from accommodation occupied by the claimant in terms of an accommodation agreement lodged at page 70. The factual background is as set out in the respondent’s paper apart to the ET3. That background is not challenged in regard to the occupation by the claimant of a room where she was given notice to move out so that urgent repairs could be done.[7]Mr McGuire relied on two points in particular. The first is that this claim has nothing to do with the claimant’s work for the respondent: it was not in a working context and it does not relate to a task which was performed at work.[8]The second important point is that the occupancy of the room is not governed by the contract of employment. This is signed by both parties but there is no reference to accommodation. The terms on which the claimant is allowed to occupy the room are set out in the accommodation agreement and not the contract of employment.[9]By reference to section 39(2), he argued that for this Tribunal to have jurisdiction, the accommodation would require to come within section 39(2)(b) ie that had to be classified as any other benefit facility or service.[10]The respondent argues that accommodation is a separate matter to employment; it is logically and objectively distinct from the terms and conditions of employment as set out in the contract of employment; which is a separate matter to the provision of accommodation. It cannot be said therefore that the provision of accommodation is sufficiently linked to employment for it to be reasonably referred to some sort of benefit or service related to employment. There is therefore no jurisdiction.[11]Mr McGuire submitted that the claimant has chosen to enter into a separate agreement for accommodation which she pays for. This cannot be seen in objective terms as a benefit, facility or service. This is unlike free or subsidised travel which can be categorised as facilities or services where these is no separate agreement governing their terms separate to the contract of employment. The separate accommodation agreement takes the claim outside what is said to be benefits, facilities or services.[12]While the claimant refers in his argument to the Housing Act 1988, by reference to section 141 which sets out its extent, Mr McGuire argued that the relevant provisions do not apply in Scotland. He suggested that Scots Law does not recognise the concepts of “service occupancy” and “service tenancy” relied on.[13]The claimant occupied the accommodation in the same way that she would in an agreement with any other party, which happens in this case to be her employer. This does not change the nature of the agreement for the occupation of a room. If the agreement was with another party, then there would be no claim against the other person in the Employment Tribunal.[14]Further, the claimant does not complain about her terms and conditions of employment or her treatment as an employee. The complaint relates not to a time when she was working but rather when she was attending college.[15]The respondent submits that these circumstances fall under Part 4 of the Equality Act, so this claim should be pursued in the civil courts. Although the Sheriff at Perth Sheriff Court has rejected the claim, given there was no argument and the nature of the claim was not properly explained, and no appeal, it is not for this Tribunal to place any weight on that.[16]Mr McGuire argued that if the Tribunal were to find in favour of the respondent, then this could “open the flood gates”; the fact that this type of claim may be rare strengthens the respondent’s case that it is not the case that the Employment Tribunal’s jurisdiction will be ousted in a large number of cases whereas these are claims which should be pursued in the Sheriff Court.[17]He submitted that this claim should therefore be struck out because the circumstances do not fall within the scope of section 39; there are otherwise no reasonable prospects of success because the claimant does not have sufficient service to bring a claim under the ERA. Prospects of success[18]Mr McGuire argued that Section 8.2 of the ET1 contains insufficient specification relating to the claim under the Equality Act. He submitted that there is no reference to the PCP and there is no reference to whether reasonable adjustments were requested; or what was requested. The claim wholly lacks sufficient specification. Thereafter an agenda and note of argument have been prepared on behalf of the claimant but these do not form part of the relevant pleadings in this case.[19]He pointed out that these points were raised on behalf of the respondent at the PH presided over by EJ McFatridge. It was there noted that if there were to be further and better particulars added or an application to amend, then these should be submitted. The respondent’s position is that what is set out here in the note of argument is an amendment but no application to amend has been made.[20]While Mr McGuire accepted that if this additional information is categorised as further particulars (or an amendment), his argument has less force, his position is that this should not be included as part of the pleadings. Relying on Chandhok v Tirkey 2015 IRLR 195, he submits that the pleadings are only those set out in the ET1 and that what is stated in the agenda cannot be rolled up with what is stated in the ET1, even where the ET1 was initially prepared by an unrepresented claimant. Further, the information contained in the agenda and note of argument is not just a relabelling of claims already pled but would require a formal amendment. That he submitted cannot be considered because there is no notice of any application to amend. While the ET3 contains some detail in response, that is largely setting out the factual background; otherwise the response to the legal claims is only dealt with in paras 28 and 29 which cannot be relied on to assume that the claimant’s claim is properly made out. Prospects of success – further specification[21]Even if the agenda and note of argument in relation to the discrimination claims are accepted as further particulars of claim, Mr McGuire argued that the section 20/21 claim in regard to the failure to make reasonable adjustments is bound to fail.[22]With regard to the PCP, he argues that what is contained in the agenda and note of argument is a “new claim”, because there is a difference between what is articulated in the agenda and what is stated in the ET1 (although he accepts that there is a factual dispute about that).[23]Further, the claim is bound to fail because it is now accepted that a reasonable adjustment has to be work related, and related to the claimant’s employment. The reasonable adjustment contended for is for more notice to vacate her room; but this has nothing to do with the claimant’s terms and conditions of work. Relying on Salford NHS v Smith UKEAT/0507/10, and Environment Agency v Rowan 2003 IRLR, he argued that the steps that will need to be taken must have the practical consequences of preventing or mitigating the difficulties faced by a disabled person at work.[24]Mr McGuire also argued that the claim under section 15 does not have any reasonable prospects of success on the basis of what is currently set out in the ET1. Relying on that, the claimant cannot show unfavourable treatment which arose as a consequence of the claimant’s disability.[25]In any event, there is insufficient specification of any harassment claim. Further, there is no further specification at all of the claim referenced “other payments”, even if the agenda and note of argument are accepted as sufficient specification of the other claims. Claimant’s submissions[26]Mr Tinston had lodged a written note summarising his arguments which he supplemented in oral submissions. Jurisdiction[27]He argued that the circumstances must be covered by some provision of the Equality Act because it cannot be that the claimant is left without recourse if she has suffered discrimination.[28]He agrees that the relevant provision of section 39(2)(b) but argues that the scope of “benefit facility or service” is wide enough to encompass the circumstances here. Further, section 32(2)(a) of Part 4, which relates to discrimination in the context of premises, excludes discrimination prohibited by part 5.[29]While he was not aware that the Housing Act 1988 did not apply throughout UK, he argued that his submissions on “service occupancy” and “service tenancy” are applicable by reference to the case of Elvidge v Coventry CC 1993, and other case law on this point relevant in Scotland, namely the decision of the House of Lords in the case of Glasgow Corp v Johnstone 1965 1 All ER 730.[30]He argues that this is a “service occupancy” type case and not a service tenancy type case, where the former relates to accommodation supplied in connection with employment, whereas the latter is regulated by the housing laws.[31]In this case, the conditions which categorise this as a “service occupancy” type case apply. In particular, by reference to the accommodation agreement, this terminates when the employment ends (clause 29, page 50). Further it is clear that the right to accommodation is contingent on being in employment and the two are intrinsically interlinked. This is clear from clause 24 of the contract of employment which references accommodation (page 66).[32]The respondent relies on the fact that there are separate agreements, but the accommodation agreement is expressly referred to in the contract of employment, and the adherence to the obligations relating to accommodation is linked to disciplinary in the work context. It is therefore not correct to say that that these are entirely separate agreements.[33]In any event, he argued, there could be separate agreements about travel expenses or a company car, but that would not exclude them from being a benefit facility or service. Relying on Elvidge, he argues that the provision of such benefits is to facilitate the best performance of full duties. Here, the claimant is automatically entitled to be offered accommodation by virtue of working full time. If the situation changes and she goes part time, as she did here, she is likely to have to leave the accommodation. This shows that the accommodation agreement is intrinsically interlinked with the contract of employment.[34]With regard to the floodgates argument, he argued that there has to be some recourse for a person who is discriminated against. To protect her position and given imminent time bar, the claimant lodged a claim in the Sheriff Court using the simple procedure but this was rejected on the grounds this is an employment matter. This accords with his understanding, and it would potentially be an abuse of process to engage further resources of the Sheriff Court since this is clearly a matter for the Employment Tribunal. It would not be appropriate to lodge another claim in the Sheriff Court which would in any event be out of time and unlikely to be permitted under the just and equitable test. He submitted that the facts in this case fall squarely under Part 5. Prospects of success[35]With regard to the prospects of success, he argues that the claimant’s claims are sufficiently articulated in the original claim form which the claimant completed without the benefit of legal advice. He submits that unrepresented claimants are not expected to set out which legal claims they rely on; and that the basis of the claim is clear from the first lines of the claim. While there is a reference to Selkent in his note of argument, he submitted that all that the additional information does is to add labels to facts which are already plead and no new claims are being introduced.[36]Further it is clear that disability discrimination is claimed. While the claimant has not ticked the box to say that she is disabled, she has ticked the box to confirm that she is claiming disability. It is however not uncommon for a claimant to interpret that question on the claim form as a question whether reasonable adjustments are required for the hearing itself. Further, the respondent was aware that the claimant suffered from PTSD because she had declared this in the health questionnaire when she commenced employment (page 68). The respondent was clearly aware that she was disabled and the adverse impact that had on her.[37]Mr Tinston argues that these further particulars tie into the ET1 and that they are not providing additional factual information but merely specifying the claims that are plead. Further, the agenda was prepared and submitted two and a half months ago; so that intimation was made on 19 April which was at the earliest opportunity once the claimant had the benefit of legal advice. Any lack of clarity was clarified in the skeleton argument (which address the matters which were raised in the agenda).[38]If these are not considered further particulars on the claim, then Mr Tinston said that the claimant will make an application to amend. However, his primary position is that the main basis of her claim is set out in the ET1 which includes meritorious and valid claims.[39]He argued that there should be no deposit order principally on the basis that if the Tribunal has jurisdiction, then these claims have more than little[40]With regard to prospects of success of the reasonable adjustments claim, this is covered by section 39(5) read with section 39(2)(b) which relates to benefits. This is the failure to make a reasonable adjustment in relation to a benefit. If the Tribunal accepts that it has jurisdiction, then that makes the reasonable adjustment sought work related.[41]Here the PCP is set out in the accommodation agreement, that is the requirement to give 24 hours’ notice to vacate in order for works to be done. This PCP subjected the claimant to a disadvantage and unnecessary anxiety and she set outs the steps to avoid. Relying on Elvidge, he argues that a benefit does not require to be imperative to carry out duties; but rather to be beneficial and to facilitate the better performance of duties. Tribunal deliberations and decision Respondent’s application for strike out for want of jurisdiction[42]Mr McGuire argued that the provision of accommodation in this context could not be argued to fall within the scope of the provision at section 39(2)(b) of Part 5 but rather within Part 4 (premises) and therefore that it was the Sheriff Court not the Employment Tribunal which has jurisdiction. I did not accept that argument for the following reasons.[43]In Part 5 of the Equality Act 2010, section 39(2) states that an employer must not discriminate against an employee (b) in the way it affords that employee access, or by not affording access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service.[44]The relevant provision thus references “benefits, facilities and services”. Although not defined by the Act, this is widely interpreted as is made clear by the EHRC’s Code of Practice at paragraph 14.14, which sets out a non-exhaustive list of examples. They can be contractual or discretionary.[45]I made the point to Mr McGuire during argument that the EqA creates claims in breach of a statutory duty, or as he preferred to describe it, a statutory delict. His position was that was relevant to where the claim is brought (ie the Sheriff Court or the Employment Tribunal) as opposed to the type of claim. His argument focussed on contractual terms of the two separate agreements. In particular in support of his argument he pointed out that the contract of employment made no reference to accommodation and that the accommodation agreement made no reference to employment.[46]I agreed with Mr Tinston that terms of employment could be contained in a separate document but that would not mean that they were not benefits facilities or services. Given that discretionary benefits will be included, they need not be referenced in any contractual agreement or have their basis in contract at all.[47]Indeed I am of the view that this focus on the agreements in play here is misplaced. Claims under the Equality Act are not based on contract (apart from the equal pay provisions). The focus is not on any breach of the contract or contractual terms or obligations, but rather on a breach of the statutory provisions. I considered it to be irrelevant if the occupancy of the room is not governed by the contract of employment; and it is not significant that the terms under which the claimant is permitted to occupy the room are set out in a separate agreement.[48]In any event, the accommodation agreement and the contract of employment do make reference to the link between employment and accommodation. I noted that the accommodation agreement at page 80 referenced deductions from pay. It states that, “If you’re leaving employment and accommodation…let us know….when you’ll be leaving accommodation (you can have up to 48 hours after your last shift). In exceptional circumstances, we can sometimes agree an extension if we’ve a room available…if you leave us on bad terms or you’re dismissed, we’ll either give you immediate notice or a maximum of 48 hours to leave accommodation…”[49]The respondent’s position is that staff accommodation is offered to employees who work a minimum of 25 hours per week, full-time. Indeed, when the claimant expressed a wish to reduce her hours to attend a college course, she was notified that she would be required to find alternative accommodation.[50]The right to stay in the accommodation is thus clearly dependent on being employed by the respondent. It is clear that it is only employees who are entitled to the benefit of that accommodation. It is therefore a benefit linked to that employment. This is not a standard landlord/tenant arrangement, where the landlord could be any person or organisation. I accept that benefits or facilities could be provided by third parties as service providers (or providers or premises) but I do not consider the arrangement here falls into that category.[51]The link with employment is further reinforced in the contract of employment, at page 66, where reference is made at clause 24 to accommodation, “If you’ve been offered accommodation….you’ll be required to sign an accommodation agreement and to adhere to all of the relevant obligations relating to your behaviour whilst occupying the accommodation. Failure to do so may result in disciplinary action being taken and the offer of accommodation being withdrawn”.[52]It is clear from the terms of the agreements that the accommodation is let to the claimant and other employees on condition that they are employed full time, that they have a clean disciplinary record and that occupation ceases when the employment ended. Accordingly, whether the concepts of “service occupancy” and “service tenancy” are relevant in Scots law is neither here nor there.[53]I conclude therefore that the provision of accommodation while the claimant is employed by the respondent is a “benefit, facility or service” in terms of section 39(2)(b) of the Equality Act 2010. I accepted Mr Tinston’s submission that the reasonable adjustments duty applies to the provision of a benefit to an employee by virtue of section 39(5). I accept therefore that this Tribunal does have jurisdiction to hear the claim. Respondent’s application for strike out on grounds of no reasonable prospects of success[54]Mr McGuire argues that the claim has no reasonable prospects of success and should therefore be struck out for that reason. This is on the basis of the current written case set out in the ET1 only.[55]He argues that there is no formal application to amend before the Tribunal, so that the further information contained in the agenda and note of argument do not and cannot form part of the “pleadings”.[56]Mr Tinston in essence argues that the information contained in the ET1 is sufficient to set out the basis of the claim; that the information in the agenda and note of argument are further particulars of the claim; that no new claims are being argued; that these are just to put legal labels on the claims made.[57]Mr Tinston’s primary position then is that these are further particulars of claims already made and that an application to amend is not strictly necessary. He did however submit that if that is deemed appropriate then the claimant will make an application to amend.[58]In my deliberations on this point I take account of the fact that the claimant drafted the ET1 herself (and I understand that English is not her first language). I also take account of the fact that it is very common indeed in this Tribunal that unrepresented claimants simply set out a factual narrative of the circumstances relied on without any reference to the relevant legal provisions at this early stage. While the claimant is now represented this case is still at a relatively early stage of proceedings, which is highly significant.[59]Mr McGuire relied on the oft cited Chandhok v Tirkey 2015 IRLR 195 to support his argument that the focus should only be on the pleadings in the ET1. There the EAT states that the ET1 should set out the “essential case”; that parties must set out “the essence of their respective cases”. In that appeal, the Employment Tribunal had determined a point raised in a witness statement rather than in the ET1. That case had proceeded beyond the very early stages of the claim, and an amendment had already been allowed, unlike in this claim.[60]In this case the narrative of the ET1 does set out the essence of the claimant’s case, and the additional documents put legal labels on, and give more detail of, the factual circumstances described to support those legal claims.[61]I decided that there is sufficient factual information in the ET1 to form the basis of relevant claims, notwithstanding the absence of reference to the relevant legal provisions. I noted in particular that in the ET1 the claimant ticked the box for disability; she referenced being threatened with eviction; that she got less than 24 hours’ notice of the need to move out; that she got no help and was given no flexibility; that the respondent knew about her mental health condition; that she was “harassed” and the context of that; that her mental health deteriorated; that she had to leave her accommodation; that she brought her concerns to the attention of the general manager; that there were problems with the scheduled meetings and the respondent refused to arrange another.[62]In regard to the claim for “other payments”: the claimant claims that her accommodation fee continued to be deducted after she had left the staff accommodation.[63]The ET1 narrative is then amplified and reworded and the legal labels which support the facts alleged are set out in more conventional legal language by the claimant’s representative in the agenda and note of argument. There it is made clear that these relate to claims under section 15, 21 and 26. The PCP is articulated as “giving employees 24 hours or less to vacate their accommodation when repairs are required”; and that the demand to vacate the accommodation which she has described as a “threat of eviction” is described as the unfavourable treatment for the section 15 claim; and further details of the harassment claim are included.[64]As Mr Tinston argued, unrepresented claimants are not expected to set out the legal basis of their claims in the first instance. The agenda is intended to assist the claimant in that process, and in turn intended to ensure the respondent knows the precise claims which will be pursued; and in clearly setting out the claims to be met. Indeed the case management stage is designed precisely to facilitate the clarification of claims. This is clear from the template for the agenda which states, “Your answers and those of the respondent will form the basis of the discussion at the PH. They do not form part of the claim or response at this stage. Following discussions some of your answers may be accepted as further details of your claim.”[65]I take the view that the information contained in the agenda and note of argument represents further details and specification of claims already pled.[66]In any event, even if an amendment is required, I would have no hesitation in granting it. Although Mr McGuire suggested that I could not allow such an amendment at this hearing, I did not agree, not least because Mr Tinston submitted that if the Tribunal were not to agree that the information contained in the agenda and note of argument ought to be categorised as further details of claims already pled, then he would make an application to amend, and indeed he referenced the Selkent principles.[67]Further, in the case of MOD v Dixon UKEAT/0050/17, which I mentioned during the course of argument, the EAT (HHJ Eady QC) held that the information contained in the claimant’s agenda was a valid application to amend which ought to have been considered at an earlier stage of proceedings.[68]The question whether or not to grant an application to amend is a matter of judicial discretion. When determining that question, account requires to be taken of the guidance set out by the EAT in Selkent Bus Co Ltd v Moore 1996 IRLR 661. In that case, the EAT stated that “whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it” (the so-called “balance of hardship” approach).[69]In making that assessment, the EAT stated that the relevant circumstances include (although are not limited to): 1. the nature of the amendment: a distinction is drawn between(1) amendments which are simply intended to alter the basis of an existing claim,(2) those which add a new type of claim arising out of the facts already plead (re-labelling) and(3) amendments which add a wholly new type of claim which does not relate to the facts set out in the original claim at all. 2. The applicability of time limits: time limits are only relevant if a new type of claim is added, and even then only a factor to be taken into account. 3. The timing and manner of the application: otherwise any delay is a factor to be taken into account and consideration is given to why the application was not made earlier and why it is now being made. Questions of delay resulting for example in adjournments are relevant.[70]The Court of Appeal in Abercrombie and others v Aga Rangemaster Ltd 2014 ICR 209 confirmed that Tribunals considering applications to amend that arguably raise new causes of action should focus on the extent to which the new pleadings are likely to involve substantially different areas of enquiry than the old. More recently in Vaughan v Modality Partnership 2021 IRLR 97, HHJ James Tayler stated that when considering an amendment the focus should be on the real practical consequences of allowing or refusing the amendment. The Selkent factors are not the only factors that may be relevant, and the focus should be on the real prejudice to parties of allowing or not allowing the amendment.[71]By reference then to the guidance set out in Selkent, above, I accept in this case, as discussed above, that the claimant is not adding any new claims (I discuss Mr McGuire’s point about the reasonable adjustments claim in detail below). If an amendment at all, it is a type 1 amendment, giving further details of an existing claim. The amendment is made at the very early stages in proceedings, as discussed above, and indeed at the case management stage designed precisely to clarify claims for the benefit of both parties. As Mr Tinston pointed out, it was made at the earliest possible stage in proceedings, as soon as the claimant obtained legal representation. The new pleadings amplify but do not involve substantially different areas of enquiry. Most importantly, there is no prejudice to the respondent, the amendment causes no delay at all to proceedings. Indeed the respondent has set out the factual background in some detail already in their ET3, and it would not appear that the amplification of the claim will require much further investigation, if any. If it does, there is ample time to do that since no final hearing dates have been set.[72]When considering then on the basis of the further details/amended claim whether the claim generally has no reasonable prospects of success, I was conscious too of significant authority supporting the proposition that the threshold that must be reached to support strike out on the basis of no reasonable prospects of success is a high one. It would be unusual to strike out a discrimination case without first having heard evidence (See eg Anyanwu v South Bank Student Union 2001 ICR 391 HL).[73]In this case it is clear that there is a dispute on the facts. Considering then the claimant’s case at its highest, I could not say that there was no reasonable prospects of success in regard to the claims overall such that it should be struck out. The section 15 claim should be struck out because it has no reasonable[74]Mr McGuire argued specifically that the section 15 claim should be struck out because it has no reasonable prospects of success. This is on the basis that the relevant tests to establish discrimination arising from disability cannot be made out if reliance is placed only on the narrative of the ET1.[75]As I understand it, Mr McGuire was much less confident about the force of this argument were I to conclude that the further information in the agenda and note of argument were to be accepted as further particulars or an amendment.[76]As discussed above, I am in any event of the view that the facts narrated in support of this claim, which include the further details in the agenda and note of argument, are sufficient to support a prima facie claim of unfavourable treatment arising in consequence of disability. Indeed it may be that the focus will be on the question of knowledge and objective justification. Reasonable adjustments claim should be struck out because it has no reasonable prospects of success[77]Mr McGuire argued, even if the additional information in the agenda and note of argument were to be accepted as further particulars of the claim, that still the reasonable adjustments claim has no reasonable prospects of success.[78]Mr McGuire argues in particular that the claim has no reasonable prospects of success because it does not relate to the claimant’s work.[79]In support of that argument he relies on the cases of Salford NHS v Smith and Environment Agency v Rowan. I was conscious that these were decisions which referenced the DDA and that the provisions on reasonable adjustments was not exactly replicated in the Equality Act.[80]I have already found that this Tribunal does have jurisdiction to hear this claim, that is that the provision of accommodation is a benefit or service related to the claimant’s work. Mr Tinston submitted that was sufficient.[81]I do however accept, if this was Mr McGuire’s point, that the rationale behind the reasonable adjustments’ duty (in the employment context) is to make adjustments which would be effective in keeping a disabled person in employment and continuing at work.[82]That is not to say however that they require to be related to the claimant’s job per se, and I note for example that the reasonable adjustments’ duty might apply where a person is no longer employed (section 108).[83]It seems to me that a claim is not precluded by the mere fact that it is not directly job related and that this question must be considered when addressing whether or not an adjustment is reasonable. This would include an analysis of whether any proposed adjustment it is effective in preventing the particular disadvantage. I could not say that the facts described could not support an argument that the reasonable adjustments’ duty was triggered, and so the question whether any adjustments contended for are reasonable in the particular circumstances requires to be determined. Given that there is a dispute on the facts, then I could not say at this stage that the claim has no reasonable prospects of success.[84]Further and in any event, Mr McGuire argued that this claim has no reasonable prospects of success because of the way that the PCP has been articulated. In particular, he argued that what is articulated in the agenda is different from what is articulated in the claim form, and it was for that reason that he argues that this should be categorised as a “new claim”.[85]He states that what is complained about in the claim form is about getting less than the minimum 24 hours’ notice to move her things into another staff accommodation building, whereas the policy states that an employee will get a minimum of 24 hours’ notice. Thus in the claim form the claimant is not complaining about a PCP of 24 hours’ notice, but that she got less than the minimum. He argues that there is no PCP here.[86]Mr Tinston’s position was that the PCP is articulated in the agenda, by reference to the claim form, as “giving employees 24 hours or less to vacate their accommodation when repairs are required”, and that this at a minimum places the claimant at a substantial disadvantage; that the practice of giving less placed her at a disadvantage; that was not at odds with the accommodation agreement; and that would not necessarily defeat the claim.[87]I have noted that the factual background on this matter is disputed. However, I was of the view in any event that, it being for the claimant to formulate it, and PCP being widely defined to include informal practices, the PCP was validly articulated and that it was the legal formulation of facts which had been alleged in the ET1. I could not say therefore, without hearing evidence, that this particular claim therefore has no reasonable[88]Further, I was cognisant of the fact that in this case, the Tribunal will in any event require to hear evidence about this background in support of other disability discrimination claims including the harassment claim and therefore I did not consider that it was appropriate to strike out this claim at this stage. The claim for payment of wages[89]Mr McGuire argues that, even if the further information contained in the agenda and note of argument is accepted as further particulars of the claim, and even if the discrimination claims are accepted as sufficiently particularised, the claim for “other payments” is not.[90]While there is no further reference in the agenda or note of argument to further particularise this claim, I do note that it is referenced in the ET1 itself as a deduction to pay for accommodation even after she had left. The claimant sets out a sum she believes is due. I accept that this is the essence of a claim, although the respondent will clearly require details of the specific sums which are sought in a schedule of loss.[91]While I accepted Mr McGuire’s argument that I could strike out some but not all the claims, I decided taking the claimant’s case at its highest, that I should not strike out this claim for “other payments” in isolation. Deposit order[92]Nor was I prepared to say at this stage, without having heard any evidence, and taking the claimant’s case at its highest, for all of the reasons set out above, that there was little reasonable prospects of success, and therefore I also refuse to make an order requiring a deposit. Next steps[93]I have accordingly refused the respondent’s application for strike out a failing which a deposit order.[94]The further information in the agenda and note of argument are accepted as further details of the claim, or alternatively an amendment to the claim.[95]The respondent will therefore have 21 days from the date of the issue of this judgment to lodge any response, if so advised.[96]It would appear that a further preliminary issue of disability status remains outstanding. I do note however that the claimant had furnished the respondent (in the PH agenda) with further information regarding her disability, and offered to obtain further medical records. Parties should therefore liaise regarding this question, and the claimant should provide the respondent with such further medical information as is appropriate to allow the respondent to consider whether that matter can be conceded.[97]A further telephone case management preliminary hearing should be listed for one hour to fix a final hearing (in the period September to November), if appropriate, and to deal with all other outstanding case management matters.
Evidence
[98]Fundamentally, it is submitted that there is no evidence whatsoever that any action or inaction by the respondent was because of the claim raised by her.
Relevant Law
[99]Disability is one of the protected characteristics covered by the Equality Act 2010 and section 6 of the Act defines disability as a physical or mental condition which has long-term, substantial adverse effects on a person’s day-to-day living activities.[100]The definition of discrimination arising from disability in section 15 of the 2010 Act is as follows:-(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[101]The burden of proof in claims under the 2010 Act is set out in s136:- 136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[102]The burden of proving the facts referred to in s136(2) lies with the claimant. If this subsection is satisfied, however, then the burden shifts to the respondent to satisfy subsection 3.[103]In order for there to be unfavourable treatment, the claimant must be subjected to some form of detriment. The question of whether there is a detriment requires the Tribunal to determine whether “by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work” (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL).[104]It is a well-established principle that Tribunals are entitled to draw an inference of discrimination from the facts of the case. The position is set out by the Court of Appeal in Igen v Wong [2005] ICR 931 (as approved by the Supreme Court in Hewage v Grampian Health Board [2012] IRLR 870).[105]Guidance as to how to apply the test under s15 was given in Pnaiser v NHS England [2016] IRLR 170, EAT:-a. Was there unfavourable treatment and by whom?b. What caused the treatment, or what was the reason for it?c. Was the cause/reason 'something' arising in consequence of the claimant's disability?d. This stage of the test involves an objective question and does not depend on the thought processes of the alleged discriminator.e. The knowledge requirement is as to the disability itself, not extending to the 'something' that led to unfavourable treatment.[106]The case of A Ltd v X [2020] ICR 199 sets out guidance for Tribunals in assessing the employer’s knowledge of disability:- “In determining whether the employer had requisite knowledge for section 15(2) purposes, the following principles are uncontroversial between the parties in this appeal:(1) There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see York City Council v Grosset [2018] ICR 1492 CA at paragraph 39.(2) The respondent need not have constructive knowledge of the complainant's diagnosis to satisfy the requirements of section 15(2) ; it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person (a) suffered an impediment to his physical or mental health, or (b) that that impairment had a substantial and (c) long-term effect, see Donelien v Liberata UK Ltd UKEAT/0297/14 at paragraph 5, per Langstaff P, and also see Pnaiser v NHS England & Anor [2016] IRLR 170 EAT at paragraph 69 per Simler J.(3) The question of reasonableness is one of fact and evaluation, see Donelien v Liberata UK Ltd [2018] IRLR 535 CA at paragraph 27; nonetheless, such assessments must be adequately and coherently reasoned and must take into account all relevant factors and not take into account those that are irrelevant.(4) When assessing the question of constructive knowledge, an employee's representations as to the cause of absence or disability related symptoms can be of importance: (i) because, in asking whether the employee has suffered substantial adverse effect, a reaction to life events may fall short of the definition of disability for EqA purposes (see Herry v Dudley Metropolitan Council [2017] ICR 610 , per His Honour Judge Richardson, citing J v DLA Piper UK LLP [2010] ICR 1052 ), and (ii) because, without knowing the likely cause of a given impairment, "it becomes much more difficult to know whether it may well last for more than 12 months, if it is not [already done so]", per Langstaff P in Donelien EAT at paragraph 31.(5) The approach adopted to answering the question thus posed by section 15(2) is to be informed by the Code , which (relevantly) provides as follows "5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially."(6) It is not incumbent upon an employer to make every enquiry where there is little or no basis for doing so ( Ridout v TC Group [1998] IRLR 628 ; SoS for Work and Pensions v Alam [2010] ICR 665 ).(7) Reasonableness, for the purposes of section 15(2) , must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee, as recognised by the Code.”[107]The duty to make reasonable adjustments is set out in s20 of the Equality Act with s21 making a breach of the duty an unlawful act. The relevant provisions of s20 are:-(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice (PCP) of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(4) …(5) …(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty.[108]The issue of knowledge is an issue for a claim in relation to the duty to make reasonable adjustment. Paragraph 20 of Schedule 8 of the 2010 Act provides as follows:- (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (a) … (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.[109]The knowledge issue in respect of the duty to make reasonable adjustments has the same concepts of actual or constructive knowledge as the knowledge issue for s15 claims and the caselaw set out above in relation to s15 applies to the assessment of knowledge for the duty to make reasonable adjustments.[110]In Wilcox v Birmingham CAB Services Ltd EAT 0293/10, the EAT confirmed that the employer requires to have knowledge of both disability and disadvantage in order for the duty to make reasonable adjustments to be engaged.[111]What can amount to a PCP should be construed broadly but it does not apply to every act of unfair treatment and one-off acts of alleged discrimination (for example, dismissal) would not normally fall within the scope of a PCP. However, what may appear to be a one-off act could amount to a PCP if there is some evidence that it would be applied again in the future if similar circumstances arose (Ishola v Transport for London 2020 EWCA Civ 112).[112]In relation to the duty to make adjustments, the degree to which any adjustment would overcome the disadvantage to the claimant is relevant to whether the adjustment is reasonable (HM Prison Service v Johnson [2007] IRLR 951). Further, the duty is intended to integrate disabled people into the workplace and this is also relevant to whether any adjustment is reasonable (O'Hanlon v Revenue and Customs Comrs [2007] IRLR 404).[113]Harassment is defined in s26 of the Equality Act 2010:- (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2)… (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are— … disability; …[114]In Hartley v Foreign and Commonwealth Office UKEAT/0033/15 (27 May 2016, unreported) it was held that the question whether there is harassment must be considered in the light of all the circumstances of the case. Where the claim is based on things said it is not enough only to look at what the speaker may or may not have meant by the wording.[115]However, even where certain elements of the test for harassment are met (for example, unwanted conduct and the violation of the claimant’s dignity), the Tribunal must still consider the “related to” question and make clear findings as to why any conduct is related to a protected characteristic (UNITE the Union v Nailard [2018] IRLR 730; Tees, Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 495, EAT).[116]The test for victimisation is set out in s27 of the Equality Act 2010:-(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.[117]It is important to distinguish between cases where the alleged detriment has a connection to the protected act but is not “because” of it from those cases where the detriment is directly because of the protected act.[118]For example, in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, it was held that a refusal of a reference did not amount to victimisation on the basis that it was not refused because of the fact that the claimant had brought a race discrimination claim but because of the imminence of the hearing in the case and the respondent’s desire to protect their position in the litigation. Decision - general[119]The Tribunal will deal with each of the claims in turn below given the specific factual and legal issues to be determined in each claim.[120]The question of whether the claimant was disabled as defined in s6 of the Equality Act remained in dispute between the parties. The Tribunal has not, ultimately, determined this issue because, even assuming that the claimant’s medical condition met the definition, the Tribunal, for the reasons set out below, came to the view that those claims for which the claimant had to meet this definition would not succeed on their substantive merits. Decision - victimisation[121]The central argument of this claim is that certain of the claimant’s belongings were not returned to the claimant and that this was because she had carried out a protected act (that is, bringing the original proceedings). The detriment is framed as either a deliberate disposal of the claimant’s belongings, a failure to securely store those belongings, a failure to return these to the claimant or a failure to take the proper steps to locate these.[122]The Tribunal is satisfied that the bringing of the proceedings was a protected act. There was a submission by Mr McGuire that, when AP was informed by the claimant of the proceedings, it was not said that it was a claim under the Equality Act or a discrimination claim. To the extent that he was suggesting that there could not be a protected act if it was not said that the claim was a discrimination claim then the Tribunal does not consider this is correct as a matter of law. It is not aware of any authority to support such an assertion and it considers that such a requirement would fundamentally undermine the protection provided by s27 of the Act.[123]The Tribunal does not consider that there is any link between the bringing of the claim and how the claimant’s belongings were dealt with by various people in the respondent’s organisation. There was certainly no direct evidence that the fact that the claimant had brought her claim to the Tribunal had had any influence on how her belongings had been dealt with by the respondent.[124]There was also no evidence from which the Tribunal considered they could draw an inference that the protected act had any effect on how the claimant’s belongings were handled. It has taken into account all of the relevant facts but considers that the following factors are of particular significance:-a. AP was the only person involved in the handling of the claimant’s belongings who knew that she had brought Tribunal proceedings. There was no evidence that any of the other people involved with the belongings knew of the protected act. It was certainly not put to them in cross-examination that they knew of the protected act nor did the claimant give any evidence that she had told any of them that she was bringing Tribunal proceedings.b. AP had very little involvement with the handling of the claimant’s belongings other than email exchange in December 2020 which included a discussion about collecting these amongst other matters, arranging for one of the claimant’s friends to collect the belongings in March 2021 and as a point of contact in September 2021 when the claimant asked about her remaining belongings. AP gave undisputed evidence that responsibility for belongings left behind by staff when they leave accommodation does not fall within her remit.c. There were various people involved in the handling of the claimant’s remaining belongings but there was no evidence that any of them were acting on AP’s directions or that she was influencing what they did with the belongings. In particular, the final disposal of the belongings was carried out by LC and CC with no evidence of any involvement from AP.d. The respondent did return the claimant’s belongings in the sense that arrangements were made for a friend of the claimants to collect these in March 2021. The reason why some of the claimant’s belongings did not return to her at this time was because there was no room in the friend’s car and not as a result of any action by the respondent or its staff.e. There was no evidence that the respondent put up any obstacles or barriers to the claimant collecting her belongings. Indeed, the main barrier was the Covid related travel restrictions in place at the time which meant that the claimant had to remain in Italy and arrange for a friend to collect her possessions.f. Other than two items (the “Stitch” doll and what was described as the “cat bag” containing papers), there was no evidence led that the other items which the claimant lists in her pleadings regarding the victimisation claim were in the bags left behind in March 2021. In relation to the “cat bag” this was retained by CC and the claimant was aware of this but there was no evidence of any steps being taken by either of them to have this bag returned to the claimant.g. The evidence heard by the Tribunal, which it does not doubt, was that the remaining bags contained only old clothes and sheets along with some glassware.h. The claimant’s belongings were kept in secure locations over the relevant period; they were initially locked in her room; they were in BB’s office; they were in a locked cupboard in the bar.i. The only time when they were left in a location which could be said to be unsecure was when they were left in the reception area for approximately a month. However, they were left there by the claimant’s friend without any agreement from KR and this was at a time when the hotel was closed with no guests and minimal staff.j. It was not put to any of those handling the claimant’s belongings that there was some other secure location where these could be stored either at the relevant time by the claimant or during crossexamination. There was no evidence before the Tribunal, therefore, that there was something else which AP should have done in December 2020 or March 2021 regarding the claimant’s belongings. There was certainly no evidence that, at these times, the claimant had asked for the respondent to store her belongings in a particular location; she knew these were in her room and had raised no concerns about this.k. The Tribunal heard undisputed evidence that when someone leaves accommodation and leaves behind any possessions then the practice was to leave those in a common area for other staff to take anything they wished and for anything left to be disposed of. This is what was done in this case by CC and, whilst a victimisation claim does not involve the comparison exercise involved in claims of direct discrimination, it is a relevant part of the factual matrix that those involved acted in the way they have acted in similar circumstances in the past.l. The only evidence on which it was submitted that the Tribunal should draw an inference that some of the claimant’s belongings were not returned to her, not safely stored or there had not been a proper investigation to locate these items was the terms of AP’s email on 15 September 2020 at p213. It is said that this email shows frustration on the part of AP. The Tribunal does not consider that the wording of this email demonstrates any particular frustration on the part of AP; it starts by thanking the claimant for her initial email; it repeats the need for work to be done; it explains that the work has been rescheduled to allow for the room to be empty for 24 hours for Covid reasons and so the room would need to be vacated the next day. None of the language used is intemperate and there is no suggestion of any frustration on the part of AP, let alone a sufficient degree of frustration which indicates that, on learning of the claim some months later, she would then seek to put the claimant at a detriment by depriving her of certain of her belongings.m. In any event, when this email is considered in the context of the whole factual matrix, it does not provide sufficient evidence from which the Tribunal could draw an adverse inference of victimisation. In particular, the fact that the bulk of the claimant’s belongings were returned, the circumstances in which the remainder came to be left behind and the fact that AP had no involvement with how that remainder was handled significantly outweigh this one email which shows no real signs of frustration on the part of AP.n. In terms of the allegation that insufficient investigation was done by AP in relation to locating the remaining belongings, the Tribunal considers that there was very little more that could be done by her. She identified that BB had been in charge of this and asked him to locate these. It is true to say that she could have carried out a search herself in September 2021 but there is no evidence that this would have resulted in any different outcome.[125]In these circumstances, the Tribunal considers that there is no link, either direct or inferential, between the protected act and how the claimant’s belongings were handled. The claim of victimisation is, therefore, not well-founded and is hereby dismissed.[126]The respondent had raised the issue of time-bar in relation to the victimisation claim. In light of the Tribunal’s findings on the substantive merits of this claim, it did not consider it necessary to determine the timebar point and no findings have been made in relation to this. Decision – discrimination arising from disability & harassment[127]The Tribunal will deal with these claims together because both claims rely on the same actions by the respondent and their employees as the acts of discrimination and harassment, that is, the communications from AP and CW on 14-15 September 2020 regarding the repairs and the need for the claimant to move room.[128]The first question for the Tribunal in the discrimination claim is whether these communications amount to unfavourable treatment in the sense that a reasonable worker would consider that they had been disadvantaged.[129]The Tribunal does not consider that, with one exception, a reasonable worker would consider that they were being disadvantaged by being contacted by their employer (through a manager and a supervisor) about the matter in question.[130]The initial contacts by AP and CW are to make arrangements for the repair to the window in the claimant’s room and it is very difficult to see how this is a detriment to the claimant nor how a reasonable worker would consider they had been disadvantaged by this. It is something which requires to be done and arrangements need to be made.[131]The repeated contact by CW on 15 September is not something which the Tribunal considers a reasonable worker would consider disadvantages them in circumstances where a supervisor is trying to contact them to discuss a matter and they do not reply for some time.[132]The Tribunal also notes that the contact from CW was not excessive; he makes initial contact by text message at 13.15 asking for the claimant’s mobile number and does not chase this up until more than 4 hours later at 17.40 when he sends a second message; the claimant replies at 18.09 and there is then an exchange of messages in which he requests either the claimant’s mobile number or email which she does not provide; he follows up with a final message at 20.01.[133]The same can be said of the contact between the claimant and AP on 14 September; AP makes initial contact by phone to explain the position with the claimant and then meets with her later in reception to hand over the key for the new room (which includes a discussion about why the move is necessary and why the claimant is reluctant to move).[134]For the most part, the content of the contact with the claimant is not such that the Tribunal considers that a reasonable worker would take the view that they were being disadvantaged. There is nothing in what was discussed between the claimant and AP on 14 September that would be inherently objectionable (bearing in mind that the Tribunal has found that AP did not make the comment about leaving the claimant’s belongings in the corridor).[135]Similarly, the bulk of the messages from CW are simple requests for the claimant’s contact details under explanation that he needs to speak to the claimant urgently. Again, there is nothing inherently objectionable to a reasonable worker in the wording of these messages.[136]The one exception to all of this is the final message from CW at 20.01 on 15 September which includes a threat that the claimant will be evicted immediately. The Tribunal considers that a reasonable worker would find such a threat to be to their disadvantage and, indeed, AP accepted in cross-examination that CW had “gone rogue” in making this comment and it was contrary to the respondent’s policies regarding staff accommodation.[137]The Tribunal, therefore, finds that this comment was unfavourable treatment of the claimant.[138]The Tribunal has given consideration as to whether the final comment by CW is sufficient, when looking at all of the contact with the claimant on 14 and 15 September as a whole, for it to find that all of the communications amount to unfavourable treatment. In other words to look at the matter as a whole rather than as separate incidents.[139]In the context of the whole facts of the case, the Tribunal does not consider that this last message is sufficient for it to conclude that a reasonable worker would consider that all of the communications had disadvantaged them. In particular, the Tribunal has taken into account the following matters:-a. This message comes at the very end of the communications on 15 September.b. More importantly, it comes after GB had become involved and found a solution to the claimant’s concerns about moving room which would facilitate that process.c. It is an outlier in terms of its tone and content.d. The claimant does not, at the time, make reference to it to GB or AP. She does not, for example, forward it to either of them asking why it had been sent or querying if things had changed after a solution had been found.[140]The next question is what was the “something” which was the cause of that unfavourable treatment and whether it arose in consequence of the claimant’s disability. In assessing this, the Tribunal considers that the cause of this comment cannot be looked at in isolation and the whole series of communications, of which this is the last, needs to be considered to put matters in context.[141]It is quite clear that the “something” which causes the initial contacts with the claimant by AP and CW on 14 September is the need for the window in her room to be repaired and for her to vacate the room for this to be done. This has no connection with the claimant’s disability whatsoever and is clearly not something arising in consequence of her disability. Even if the Tribunal had found that these communications were unfavourable treatment then it would not have concluded that they were discrimination arising from disability for this reason.[142]The initial contact by CW with the claimant on 15 September was because she had not moved out of her room. This was the “something” but the Tribunal does not consider that this arose in consequence of the claimant’s disability. The claimant’s own evidence at paragraph 27 of her witness statement was that she was unable to move out because she had evening classes on 14 September and had to attend college on 15 September. This was what she told AP at the time and the Tribunal considers that this is the reason why she had not moved room.[143]The reason for CW contacting the claimant multiple times on 15 September culminating in the final message at 20.01 was that she had either not replied to him at all or had not supplied the contact details in question. The lack of reply was, on the claimant’s own evidence in paragraph 29 of her witness statement and what was said in the messages she sent that day, her attendance at college. She does not assert, either at the time or in her evidence, that she did not reply or did provide the contact information for a reason arising from her disability.[144]Further, the claimant was capable of engaging in a detailed email exchange with AP and GB later on 15 September after she had finished at college. These later communications by the claimant indicate that her disability was not in any way the cause of her lack of response to CW and it was, rather, her attendance at college which was the cause of any failure to respond.[145]The claimant’s attendance at college is a reason wholly unrelated to the claimant’s disability and so the Tribunal finds that the repeated contact from CW including the final message (which the Tribunal considers can amount to unfavourable treatment) were not caused by something arising from the claimant’s disability.[146]In these circumstances, the Tribunal considers that the claim for discrimination arising from disability is not well-founded and it is hereby dismissed.[147]Turning to the harassment claim, there may be a question as to whether the communications relied on as acts of harassment (or, at least, the initial communications on 14 September) are capable of amounting to unwanted conduct where the claimant had agreed to the terms of the accommodation agreement which included a term regarding repairs. Inherent in the relevant clause of the agreement is a need for the respondent to communicate with employees about repairs (which would include any need to move room to allow for these to be done).[148]However, this was not a point argued before the Tribunal and the Tribunal considered that it may be too technical an approach. Rather, it concluded that, absent any express invitation from the claimant, the communications in question were unwanted conduct.[149]Turning to the question of whether this conduct had the purpose or effect prohibited by s26 of the Equality Act, the Tribunal considers that there is no evidence that either AP or CW had engaged in these communications for the prohibited purpose.[150]As set out above in relation to the discrimination claim, the initial communications on 14 September were for the purpose of arranging for the repair to be done, the initial contact on 15 September by CW was because the claimant had not moved room and the later messages from him were for the purpose of trying to secure the claimant’s contact details in circumstances where she was not responding. None of this provides any evidence that either AP’s or CW’s purpose in sending these communications was that prohibited under s26.[151]Turning to the question of whether the communications had the prohibited effect, the Tribunal, with one exception, agrees with the submission by Mr McGuire that it would not be reasonable for these communications to have that effect for similar reasons as relied on above in relation to the unfavourable treatment element of the discrimination claim.[152]Whilst the Tribunal accept that the claimant found these communications upsetting, it has to be the case that an employer is entitled to contact an employee about matters such as those in this case, to renew that contact when that employee does comply with an instruction and to repeat the contact where the employee does not reply. So long as the volume of communication is not excessive and the wording of any communication does not go beyond what is necessary then it cannot be said that it was reasonable for such communications to have the prohibited effect.[153]As set out above, the Tribunal does not consider that the volume of communication was excessive nor that the wording was such that it reasonably had the prohibited effect.[154]However, there is one exception to this and it is the same as in the discrimination claim; the Tribunal does consider that it was reasonable for the final message from CW at 20.01 to have had the prohibited effect. This does go beyond what was reasonably necessary in terms of its wording, specifically the threat of immediate eviction which AP accepted was not in keeping with the respondent’s policy. There can be no doubt that such a threat would reasonably create the prohibited effect in terms of s26 as it clearly creates an intimidating or hostile environment.[155]As with the discrimination claim, the Tribunal has given consideration as to whether the communications should be looked at as a whole in considering whether it was reasonable for them to have the prohibited effect. For the same reasons as set out above does not consider that the final comment is enough for it to be reasonable for the whole series of communications to have the prohibited effect.[156]The question then is whether this particular comment is related to disability. The Tribunal bears in mind that this is a broad test and the comment does not need to be because of disability. The Tribunal has looked at the whole context of how this comment came to be made in assessing this matter.[157]The Tribunal considers that the comment was made as a result of CW’s frustration in the lack of response from the claimant to his earlier communications and her failure to move out of her room. As noted above, it is the claimant’s own evidence, as set out in her witness statement and in the contemporaneous messages to CW, that she was unable to move and not replying to him because she was at college. This reason is entirely unrelated to the claimant’s disability and there is nothing asserted by the claimant in the evidence from which the Tribunal could conclude that her lack of response to CW’s messages was related to her disability.[158]The Tribunal should be clear that even if it had found that it was reasonable for the whole exchange of communications on 14 and 15 September to have the prohibited effect then it would not have found that these were related to disability for the same reasons as it found that the communications were not related to disability.[159]In these circumstances, the Tribunal concludes that the claim of harassment is not well-founded and is hereby dismissed.[160]The Tribunal would comment that there appears to be a lack of joined-up communication on 15 September by all those involved which, whilst it might not have entirely avoided the issues which arose, clearly did not assist matters. There was no evidence that CW was keeping AP apprised of his attempts to contact the claimant, AP did not inform CW that the claimant had contacted her and that she (and GB) were dealing with the issue, the claimant did not inform CW that she was going to raise the matter with AP and nor did the claimant inform AP (and GB) that she was continuing to receive contact from CW. If all those involved had taken a more coordinated approach to the matter then it may well have assisted. Decision – duty to make reasonable adjustments[161]The first question for the Tribunal in relation to the claim that the respondent breached the duty to make reasonable adjustments is whether the respondent applied a PCP to the claimant. Two possible PCPs were advanced on behalf of the claimant; the terms of the accommodation agreement in which staff are given a minimum of 24 hours’ notice of any maintenance work to be carried out on their room; the actual circumstances of this case where the claimant was given less than 24 hours’ notice.[162]The Tribunal considers that the terms of the accommodation agreement relating to notice amount to a PCP on the basis that it was agreed by the respondent’s witnesses that this is the practice adopted by the respondent in relation to such matters. Indeed, the respondent did not seek to argue that this did not amount to a PCP.[163]The Tribunal does not consider that the actual notice given to the claimant of less than 24 hours amounts to a PCP. Although the concept of the PCP should be construed broadly, one-off acts do not generally fall within the scope of PCP unless there is evidence that what happened in this case would be likely to happen again in future instances. However, the evidence heard by the Tribunal is that the respondent has always given at least 24 hours’ notice of maintenance work and frequently gives more than that. There was, therefore, no evidence that what happened in this case was likely to happen in the future or had happened in the past.[164]The Tribunal, therefore, finds that the respondent did apply a PCP to the claimant which was the minimum notice of maintenance work set out in the accommodation agreement.[165]The next question is whether this PCP placed the claimant at a substantial disadvantage as disabled person. The Tribunal did have some difficulty in understanding what the disadvantage was said to be; the written submissions on behalf of the claimant simply makes an assertion that the claimant was placed at a substantial disadvantage given that she has PTSD and the triggers for this condition but does not specify the disadvantage.[166]To the extent that the disadvantage is said to be a difficulty in moving out of the room with 24 hours’ notice, the claimant’s own evidence in her witness statement was, as discussed above, that she could not do so because of her college commitments on 14 and 15 September. The other reason why she had difficulty in moving given in the statement is the volume of her possessions and the distance to the building containing her new room. Neither of these reasons are in anyway connected with the claimant’s disability.[167]The claimant does state that she suffered a panic attack on the evening of 14 September but her witness statement ascribes this to the alleged threat that her belongings would be left in the corridor if she did not move (something which the Tribunal has found was not said) and not the amount of notice being given.[168]The only reference to the amount of notice in contemporaneous correspondence is in the claimant’s email to AP and GB at 16.04 on 15 September (pp213-214) where she states that she had less than 48 hours’ notice and does not consider this reasonable. She goes on to explain that she has difficulty adjusting to new living spaces and would have hoped for more support and time to adjust.[169]The Tribunal has given anxious consideration as to whether the claimant has discharged the burden of proving that she was placed at a substantial disadvantage as a disabled person and it is persuaded, but only just, that she has done so. The Tribunal finds that the claimant was disadvantaged in adjusting to the new living arrangements by the PCP applied to her because the effects of her PTSD make it difficult for her to adjust to new circumstances, such as a change of room, in a short period of time.[170]The next question for the Tribunal is whether the respondent, specifically AP, had the requisite knowledge, in terms of Schedule 8, paragraph 20 of the Equality Act, for the duty to be engaged. It is AP’s knowledge which is to be considered because the alleged breaches of the duty relied on by the claimant are both said to be carried out by her; the first on 14 September when the claimant was asked to vacate her room (one request did come via CW but it is clear from the message he sent to the claimant that he was simply relaying a request from AP and was not the decision-maker himself); the second alleged breach was said to occur on 15 September when AP sent an email to the claimant at 16.18 (p213) renewing the request for her to vacate her room.[171]It was quite clear from the evidence that AP did not have actual knowledge of the claimant’s PTSD at any time prior to 14 and 15 September 2020. She had not had sight of either the claimant’s medical questionnaire (p119) in which the claimant disclosed her PTSD or the subsequent risk assessment (p120). The only person outside of HR who had seen these was BB and there was no evidence that he had disclosed the information contained in these documents to AP. Further, there was no evidence that anyone else had disclosed the claimant’s PTSD to AP.[172]Further, there was no evidence that the claimant had disclosed her PTSD to AP during their discussions on 14 September; the claimant’s witness statement makes no mention of this and although the claimant sought in cross-examination to assert that she had raised her mental health in those discussions, the Tribunal considers that, given the importance of this to the claim, if she had then this would have been said in her witness statement.[173]In terms of constructive knowledge, there is no evidential basis whatsoever from which the Tribunal can conclude that AP, prior to asking the claimant to vacate her room on 14 September, could reasonably be expected to have known that the claimant was disabled. There was no suggestion of any information being in AP’s possession which would have given her the impression that the claimant was disabled nor was there anything which should have prompted her to investigate further.[174]Further, there was no evidence that AP had actual or constructive knowledge that the claimant would be placed at a substantial disadvantage by the application of the PCP on 14 September. There was no evidence whatsoever that AP had any information in her possession that asking the claimant to move room with 24 hours’ notice would cause her any issues at all.[175]The Tribunal, therefore, concludes that prior to applying the PCP on 14 September, AP did not have the requisite knowledge for the duty to make reasonable adjustments to be engaged. It was not, therefore, engaged when the PCP was applied on 14 September and so there could not be a breach of the duty.[176]The position is different when AP emails the claimant at 16.18 on 15 September. At that point in time, she has had sight of the claimant’s email of 16.04 and, indeed, is replying to it. The claimant’s email raises issues about the amount of notice, that the situation is causing her increasing anxiety and stress, that she requires more support and time to adjust to the move, that she does have difficulty with adjusting to new living spaces and that there was an impact on the claimant’s day-to-day life.[177]Whilst the Tribunal does not consider that this gives AP actual knowledge that the claimant is disabled or that the PCP would place her at a substantial disadvantage, applying the guidance in A Ltd v X, the Tribunal does consider that the information disclosed in this email was such that AP should have taken steps to investigate the position further. She was on notice that the claimant was experiencing stress and anxiety, that she had difficulty adjusting to new living spaces and needed more time and support. This was now a situation where there was a basis for AP to make further enquiries about why the claimant was experiencing these issues but she did not do so. In such circumstances, the respondent has not discharged the burden of proving that AP could not reasonably be expected to have the requisite knowledge in terms of Schedule 8 paragraph 3.[178]The Tribunal does consider that the duty to make reasonable adjustments at the point when AP had sight of the claimant’s email (which must have been sometime between 16.04 and 16.18 being the times of the claimant’s email and AP’s reply). However, the Tribunal should be clear that the duty was not engaged at any earlier time on 15 September.[179]The question then is whether or not the respondent complied with the duty. Although AP’s immediate response was to again apply the PCP in her email of 16.18, she did extend the deadline for the move to the next day meaning that the claimant was given more time to adjust to the move and undertake.[180]Further, this was not the end of the matter and the email exchange continued that day and into the next, now involving GB, and further adjustments were made; in her email of 17.46 on 15 September (pp211- 212), GB indicates that the claimant only need move on a temporary basis, taking only essential belongings with her; in her email of 13.50 on 16 September (p210), GB gives the claimant until 17 September to move rooms.[181]In her responses to these emails (pp211 & 210), the claimant indicates that she is happy with these proposals and she is then able to move rooms. There was no evidence led before the Tribunal that after the adjustments were made by AP & GB that the claimant had any further difficulties in moving room or adjusting to the move and the Tribunal can only conclude from this that these adjustments had removed any disadvantage.[182]In summary, the Tribunal finds that the duty to make reasonable adjustments was not engaged until the claimant’s email of 16.04 on 15 September when AP had constructive knowledge of the claimant’s disability and the disadvantage. There could not be a breach of the duty at any time earlier than this. Once the duty was engaged, the respondent made adjustments which overcame the disadvantage to the claimant and so they did not breach the duty once it was in play.[183]In these circumstances, the Tribunal does not consider that the claim for breach of the duty to make reasonable adjustments is well-founded and is hereby dismissed.