[1]That the claimant’s claim of unfair dismissal is dismissed for want of jurisdiction;[2]That the claimant’s application to amend her claim is refused.
REASONS
Conclusion
[1]A Preliminary Hearing was fixed to take place on 19 and 20 March 2019, in Portree Sheriff Court, following previous case management discussions, in 35 order to consider the extent and scope of the claims being presented by the claimant, and to determine future procedure in this case, including, if possible, the establishment of a list of issues. 412 2844/18 Page 2[2]The claimant appeared on her own behalf, and the respondent was represented by Mr J Cavanagh QC, instructed by Ms A Rathbone, solicitor.[3]Mr Cavanagh helpfully set out the respondent’s position, at the outset. He said that even before the claimant presented her further and better 5 particulars of the claim, attached to an email dated 31 January 2019, and of itself running to some 15 pages, the respondent was concerned to ensure that a face-to-face discussion could take place in which the claims set out in the ET1 should be more clearly defined, so as to enable a list of issues to be prepared. 10 4. He observed that the further and better particulars document does not have, at present, the status of pleadings, as no application to amend the claim had been advanced by the claimant. However, he confirmed that he intended to use this hearing to point out what may amount to new heads of claim, which should not be permitted to be added by way of amendment. In addition, he 15 wished to go over the original claims, and the further particulars which have been added to them, in order to allow for further clarity between the parties as to the precise nature of those claims.[5]The claimant responded by saying that she had thought that she was asking for her further and better particulars to be included in the ET1, and therefore 20 she understood that she had been seeking to apply to amend her claim by the introduction of this additional information.[6]That being understood, it was agreed that the Tribunal should proceed to hear both parties on these points in order to deal with the application to amend, and the further particularisation of the claims made. 25 7. Essentially, there were two parts to the hearing: firstly, the discussion about whether or not the claimant’s application to amend should be allowed; and secondly, the discussion about the extent to which the further and better particulars provide the necessary specification of the claims made by the claimant to allow proper notice of those claims to be given to the 30 respondent. 412 2844/18 Page 3
Evidence
[8]As a result, it is necessary for the Tribunal to address these two parts of the hearing in different ways. That part of the hearing which involved consideration of whether or not certain parts of the claim should be allowed to proceed requires properly to be dealt with by way of a Judgment, which 5 may then be published on the Employment Tribunals Judgment website. However, that part which deals with the discussion of further particularisation of the claim, without an application being made by the respondent to exclude any part of the claim, should not be part of a Judgment which is to be published, and accordingly that will be dealt with in 10 a separate Note.[9]In this Judgment, then, it is necessary to consider the submissions made by both parties in relation to the application to amend the claim by the claimant dated 31 January 2019. Unfair Dismissal 15 10. Prior to dealing with that matter, however, it is necessary to address the jurisdictional point made by the respondent in relation to the claim of unfair dismissal made by the claimant.[11]The claimant understood that the respondent is seeking to argue that the claim for unfair dismissal which she seeks to advance is outwith the[20]Tribunal’s jurisdiction. She said that when she presented the claim, she did not realise that it would be barred by statute. She said that it was her understanding that CNC officers are considered to be employees, and referred to the case of Civil Nuclear Police Federation v Civil Nuclear Police Authority & Another [2016] EWHC 2186 (Admin) as authority for 25 that proposition, a decision of the Queen’s Bench Division of the High Court of Justice. That was a case, she said, in which the issue before the court related to the increase in the state pension age for CNC officers, and the court found that the officers were employees, as opposed to territorial police officers who are considered to be office holders. 412 2844/18 Page 412. Mr Cavanagh explained, for the respondent, that CNC officers are employees and are not office holders, but that that is not the reason why they are barred from claiming unfair dismissal.13. In that High Court case, (in which Mr Cavanagh himself appeared), the 5 issue concerned the disparity between the retirement age for territorial police officers (60), and that of CNC officers (68). The issue did not depend on whether they were employees or not.14. Mr Cavanagh went on to say that historically CNC officers have been in a different pension scheme to territorial police officers. While the court 10 referred to their employment status, that was not the central issue in the case.15. Mr Cavanagh referred to section 200 of the Employment Rights Act 1996 (ERA), in which it is provided that the relevant part of ERA does not apply to a member of a constabulary maintained by virtue of an enactment. The 15 CNC derives its existence from section 52 of the Energy Act 2004. He submitted that regardless of the general principle that police officers are unable to claim unfair dismissal, CNC officers are expressly excluded from that right.16. The claimant acknowledged what the respondent was saying in relation to 20 this, and noted that she had not understood the reason why the unfair dismissal claim was said to be statutorily barred. She simply confirmed that she considered this a matter for the Tribunal to decide. Further and Better Particulars – New Claims17. Mr Cavanagh presented a document to the Tribunal, entitled “Summary of[25]New Allegations”, a copy of which he provided to the claimant. 18. The Tribunal took time to hear both parties on each of the points made by the respondent. 19. Mr Cavanagh addressed the first point in the list of 6 allegations which he described as “wholly new”: “The allegation that the requirement that 412 2844/18 Page 5 CNC officers must be qualified as Authorised Firearms Officers (AFOs) is indirect disability, sex and/or maternity discrimination. See ‘additional information’ document, paragraphs 10, 13 and 24. This would be a fundamental challenge to the way that the Respondent 5 operates.”20. Mr Cavanagh expanded upon this point. He said that the primary role of the respondent is to protect nuclear installations, and officers are routinely armed as they require to be deployable in the event of an incident. The general rule is that officers must be AFOs. If there is now to be a challenge 10 on the basis that this AFO requirement is indirect discrimination, this is a root and branch challenge to the way in which the CNC operates. It would be necessary, in defending such a claim, to explain the fundamental way in which the organisation operates. He said that the respondent did not understand that this was a challenge being raised against them in the ET1. 15 The respondent’s position is that the AFO requirement was not the central issue once medical advice had been received to the effect that the claimant was unfit to carry out any role within the respondent’s organisation. As he put it, if it is necessary for the respondent to fight the case on the basis of the AFO requirement, it “raises the stakes enormously”. 2021. In response, the claimant said that when she included the sex discrimination claim in the ET1, she could not expand upon it. She said that this is not necessarily a new allegation, but an attempt to expand the basis of the claim. She said she found it difficult to fit the allegations in the space provided in the online ET1 form. She accepted that this claim would amount 25 to a fundamental challenge; she understood the need for AFO but what she wished to raise was the way in which this was enforced.22. Mr Cavanagh submitted that in the ET1, there is quite a lot of material about the sex discrimination claim, but nothing which gives notice of a root and branch challenge to the AFO requirement. 412 2844/18 Page 623. The second point in the list of new allegations was: “The allegation that it is indirect sex or maternity discrimination to require officers who have lost AFO status to retrain to recover that status. Paragraph 14.”24. Mr Cavanagh submitted that under the rule of the respondent, if an officer 5 has not been trained as an AFO for some time it is necessary for them to retrain. In the claimant’s case, he said, the last time she was an AFO was 2010, and in 2014 she was told that she would have to retrain as an AFO. This would require her to do rifle training at Bisley, Surrey, and there were discussions about whether or not that training could be accommodated at 10 Dounreay. The outcome of those discussions was that it could not. Again, he said that there was nothing in the ET1 about this requirement, and therefore it amounts to a new allegation not previously raised. 25. The claimant responded by saying that her position was the same in relation to this point as it was to the first point. The manner in which the CNC seeks 15 to conduct the training causes a lot of problems for women returning from maternity leave. She suggested that there was another CNC officer who “ended up in court” who had been able to do modular training in Dounreay, and that she herself had been told that she could do such training there.[26]The third point made by Mr Cavanagh was: “The allegation that it was 20 unlawful disability discrimination for the Respondent, via its Chief Medical Officer, to decline to recommend that Ms Stones should be given ill-health retirement. Paragraph 12. This cannot in any event amount to disability discrimination.”[27]Mr Cavanagh said that if the allegation of disability discrimination in this 25 paragraph was that the claimant was not successful in obtaining her pension by means of ill health retirement, that is a new claim and not one which was justiciable in the Employment Tribunal. It is not in dispute that had she been successful in her ill health retirement application, the claimant would still have left her employment with the respondent. The process 30 followed is that the CMO (Chief Medical Officer) writes a report recommending ill health retirement to the UKAEA Pension scheme. In this 412 2844/18 Page 7 case, what the CMO said was that they had not been able to get to the bottom of the disability or the reasons for it so could not give a prognosis. In order to qualify for the scheme, it is necessary to be able to predict that the claimant would be unable to work until retirement age, and the CMO was 5 unable to do that.[28]Mr Cavanagh went on to point out that the claimant had not included this claim within the ET1. It is not, in any event, within the jurisdiction of the Tribunal to challenge the decision of the Pension Scheme Trustees, when they are not the employer. It cannot amount to less favourable treatment on 10 the grounds of disability since non-disabled employees are not eligible for ill health retirement.
Conclusion
[29]The claimant responded by clarifying that this is not a separate head of claim being advanced in this case. It is about providing the complete picture of the Occupational Health advice given and the conflicting positions. The 15 CNC Occupational Health department recommended that the claimant was not sufficiently unfit for ill health retirement but their advice was contradictory all the way along.[30]Mr Cavanagh observed that the key point is that there are two different tests applied as to whether or not the claimant satisfied the test for ill health 20 retirement, and whether or not the claimant satisfied the test for a capability dismissal by the respondent. There is no inconsistency.[31]The fourth point made by the respondent was: “A number of entirely new allegations of victimisation. Paragraphs 65-74. No allegations of victimisation are made in the ET1.” 25 32. In paragraph 65, the claimant commences a set of allegations about Andy Brotherston, complaining that he subjected her to detriments because she had made complaints about the way in which she had been treated. No such claim, said Mr Cavanagh, was made in the ET1. A particular concern for the respondent is that Mr Brotherston was the claimant’s line manager 30 until 2015, and it would set a major task for the respondent to find the 412 2844/18 Page 8 evidence and investigate the issues in order to prepare to defend such a
claim.
[33]The claimant responded by saying that in 2012, she made an informal complaint about parental leave and pay, which caused her a great deal of 5 stress. Following her return to work in 2014, she said she had to raise a grievance criticising the “shambolic” way in which her return to work was handled. She said that she has now seen correspondence in which sarcasm was used by managers to describe her, and derogatory language by this manager (Mr Brotherston). She made a complaint of discrimination 10 in her grievance, presented in January 2015, and that grievance was upheld. He saw her as a troublemaker and wanted rid of her, she said.[34]Mr Cavanagh acknowledged that the claimant did refer to discrimination in her grievance.[35]The fifth point raised by Mr Cavanagh was: “A wholly new set of 15 allegations relating to whistleblowing. 75-82. Again, no allegations of protected disclosure detriment were made in the ET1. So far as the DV vetting allegation is concerned, there is no suggestion by Ms Stones that she made a protected disclosure.”[36]Mr Cavanagh said that the allegations of whistleblowing are entirely new, 20 were not included in the ET1, and do not fall within the ambit of an Equality Act claim. This “opens up broad vistas”, from which a number of difficulties arise. Security vetting was not completed when the claimant was allowed back on site when returning to work, as it should have been, but this did not amount to a detriment to the claimant. There is in any event no suggestion 25 of a protected disclosure having been made by her. The rest of the allegations under this heading related to the way in which she was treated, and no public interest is demonstrated. In any event, this is a claim which did not appear in the ET1, and is entirely new.[37]The claimant’s response was that she was sent home from work with 30 situational anxiety, and was unable to cope with the work situation at that time. She was suffering a detriment at the time, she said, but all these acts 412 2844/18 Page 9 are connected to the bigger picture of how her health had suffered. She had been very careful since returning to work, in keeping away from Facebook and other social media sites. It was problematic for her to gain access to the site, and she had to arrange for temporary passes. She said 5 that her disclosure was that she had to have vetting completed in order to ensure that she could have full access to the site. She said that she did not disclose information at the time but she did disclose the consequences in the course of her grievance in January 2015, and also a later grievance in 2017. She accepted that this claim is not included in the ET1 “in these 10 specific terms”.[38]Sixth, the respondent raised the following issue: “Failure by the Respondent to recognise her as disabled. Paragraphs 7 and 16. In any event, this cannot amount to a breach of the disability discrimination provisions of the Equality Act 2010.” 15 39. Mr Cavanagh submitted that the claimant’s complaint, that the respondent had not recognised her as disabled within the Employment Tribunal proceedings, does not amount to a basis for challenge. Whether the respondent agrees that she is a disabled person within the meaning of the Equality Act does not provide a basis for a claim under that Act. It is not, in 20 any event, included in the claim form, and does not amount to a detriment, anyway.[40]The claimant accepted that this was “more to do with background” than a separate claim, though she believes that this goes to the heart of how she was treated. 2541. Having addressed these points, Mr Cavanagh then raised the issue of time limits in respect of all of these claims. There are time limit issues with regard to the original claims contained within the ET1, but he accepted that these must await the full evidence at the merits hearing, and that these issues must be reserved until the full hearing. 3042. However, with regard to the claims which the respondent argues are new claims, the assessment of time limits must be done separately. He said that 412 2844/18 Page 10 if they are out of time, the Tribunal must assess whether or not it would be just and equitable to permit them to proceed, or, in the case of the whistleblowing claim, whether it was not reasonably practicable for the claim to have been presented in time. 543. If the claimant was able to put in a claim on 22 November 2018, Mr Cavanagh submitted, there is no reason for the application of the just and equitable extension to allow the claims to be brought out of time. More than that, the respondent says that several of these claims concerned events which ended a long time ago, and therefore are considerably out of 10 time.[44]Referring to the 6 points raised before me, Mr Cavanagh said that 1 and 2 are out of time because the claimant has not been in attendance at work since 2015, and since then the medical view has been that she is unfit to carry out any role. With regard to the AFO requirement, the medical 15 evidence received by the respondent was that she was not fit to carry out any role for them, and therefore that claim is 3 years out of time. Point 3 is not a separate head of claim.[46]Point 4 relates to events in 2014 and 2015 at the latest.[47]The same timescale applies to point 5, and the whistleblowing claim. She 20 returned to work in January 2015, which is now 4 years ago, and therefore this claim is well out of time. It cannot be said, he argued, that it was not reasonably practicable for this claim to have been presented within the relevant timescale.[48]Overall, Mr Cavanagh submitted that it would not be just and equitable to 25 require the respondent to be put to the very onerous task of defending the new claims when they are “so ancient according to the standards of the Employment Tribunal”.
CONCLUSION
[49]The claimant responded. She said that while still working for the respondent, it was always her hope that she would continue to work for 30 them. She did not wish to rock the boat. She said she complain via her 412 2844/18 Page 11 grievances, and did speak up about the issues she had, but they were not dealt with even though she was told they had been. Throughout the whole period, she said, she was suffering from stress as a result of everything which had occurred. She said that she may not have been able to think 5 clearly enough about the consequences of delay. In the August of 2018, she said, she was dismissed and she was diagnosed with severe depression. On 2 October 2018 she gave birth to a baby, and “anyone who has a baby knows how demanding that is”.[50]The claimant submitted that she completed the forms to the best of her 10 ability. She accepted that she may have missed something, but that it was not deliberate. She recognised that some of these claims are old, but that she cannot say that these are separate from the dismissal. She maintained that had these events not taken place in 2012 and the battles and arguments not raged with herself caught in the middle, she was clear that 15 she would have been able to return to the respondent’s workplace as an AFO. Too many barriers were placed in her way to allow her to return to work.[51]The claimant confirmed that she had attempted to seek legal advice. Her membership of the Police Federation lapsed when she stopped paying her 20 subscriptions.[52]With regard to her knowledge of Employment Tribunals, she said that “everyone has heard of Employment Tribunals”, and that it is the kind of thing to be avoided at all costs, because it is a stressful process. She wanted to raise the matters internally and pursue them there rather than 25 before an Employment Tribunal. She wanted an internal solution until her employment was terminated.[53]She concluded by arguing that if the old issues are not taken into account, then the Tribunal will not understand the whole case.[54]Mr Cavanagh helpfully confirmed that he did not consider it necessary to 30 hear evidence from the claimant, and that her submission was sufficient to 412 2844/18 Page 12 allow the Tribunal to make a decision as to the exercise of its discretion. He assured the Tribunal that he would not have cross-examined the claimant.[55]He responded to the points made by the claimant. He said that there is a qualitative difference between the allegations in the ET1 and the new 5 allegations presented. The claimant says she presented the ET1 to the best of her ability, but in his submission there was too much information rather than too little in the ET1. The claim form contained a lot of detail but none of it related to the new claims. In the 2015 grievance she referred to the sex discrimination aspects of the matter, so she was aware of the background 10 legal protections.[56]Mr Cavanagh made the point that time does not stop running just because the claimant is still employed or mean that it is just and equitable to allow the other claims to proceed. It was more than 4 months after her dismissal that the further and better particulars were presented. There is nothing to 15 show that it would not have been reasonably practicable for the claimant to have presented the whistleblowing claims from 2015.[57]He reiterated that the respondent would be placed in considerable difficulty in reconstructing evidence from 2015 and before. The Relevant Law 20 58. Section 123(1) of the Equality Act 2010 provides: “Proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of 3 months starting with the date of the act to which the complaint relates, or 25(b) such other period as the employment tribunal thinks just and equitable.”
The Relevant Law
[59]Section 123(3) clarifies that: “For the purposes of this section – 412 2844/18 Page 13 (a) conduct extending over a period is to be treated as done at the end of the period…”[60]Section 48 of the Employment Rights Act 1996 provides, under sub-section (1A), that a worker may present a complaint to the Employment Tribunal 5 that he or she has been subjected to a detriment in contravention of section 47B. That is, as I understand it, what the claimant seeks, in part, to do here.[61]Section 48(3) provides, then: “An employment tribunal shall not consider a complaint under this section unless it is presented – 10(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the 15 complaint to be presented before the end of that period of three months.”[62]Section 48(4) states: “For the purposes of subsection (3) –(a) where an act extends over a period, the ‘date of the act’ means the last day of that period, and 20(b) a deliberate failure to act shall be treated as done when it was decided on.”[63]The case of Selkent Bus Co Ltd v Moore [1996] ICR 836 is the source of helpful guidance to Tribunals in determining whether or not an application to amend should be granted in these circumstances. In particular, the nature 25 of the amendment, the applicability of time limits and the timing and manner of the application are all to be considered. 412 2844/18 Page 14 Discussion and Decision Unfair Dismissal[64]The first issue for determination is whether the Tribunal has jurisdiction to hear a claim of unfair dismissal from an officer employed by the respondent. 5 65. Mr Cavanagh referred the Tribunal to section 200 of ERA, in which it is provided that the unfair dismissal provisions of the Act do not apply to employment under a contract of employment in “police service or persons engaged in such service”. Police service is then defined, in section 200(2)(a) as “service as a member of a constabulary maintained by virtue of 10 an enactment”.[66]I was then referred to section 52(1) of the Energy Act 2004, which provides: “It shall be the function of the Police Authority to secure the maintenance of an efficient and effective constabulary, to be known as the Civil Nuclear Constabulary (‘the Constabulary’).” 15 67. The claimant was, in my judgment, employed under a contract of employment – and the respondent does not dispute that – but in police service as a member of a constabulary maintained by virtue of an enactment, namely section 52(1) of the Energy Act 2004.[68]Accordingly, the claimant’s claim of unfair dismissal must fail and be 20 dismissed for want of jurisdiction. Application to Amend[69]Although the claimant has not expressly sought to apply to the Tribunal to amend her claim in writing prior to this hearing, she made that request before me. It was clear that the respondent was ready to deal with that 25 request, and I am indebted to Mr Cavanagh for presenting the Note which he did, so that his position could be understood both by the Tribunal and by the claimant. 412 2844/18 Page 15[70]The discussion was helpful in that it was clarified by the claimant that the issues identified under points 3 and 6 of the respondent’s Note were not in fact to be treated as separate heads of claim, but to be regarded as background material in the claims already pled. 5 71. It is necessary, then, to address the four remaining heads of claim which the further and better particulars seek to introduce to this claim. Prior to doing so, I make clear that the remaining parts of those further and better particulars are not excluded, and are dealt with in the separate Note which concerns that aspect of the case. 10 72. The new claims – and it was not seriously disputed by the claimant that each of these claims are new heads of claim not previously pled – are:• A claim that the requirement that CNC officers must be qualified as AFOs amounts to indirect disability, sex and/or maternity discrimination; 15• A claim that the requirement that CNC officers who have lost AFO status must retrain to recover that status amounts to indirect sex or maternity discrimination;• A claim of victimisation on the grounds of sex and/or maternity; and• A claim that the respondent subjected the claimant to a number of 20 detriments in consequence of having made a protected disclosure or protected disclosures.[73]It is useful, at this stage, to consider these claims together. The circumstances surrounding the application are the same for each, though the time limits applicable may vary to some extent. 25 74. In Selkent, Mummery J confirmed that the nature of the application must be considered; the applicability of time limits must also be taken into account; and finally the Tribunal must consider the manner of the application. 412 2844/18 Page 16[75]In this case, the nature of the application is significant. The claimant seeks to add to the claim 4 separate new claims. They fall (apart from the whistleblowing claim, to which I will return) under the same heading as the claims presented in the ET1, but each turns on facts newly pled which were 5 not pled in the ET1 itself.[76]The complaints relating to the requirement to be qualified as an AFO, and to retrain in the event that the officer has been absent from the workplace for some time, both relate to matters which were, or must be taken to have been, within the claimant’s knowledge when she presented her claim initially 10 in November 2018. The focus of the ET1, which does contain considerable detail as to the complaints the claimant wishes to advance, is in relation to the events leading to the claimant’s dismissal in 2018. There is no hint that the claimant wishes to draw to the Tribunal’s attention complaints relating to her return to work in 2015, and her AFO status relative to that period. 15 77. The claim of victimisation relate entirely to the claimant’s assertion that following the raising of a discrimination complaint within an internal grievance, her superior officer Andy Brotherston acted to her detriment by blocking her career break application, as well as other matters. Andy Brotherston was the claimant’s line manager until 2015, a point which the 20 claimant does not refute. As a result, the claimant seeks to bring to the Tribunal complaints relating to 2015 at the latest.[78]In my judgment, the applications to amend, in relation to the Equality Act claims, are very significant, since they introduce serious allegations against individuals and against the system requiring AFO status of CNC officers 25 which go much wider than the allegations already set out in the ET1.[79]With regard to the allegations of detriments suffered as a result of having made protected disclosures, these do amount to a new head of claim, not previously raised by her, and are significant, in that they relate to what she considers to have been unlawful treatment by the respondent as a 30 consequence of having raised public interest disclosures. It is understood that the disclosure or disclosures were raised by early 2015, but it is not 412 2844/18 Page 17 clear when the detriments are alleged to have arisen from these disclosures, and there is a lack of clarify about the disclosures themselves.[80]This is a very significant complaint, which appears to relate to a period some 4 years before the further and better particulars were presented. 5 81. Next, then, it is appropriate to consider the applicability of time limits. The claim of whistleblowing requires to be presented within three months of the alleged detriment having been visited upon the claimant. In this case, while it is not clear exactly when the detriment is said to have arisen, the events pled relate to the claimant’s grievance in 2015. These are, as Mr Cavanagh 10 rightly put it, ancient matters. The Tribunal may be prepared to consider claims which are presented late but these complaints date from several years ago and as a result they are exceptionally late.[82]The Tribunal must consider whether it was not reasonably practicable for the claim to be presented in time. In my judgment, it cannot be said to have 15 been not reasonably practicable for the claim to have been presented within three months of the alleged detriments. The claimant made clear that she chose not to take action, as she wanted to resolve matters internally. That may be so, but it does not render it impracticable for her to have presented the claim in time. It is clear that the claimant is an intelligent, resourceful 20 individual, capable of presenting her claim to the Tribunal in a timely and logical manner, and in this case, it cannot be said that it was not reasonably practicable for her to have presented this claim in time.[83]With regard to the discrimination claims which the claimant seeks to add in the further and better particulars, the time limit may be the same but the test 25 is different, namely whether the claims have been presented within such a time as the Tribunal considers to be just and equitable in all of the circumstances.[84]In my judgment, the claims have not been presented within such a time. It would not be just and equitable to allow these claims, dating back several 30 years, to proceed. The Tribunal must consider the interests of both parties, and not just the claimant. I accept that the respondent would be faced with 412 2844/18 Page 18 an extremely onerous and difficult task in investigating and obtaining the evidence to defend claims of such antiquity, and also that the scope of those claims is considerably broader than the ET1 suggested they would be. 5 85. I accept that the exclusion of these claims means that the claimant is prejudiced to the extent that she loses the right to advance such claims, but in my judgment, her claims as set out in the ET1 remain, and the prejudice to the respondent of permitting these claims to proceed considerably outweighs the prejudice to the claimant of losing the right to proceed with 10 them.[86]In light of these conclusions, it is my judgment that it is not in the interests of justice to allow the claimant’s application to amend her claim to be granted, and therefore it is refused.[87]The claimant’s remaining claims will now proceed to a hearing on the 15 merits, following the further steps to be taken to particularise and clarify those existing claims which are set out in the accompanying Note. 35 Employment Judge: Murdo MacLeod Date of Judgment: 02 April 2019 Entered in Register: 05 April 2019 and Copied to Parties E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case Nos: 4122844/2018 Held in Inverness on 4, 5, 6, 7, 10, 11, 12 and 13 February 2020 Members meeting Friday 20 March 2020 Employment Judge: Rory McPherson Members Eddie McCall Martha McAllister Mrs Clare Stones Claimant In Person Civil Nuclear Police Authority Respondents Represented by: Mr D Stilitz QC Counsel and A Rathbone Solicitor[88]On Tuesday 23 Feb 2016 (updated version 0.5) CI H Deans updated the recommendations /action matrix following Mrs Stones January 2015 Grievance identifying CNC’s progress at that stage, in relation to recommendations contained within the January 2015 Grievance.[89]On Wednesday 9 March 2016 Insp S John emailed to CI Brotherston setting out “the following information is in response to whether from my perspective as the non deployables manager, we can accommodate a career break of one year for…” Mrs Stones “At this moment … we have 30 AFO’ who are 15 non deployable and some 20 other officers who have triggered or are about to trigger the working time directive. These levels of non deployable officers have an adverse effect over those that remain in qualification as they have to cover the extra shift. There are further demands being placed on our AFO’s over the next near… Using this rationale I would be reluctant to add 20 this burden. However, the circumstances surrounding” her “absence are unique and are as follows … “Insp John set out a summary of the position. “When filing out the PARQ medical questionnaire we became aware of three medical conditions which precluded her from completing training. Initial investigations are ongoing via the NHS for an auto immune condition which 25 causes swelling of the joints and skin. This will rule out” Mrs Stones “from being medically fit to train until the condition is investigated and any treatments are given. This condition may rule her out from remaining an AFO… “she “has also suffered a reoccurrences of the blackouts that she suffered previously. The cause was identified as an untreatable condition. 30 We organised a specialist neurologist report to confirm that” she “was able to return to firearms duties after the last blackout…. As such I would support a career break on this occasion… I would suggest that the 20 x 8 hour keep in touch days are used to progress all the various medical reports that will be required” (2/871 – 872 also at 2/1549 to 1550). It is the Tribunal’s assessment on the evidence that the term “non deployables manager” was not unfavourable treatment because of something arising in consequence of Mrs Stones disability. It was a broad term used to described those officers 5 who for any reason would not be deployable as a firearms officer. Further the use of the word “burden” was not unfavourable treatment because of something arising in consequence of Mrs Stones status. It was a term referencing the 30 AFO’s who could not be deployed as armed fire officers in the context of 20 other officers who were, or were about to trigger possible 10 working time limitations. Insp Johns analysis, recommendation and support for Mrs Stones application for a career break was not unfavourable treatment because of something arising from Mrs Stones disability. To the extent that it was because of something arising in consequence of Mrs Stone’s disability, it was, in any event proportionate as an appropriate means of 15 achieving a legitimate aim, that is the allocation of duties of armed firearm officer amongst the CFC workforce and reasonably necessary to do so.[90]On Thursday 17 March 2016 CNC had a Management Discussion regarding the issues relating to Mrs Stones application for a career break and identified a plan of action, including identifying the reasons for Mrs 20 Stones request for a career break, and discussing with Mrs Stones how her training could be managed within the career break she had requested to aid a quick return to fully deployable AFO duties, prepare summary for the Divisional Commander’s return on 22 March and further present case to the Divisional Commander.[91]On Tuesday 22 March 2016 CNC had the Management Discussion regarding Mrs Stones. Insp John prepared an e-mail for the attendees following the Management Discussion which set out in brief a summary of the discussion noting that she “joined CNC on 31.03.2008. She has been 30 away from the unit for some time on Maternity Leave and Career breaks”, the Tribunal notes that Insp S John accepts the reference to a previous career break in the summary email was an error. The Tribunal however notes that, as had been confirmed by Caroline Ashfield at the meeting, Mrs Stones had just requested a career break. The Tribunal concludes that while there was contextual error in the brief summary it is wrong to conclude that Insp John or any other attendee concluded at the meeting that Mrs Stones had previously been on a career break. The reference in the brief summary was, 5 more accurately to the request by Mrs Stones for a career break. The summary further states that Mrs Stones “has not been deployable since October 2009” it did not give full break down at this stage of reasons, but it described as an executive summary. The Tribunal is satisfied that no conclusion was arrived on the summary, the next steps were set out as. “Management Discussion to discuss• Next step procedurally (Management discussion RAP)• Request any necessary specialist medical reports (Neurology, Auto Immune) It is the Tribunal’s assessment on the evidence, and in so far as the issue is 15 before it, that the term “non deployables”, was not unfavourable treatment because of Mrs Stones absence or disability and was not something arising in consequence Mrs Stones disability. It was a broad term used to described those officers who for any reason would not be deployable as a firearms officer. The description that Mrs Stones had not been deployable since 20 October 2009 was not unfavourable treatment because of something arising in consequence of Mrs Stones disability. It was part of a short summary. No determination was made beyond discussing the possibility of a RAP and that any necessary specialist medical reports be requested.[92]On Monday 28 March 2016 C/I Brotherston e-mailed Insp Brown “the fact that Clare has had most of the last 6 years off work would not automatically preclude her from a career Break”. The Tribunal notes that it is Mrs Stones’ position that CI Brotherston’ comment was sarcastic in tone. The Tribunal accepts CI Brotherston’s 30 evidence that it was simply factual and that it was not made with sarcastic intent. It is the Tribunal’s assessment on the evidence, in so far as the matter is before the Tribunal, that the comment was not unfavourable treatment because of Mrs Stones absences and was not something arising in consequence of Mrs Stones disability. It was a factual comment made as part of his overall support for Mrs Stones request for a career break.[93]On Tuesday 29 March 2016 a CNC case report (the March 2016 CNC 5 Occupational Health Case Report) was issued by Karen Towers CNC’s Senior Occupational Health Adviser reflecting her telephone consultation with Mrs Stones on Thursday 16 February 2016 and which set out that she considered that Mrs Stones was “unlikely to be fit” for work. She set out that 2 earlier episodes of loss of consciousness were investigated and diagnosed 10 as benign and related to gastroenteritis “I understand that … has had a further 2 to 3 episodes and has now been referred to another Specialist for further assessment and investigations … At present I would not consider that” she “… is fit to return to work until there is a clear diagnosis and prognosis regarding her medical conditions and its impact on her ability to 15 undertake AFO duties. Until further medical information is available is available, I am unable to predict when this is likely to ... I understand that” she “is currently seeking a career break although I am not aware of the reasons for this. I can advise if CNC are likely to grant the request than it would be prudent for her to remain under the GP and be referred and 20 assessed via the NHS. Should the CNC be unable to accommodate the request then I would recommend that we seek private referrals to investigate … ongoing angioedema and episodes of loss of consciousness in order to determine her fitness to return to work and AFO duties”.[94]The Tribunal accepts Karen Towers analysis at the Tribunal of the implications of a career break, for funding of further medical assessment reflected CNC position at the material time and at present, that while they will, subject to recommendations and advice, offer to fund some medical assessments for its officers, that would not be available to individuals who 30 are on a career break. In so far as the issue is before the Tribunal, the medical assessment and recommendation by Karen Towers was unfavourable treatment arising from the lack of prognosis and ongoing absences arising in consequence of Mrs Stones’ disability, and further arising from the health declarations recorded by Insp Brown, the recommendation that she was likely to be unfit pending further investigation was proportionate. In particular, it was a proportionate means of achieving a legitimate aim, including having regard to the health and of CNC’s officers 5 including Mrs Stones and was reasonably necessary to do so.[95]From April 2016 Mrs Stones was continuously absent on sick leave until the date of termination of her employment.[96]Until Saturday 2 April 2016, and as set out by Mrs Stones in her in January 2016 Career Break Application, she believed she was taking “TOIL until 2 April and should still have a small amount to carry over”.[97]On Tuesday 12 April 2016 Insp Brown e-mailed Chief Supt Duncan Worsell, setting out that “As discussed last week on your visit to the Unit” Mrs Stones “ has requested to take a career break from CNC for a period of 12 months, her reasons for this request are based around medical issues… Based on the information available I am of opinion that this request should be granted, 20 it will allow time during” her “ KIT days” Keeping in Touch Days “to be managed from a medical standpoint and to attend treatment, appointments etc. CNC OHD are of the opinion that” she “is not fit to be in the workplace in any capacity due to her medical issues, this includes catch up training on KIT days until her medical issues are addressed”. The Tribunal notes that it 25 was Mrs Stones’ position that this communication was supportive of her and did not seek to argue that it was unfavourable treatment because of something arising in consequence of her disability. In so as it may have been something arising in consequence her disability it the Tribunal assessment that it was proportionate in seeking to establish that those employed by CNC 30 are capable of meeting CNC’s statutory obligations.[98]On Tuesday 12 April 2016 Chief Supt Duncan Worsell. Divisional Commander emailed Insp Brown in response “I would support a career Break, if that is Clare’s request and so long as she is not making that request because she feels it is the only option available to her.“ The Tribunal notes that it was Mrs Stones’ position that this communication was supportive of 5 her and did not seek to argue that it was unfavourable treatment because of something arising from her disability. In so as it may have been something arising in consequence of her disability it was proportionate.[99]On Wednesday 13 April 2016 CNC DHC considers Mrs Stones’ position 10 and notes that Kirsty Strachan CNC’s HR Case adviser described concerns that CNC “were agreeing to a career break on medical reasons and they are not traditionally utilised for medical purposes. We need to explore every opportunity, perhaps bring her back and flexible work her in the workplace not the career break being the only option. CA has asked Paul Brown to 15 explore every option with PS Stones before a decision is made on the Career Break”. The Tribunal concludes that Kirsty Strachan’s description of the implications of a career break for funding of further medical assessment, reflected CNC’s position that, while CNC may elect at its discretion, subject to recommendations and advice, to offer to fund some medical assessments 20 for its officers, that would not be available to individuals who are on a career break from their role as an officer. In so far as the issue is before the Tribunal, the Karen Towers concern amounted to unfavourable treatment arising in consequence of Mrs Stones’ disability, specifically arising from the health declarations recorded by Insp Brown, the concern was proportionate. 25 In particular, it was a proportionate means of achieving a legitimate aim, including having regard to the health of CNC’s officers including Mrs Stones, the possible funding impact of a career break, and was reasonably necessary to do so.[100]On Wednesday 13 April 2016 CI Brotherston e-mailed Chief Supt Worsell and stated “with the greatest respect (protection for you) I have placed a pause against this (career break) as I am nervous around the circumstances and creating a precedent I would counsel that this needs further discussion and that following information at the DHC we need to be sure we are comfortable”.[101]The Tribunal concludes that, as this stage further consideration of Mrs 5 Stones’ request for a Career break was put on hold, reflecting CNC position that while they would, subject to recommendations and advice, offer to fund some medical assessments for its officers, that would not be available to individuals who are on a career break. In so far as the issue is before the Tribunal, CI Brotherston’s concern was unfavourable treatment because of 10 something arising in consequence of Mrs Stones’ disability, specifically arising from the health declarations recorded by Insp Brown, the concern was proportionate. In particular, it was a proportionate means of achieving a legitimate aim, including having regard to the health and of CNC’s officers including Mrs Stones and the possible funding impact of a career break and 15 was reasonably necessary to do so.[102]On Thursday 14 April 2016 CNC’s Caroline Ashfield e-mail to Paul Brown “We would not require someone who is not medically fit for work to take a career break, they would be entitled to take sick leave and receive the 20 appropriate sick pay. I am unsure if this has been discussed with” her… Whilst on career breaks certain benefits don’t apply eg accrual of annual leave. I am unsure if the officer is aware of this, whereas annual leave does accrue whilst on sick leave. The request is reassurance that these discussions have taken place with PS Stones and she is fully aware that 25 there is no requirement to request a career break due to currently not fit for work”.[103]The Tribunal concludes that there was no adverse ulterior motive. In any event, and in so far as the issue is before the Tribunal, that the concern 30 reflected CNC position that while they will, subject to recommendations and advice, offer to fund some medical assessments for its officers, that would not be available to individuals who are on a career break. In so far as the issue is before the Tribunal, in so far as this concern amounted to unfavourable treatment arising in consequence of Mrs Stones’ disability, specifically arising from the health declarations recorded by Insp Brown, the concern was proportionate. In particular, it was a proportionate means of achieving a legitimate aim, including having regard to the health and of CNC’s officers including Mrs Stones and the possible funding impact of a 5 career break and was reasonably necessary to do so.[104]On Tuesday 19 April 2016, while part of the document was before the Tribunal, the Tribunal notes that an immunologist issued a medical note to Mrs Stones’ GP which set out “Thank you for referring Ms Stones a 38 years 10 old police sergeant for immunology assessment. She reported a history of multiple symptoms for many years and has had to take a career break at present. She has recurrent itchy skin rashes and swelling attacks her photographs of the swellings ate are possibly angioedema of her limbs and face although they are not very clear. She has swelling episodes affecting 15 other parts of her body including lip, tongue and throat (no photos). The majority of the of her swelling attacks last a few days”.[105]On Friday 22 April 2016 Mrs Stones GP Dr B Clancy wrote to Karen Towers CNC’s Senior Occupational Health Adviser stating that her “condition 20 is complicated and the cause of her symptoms uncertain”.[106]On Tuesday 26 April 2016 Insp Brown e-mailed Mrs Stones setting out that “I spoke with” Insp Johns “and he has asked can you please get a sick line for your doctor. I would suggest to include up to your next 25 appointment with your immunologist on 20th June if you can. If you get one either post it to me and I will copy and send back or if possible e-mail me a scanned copy through”.[107]In so far as the issue is before the Tribunal, the Tribunal does not 30 consider that any relevant claim which Tribunal has jurisdiction to consider arises. The Tribunal in any event is satisfied that an employer is not under a duty justiciable before Tribunal to provide advice, to an employee, as to the possible implications for an employee being identified as absent for work due ill-health. The Tribunal does not accept that Insp Brown gave any undertaking to Mrs Smith that, in the event that her GP provided a Fit Note certifying that she was medically not fit to attend work, CNC would take no action in consequence. Insp John was not in a position to provide such an 5 undertaking, there was no reason for him to do so, the reason for his contact was arising out of concern that Mrs Stones’ career break may have limited CNC’s ability to procedurally offer funding for medical assessments. Such a limitation was reasonably in the contemplation of CNC as not being readily apparent to Mrs Stones.[108]The Tribunal is satisfied that the implications of health related absent from work, including the risk the longer-term absence may lead to termination were within Mrs Stones’ knowledge and understanding at the time. The Tribunal notes that no evidence was adduced of any response from Mrs 15 Stones, to the effect, that she was operating on the basis any such undertaking having been given by Ins Brown. In any event, and in so far as the issue is before the Tribunal, Insp Brown’s approach reflected CNC position that while they will, subject to recommendations and advice, offer to fund some medical assessments for its officers, that would not be available 20 to individuals who are on a career break. In so far as the issue is before the Tribunal, this concern amounted to unfavourable treatment because of something arising in consequence of Mrs Stones’ disability, specifically arising from the health declarations recorded by Insp Brown, the concern was proportionate. In particular, it was a proportionate means of achieving 25 a legitimate aim, including having regard to the health and of CNC’s officers including Mrs Stones and the possible funding impact of a career break and was reasonably necessary to do so.[109]The Tribunal does not accept, in all the circumstances that Mr Stones 30 was unaware, at any material time, that one possible consequence of being medically absent from work was that ultimately a capability dismissal could arise. The Tribunal notes that Mrs Stones accepted at the Final Hearing that CNC had no reason to doubt the opinion of her GP as contained within her GP Fit Notes.[110]On Wednesday 27 April 2016 Mrs Stones was signed off as unfit for 2 months by her GP. The Fit Note stated reason was because of “Chronic 5 urticaria/angioedema”, the Fit Note recorded “You are not fit for work” Mrs Stones’ GP scores through all 4 adjustment options phased return to work, amended duties, altered hours, workplace adaptations .[111]On Tuesday 3 May 2016 at CNC Management Discussion which was 10 arranged progress Mrs Stones’ case, Karen Towers reported that “As advised in my last report I do not consider that” Mrs Stones“ is fit to return to in any capacity until there is a clear diagnosis and prognosis regarding her medical condition and its impact on her ability to undertake AFO duties”. Further and also on Tuesday 3 May 2016 K Strachan noted in an e-mail that 15 Ins Brown “had discussed the points with the officer and she did not want to be on sick leave and would prefer the career break”.[112]On Monday 9 May 2016 Mrs Stones e-mailed Insp Brown, following Insp Brown’s telephone call her on that day and set out “I must apologise for 20 cutting you off when you phoned. I just had a funny turn and was waiting the doctor to call” her husband had “thought you were the doctor. I now have a epi-pen. When you phoned I had already got a sick note until the end of June as requested and sent this to you. Please could I be placed sick until the expiration of the sick note with a view to filling in a new career break when it 25 is clear what my immunologist thinks… The other problem is occupational health have advised I submit a sick note, and as it stands, I would not be allowed to fulfil the four weeks work for a career break as I am deemed unfit”[113]The Tribunal notes Mrs Stones’ direct request that her career break, 30 be converted to sickness initially until the end of June 2016. On the evidence adduced, the Tribunal are satisfied that the four weeks to which Mrs Stones refers, are the Keeping in Touch paid days allocated to CNC officers who are on career break designed to facilitate an officer returning to work at the conclusion of the career break. The Tribunal further notes that she advised that it would be her intention to apply again for a career break when her health condition was clearer. The Tribunal considers that Mrs Stone herself considered that there was no clarity as to prognosis at this point.[114]On Tuesday 28 June 2016 Consultant Neurologist J Greene, following Mrs Stones’ attendance for examination on that day dictated his report to Mrs Stones’ GP (the June 2016 Consultant Neurologist Report) which set out that “She was troubled with a few episodes of loss of 10 consciousness which started in February 2016… … She can have pins and needles and numbness which can be felt all over her body She can have difficulty with concentration and a degree of forgetfulness. She can have upper limb sensory symptoms which can be worse when driving. She can feel weak, especially in her arms. She has had three episodes when she has 15 restricted neck movement… her mother has lupus. I think her symptoms may be a combination of cervical spondylosis accounting for upper limb symptoms, but in addition to that she may well have ME or Chronic fatigue syndrome. … I have requested MRI brain and spine and also nerve conduction studies to check there is no peripheral neurological contribution 20 to her symptoms. I have no specific recommendations meantime, but I plan to review her as soon as the result of the investigations are to hand” .[115]The Tribunal notes that the June 2016 Consultant Neurologist Report does not refer to the earlier loss of consciousness events as being 25 reported to him by Mrs Stones. The Tribunal notes and accepts that the Consultant Neurologist, did not within the June 2016 Consultant Neurologist Report offer a firm diagnosis and or prognosis.[116]On Thursday 30 June 2016 CNC had a management discussion in 30 respect of Mrs Stones case at which various investigations relating to Mrs Stones health were discussed, it was confirmed that Karen Towers awaited the neurologist report which although the referral was via her GP was funded by CNC.[117]On Tuesday 9 August 2016 CNC DHC considered Mrs Stones position again, Karen Towers reported that Mrs Stones “had attended a 5 neurology appointment (funded by CNC) which made recommendation that she had an MRI scan and nerve conduction studies... we are currently awaiting the results. If there is no neurological reason for the symptoms she is experiencing she will be referred to a rheumatologist. The officer thought she had been referred to a gastroenterologist , however upon speaking with 10 her GPO, Dr Clancy, he never formally referred her. He wrote to them asking if the in their opinion was there any gastro condition which could result in her fainting episodes and he is a awaiting a response back. With regards to immunology she will not be reviewed until June next year... When she saw the immunologist earlier this year they made changes to her medication and 15 she was referred to a neurologist”.[118]The Tribunal accepts, as did Mrs Stones at the Final Hearing that, as at Tuesday 9 August 2016 while 3 specialist clinical areas were under consideration, there was no clear medical picture available to CNC in respect 20 of Mrs Stones condition.[119]On Friday 12 August 2016 CNC had a Management Discussion in relation to Mrs Stones case at which there is a further update on the “the three specialist streams” of investigations into her medical conditions, it was 25 noted that;a. the neurologist had arranged MRI and nerve conduction studies and the outcome was awaited; andb. in relation to immunology, some changes to medication had been following attendance earlier in the year and the next review would be June 2017; andc. while Mrs Stones had understood she had been referred to gastroenterology no referral had been made, her GP had asked a question and was awaiting the response.[120]On Friday 26 August 2016 Mrs Stones was signed off as unfit for 2 months by her GP. The Fit Note identified that it was due to “Chronic urticaria/angioedema” “You are not fit for work” GP scores through all 4 adjustment options phased return to work, amended duties, altered hours, 5 workplace adaptations .The Tribunal notes that Mrs Stones accepted at the Final Hearing that CNC had no reason to doubt the opinion of her GP as set out in the GP Fit Notes.[121]On Tuesday 13 September 2016 Karen Towers Senior Occupational 10 Health Adviser confirmed that Mrs Stones was “not fit to attend work in any capacity until there is a clear diagnosis and prognosis regarding her medical condition and its impact on her ability to undertake AFO duties”. Karen Towers noted that Mrs Stones had “undergone MRI Scan and nerve conduction studies which have proved to be normal. The neurologist has 15 recommended a referral to Rheumatology as he considers that she may have “multi system disorder””.[122]The Tribunal notes that Mrs Stones accepted that at this date she been on sick leave for 5 to 6 months. The Tribunal notes that the sick leave 20 reflected the Fit Notes issued by Mrs Stones’ GP to CNC. The Tribunal notes that Mrs Stones accepted at the Final Hearing that the decision to recommend that Mrs Stones not attend work in any capacity, “until there is a clear diagnosis and prognosis regarding her medical condition and its impact on her ability to undertake AFO duties” was a responsible decision by CNC. The Tribunal notes that Mrs Stones accepted at the Final Hearing that this point in time the MRI scan was “fine” and the Neurologist was offering a hypothetical view that the medical issue could be multi system. In so far as the matter is before the Tribunal, and while the recommendation unfavourable treatment was because of something arising in consequence 30 Mrs Stones’ disability, specifically the lack of prognosis and ongoing absences, it was proportionate means of achieving a legitimate aim, including having regard to the health and capability of CNC’s officers including Mrs Stones and reasonably necessary to do so.[123]On Tuesday 20 September 2016 CNC held a monthly management meeting to discuss Mrs Stones, it was decided that that Karen Towers should 5 provide an up to date Occupational Health report and get up to date info about medical investigations. JB confirmed that the CNC required to consider the case under the Equality Act 2010 as they would require to determine how this would link into their redeployment procedure. It was noted that “it may not be that we can redeploy her in other roles but that is 10 an evolving picture at the moment as we work through the capability process.” It was noted that if someone was off sick for 6 months with no clear return to work then in the next 3 months the capability procedure would be commenced. It was explained that the meeting that using the capability procedure result in a formal procedure to return back to full duties but if that 15 was not possible, they would have the individual in a procedure to follow. It was decided to recommend the commencement of the capability procedure.[124]In so far as the issue is before the Tribunal, the proposal to get up to date Occupational Health report was not unfavourable treatment. The 20 discussion to recommend the commencement of the capability, while was unfavourable treatment because of ongoing absences and lack of prognosis arising was something arising in consequence of Mrs Stones’ disability, the recommendation was proportionate. In particular, it was a proportionate means of achieving a legitimate aim, including having regard to capability of 25 CNC officers and reasonably necessary to do so.[125]On Friday 28 October 2016 CNC held a meeting to consider Mrs Stones’ case, for “Agreement to progress with the Capability Procedure”. At the meeting there was discussion around on whether CNC had exhausted 30 the diagnostic reasons for loss of consciousness, Karen Tower explained that CNC did not know when it was likely that Mrs Stones would return to work and full duties. After discussion it was is decided to refer her to a Risk Assessment Panel (RAP) to consider a permanent restriction on firearms duty, prior to commencing the capability procedure.[126]In so far as the issue is before the Tribunal, the decision to refer Mrs Stones to a Risk Assessment Panel on Friday 29 October 2019 was 5 unfavourable treatment because of the ongoing lack of prognosis arising in consequence of Mrs Stones’ disability, it was however was proportionate. In particular, it was a proportionate means of achieving a legitimate aim, including having regard to the role of AFO’s in light of the statutory role of the CNC and was reasonably necessary to do so.[127]On Tuesday 1 November 2016 Mrs Stones was assessed by Dr Hazem Youssef, Consultant Rheumatologist. His report following examination (the November 2016 Rheumatologist report) was addressed to Mrs Stones’ GP, was inconclusive. He reported that he did not “think we 15 are dealing with Lupus or multisystem disease and have explained this to Mrs Stones. I am unable to explain her symptoms but suspect they are functional”.[128]On Thursday 8 December 2016 Dr Policarp CNC’s Occupational 20 Health Doctor “considering the specialist reports, GP report, ...conversations with” Mrs Stones” the summary of medical problems identified by the specialists” concluded that “recovery to operational levels is likely to take a significantly prolonged time”.[129]On Saturday 10 December 2016 Mrs Stones attended for examination by Locum Consultant Gastroenterologist, J Todd via a referral from her GP. He reports to Mrs Stones’ GP on Tuesday 10 January 2017 (the January 2016 Gastroenterologist Report) that her “symptoms are in keeping with irritable bowel syndrome” and offers a diagnosis of IBS as the 30 cause of Mrs Stones’ fainting episodes and suggests that the GP refers Mrs Stones to a dietician. In his report he records that Mrs Stones had “fainted once in 2012 and twice this year” and indicates that he had explained to Mrs Stones about the potential effects including of drowsiness, blurred vision.[130]On Thursday 15 December 2016 Insp S Johns had welfare contact with Mrs Stones during which was noted that Mrs Stones continued to suffer 5 from a complicated medical history, She has been reviewed by various specialists Insp John who at this time had not seen the January 2017 Gastroenterologist Report) notes that it is believed that she is suffering from IBS and that she has been referred to a dietician for advice, he notes that Mrs Stones believes that IBS may be the cause of her fainting , she 10 described she is currently medicated for antihistamines and has been checked for lupus, which came back negative but that she was strongly believes that she was suffering from “this condition” she additionally describes that she has outstanding appointments for gastroenterology and immunology follow ups the following year. Insp John notes that she was 15 “quite upset” when he explained that the case was to progress to RAP, he discussed the various medical supports that had been provided and “she expressed her disappointment that she still does not known what is causing her condition”.[131]On the evidence adduced the Tribunal concludes that Mrs Stones’ comment regarding being checked for Lupus was a reference to the examination by the Consultant Rheumatologist on 1 November 2016 which resulted in the issue of November 2016 Rheumatologist report, the Tribunal forms no view as to whether Mrs Stones had been advised by her 25 GP of the content of that report. On the evidence adduced, the November 2016 Rheumatologist report was not provided to Insp Johns as at this date.[132]On Thursday 22 December 2016 CNC’s RAP met and reflective of the available information concluded that Mrs Stones should be permanently 30 restricted from AFO duties. The available information included the PARQ form. Attendees include DR M Fernandez, Insp S Johns, C Ashfield and K Strachan and was chaired by Duncan Worsell (DW), who set out “none of the pregnancy related illness/time away from work has an impact on whether” to restrict. On the chair DW seeking clarity on the current medical condition Dr Fernandez sets out his clinical assessment that Mrs Stones had seen multiple specialists “we are going round in circles. Noone cane give diagnosis and therefore we cannot give prognosis of when” Mrs Stones could 5 return to AFO duties. The chair notes that the restriction would be permanent “unless someone can come back with evidence that she will or has recovered”. It is noted that there was “a potential” ill health retirement or capability route.[133]The Tribunal accepts that CNC considered the restriction to be permanent subject, as set out, to further evidence that Mrs Stones has or would recover. While the potential for exit was noted the Tribunal concludes that no decision was made that CNC would proceed to any form of termination of Mrs Stones employment. In so far as the issue is before the 15 Tribunal, the decision to permanently restrict Mrs Stones from operating as an armed officer on Thursday 22 December 2016 was unfavourable treatment because of the lack of clear prognosis was something arising in consequence of Mrs Stones’ disability, it was however was proportionate. In particular, it was a proportionate means of achieving a legitimate aim, 20 including having regard to the role of AFO’s in light of the statutory role of the CNC and was reasonably necessary to do so. The Tribunal accepts the evidence of Dr Fernandez throughout the Final Hearing, as both compelling and straightforward.[134]On Thursday 22 December 2016 CNC wrote to Mrs Stones setting out that she was permanently restricted from AFO duties. The letter set out that it recognised that the decision would be unwelcome and would “naturally be of concern” and urged that Mrs Stones discuss the available options direct with her line manager. The letter set out that the Minutes would be provided. 30 The Tribunal accepts that that the Minutes were not provided subsequently. The Tribunal concludes that CNC omission to provide the minutes was not a deliberate act. The Tribunal concludes, on the available evidence, that Mrs Stones did not request the Minutes. In so far as the issue is before the Tribunal, CNC’s omission to provide the Minutes of the RAP on Thursday 22 December 2016 was not unfavourable treatment because of something arising in consequence of Mrs Stones’ disability. The Tribunal is satisfied, on the evidence adduced, that Mrs Stone elected not to subsequently act on 5 CNC’s recommendation within the letter issued Thursday 22 December 2016.[135]From Friday 23 December 2016 Mrs Stones was declared as unfit to work by her GP in Fit Note issued Wednesday 11 January 2017.[136]On Wednesday 11 January 2017 Mrs Stones was signed off as unfit for 2 months by her GP from Friday 23 December 2016 to 23 February 2017. The Fit Note identified that it was due to “Chronic urticaria/angioedema” “You are not fit for work” GP scores through all 4 adjustment options phased return 15 to work, amended duties, altered hours, workplace adaptations. The Tribunal notes that Mrs Stones accepted at the Final Hearing that CNC had no reason to doubt the opinion of her GP as set out in the Fit Notes. The Tribunal is satisfied that Mrs Stones remained signed off as unfit thereafter.[137]On Sunday 22 January 2017 Mrs Stones applied for ill health retirement, completing “request for early payment of pension benefits on ill health grounds”. The application confirmed that Mrs Stones understood that she “may be required to attend for medical examinations if these are necessary to establish whether or not the criteria for ill health retirement are 25 met in my case”. While the Tribunal does not have jurisdiction to determine issues around eligibility for ill-health pension entitlement, the Tribunal notes that Mrs Stones adduce evidence that she had applied at this stage. In so far as the issue is before the Tribunal, a requirement for medical evidence in relation to eligibility of ill health retirement was because of something 30 arising in consequence of Mrs Stones’ disability, it was however was proportionate. In particular, it was a proportionate means of achieving a legitimate aim, including seeking to ensure that those eligible to early payment under the scheme are afforded access.[138]On Tuesday 7 February 2017 Dr Manuel Fernandes wrote to Mrs Stones’ GP explaining why CNC is unable to support her application for ill 5 health retirement setting out in terms of the criteria, Mrs Stones, had “ 21 years until retirement. She has a number of unexplained medical symptoms and she had two underlying medical conditions which should not prevent her from working in some capacity before the usual retirement date…. Please let me know if you disagree with the conclusion as soon as possible 10 so I can forward her application to the pensions authority.” The Tribunal is satisfied on the evidence adduced that there was no response from Mrs Stones’ GP disagreeing with Dr Fernandez’s assessment.[139]On Monday 6 March 2017 Mrs Stones attended the NHS 15 Community Dietician. The Community Dietician wrote to Mrs Stones’ GP (the March 2017 Community Dietician Report) setting out that over the course of the past 4 week she had followed all first line advice provided for IBS management but in this period “she has not noticed a considerable improvement in her symptoms”. She proposed as the symptoms were 20 having a considerable impact on Mrs Stones’ physical and mental wellbeing to refer her to a specialist gastroenterology dietician.[140]On Monday 6 March 2017 CNC’s Armed Police Model Redeployment Panel (the Redeployment Panel) met. It was noted that Mrs 25 Stones had a diagnosis of unexplained symptoms and a prognosis could not be given for a return to work “in any capacity at this time”. It was noted that Mrs Stones had applied for ill health retirement “and this application was in progress with the GP, but was not supported by the Chief Medical Officer due to the lack of diagnosis and prognosis”. Redeployment Panel 30 agreed that it was not possible to “at this time to determine whether the officer was suitable for redeployment, and the outcome of the ill health retirement was requirement before this could be considered further” the Redeployment Panel had discussed regarded potential redeployment opportunities for Mrs Stones and the “PS vacancies at Sellafield, which would result in” a Public Interest Transfer (whereby some relocation costs could be met). The Redeployment Panel deferred any decision pending the outcome of Mrs Stones' ill health retirement application.[141]In so far as the issue is before the Tribunal and in so far as the decision to defer was unfavourable treatment because of Mrs Stones application for ill heath retirement which arose in consequence of Mrs Stone’s disability, her ill health retirement application, deferring 10 consideration of redeployment was however was proportionate. In particular, it was a proportionate means of achieving a legitimate aim, including not redeploying officers who would be subject to ill health retirement and was reasonably necessary to do so.[142]On Monday 17 April 2017 Mrs Stones was signed off sick for a further two months GP Fit Note stated that because of the following condition (s) “Chronic urticaria “ “You are not fit for work” , the GP scores through all 4 adjustment options phased return to work, amended duties, altered hours, workplace adaptations” .The Tribunal notes that Mrs Stones 20 accepted at the Final Hearing that CNC had no reason to doubt the opinion of her GP as set out in the Fit Notes.[143]By letter dated Thursday 25 April 2017 issued to Mrs Stones CNC, confirmed that UKEAE Pension Authority had declined the request to 25 release early pension benefits on ill health grounds, the decision was based “on the medical information presented at this time by the Chief Medical Officer and his confirmation that without diagnosis treatment option cannot be determined…. If the position changes the Pension Authority has advised that it can further review your application. If you have additional 30 information that could be submitted to appeal this decision please write to” the relevant person.[144]On Friday 5 May 2017 Mrs Stones was notified by Insp Simon Johns that her application for ill health retirement had been rejected by the relevant pension authority. Mrs Stones advised that she was not surprised by this outcome and although the right of appeal was confirmed Mrs Stones confirmed that there was no further information to provide for 5 reconsideration. Mrs Stones advised that she had a rescheduled Immunologist appointment on 15 May 2017 in Glasgow via the NHS and she committed to provide Insp John with an update following same. Mrs Stones had not sought to utilise CNC’s self-declaration process notifying of application under EA 2010. Insp Johns explained that her case was on the 10 agenda for the Redeployment Panel to identify any alternative roles. Insp Johns enquired about Mrs Stones ability to attend Dounreay for a meeting under CNC Capability process and was advised that she would be able to attend. In so far as the issue is before the Tribunal, the Tribunal does not consider that the request to Mrs Stones that she confirm that she was able 15 to attend was unfavourable treatment, however and to the extent that the request was because of something arising in consequence of Mrs Stones disability, it was however was proportionate. In particular, it was a proportionate means of achieving a legitimate aim, including ensuring that officers are able to take part in CNC’s Capability process.[145]On Friday 12 May 2017 Mrs Stones, in accordance with CNC’s standard practice, was asked to sign an updated (and which would be regarded as in date) consent form authorising release of her medical records (previous form of consent having been signed Tuesday 15 25 September 2015).[146]On Saturday 20 May 2017 Mrs Stones signed CNC’s updated medical consent form, consenting toa. CNC occupational Health seeking a medical report from her 30 specialist and/or GP as to the history and nature of the condition or its treatment,b. CNC occupational Health approaching her GP and/or specialist for a report;c. Her case being discussed as part of a Management Discussion; andd. Her case being discussed as part of a RAP (Risk Assessment Panel); ande. Her case being discussed as part of Redeployment Panel.[147]On Thursday 1 June 2017 Temp C/ I Pat Green CNC wrote to Mrs Stones inviting her to attend Stage 1 Capability Meeting “ Further to numerous specialist medical investigations which have been unable to 10 confirm a medical diagnosis and following you recent unsuccess request for IH, I am now writing to invite you to a formal first capability meeting to discuss your continued employment within” CNC and /or any possible return to work on either full or reasonable restricted duties and appropriate timescale”. The main areas of concern were identified to be the continued 15 medical restrictions which had identified that she was unable to be deployed in her contracted role as an AFO, noting that she was permanently restricted via the RAP on 22 December 2016 and set out “if a return to work on full or reasonable restricted duties is not likely in the foreseeable future, termination of employment under the Capability 20 Management Procedure is a possible outcome” . In so far as the issue is before the Tribunal the possible application of CNC Capability Process was unfavourable treatment because of a lack of prognosis arising in consequence of Mrs Stones’ disability, it was however was proportionate. In particular, it was a proportionate means of achieving a legitimate aim, 25 including ensuring that CNC through its officers re able to fulfil its statutory role and was reasonably necessary.[148]On Monday 5 June 2017 CNC’s Redeployment Panel meets and discusses Stones' position. The RAP panel concluded that the officer was 30 not suitable for redeployment as there was currently no prognosis. The Tribunal accepts CNC’s conclusion that there was no prognosis. The Tribunal considers that prognosis and diagnosis are not interchangeable terms. In particular, an individual may be diagnosed with a specific condition but the prognosis, that is to say future progress, and any recovery may remain unclear. As at 5 June 2017 the Tribunal is satisfied that there was no prognosis available to CNC. In so far as the issue is before the Tribunal the application of CNC Capability Process was unfavourable 5 treatment because of the lack of prognosis which arose in consequence of Mrs Stones’ disability, it was however was proportionate. In particular, it was a proportionate means of achieving a legitimate aim, including ensuring that CNC through its officers re able to fulfil its statutory role and reasonably necessary.[149]On Monday19 June 2017 Mrs Stones was signed off sick for a further two months GP Fit Note states because of the following condition “Chronic urticaria (no refer to /angioedema” “You are not fit for work” GP scores through all 4 adjustment options phased return to work, amended 15 duties, altered hours, workplace adaptations” . The Tribunal notes that Mrs Stones accepted at the Final Hearing that CNC had no reason to doubt the opinion of her GP as continued within the Fit Notes.[150]On Thursday 22 June 2017 Mrs Stones attended the Stage 1 20 Capability Meeting (the June 2017 Stage 1 Capability Meeting), at Dounreay which was chaired by Temp C/ I Pat Green. Mrs Stones was accompanied by PC Andrew Ebert (who the Tribunal notes was later identified as a trade union [Police Fed] representative). The Executive Summary prepared for the meeting, and which had been 25 sent to Mrs Stones in advance, set out in relation to “Prognosis and Key information”, thata. Mrs Stones had been a non deployable AFO most significantly commencing 8 December 2015 with the PARQ.b. Mrs Stones was permanent restricted through AFO through RAP on 30 22 December 2016.c. Mrs Stones had unsuccessful applied for ill-health retirement -as she doesn’t suffer from a clearly defined medical condition and without a definite medical diagnosis the pension administrators had been unable to authorise payment; andd. Three individual specialists from rheumatology, immunology and gastroenterology had reviewed her condition but were unable to diagnosis. Dr Policarp CNC Occupational Health doctor had declared 5 Mrs Stones was not fit to be in the workplace; ande. Mrs Stones’ case had been through the redeployment panel for consideration of other roles but given Dr Policarp’s finding no other roles were available.f. Various medical reports were included. However, it did not include 10 the following reports to Mrs Stones’ GP; i) the December 2015 Rheumatology Report to Mrs Stones’ GP which offered headline diagnosis; “Urticaria and possible angioedema Unexplained medical symptoms of headache, fatigue and weakness”; ii) the January 2016 Gastroenterologist Report to Mrs Stones’ GP which indicated a diagnosis of IBS; iii) the March 2017 Community Dietician Report to Mrs Stones’ GP which had set out that over the course of the past 4 week she had followed all first line advice provided for IBS management but 20 in this period “she has not noticed a considerable improvement in her symptoms”. At the foot of the Executive Summary it was set out that “Considerations for the RAP: Can this officer be permanently restricted? Can the officer return to the work place? Can this officer handle firearms whilst on***medication?” Towards the start of the June 2017 Stage 1 Capability Meeting Mrs Stones challenged the Executive Report setting out that she had a diagnosis of IBS and Eustachian tube dysfunction and Urticaria “which highlights that there is an immune issue somewhere but nobody can identify what that is” she described that she was currently under referral of 30 an immunologist 3 times a week having blood drawn and tested to identify any patterns in her blood results. CNC’s HRH Jordan confirmed “advised there are definitely no PS position available”. After an adjournment, Temp CI P Green “Advised that there were currently no options to bring” Mrs Stones “back into the workplace given her medical status and could not foresee a return for her at present in an AFO role and taking in to consideration there are no vacancies via the APM. However,” Mrs Stones “could consider Police Staff roles” (that is civilian non officer roles within 5 CNC)” which KS (CNC HR Kirsty Strachan) can give details of the roles available. However, they would be subject to medical review and interview process along with relevant salary and terms of that role. At this time he recommends we move this meeting to Stage 2” Capability Hearing.[151]The Tribunal notes that Mrs Stones agreed at the Final Hearing that she that she could not carry on as an AFO at this time. The Tribunal notes Mrs Stones focus at the Final Hearing on the non-inclusion of the first two of the 3 medical reports to her GP, it being contended by Mrs Stones that CNC were proceeding on a flawed basis that there were 2 diagnosed 15 conditions being urticaria and IBS. The Tribunal however accepts Dr Fernandez’s analysis that the principal focus (as set out in the Executive summary) was “prognosis”. The Tribunal accepts that prognosis and diagnosis are not interchangeable terms. In particular an individual may be diagnosed with a specific condition but the prognosis, that is to say future 20 progress and any recovery may remain unclear. As at 5 June 2017 the Tribunal is satisfied that there was no prognosis available to CNC. In any event the Tribunal notes that the December 2015 Rheumatology Report describes beyond offering a diagnosis of Urticaria and possible angioedema “Unexplained medical symptoms of headache, fatigue and 25 weakness”; and further the January 2016 Gastroenterologist Report to Mrs Stones’ GP offering a diagnosis of IBS would, if included, have required to been seen in the context of the March 2017 Community Dietician Report to Mrs Stones’ GP which had set out that over the course of the past 4 week she had followed all first line advice provided for IBS 30 management but in this period “she has not noticed a considerable improvement in her symptoms”. Further the Tribunal notes and accepts the conclusion of the June 2017 Stage 1 Capability Meeting which was reached after Mrs Stones had the opportunity of setting out her position as to the position within the medical reports sent to her GP.[152]The Tribunal accepts that CNC considered Mrs Stones being allocated to civilian non officer roles within CNC, while CNC set out, that 5 there were at this stage no such role and allocation to such role it would be subject to medical review, interview and salary and terms. In all the circumstances and while this amounted to unfavourable treatment because of lack of prognosis and which arose in consequence of Mrs Stones disability, it was however was proportionate. In particular, it was a 10 proportionate means of achieving a legitimate aim, including ensuring that CNC was able to fulfil its statutory role and reasonably necessary in all the circumstances.[153]The Tribunal is satisfied that CNC knew or otherwise CNC could 15 reasonably have been expected to know that Mrs Stones was a person with a disability. Further and while not clearly articulated in her claims above, the Tribunal is satisfied that CNC applied a "provision, criterion or practice" (a PCP) of requiring that its officers were capability of fulfilling CNC’s statutory role.[154]That PCP put Mrs Stones at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time, in that Mrs Stones owing to her disability was not able to operate as an AFO.[155]The Tribunal further concludes that CNC knew or could have been reasonably have been expected to know that Mrs Stones was likely to be placed at any such disadvantage. The Tribunal however considers that there were no steps that were not taken that could have been taken CNC to 30 avoid the disadvantage.[156]While a burden of proof does not lie on Mrs Stones, it is considered helpful to know what steps Mrs Stones allege should have been taken. Mrs Stones, who was accompanied by a trade union officer did not articulate any steps, at the June 2017 Stage 1 Capability Meeting which she considered CNC could have taken. In any event the Tribunal is satisfied that there were no steps which it would have been reasonable for CNC to take at this relevant time. In so far as the issue is before the Tribunal the 5 application of CNC Capability Process was unfavourable treatment because of her absences and lack of prognosis, which arose in consequence of Mrs Stones’ disability, it was however was proportionate. In particular, it was a proportionate means of achieving a legitimate aim, including ensuring that CNC through its officers and employees are able to 10 fulfil its statutory role and reasonably necessary in all the circumstances.[157]On Monday 26 June 2017 CNC’s Temp C/ I Pat Green as Chair of the June 2017 Stage 1 Capability Meeting wrote to Mrs Stones confirming the outcome, which was that Mrs Stones should be invited to a 15 Stage 2 Capability Meeting.[158]On Sunday 9 July 2017 Mrs Stones appealed against the outcome of her Stage 1 Capability Meeting. Mrs Stones set out that there was a lack of welfare contact which although had improved following her grievance 20 had in her view been lacking for some time since “last year”. She set out that she knows she had chronic urticaria and chronic angioedema, Eustachian tube dysfunction and IBS “No investigation so far can reveal the cause”. She raised a query why in her view CNC budget for medical investigations had not been further used, and while she had anticipated 25 that the Stage 1 Capability Meeting would have been open, her hopes were dashed when she was told “there was no role for me”. She set out that via her trade union (“Federation friend”) she had had to raise issues around the accuracy of the minutes. She set out that “I do not believe that the grievance has been fully concluded” and set out what she identified were a 30 number of events between January 2016 and April 2016 to date including the obtaining of a GP Fit Note which she had obtained at CNC prompting “I was hoping this may highlight my case and result in a fast track diagnosis enabling me to get back on to firearms and return to the workplace at the earliest opportunity”. The Tribunal concludes that, had Mrs Stones wished to challenge CNC’s decision, it would have been reasonably practicable for Mrs Stones to have presented a complaint to the Employment Tribunal within 3 months of this date.[159]By letter dated Monday 28 August 2017 Mrs Stones was notified by CNC that she has received an overpayment of sickness benefits and that payment would cease from 1 September 2017 (the August 2017 notified Overpayment).[160]In so far as the issue is before the Tribunal CNC’s notification of overpayment of sickness benefits on Monday 28 August 2017 by CNC, it did not amount to Harassment under section 26 EA 2010, it is the Tribunal’s assessment that, in all the circumstances, it was not reasonable 15 for that conduct to be regarded as violating the claimant's dignity or creating an adverse environment for Mrs. Stones. That request is not found to have done so. The notification did not reflect a failure to make reasonable adjustments under section 20 and 21 EA 2010. It is the Tribunals decision that in CNC operated a practice (a PCP) or requiring 20 that its employees repaid monies overpaid. There is however no causative link between that PCP and the substantial disadvantage, which was the requirement to repay. There was no evidence adduced that CNC would have taken steps other than to request repayment when Mrs Stones was unable, due to period of paid leave having expired. The substantial 25 disadvantage did not “arise out of” the PCP. In any event there were no steps, beyond that which CNC took, to seek to effect extension of the period of pay, and which it would have been reasonable for CNC to take; the seeking of the extension was not unfavourable treatment arising in consequence of Mrs Stone’s disability, in so far as the request to repay 30 itself the Tribunal does not accept that this was because of something arising out of Mrs Stone’s disability, however and in so far as it is argued to be unfavourable treatment arising in consequence of Mrs Stones’ disability, it was however was proportionate. In particular, it was a proportionate means of achieving a legitimate aim, including ensuring that CNC paid its officers sickness benefit to which they were entitled. In so far as the issue is before the Tribunal CNC’s notification of cessation of sickness benefits by CNC was unfavourable treatment because of Mrs Stones absences and 5 arose in consequence of Mrs Stones’ disability, it was however was proportionate. In particular, it was a proportionate means of achieving a legitimate aim, including ensuring that CNC paid its officers sickness benefit to which they were entitled.[161]On 5 Tuesday September 2017 A Ebert the Trade union representation (CNC Police Federation) e-mailed Temp C/I Pat Green “Unfortunately Clare received correspondence on 22/08/217 Consultant Immunologist who states “would be worth considering her for the management trail of fibromyalgia/chronic fatigue [… commonly known as 15 ME] consequently Clare will be looking into the Equality Act 2010 in order to support her return to the workplace.”[162]The Tribunal concludes that had Mrs Stones wished to challenge CNC’s approach it would have been reasonably practicable for Mrs Stones 20 to have presented a complaint to the Employment Tribunal within 3 months of this date. The Tribunal notes that Mrs Stones did not direct the Tribunal to the Consultant Immunologist correspondence which this e-mail indicates was received by her 22 August 2017.[163]On 5 Tuesday September 2017 Temp C/I Pat Green e-mailed to Brotherston “I have copied in Insp Bain regards the welfare contact as it was my understanding he was going to speak to Clare and find out who she wanted this to be. Ins Bain will also manage any work around the Equality Act if Clare makes application on this”. The Tribunal accepts on the evidence 30 adduced that this is a reference to a system within CNC whereby its officers may elect to self-declare an asserted disability and identify to CNC what adjustments that officer considers are reasonable adjustments.[164]On 6 Wednesday 6 September 2017 Mrs Stones’ trade union representative (CNC Police Federation) A Ebert emailed CNC referencing pay issues and a “Stage 1 Appeal hearing has been booked for 14/0917 @ 14.00hrs in Inverness however we currently don’t have name of the venue? 5 Helen Jordan has assured us that all the issues raised in the appeal will be discussed and not just those relevant to process.”.[165]On Wednesday 13 September 2017 Mrs Stones’ GP set out a “to whom it may be considered” letter (the September 2017 GP letter) for CNC 10 “I understand that Clare has been advised that she is unfit to perform her duties as a firearms officer. Clare is concerned she may lose her job altogether. You will be aware that Clare has had disabling symptoms for some time including rashes, headaches and fatigue. However, she has been making some progress. I would consider that she should be fit for some form 15 of light duties and I would hope that it might be possible to consider her for alternative employment other than firearms officer- though the nature of her exact level of fitness for any alternative employment would be best assessed by an Occupational Health specialist with more detailed knowledge of any proposed job role”.[166]The Tribunal notes that Mrs Stones confirmed at the Final Hearing that her GP wrote the letter at her request. The Tribunal notes and accepts that Mrs Stones GP accepted that the nature of Mrs Stones exact level of fitness for any alternative role would be best assessed by an Occupational Health 25 specialist with more detailed knowledge of any proposed job role. The Tribunal concludes that Mrs Stones was aware of the possible outcome of the appeal hearing and considers that had Mrs Stones wished to challenge CNC’s approach it would have been reasonably practicable for Mrs Stones to have presented a complaint to the Employment Tribunal within 3 months 30 of this date.[167]On Thursday 14 September 2017 Mrs Stones attended two meetings arising from her appeal against the outcome of her Stage 1 Capability Meeting chaired by Supt Tony Cole. Mrs Stones was accompanied at each of the meetings by a work colleague PC Andrew Ebert (who the Tribunal notes is also a trade union/ CNC Police Federation representative).[168]The First Meeting on Thursday 14 September 2017 began at 2pm and ended at 3.10pm. During this First Meeting first meeting, the Tribunal notes that Mrs Stone work colleague PC Ebert set out that “at the moment he is in limbo until such time as CS has a confirmed diagnosis then he is unable to give clear advice” He further asked “ if disability would be 10 considered in this case” Helen Jordan for CNC responded that “at a RAP reasonable adjustment are considered under equality act”. It was also agreed that a CNC welfare officer would make a referral for CNC’s Occupational Health to ascertain what reasonable adjustments should be made in relation to a possible new diagnosis. It was decided that “the 15 appeal would not be upheld and” Mrs Stones “would remain within the procedure”.[169]This was followed by a Second Meeting also Thursday 14 September 2017 starting at 3.10pm to “discuss the issues addressed in 20 the appeal that was out with the capability procedure.” and it was at this meeting that, “contact given for the new parent work group,”[170]Whilst the Tribunal was not provided with a letter confirming the outcome, on the evidence adduced, the Tribunal accepts, and so far, as 25 relevant, the appeal was not upheld and that Mrs Stones remained within the procedure. It was not was not suggested by Mrs Stones that the outcome was different to that set out in the notes to which the Tribunal, a attention was drawn. At the Second Meeting CNC indicated that it would look into what was said to be a Health and Safety Investigation, CNC 30 offered to complete actions in relation to overpayment issues, and contact was given for what was described as the “the new parent group”.[171]The Tribunal concludes that Mrs Stones was aware that her appeal had not been upheld and considers that had Mrs Stones wished to challenge CNC’s approach it would have been reasonably practicable for Mrs Stones to have presented a complaint to the Employment Tribunal within 3 months of this date.[172]On Thursday 28 September 2017 Mrs Stones was examined by Dr Alex Yellowlees, Consultant Psychiatrist in Glasgow (the September 2017 Psychologist report) on a referral from Mrs Stones’ GP, who notes that no clear cause has been found to explain her range of symptoms, which he 10 describes as both physical and psychological including poor memory and she anxious, irritable and fatigued. He reports that she described that occasion she has experienced pins and needles in her hands and feet which he feels is mostly likely anxiety related. He offers a diagnosis what he says is chronic stress disorder. His report, which is addressed to Mrs 15 Stones’ GP, indicates that he feels that Mrs Stones would benefit from antidepressant medication and would benefit greatly from ongoing counselling/individual psychological therapy.[173]On Monday 2 October 2017 K Strachan CNC HR Case Adviser e-20 mailed Mrs Stones setting out that her September 2017 salary was reinstated given the time scales involved for receiving her pay rates from pensions, and indicated that once they had detail available overpayment they would be in touch.[174]On the evidence adduced the Tribunal concludes that this was a reference to a process within CNC whereby officers who have ceased to be otherwise eligible for pay, may be paid a sum calculated by reference to the pension would they would receive. While theoretically funded from their pension, this would not operate deplete the pension which the officer would 30 ultimately be entitled to. CNC had by October 2017 identified that this mechanism could potentially be deployed to assist Mrs Stones meeting her overpayment obligations. There was however no obligation on CNC to implement same.[175]On Thursday 5 October 2017 CNC issued confirmation to K Strachan HR Case Adviser that action had been taken to drop Mrs Stones 5 from nil pay and “She will therefore stay on full pay till further notice”[176]On Friday 6 October 2017 CNC sent Mrs Stones CNC Vacancies list to her home e-mail roles include Divisional Business Support officer roles Divisional Support Team Leader.[177]On Wednesday 18 October 2017 Insp Simon Johns became Mrs Stones' line manager,[178]On Thursday 19 October 2017 Insp L Bain referred Mrs Stones to 15 CNC Occupational Health in light of recent medical updates.[179]On Thursday 19 October 2017 Insp S Johns completed forms for Mrs Stones seeking consideration of both funding for medical treatment and extension of sick pay “it is requested that an extension of 6 months on 20 full pay followed by a further 6 months on full pay is considered. This would take us up the present whereby the outstanding overpayment could be resolved”.[180]On Thursday 2 Nov 2017 DS M O’Kane provided comment that “... I 25 do not believe that the 6 months plus 6 months to cover her overpayment is necessary as this is not a justification to have the overpayment written off. However, this is an application to extend” her “sick pay due to the fact that we have caused a delay in identifying her overpayment due to breakdown in regular contact… while she has been out of the workplace. On this basis 30 I am content to support the application”.[181]The Tribunal notes that CNC, as of 2 November 2017, considered that there had been a breakdown in regular contact with Mrs Stone which impacted in a delay in identifying her overpayment. In so far as the issue is before the Tribunal, CNC assessment at Thursday 2 November 2017 did not amount to harassment under section 26 EA 2010, it is the Tribunal’s assessment that, in all the circumstances, it was not reasonable for that conduct (CNC’s request in respect of the August 2017 notified 5 overpayment, notified to her by CNC on Monday 28 August 2017 that there had been an overpayment) to Mrs Stones to repay overpaid sick pay while on sick leave and with no earnings) to be regarded as violating the claimant's dignity or creating an adverse environment for Mrs. Stones. That request is not found to have done so. Further there was no failure to make 10 reasonable adjustments under section 20 and 21 EA 2010. It is the Tribunals decision that in CNC operated a practice (a PCP) or requiring that its employees repaid monies overpaid. There is however no causative link between that PCP and the substantial disadvantage, which was the requirement to repay. There was no evidence adduced that CNC would 15 have taken steps other than to request repayment when Mrs Stones was unable, due to period of paid leave having expired. The substantial disadvantage did not “arise out of” the PCP. In any event there were no steps, beyond that which CNC took to seek to effect extension of the period of pay, and which it would have been reasonable for CNC to take; and[182]The Tribunal considers Mrs Stone was aware of such payments as were made to her bank account. The Tribunal notes that Mrs Stone does not seek to argue that an overpayment where made did not fall to be repaid. CNC granted her application for retrospective sick pay for a period 25 of 3 months which was approved on 14 February 2018 and a further pay appeal was submitted by Insp John which returned Mrs Stones to full pay for the period of overpayment from Monday 13 November 2017 until Tuesday 1 May 2018 following recommendation from Brian Rowles CNC Health and Safety Manager.[183]The Tribunal further notes that Mrs Stones was assisted by her representative in respect of the August 2017 notified overpayment. Mrs Stones was made aware from Monday 28 August 2017 that there had been an overpayment. Mrs Stones was assisted by her representative in respect of that overpayment. The August 2017 overpayment was not a continuing act. The Tribunal does not consider it just an equitable to apply a time limit beyond the 3 months less one day time limit provided in terms of s129 of 5 EA 2010 in respect of that notified overpayment.[184]The Tribunal accepts, and it was not placed in dispute, that as set out in Insp Jones’ statement Mrs Stone was paid from Tuesday 1 May 2018 until the termination of her employment. The Tribunal concludes that the 10 CNC knew or otherwise could reasonably have been expected to know that Mrs Stone was a person with a disability. In respect that the requirement to repay overpayments could amount to a "provision, criterion or practice". CNC applied that PCP to Mrs Stones. The Tribunal does not accept that the application of such a PCP put Mrs Stones at a substantial disadvantage 15 in relation to a relevant matter in comparison with officers who were not disabled at any relevant time. The Tribunal does not accept that CNC knew or could be reasonably expected to know that Mrs Stones was likely to be placed at any such disadvantage. The Tribunal does not consider that there were steps that were not taken, and that could have been taken by the 20 CNC to avoid the disadvantage. In any event the Tribunal concludes that CNC took such steps as it was reasonable in all the circumstances for CNC to have taken to have taken by returning Mrs Stones to full pay for the period of overpayment from Monday 13 November 2017 until Tuesday 1 May 2018. There was however no obligation on CNC to do so.[185]On Monday 13 November 2017 CNC’s HR officer H Jordan, wrote to Mrs Stones setting out CNC’s explanation and break of the salary overpayment to Mr Stones and setting out her repayment options. The letter apologised for the delay providing figures to Mrs Stones and set out 30 that she would do her best to be available to discuss the information on the payslips. The letter set out that in order to avoid any further overpayment the salary will cease to be paid with effect from Tuesday 31 October 2017 and no further payment would be made until “you return to the workplace. There is an option for you to receive payment at the Pension Rate and I would be more than happy to take you through this option… I look forward to hearing from you and once again apologise for the delay in getting you the information we agreed to provide.”[186]On Monday 27 November 2017 Insp Simon Johns had a telephone discussion with Mrs Stones noting that treatment routes maybe available for consideration and in relation to the issue of repayments noted that “she is receiving support from Andy Ebert and Ian Muir of the CNC federation”.[187]On Tuesday 12 December 2017 Lorraine Holloway, CNC’s Occupational Health Specialist, set out her opinion (the December 2017 Occupational Health Case Report) that Mrs Stones was “unfit for work until further information has been acquired through her GP” … To date no 15 definite diagnosis has been made apart from a reference from the consultant Immunologist to possible fibromyalgia /Chronic fatigue”. her report set out that Mrs Stones “self-funded an appointment with a psychologist in Glasgow who apparently has written a detailed report which was supplied to her GP. I have requested a copy of this report with PS 20 Stones consent and currently awaiting a response”. Further and in relation to Current Work Position it set out “In my opinion, until this report has been received PS Stones is not fit for work. Once the report has been received, it will be reviewed and if required discussed with Dr Policarp, OHP, for further opinion”. The report set out in relation to “Personal Safety Training (where 25 appropriate to role I consider her currently to be Unfit to take Personal safety Training.” The report set out relation to “Fitness Assessment (where appropriate to role) I consider her currently to be Unfit to undertake Fitness Assessment (where required). In relation to Review Arrangements it set out that “A further review was conducted on 4th December and again today but 30 she failed to respond to my call”.[188]The Tribunal notes that the December 2017 Occupational Health Report does not refer reports issued to Mrs Stones GPa. the December 2015 Rheumatology Report describes beyond offering a diagnosis of Urticaria and possible angioedema “Unexplained medical symptoms of headache, fatigue and 5 weakness”; andb. the January 2016 Gastroenterologist Report to Mrs Stones’ GP offering a diagnosis of IBSc. the March 2017 Community Dietician Report to Mrs Stones’ GP which had set out that over the course of the then past 4 week she 10 had followed all first line advice provided for IBS management but in this period “she has not noticed a considerable improvement in her symptoms”.[189]The Tribunal, however, accepts that the December 2017 15 Occupational Health Case Report and in particular its assessment that Mrs Stones was “unfit for work until further information has been acquired through her GP” reflected the considered assessment of the CNC’s Occupational Health Specialist Lorraine Holloway on the basis of the information available to her at the time, including consideration of the 20 September 2017 Psychologist report, provided via Mrs Stones’ GP. The Tribunal further notes that the December 2017 Occupational Health Case Report was consistent with the Fit Note issued by Stones’ GP on Friday of that week (Friday 15 December 2017) and for the preceding period from Friday18 August 2017.[190]On Friday 15 December 2017 GP issue Fit Note covering Friday 18 August 2017 to Thursday 15 February 2018 which stated that because of the following conditions “Chronic urticaria” “You are not fit for work” GP scores through all 4 adjustment options phased return to work, amended 30 duties, altered hours, workplace adaptations. The Tribunal notes that Mrs Stones accepted at the Final Hearing that CNC had no reason to doubt the opinion of her GP as set out in the Fit Notes.[191]On Monday 18 December 2017 Insp Simon Johns has telephone welfare meeting with Mrs Stones, he explained that he required to plan “the Capability Stage 1 meeting following her recent appeal hearing. It was agreed this would be held in Inverness, although Clare is willing to attend 5 Dounreay if necessary” list of dates were provided when her partner was on a rest day…”. The dates in January 2018 which were given were 18, 19 24 24, 30 and 31.[192]On Friday 29 December 2017 Temp C/I Pat Green emailed Mrs 10 Stones suggesting they meet in January 2018 (either 18 or 19 January) “as these are the dates you have advised Inspector Johns you would be available to “discuss issues relating to pay, and if “you wish to have federation representation for this meeting please advise who this will be and I will make arrangements for them to be present… The scope of this 15 meeting will be limited to issues in relation to pay so that the necessary focus can be applied to it. Once this meeting has been held than I will identify a date to reconvene the capability process which was adjourned pending your appeal.”[193]The Tribunal does not consider that CNC’s proposal to use a date which had been identified as suitable for Mrs Stones for to review pay issues rather than capability created unreasonable pressure on Mrs Stones. It was a pragmatic and proportionate proposal by CNC. In so far as the matter is before the Tribunal it did not amount to a discriminatory 25 action.[194]On Wednesday 3 Jan 2018 Temp C/I Green emailed Helen Jordan to TCI Green “In relation to... capability is it appropriate to hold stage 1 or should this be moved to stage 2 as per the previous stage 1 ruling, which 30 was appealed and not upheld”[195]On Monday 22 January 2018 Insp Johns had a telephone meeting with Mrs Stones and explained to Mrs Stones that he required to plan the Capability Stage 1 meeting and thanked Mrs Stones for providing dates[196]On Wednesday 24 January 2018 Temp C/ I Pat Green identified 5 that Mrs Stones should proceed to Stage 2 of CNC’s capability procedure “Secondly in relation to how best to proceed with capability process. I am of the opinion that there has been no change in relation to fitness to work since I held a capability meeting at stage 1 and referred … to stage 2. This decision was appealed but not upheld. Therefore pending opinion and 10 direction in relation to fitness in the workplace by OHD I would advocate that this case should indeed” move to Stage 2.[197]Lorraine Holloway who was unable to attend ET, in her extended witness statement, it was put to her by Mrs Stone that in early 2017 Ms 15 Holloway had discussed CNC sending Mrs Stone to see psychiatrist Dr Vicenti (why did CNC not refer Dr Vicenti) set out that “It was in fact in February 2018 you were referred to OH in November 2017, when I discussed the referral with you. Prior to appointment of Dr Phil Moss, clinical psychologist, our process was to refer externally to an independent 20 psychologist or psychiatrist. As out external provided had limited availability until April 2018 it was decided that referral to Dr Moss who had been recently appointed, would be appropriated which was supported by the Chief Medical Officer” witness statement. The Tribunal does not accept, in all the circumstances, that any relevant claim arises from CNC’s decision 25 on this allocation of its medical resources.[198]On Friday 2 February 2018 Insp Johns e-mail to Nicola Loughlin say that Mrs Stones “is being provided all Vacancies Notices via our local HR rep Kirsty Strachan… has been sent the vacancy for the National 30 Recruitment team and has enquired whether she can apply. I understand that it closed a few days ago. Would you be able to accommodate another application? If you send me the forms I will ensure they are received by” Mrs Stones.[199]The Tribunal notes that by February 2018 CNC were notifying Mrs Stones direct of CNC vacancies. There was no evidence adduced before 5 the Tribunal that CNC had not done so before, and on the evidence adduced the Tribunal is satisfied that CNC had been issuing such vacancy notices since at least 2017.[200]On Monday 5 February 2018 CNC confirmed that to Insp Johns 10 they welcome an expression an interest in the vacancy in the National Recruitment Team. The Tribunal notes that CNC indicated that they were willing to consider an expression of interest for such role, after the date for submission of same, from the evidence adduced, had closed.[201]On Monday 5 February 2018 Mrs Stones expressed interest in a vacancy in the National Recruitment Team.[202]On Tuesday 6 February 2018 Mrs Stones advised Police Federation Ian Muir rep “I am not expecting any positive result, especially given the 20 current OHD delays in signing me fit for work””.[203]While the Tribunal notes that, at the Final Hearing, that Mrs Stone asserted that she did not receive a response the Tribunal, in all the circumstances, makes no adverse findings in respect of same. There was 25 no evidence of any mechanism whereby any officer who had expressed an interest would be advised. Further the Tribunal notes Mrs Stone’s position to the CNC Police Federation representative that she was not expecting a positive response, it is the Tribunals conclusion that on the evidence adduced Mrs Stones did not consider that she would have been capable of 30 taking up the role had it been offered. It is further, the Tribunal’s view that Mrs Stones could have asked for confirmation of response.[204]On Tuesday 13 Feb 2018 CNC’s HR Manager H Jordan completed a CNC Consideration for Extension of Sick Pay application form for Mrs Stones (the February 2018 Extension of Sick Pay Application). On page one it identifies that one of three possible criteria requires to be met. The criteria met for Mrs Stones was “An individual’s case is being considered in 5 accordance with CNC policy and procedure and matters beyond the control of the individual have delayed the decision and or resolution of their case.” It set out that it was recommended that 3 months extension to sick pay was approved on basis that “the CNC had delayed the resolution of this case”.[205]In so far as the issue is before the Tribunal CNC’s February 2018 Extension of Sick pay Application did not amount to harassment under section 26 EA 2010, it is the Tribunal’s assessment that, in all the circumstances, it was not reasonable for that conduct (CNC’s request in respect of the August 2017 notified overpayment, notified to her by CNC on 15 Monday 28 August 2017 that there had been an overpayment) to Mrs Stones to repay overpaid sick pay while on sick leave and with no earnings) to be regarded as violating the claimant's dignity or creating an adverse environment for Mrs. Stones. That request is not found to have done so. The February 2018 Extension to Sick pay Application represented 20 a reasonable adjustment under section 20 and 21 EA 2010. It is the Tribunals decision that in CNC operated a practice (a PCP) or requiring that its employees repaid monies overpaid. There is however no causative link between that PCP and the substantial disadvantage, which was the requirement to repay. There was no evidence adduced that CNC would 25 have taken steps other than to request repayment when Mrs Stones was unable, due to period of paid leave having expired. The substantial disadvantage did not “arise out of” the PCP. In any event there were no steps, beyond that which CNC took to seek to effect extension of the period of pay, and which it would have been reasonable for CNC to take.[206]On Wednesday 14 February 2018 CNC’s HR officer H Jordan confirmed to Mrs Stones that her application to extend sick pay was approved “the extension is a retrospective one and is for a period of three months”. The Tribunal notes that Mrs Stone accepted at the Final Hearing that CNC were not “hassling her “at this stage.[207]On Monday 19 February 2018 Insp Johns had a telephone welfare meeting with Mrs Stones, it was noted that Mrs Stones was pleased to 5 have received an extension to 3-month sick pay and CNC’s HR would be reviewing the outstanding payment and had reviewed annual leave and would be confirming both.[208]On Monday 26 February 2018 CNC had a Management Discussion 10 of Mrs Stones' case which included DS and acting OUC M O’Kane. An overview set out that CNC’s Occupational Health had at this time received the September 2017 Psychologist report, Mrs Stones having provided her consent and the Occupational Health referral was ongoing, further that Dr Fernandez planned to discuss a consultation with Dr Moss who was 15 CNC’s panel psychologist, based in Newcastle upon Tyne, and if required expedite the consultation process in line with the Stage 2 process. The Tribunal notes and accepts, Dr Fernandez’s comments in his evidence at the Final Hearing that he was concerned that the September 2017 Psychologist report offered an unrecognised (by diagnostic manuals) 20 diagnosis.[209]On Tuesday 13 March 2018 Mrs Stones attended for appointment with Dr Phil Moss, CNC’s panel Consultant Psychologist in Newcastle upon Tyne for psychological assessment and report.[210]On Wednesday 28 March 2018 Dr Phil Moss set out his psychological report. (the March 2108 Psychological Report). He found no evidence of any mental health issue that could warrant a diagnosis 30 under a recognisable mental health classification scheme. In relation to the prognosis, he set out that in the absence of a clearly identifiable mental health or psychological condition this was not relevant. While it was noted that Mrs Stones was having weekly sessions of supportive counselling which she reported as beneficial he set out that “it is unlikely that any treatment can be identified which would have a direct impact on return to work within a definite timescale”. The Tribunal accepts the conclusions of the March 2018 Psychological Report. The Tribunal was not presented with any subsequent contrary medical opinion.[211]On Wednesday 4 April 2018, Mrs Stone attended Stage 2 Capability Meeting (the April 2018 Stage 2 Capability Meeting) chaired by Supt Martin O'Kane. Mrs Stones was accompanied by PC Ian Muir in his capacity as a friend. It was set out by Dr Moss that he had ruled out any 10 mental health conditions, but the physical condition remained. It was set out to Mrs Stone that in relation to redeployment the issue was that there was no prognosis and “without prognosis she couldn’t be redeployed in a role that may make her any worse”. It was confirmed that the December 2017 Occupational Health Case Report had been reviewed by Dr 15 Fernandez “One area of concern that has been removes” was Mrs stones’ mental health but the condition still remained…. Its not just an AFO role but there has been no diagnosis in relation to coming back to the workplace.” It was set out that they had the September 2017 GP letter and the December 2017 Occupational Health Case Report, it was described 20 “that despite the letter from the GP saying she could return to work on restricted duties. OHD have confirmed she would be unable to do so. She explained that we have to take what OHD state and cannot go against their advice”. Following an adjournment, Supt O' Kane informed Mrs Stones that his recommendation was that Mrs Stones' employment should be 25 terminated because of the lack of a diagnosis and prognosis as to when she will be able to return to work.[212]The Tribunal notes that Mrs Stones agreed at the Final Hearing that Dr Moss had ruled out any return. Given the available medical evidence 30 and review by Dr Fernandez of the December 2017 Occupational Health Case Report the Tribunal is satisfied that there was no requirement for CNC to obtain further medical evidence for or from the April 2018 Stage 2 Capability Meeting. The Tribunal notes that at the Final Hearing there was no subsequent medical report provided by Mrs Stones. The Tribunal concludes that while the decision to recommend dismissal on 4 April 2018 was unfavourable treatment because of both the lack of prognosis and absences was something arising in consequence of Mrs Stones’ disability; 5 however, it was however proportionate. In particular, the Tribunal concludes that a dismissal in these circumstances is a proportionate means of achieving a legitimate aim of having have a capable workforce which can ensure that CNC meets its statutory obligations.[213]From Tuesday 1 May 2018 was the commencement of period in respect of which Mrs Stones submitted retrospective fit notes confirming that her absence was due to pregnancy. Full pay was reinstated from this date.[214]Monday 7 May 2018, was the date, the Tribunal notes from Dr Fernandez’ statement, upon which that Mrs Stones applied again for Ill Health Retirement.[215]On Monday 7 May 2018 Insp Johns has telephone meeting with Mrs Stones it was noted that Mrs Stone would receive the formal letter by recorded delivery and that she would have 7 days to appeal. Mrs Stones advised Insp John that she wished to reapply for Ill health retirement as Occupational Health had indicated that she was not in any fit capacity to 25 return to the workplace. It was confirmed that Mrs Stones had received a full breakdown of the overpayments after taking into account the sick pay appeal and entitlements, and she expressed her gratitude to CNC’s HR (C Lewis) who had been helpful in explaining the breakdown of the figures. It was identified that there was a remaining overpayment which could can be 30 addressed via any capability payment or future income from CNC.[216]On Monday 21 May 2018 CNC submitted a pro forma funding application to BEIS “template for BEIS approval for Capability exit from the…CNC”. (the May 2018 BEIS Funding Application) in relation to Mrs Stones. May 2018 BEIS funding application sets out in relation Value for Money that “Each month the officer continues to be employed, this costs an additional £5,200 in back-fill overtime and management/occupational health time. This is in addition to any sick pay the officer receives.” The May 2018 5 BEIS funding application, erroneously suggests that Mrs Stone had not applied for any roles, Mrs Stone had expressed interest in a role.[217]The Tribunal concludes that, while the May 2018 BEIS funding application, erroneously suggests that Mrs Stone had not applied for any 10 role, the Tribunal accepts this error would have been addressed by setting out that Mrs Stone had expressed interest in a role did not amount to an attempt to mislead BEIS. The Tribunal accepts, on the evidence adduced that, in addition to any payments which were made to Mrs Stones, CNC incurred backfill overtime costs providing AFO cover for which Mrs Stone 15 while she was absent from work due to ill health. The Tribunal accepts, on the evidence adduced, that the May 2018 BEIS Funding Application reflects a provisional draw down facility of funding from BEIS who fund CNC. Further the Tribunal accepts that such an advance application is required in order to permit an actual draw down from BEIS, in the event 20 that payment requires to be made, and is made in advance of such an eventuality, in order to prevent any delay should the draw down facility to prevent a delay in making an exit payment should that arise. The Tribunal concludes that it does not reflect a prejudgment of the outcome of any capability or other process. Further the Tribunal concludes that it does not 25 reflect any attempt by CNC to mislead BEIS.[218]On Tuesday 5 June 2018 Insp Johns had a telephone welfare meeting with Mrs Stones. He noted that Mrs Stones’ appeal against the April 2018 Stage 2 Capability Meeting decision had been submitted to 30 CNC’s HR although Mrs Stone had not yet received confirmation of the “the success of his appeal”. Mrs Stone informed him that she was now pregnant with her fourth child with a due date of Monday 1 Oct 2018. He “congratulated her this wonderful news” he noted that Mrs Stone was possession of her Mat 1B and would send it electronically to him. He noted that he would take guidance from HR regarding Maternity process for employees not currently in the workplace.[219]On Tuesday 19 June 2018 Insp Johns reported by e-mail to CNC’s 5 HR Helen Jordan, in relation to Mrs Stones’ appeal against the April 2018 Stage 2 Capability Meeting decision that he “Had a positive meeting with PS Clare Stones. She can attend a Stage 2 Appeal on Monday 25th June in the afternoon” at a site in North Ayrshire and confirmed that Insp Jim Ferguson would attend a Police Friend. Insp Johns requested that 10 overnight accommodation was arranged for Mrs Stones and describes that he will undertake an Expectant Mother Risk Assessment to cover the proposed journey. On the evidence adduced the Tribunal is satisfied that Mrs Stones was subsequently advised that her appeal against the April 2018 Stage 2 Capability Meeting decision was moved to take place at a 15 later date, Tuesday 2 August in Birmingham.[220]On Tuesday 17 July 2018 CNC’s HR Clare Lewis e-mailed Insp S Johns regarding CNC policy around maternity process for employees not currently in the workplace setting out that “Any pregnancy related sickness 20 during pregnancy will be regarded a special paid leave and will not count towards sickness absence levels. As such the employee must notify their Line Manager that she is absent from work because of pregnancy and of the date, on which her absence from that reasons began, as soon as reasonably practicable. The Line Manager will inform HR about the 25 absence. If it is not clear whether an absence is pregnancy related or not, advice will need to be obtained from the occupation Health Department. Therefore, I think we will have to place her back onto full pay from 1 May 2018, should the answer to question 2” (which relate to what was set out in a Fit Note)” …be clarified satisfactory through OHD. This also means, 30 should she still be here when her maternity leave is due to begin, she will probably qualify for full maternity pay”. The Tribunal does not consider that any adverse inference arises from this statement, setting out CNC’s process.[221]The Tribunal notes that a complaint about something that happened before date Wednesday 20 July 2018 was potentially brought out of time, 5 so that the Tribunal may not have jurisdiction to deal with it. Section.207B(3) of the Employment Rights Act 1996 provides that in working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted; s.207B(4) If a time limit set by a relevant provision would (if not extended by this subsection 10 expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. So earliest date a claim could be in time 20 July 2018 (presentation less 3 months + 1 day less time between Dated A&B).[222]On Friday 20 July 2018 Insp S Johns e-mail CNC Nigel Couzens and others “I have reviewed the submission below to BEIS and I am not aware of any outstanding medical request awaiting action. All were completed during the capability process. OH may be aware of an outstanding report but this has never come up any meetings from either the 20 organisation or indeed” Mrs Stones. The Tribunal accepts that Mrs Stone did not provide any further medical report to CNC and further notes that at the Final Hearing, Mrs Stone did not provide any additional medical reports from 2018 onwards.[223]On Friday 20 July 2018 Clare Lewis HR issued a response e-mail to S Johns “I think I knew this, was asking OH to respond … ;O)” .The Tribunal accepts the evidence of Clare Lewis that no adverse intent was meant or otherwise arises from the use of what Mrs Stones argued at the Final Hearing was a “winking emoji”. While the Tribunal accepts that the 30 use of the characters forms what is often called an emoji, the Tribunal accepts the evidence of Clare Lewis that there was no adverse inference intentional or otherwise from those characters in the e-mail of Friday 20 July 2018.[224]On Monday 23 July 2018 Lorraine Holloway, Occupational Health Manager, wrote to Mrs Stones’ GP seeking further information and update 5 on Mrs Stones' medical conditions setting out 8 questions including; whether she had been referred to any new Specialists regarding her multipole symptoms and have any further investigations been conducted and for a copy of her medical records.[225]On Tuesday 24 July 2018 for a CNC management Stage 2 appeal preparation meeting reference is made to “Stage 2 decision at the time was based on the officer not being fit to return to work due to a number of a number of unresolved medical condition and supporting medical information”.[226]On Tuesday 24 July 2018 in response to an email from CNC HR C Lewis C who from her review of information believed that there was an outstanding MRI Scan which CNC had funded, and wondered why CNC were not waiting for results of such tests, Occupational Health Clinical 20 Manager Lorraine Holloway responded “As far as Manuel and I are concerned we are not aware of outstanding results of test or MRI scan CNC has funded. We have certainly not requested any. I have asked “S Johns “and he has no knowledge or notes to this effect. I am reluctant to ask” Mrs Stones “directly I have written to the GP requesting a copy of her 25 entire medical records which I have advised is urgently required.” The Tribunal accepts, on the evidence adduced, that there were no such outstanding tests and or results. The Tribunal notes no further medical reports were provided by Mrs Stone for the Final Hearing which were not otherwise available to CNC.[227]On Thursday 26 July 2018 Dr Brendan Clancy, Mrs Stones' GP, replies to Ms Holloway (the July 2018 GP Report), indicating that Mrs Stones has, not ben referred to any new specialists, her symptoms are complex and probably represent immune system dysfunction combine with the effects of stress/anxiety.” It would not be possible to give a simple prognostic outlook on the length of time to recover”. There was no firm diagnosis and prognosis.[228]On Friday 27 July 2018 Brian Rowles, CNC's Health and Safety Manager sets out in an email that he had concluding a Health and Safety investigation previously recommended by D/I Deans. He recommended that Mrs Stones' sickness absence from 13 November 2017 until 1 May 2018 should be classified as work-related stress “It isn’t always necessary 10 for a stress trigger to be a single event or indeed be intentional… I do consider the grievance investigation meetings the stands required to meet Health and Safety investigation requirements … This investigation process has identified that this is a complex matter but identifies issues some going back a period of time whilst not intentionally acted as stress triggers to this 15 individual”. He concludes that “on balance this absence should be treated as work related stress for CNC attendance management processes”. The Tribunal notes that Mrs Stones drew its attention to this communication but as it does not have jurisdiction to consider claims for personal injury, and was not further relevantly addressed, the Tribunal does not consider 20 that it is able to draw any conclusion from the terms of this e-mail while noting that Mr Rowles concludes that “on balance this absence should be treated as work related stress for CNC attendance management processes”[229]On Friday 27 July 2018 the Tribunal notes, on the evidence adduced, that CNC applied for extension to sick pay due to work related absence, in light of B Rowles e-mail of Friday 27 July 2018 which that “on balance this absence should be treated as work related stress for CNC attendance management processes”. The Tribunal, while noting that it was 30 suggested that an absence should be administratively treated as work related stress, having regard to the matters before it, does not give rise to any relevant matter for consideration nor in the assessment of the Tribunal in all the circumstances, does it give rise to any adverse inference in respect of matters which the Tribunal has jurisdiction for.[230]On Wednesday 1 August 2018 Dr Manuel Fernandes emailed CNC’s HR Business Partner C Lewis, noting that only one aspect of Mrs 5 Stones’ symptoms has settled down due to her pregnancy and there is no timeframe for the rest of her symptoms to settle down.[231]On Tuesday 2 August 2018 Mrs Stone attended the appeal against April 2018 Stage 2 Capability Meeting decision. The appeal which was 10 heard in Birmingham, was heard by Deputy Chief Constable Chesterman Mrs Stones was supported by Inspector Ferguson. No further medical evidence was presented by Mrs Stones in relation to prognosis of her various conditions. She set out that in her view “things and people had brushed under the blanket and alternatives haven’t been discussed and the 15 writing was on the for a very long time… she thought CNC was her future and this has now been stripped from her”. Following an adjournment DCC Chesterman advised “he had to base his decision on medical evidence provided and hadn’t hear anything that changes the stage 2 Capability outcome” he described that she would be going back onto full pay for the 20 remaining period, she would be entitled to a payment in lieu of notice but confirmed that he was upholding recommendation to terminate her employment.[232]The Tribunal concludes that, in so far as the decision to uphold the 25 decision to dismiss on 2 August 2018 was unfavourable treatment because the ongoing lack of prognosis, arising in consequence of Mrs Stones’ disability; it was however proportionate. In particular a dismissal in these circumstances is a proportionate means of achieving a legitimate aim of having have capable workforce which can ensure that CNC met its 30 statutory obligations and was reasonably necessary.[233]On Wednesday 3 August 2018 CNC’s Head of Occupational Health issued an e-mail to CNC’s HR C Ashfield and DR Fernandez which set out “I have been asked to look at a pay extension ... the process is different to a stand extension sick pay case…It was always the process that capability would commence until IHR was concluded and I know we amended this so the two could run concurrently but the final decision on capability would be paused until the IHR was conclusion was reached… we will need to consider 5 whether we support payment on IHR grounds should the pension scheme manager support this?” .[234]On Wednesday 3 August 2018 Insp Johns emailed to Mrs Stones “I received a call yesterday afternoon from Jim to update me of the outcome of 10 your appeal. You will still be an employee of the CNC as I understand it for 3 months’ notice. I have been working in the background on a review of maternity/sick entitlements. I will discuss further with you… on Tuesday when we have out catch up call”.[235]On Thursday 9 August 2018 Dr Manuel Fernandes wrote to Mrs Stones’ GP explaining why he again could support her application for Ill Health Retirement, referencing the pension scheme requirement. “She has several unexplained medical symptoms and two underlying medical conditions which should not prevent her from working in some capacity 20 before her usual retirement age … In my opinion the applicant’s health has not deteriorated sufficiently seriously so as to prevent the applicant following alternative /adjusted duties of employment”.[236]In so far as the matters is before the Tribunal, Dr Fernandez clinical 25 decision not to support Mrs Stone application was unfavourable treatment because of the lack of prognosis which arose in consequence of Mrs Stones’ disability; it was however proportionate. In particular expressing his clinical judgment was a proportionate means of achieving a legitimate aim being the proper operation of the pension scheme and was reasonably necessary.[237]On Friday 17 August 2018 Nigel Couzens, HR Business Partner, wrote to Mrs Stones setting out that she would receive three months' pay in lieu of notice and setting out her exit payment and that her employment terminated on Friday 17 August 2018 on the grounds of capability. It set out that she should sign a mandate for the sum accepting the payment in accordance with her terms and contract of Employment, which sum at that stage included a payment in respect of Pay in Lieu of Notice.[238]On the evidence adduced, the decision to invite Mrs Stones to sign a mandate was not unfavourable treatment because of Mrs Stones lack of prognosis and or absences or otherwise was something arising in consequence of Mrs Stones’ disability, in particular it arose from the CNC’s procedures unrelated to Mrs Stones disability. It was in any event 10 proportionate. In particular where an employer provides a payment it in these circumstances is a proportionate means of achieving a legitimate aim of certainty arising from an employee having acknowledged receipt of payment.[239]Saturday 18 August 2018 the day before which Mrs Stones’ claims 15 are prima facie out of time say Respondent.[240]On Saturday 18 August 2018 Mrs Stones wrote to CNC, querying the calculation the notified exit payments.[241]On Monday 20 August 2018 CNC provided was it considered to be clarification of exit payments calculation.[242]On Friday 24 August 2018 CNC sent an updated letter to Mrs Stones setting out a recalculated exit payment and e-mail to explain. It again set out 25 that she should sign a mandate for the sum accepting the payment in accordance with her terms and contract of Employment, which sum at that stage included a payment, in respect of Pay in Lieu of Notice.[243]On the evidence adduced, the Tribunal concludes that CNC’s updated 30 letter inviting Mrs Stones to sign a mandate was not because of something arising in consequence of Mrs Stones’ disability, it arose from the CNC’s procedures. It was in any event proportionate and reasonably necessary. In particular The Tribunal considers that where an employer provides a payment in these circumstances it is a proportionate means of achieving a legitimate aim of certainty arising from an employee having acknowledged receipt of payment and was reasonably necessary.[244]On Monday 3 Sept 2018 Mrs Stones contacted ACAS Early Conciliation[245]On Monday 3 Sept 2018 Mrs Stones emailed Nigel Couzens, HR Business Partner stating she is “not happy” with the figures provided and explained that until she gets a satisfactory response, she would not be signing the mandate to acknowledge payment. The Tribunal notes that it was Mrs Stones evidence at the Final Hearing that she accepted that this “all v civilised””. The Tribunal concludes that none of this communication amounted to harassment within the meaning of s26 of the EA 2010. While CNC issued requests that Mrs Stone sign mandates and insofar as Mrs Stones did not wish to sign (at this stage) and the the conduct 15 was unwanted, and related to a protected characteristic of disability it did not;a. have the purpose of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for Mrs Stones;b. have the effect of violating the claimant's dignity or creating an 20 intimidating, hostile, degrading, humiliating or offensive environment for the claimant. The Tribunal concludes on the evidence that when taking into account Mrs Stones perception, the other circumstances of the case, it would not reasonable for the conduct (being requests to sign mandates) to have that effect. Further the conduct did not have that effect.[246]Mid sept 2018 P45 is issued by CNC.[247]On Monday 1 Oct 2018;• ACAS EC Certificate was issued to Mrs Stones• CNC wrote to Mrs Stones setting out final revised calculations of exit payments with a mandate to accept capability payment only. CNC in addition set out factual explanation which was taken from a CNC Payroll Project Manager who had provided an earlier analysis explaining CNC’s understanding of HMRC rules around tax codes for someone who is leaving together with a spreadsheet. The Tribunal notes that Mrs Stone’s evidence at the Final Hearing was to the effect that “he put it an format illegible but knows stress. He doesn’t put in 5 format understandable. I have again been asked to sign” The Tribunal notes that Mrs Stones accepted that at the Final Hearing that the communication was not rude or offensive. The Tribunal notes that Mrs Stones’ contemporaneous e-mail response does not set out that she considered that the communication 10 was rude or offensive but rather sets out a factual disagreement on the calculation. Mrs Stone did not offer to the Tribunal what she considered to be the correct calculation at the Final Hearing. As set out above the Tribunal concludes that none of this communication amounted to harassment within the meaning of s26 of the EA 2010. 15 While CNC issued communications to Mrs Stones, including with a spreadsheet with requests that Mrs Stone sign mandates, and while Mrs Stones did not wish to sign (at this stage) the conduct was unwanted, it did not;a. have the purpose of violating the claimant's dignity or creating an 20 intimidating, hostile, degrading, humiliating or offensive environment for Mrs Stones;b. have the effect of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. The Tribunal concludes on the 25 evidence that when taking into account Mrs Stones perception, the other circumstances of the case, it was not reasonable to consider that the conduct (being the communication around the calculation including the spreadsheet and request that mandate) had that effect. It did not have that effect.[248]On Tuesday 2 October 2018 CNC emailed Mrs Stones agreeing that she will be given three months' notice of termination instead of payment in lieu of notice. The Tribunal notes that CNC agreed to give Mrs Stones 3 months’ notice of termination her employment. The Tribunal does not, however consider that CNC actions, had the intention to to seek to restrict Mrs Stones eligibility to pay including maternity pay. The Tribunal does not accept that the decision to dismiss was rushed. The Tribunal notes that 5 HMRC records identify that Mrs Stones did not earn enough during the qualifying weeks to be eligible for any maternity pay or maternity allowance. That does not however create an actionable right before the Tribunal. It is the Tribunal’s assessment that in term of s18 of the EA 2010 (pregnancy & maternity discrimination) that while CNC treated Mrs Stones unfavourably by 10 terminating her employment and not paying her during certain period of non maternity leave, and while the unfavourable treatment took place in a protected period and/or was it in implementation of a decision taken in the protected period, such unfavourable treatment was not because of pregnancy or of illness suffered as a result of it; in particular it was not 15 because Mrs Stones was on compulsory maternity leave; and was not because Mrs Stone was exercising or seeking to exercise, or had exercised or sought to exercise, the right to ordinary or additional maternity leave.[249]On Wednesday 3 October 2018 Mrs Stones was notified that her 20 second application for ill health retirement is rejected.[250]Mrs Stones presented, at the Final Hearing, an undated communication (other than 8 Feb 2019 at the top right of the otherwise undated sheet) from HMRC which set out that CNC had made some changes 25 to information which they had provided to HMRC; and• On Friday 7 Sept 2018 HMRC were told that Mrs Stones she paid £2,304 more income tax; and• On Friday 7 September 2018 HMRC were told her taxable income was £8,8896.56 more; and• On Friday 7 September 2018 HMRC were told that she paid £110.23 more National Insurance. On the evidence adduced the Tribunal is satisfied that Mrs Stones received no pay month ended 30 Sept 2017 and thereafter month ended 30 November 2017 to month ended 31 March 2018. No evidence was adduced in respect of any unnotified deductions in respect of those periods when Stones did not receive pay. While it was Mrs Stones’ position that 5 she never received a payslip, she did not articulate the period the during which she considered that CNC did not provide any payslip.[251]The Tribunal declines to make any finding that CNC did not provide any payslips. The Tribunal was not presented with an argument that it had 10 jurisdiction to consider such matters. The Tribunal notes that an employee has the right to be given by her employer, at or before the time at which any payment of wages or salary is made to them, a written itemised pay statement in terms of s8 of the ERA 1996. However no compensable remedy arises unless an Tribunal finds both that an itemised pay statement 15 had not been given to the employee and unnotified deductions have been from the pay of the employee during the period of 12 weeks immediately of the application for the reference, in which case the Tribunal may order the employer to pay the employee a sum not exceeding the aggregate of the unnotified dedications so made in terms of s12(4) of ERA 1996. There was 20 no evidence of unnotified deductions. In so far as the matter is before the Tribunal, it declines to order CNC to pay any sum in terms of s12(4) of ERA1996.[252]Mrs Stones’ employment with CNC terminated on Friday 16 25 November 2018 under CNC’s capability procedure.[253]Mrs. Stones presented her ET1 on 16 Friday November 2018.[254]The Tribunal notes that In term of s.207B(3) of the Employment 30 Rights Act 1996 provide that in working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted; s.207B(4) . If a time limit set by a relevant provision would (if not extended by this subsection expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. The Tribunal concludes that the earliest date a claim could be in time 20 July 2018 (presentation less 3 months + 1 day less time between Dated A&B).[255]CNC presented its ET3 on Tuesday 18 December 2018 Submissions[256]Both Mrs Stone and CNC representatives provided written 10 submissions and were given an opportunity to issue supplementary commentary in in light of their opponent’s submissions.[257]Submission for Mrs Stones[258]Mrs Stones set out her position in her written submissions. Mrs Stones 15 set out her claims should be accepted reflecting the factual history of the case.[259]Mrs Stones listed a number of cases, and while formal citations were not provided these are included in this summary: Gallop v Newport City 20 Council [2018] ICR 1492 (Gallop), McCubbin v Perth and Kinross Council (McCubbin) and O’Brien v Bolton St Catherine’s Academy [2017] IRLR 547 (O’Brien). While no specific commentary was provided the Tribunal has considered each of those decisions and addresses the issues below. It is observed that each case is available on the EAT website at 25 https://www.gov.uk/employment-appeal-tribunal-decisions (which also provides the link to older decisions).[260]In addition, Mrs Stone made reference to, but did not provide a copy of, a first instance tribunal decision Horler v South Wales Police Service. 30 All tribunal judgments since February 2017 are now available at: https://www.gov.uk/employment-tribunal-decisions, however that decision, which predates February 2017 is not available online. It is observed that the tribunal is required to maintain a register of all judgments and written reasons. The register must be accessible to the public. It has recently been moved online and judgments from February 2017 are available online.[261]The Tribunal, however, understand that the case reference is 5 1600591/2012 and that the decision was issued 5 August 2013.The decision was issued following a remedy hearing arising out of a judgment in favour of the claimant which was issued on 5 August 2012. The 2013 decision arose out of an issue between the parties in relation to two offers of reinstatement and whether or not their rejection amounted to a failure to mitigate. The 10 background to claim is understood to have included section 20 and s 15 of the Equality Act 2010. Such a decision is, in any event, not binding on this Tribunal. CNC provided what was indicated to be a summary of Horler which is repeated below. The Tribunal notes the reference and the analysis provided by CNC but does not consider that it is of assistance to the Tribunal. Submissions for CNC[262]For CNC it was submitted that as a result of period of maternity leave and several period of long term sickness, Mrs Stones was unable to undertake AFO duties after 31 May 2010 and that it proved impossible to get to the bottom of her various health conditions and she was 20 permanently restricted form undertaking AFO duties at a RAP on 22 December 2016.[263]It was submitted that as a result of a range of underlying health problems Mrs Stones was dismissed under the CNC’s Capability procedure 25 on 16 November 2018.[264]CNC accepted that Mrs Stones was disabled within the meaning of s6 of the EA 2010 at all material times, However and as the precise nature of the disability was never identified despite investigations, it is submitted 30 that CNC never knew nor could be reasonably expected to know that Mrs Stone was disabled.[265]CNC referred to IPC Media v Millar [2013] IRLR 707(Millar), Carphone Warehouse v Martin [2013] EqLR 481 (Martin), Donelien v Liberata [2018] IRLR 535 and Igen v Wong [2015] ICR 931 (Igen).[266]CNC responded, in supplementary commentary, to the cases 5 referred to by Mrs Stones. In relation to Horler v South Wales Police Service, CNC indicated this was a first instance decision and one which turned on its own facts. The claimant had arthritis in one of his knees, and so was disabled, but was otherwise fit to work.[267]The Tribunal, in that case had found that there were a number of suitable alternative jobs which the claimant could have done and, that the employer in that case had failed to make reasonable adjustments. In the present case, by contrast, it was argued that Mrs Stones was unfit to carry out any work at the CNC, and no suitable alternative jobs were identified. It 15 was set out for CNC it does not have the wide range of jobs which a regular policy force with as the South Wales Police would have.[268]In relation to Gallop it was intimated that, the factual background in that case the employer had relied upon an unreasoned opinion from 20 occupational health that an employee was not disabled. CNC intimated that that Gallop was considered in Donelien v Liberata UK Ltd [2018] Ltd IRLR 535 (Donelien) noting that Underhill LJ at the end of para 32 set out that the Gallop decision was “very far from saying that an employer may not attach great weight to the informed and reasoned opinion of an 25 occupational health consultant.”[269]For CNC it was intimated that CNC sought repeated and specific advice from Dr Policarp, Dr Moss and Dr Fernandez, who looked carefully at all the available medical evidence. It was suggested for CNC that in the 30 circumstances, it cannot be said to have had constructive knowledge that Mrs Stones was disabled, when no disability was ever clearly identified. In relation to McCubbin, for CNC it was intimated that the key question before the Scottish EAT was when the employer knew about an employee’s disability, a question which again turned on its own facts. The EAT had allowed the appeal on the basis that the ET had failed to turn its mind properly to the question of constructive knowledge: see Lady Stacey at [47]-[48]. In the present case, it is argued that CNC did not have constructive knowledge of Mrs Stones disability, because there was never 5 clear and consistent medical evidence to establish the nature of any disability.[270]Finally, and in relation to O’Brien the Court of Appeal held that the decision to dismiss a disabled employee was disproportionate and 10 accordingly in breach of section 15 of EA 2010, the key point in that case was that, by the time of the appeal hearing, there was evidence that the employee was fit to return to work: see Underhill LJ at [56]. In the present case, the position remained, on the medical evidence, that Mrs Stones was unfit for work. Moreover, it was submitted that in all circumstances CNC 15 could not reasonably have been aware of her disability and thus the section 15 EA 2010 duty did not apply. Issues in this Tribunal claim Further and Better Particulars/Scott Schedule. 20 The Law33. The Tribunal notes that in Uwhubetine v NHS Commissioning Board England UKEAT/0264/18 (23 April 2019, unreported) (Uwhubetine) Judge Auerbach commented at para 51 “whilst the phrase “Scott Schedule” and the use of what are called Scott Schedules has become extremely common 25 in ETs for some years now, and particularly in cases where there are multiple allegations of discrimination and/or whistle blowing detriment, while that is no doubt a very useful tool in the Tribunal's case management kit, there is no one size fits all of so-called Scott Schedules. It is a matter for the Judge giving directions to decide what Particulars should be directed, 30 and covering what topics or types of issue or types of information, which claims or responses (in multi-party cases), and so forth.”34. The term “Scott Schedule” is one which has been adopted from civil court procedure in English CPR Rules, and is understood to be embedded in certain types of court process including the Technology and Construction Court Guide for England. It is understood that it developed to assist judicial decision-making by summarising the issues in dispute in a given claim. It 5 typically consists of a schedule in which disputed issues are particularised and quantified so that the treatment of disputes can be carried out in a methodical and efficient manner. The term Scott Schedule as Judge Auerbach identifies above does not appear as a defined term within the 2013 Rules. 1035. The Tribunal has reminded itself that the EAT observed in Khetab v AGA Medical Ltd [2010] 10 WLUK 481 (Khetab) that the purpose of pleadings “…is so that the other party and the Employment Tribunal understand the case being advanced by each party so that his opponent has a proper 15 opportunity to meet it”, and further in Chandhok and Another v Tirkey [2015] IRLR 195 (Chandhok) Langstaff J, commented at para 18 the parties should set out the essence of their respective cases and “… a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party 20 to know in essence what the other is saying, so they can properly meet it”.[271]The EAT in Reuters Ltd v Cole UKEAT/0258/17 (Reuters), described the operation of labelling of existing claims. Issues in this Tribunal claim Further and Better Particulars/Scott Schedule. Discussion and Decision 36. There was no objection to the formulation of the complaints. The Tribunal is content that it was in accordance with the overriding objective to proceed on 30 the basis of the complaints as set out in the Scott Schedule and where relevant the Scott Schedule is referred to. The Scott Schedule is, in effect, an acceptable labelling of Mrs Stones complaints. Issues in this Tribunal claim Disability Discrimination, Qualification under s6 EA 2010. Discussion and Decision[272]CNC concede that Mrs Stones was disabled at all material time. As such matters which would otherwise be before the Tribunal in terms of s6 of the EA 2010 and Schedule 1 Determination of Disability, do not arise:a. whether the claimant had a physical or mental impairment at the relevant time; andb. did the impairment have a substantial adverse effect on the claimant's ability to carry out normal day-to-day activities; andc. if so, is that effect long term? In particular, when did it start and (has the impairment lasted for at least 12 months /is or was the impairment likely to last at least 12 months or the rest of the claimant's life, if less 15 than 12 months? do not arise; andd. Are any measures being taken to treat or correct the impairment? But for those measures would the impairment be likely to have a substantial adverse effect on the claimant's ability to carry out normal day-to-day activities?[273]The Tribunal considers that the concession made by CNC is, in light of the evidence appropriate and proceeds on the basis that Mrs Stones was disabled at all times relevant to the claims before the Tribunal. Issues in this Tribunal claim Time limits
The Law
[274]s.123(1) of the EA 2010, provides: 123 Time limits (1) … Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … 5 (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. 10 (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it”[275]s.123(1) of the EA 2010 is subject to s.207B(3) of the Employment Rights Act 1996 which provides that in working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted; s.207B(4). If a time limit set by 20 a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. Issues in this Tribunal claim Time limits /Just and Equitable Relevant Law[276]Tribunals have a broader discretion under discrimination law than they do in unfair dismissal cases as the Employment Rights Act 1996 provides that the time limit for presenting an unfair dismissal claim can only be 30 extended if the claimant shows that it was “not reasonably practicable” to present the claim in time.[277]In determining whether to exercise discretion and late claims the EAT’s reasoning in British Coal Corporation v Keeble [1997] IRLR 336 (Keeble) is helpful. In that case the EAT suggested that Employment Tribunals would be assisted by considering the factors listed in s.33(3) of the Limitation Act 1980 which in turn consolidated earlier Limitation Acts. Section 33(3) deals 5 with the exercise of discretion in civil courts and personal injury cases in England & Wales and requires the court to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, in particular:(a) the length of and reasons for the delay; and(b) the extent to which evidence which may adduced for either side is likely to be less cogent than if the action had been brought within the time allowed; and(c) the conduct of the party defending the action after the cause of action arose, including the extent (if any) to which he responded to 15 requests reasonably made by the party bringing the action for information or inspection for the purpose of ascertaining facts which were or might be relevant to the party bring the action’s cause of action; and(d) the duration of any disability of the party arising after the date of 20 the accrual of the cause of action; and(e) the promptness with which the party bringing the action acted once s/he knew of the facts giving rise to the cause of action; and(f) the steps, if any, taken by the party bringing the action to obtain appropriate professional once s/he knew of the possibility of taking 25 action.[278]The Limitation Act 1980 does not apply in Scotland, the equivalent legislation being the Prescription and Limitation Scotland Act 1973 (the 1973 Act). However, the 1973 Act does not offer an equivalent codified list 30 of factors to be considered, s19A simply stating: “19A Power of court to override time-limits etc. (1) Where a person would be entitled, but for any of the provisions of section 17, 18, 18A or 18B of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision.”[279]While it can be argued that just and equitable “escape clause” is 5 wider than that relating to unfair dismissal claims, the Court of Appeal in Robertson v Bexley Community Centre [2003] IRLR 434 (Robertson) stated that when Employment Tribunals are considering exercising this discretion: “There is no presumption that they should do so unless they can justify a failure to exercise the discretion. Quite the reverse, a Tribunal 10 cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time, so the exercise of the discretion is the exception rather than the rule”. Issues in this Tribunal claim Time limits/ Just and Equitable Discussion and Decision[280]The complaints, so far as relevantly, before the Tribunal are formulated by reference to the Equality Act 2010 (variously ss 13, 15, 18, 20, 21 and 26). It is asserted by CNC that some of the claims have been 20 presented out with the statutory limit. That is to say some claims were lodged out with 3 months less one day time limit (allowing for the operation of ACAS early conciliation).[281]The Tribunal has considered the heads of claim which are defined by 25 date within the Scott Schedule, taking them in date order for ease, rather than following the numbering within the Scott Schedule;a. Pre-Dismissal Claim (SctSch Claim 8): May 2012: the claimant’s claims of cancelled parental leave (unfavourable treatment because of maternity under section 18 EA 2010, direct sex discrimination under 30 section 13 EA 2010); andb. Pre-Dismissal Claim (SctSch Claim 9): May 2012: the claimant’s claims of Requirement to agree a payment plan in respect of overpaid maternity benefits (unfavourable treatment because of maternity under section 18 EA 2010, harassment under section 26 EA); andc. Pre-Dismissal Claim (SctSch Claim 10): December 2014: the claimant’s claims of Failure to offer training and shifts on return from maternity leave (unfavourable treatment because of maternity under 5 section 18 EA 2010); andd. Pre-Dismissal Claim (SctSch Claim 11): 2014: the claimant’s claims of Failure to consider request for flexible working properly on return from maternity leave (harassment under section 26 EA 2010); ande. Pre-Dismissal Claim (SctSch Claim 12): 2015: the claimant’s 10 assertion that there was a failure to conduct a health and safety investigation after Mrs Stones’ first grievance (the legal basis of which claim remains unclear); andf. Pre-Dismissal Claim (SctSch Claim 13): December 2015: the claimant’s claims of Removal from self-defence training preventing 15 Mrs Stones from returning to work (discrimination arising from disability under section 15 EA 2010, failure to make reasonable adjustments under sections 20 and 21 EA 2010); andg. Pre-Dismissal Claim (SctSch Claim 19): April 2016 onwards: the claimant’s claims of Failure to provide a copy of the sick pay policy and 20 failure to follow the sick pay policy (the legal basis of which claim remains unclear) do not succeed; andh. Pre-Dismissal Claim (SctSch Claim 14): April 2016: the claimant’s claims of being refused a career break, forcing Mrs Stones to take sick leave which triggered the capability procedure (discrimination arising 25 from disability under section 15 EA 2010);[282]The Tribunal considering what may be referred to as the Keeble factors, notes thata. Mrs Stones has not adduced evidence, which satisfies the Tribunal on the reasons for delay in presenting claims respect of any of those 30 listed in the immediately preceding paragraph a.to h above; andb. Further the Tribunal considers given the period of time of which has elapsed that evidence which may adduced for either side was, in fact, less cogent than if the action had been brought within the time allowed, including the Tribunal notes the RAP from Monday 1 December 2014, which was not available in this claim; andc. The Tribunal ascribes no criticism to CNC in respect of their conduct in the manner in which they have defended the action after the cause 5 of action arose; andd. The Tribunal does not consider that there has been any material failure on the part of CNC, to respond to requests reasonably made by Mrs Stones, for information or inspection for the purpose of ascertaining facts which were or might be relevant to the party bring 10 the action’s cause of action; ande. The Tribunal does not consider that that there has been material evidence in relation to the duration of the Mrs Stones disability after the date of accrual of those cause of action which had any impact upon Mrs Stones ability to pursue claims; andf. The Tribunal is, however, critical of the promptness with which Mrs Stones brought the actions once she knew of the facts giving rise to the cause of action of the matters listed in the immediately preceding paragraph.[283]The Tribunal concludes, in all the circumstances, that Mrs Stones made a conscious decision to not to raise proceedings within the limit provided within s123(1)(a) of EA 2010 following her withdrawal of the January 2015 Grievance on 4 May 2015 ; the February 2016 Medical Declaration on Tuesday 16 February 2016; and her appeal on Sunday 9 25 July 2017 against the outcome of the Stage 1 Capability Meeting.[284]The Tribunal is satisfied that it is not just and equitable to extend the time limit in respect of those claims. This Tribunal does not have jurisdiction to consider those claims and they do not succeed. Issues for Tribunal Time Limits/ Continuing Acts s123(1) and (3) of the EA 2010. Relevant Law[285]The Tribunal notes the EAT in Hale v Brighton & Sussex University Hospitals NHS Trust UKEAT/0342/16 (Hale) held that the various stages of a disciplinary procedure, which culminated in Mr Hale’s dismissal, were considered to constitute an act extending over a period rather than, in the 5 words of Mummery LJ, 'a succession of unconnected or isolated specific acts', each with its own time limit.[286]The facts of Hale were that Mr Hale, a hospital consultant, who was white British, was subjected to the hospital's disciplinary procedure following complaints of race discrimination and harassment being made against him 10 by junior doctors for whom he had responsibility, and who were of Asian origin. The NHS Trust (the respondents) instigated a formal investigation, which concluded that Mr Hale had a case to answer; this in turn led to a disciplinary hearing, which resulted in the complaints being upheld; and the outcome was that Mr Hale was summarily dismissed, and his subsequent 15 appeal turned down. Mr Hale brought proceedings for race discrimination, unfair dismissal and wrongful dismissal. The discrimination claim in that case was expressly directed at the whole disciplinary process from the setting up of the formal investigation through to the dismissal. Tribunal had not considered whether Mr Hale, as asserted in his claim, had been 20 discriminated against in relation to the overall procedure, but rather the Tribunal had only considered each stage separately. Significantly it found that the First Stage, being the decision to open a formal investigation, was discriminatory but held that it was a one-off act, which was out of time and there were no just and equitable reasons for extending time. It rejected the 25 allegations of discrimination in relation to the other stages.[287]The EAT in Hale, allowed the appeal. Choudhury J held that, while it was open to the tribunal, to subdivide issue of the overall procedure into three separate questions, it 'should not have lost sight of the issue as 30 formulated', which indicated that that complaint as formulated against the overall procedure was “about a continuing act commencing with a decision to instigate the process and ending with a dismissal' (para 38). He stated (at para 42): ''By taking the decision to instigate disciplinary procedures, it seems to me that the respondent created a state of affairs that would continue until the conclusion of the disciplinary process. This is not merely a one-off act with continuing consequences. That much is evident from the fact that once the process is initiated, the respondent would subject the claimant 5 to further steps under it from time to time.'' Issues for Tribunal Continuing Act (s123(1) and (3) of the EA 2010. Discussion and Decision[288]On the evidence adduced, the Tribunal is satisfied that each of the various complaints up to, and including Mrs Stone’s claims of being refused a career break in April 2016, which she asserts forced her to take sick leave which triggered the capability procedure (discrimination arising from disability under section 15 EA 2010) were discrete in the present case and 15 there was no inevitable or indeed sufficiently causatively link to amount to conduct extending over a period in terms of s123 of EA 2010. Issues in this Tribunal Disability Discrimination EA 2010 overview Relevant Case Law Overview[289]HHJ Richardson in Carranza v General Dynamics Information Technology Ltd [2015] IRLR 43 comments at para 32 to 33: ''The Equality Act 2010 now defines two forms of prohibited conduct which are unique to the protected characteristic of disability. The first is discrimination arising out of disability: section 15 of the Act. The second is the duty to make adjustments: sections 20–21 of the Act. The focus of these provisions is different. Section 15 is focused on making allowances for disability: unfavourable treatment because of something arising in consequence of disability is 30 prohibited conduct unless the treatment is a proportionate means of achieving a legitimate aim. Sections 20–21 are focused on affirmative action: if it is reasonable for the employer to have to do so, it will be required to take a step or steps to avoid substantial disadvantage. Until the coming into force of the Equality Act 2010 the duty to make reasonable adjustments tended to bear disproportionate weight in 5 discrimination law. There were, I think, two reasons for this. First, although there was provision for disability-related discrimination, the bar for justification was set quite low: see section 5(3) of the Disability Discrimination Act 1995 and Post Office v Jones [2001] ICR 805. Secondly, the decision of the House of Lords in Lewisham London Borough Council v 10 Malcolm (Equality and Human Rights Commission intervening) [2008] 1 AC 1399 greatly reduced the scope of disability-related discrimination. With the coming into force of the Equality Act 2010 these difficulties were swept away. Discrimination arising from disability is broadly defined and requires objective justification.'' Issues in Tribunal S136 (1) to (3) of EA 2010 (the burden of proof provisions)[290]The burden of proof provisions are set out in s.136(1)-(3) EA 2010. “(1) This section applies to any proceedings relating to a contravention of this 20 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 25 the provision. “[291]In Igen v Wong [2005] ICR 931 (Igen), to which CNC refers, the Court of Appeal provided the following guidance which, although it refers to the former Sex Discrimination Act 1975, it is considered to apply equally to the 30 EA 201: ‘(1) Pursuant to section 63A of the 1975 Act, it is for the Claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the Claimant which is unlawful by virtue of Part 2, or which, by virtue of section 41 or section 42 of the 1975 Act, is to be treated as having been committed against the Claimant. These are referred to below as "such facts". (2) If the Claimant does not prove such facts he or she will fail. (3) It is important to bear in mind in deciding whether the Claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but 10 merely based on the assumption that "he or she would not have fitted in". (4) In deciding whether the Claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. (5) It is important to note the word "could" in section 63A(2). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them. (6) In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts. (7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the 1975 25 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the 1975 Act. (8) Likewise, the Tribunal must decide whether any provision of any relevant code of practice is relevant and, if so, take it into account in determining such facts pursuant to section 56A(10) of the 1975 Act. This means that inferences 30 may also be drawn from any failure to comply with any relevant code of practice. (9) Where the Claimant has proved facts from which conclusions could be drawn that the employer has treated the Claimant less favourably on the ground of sex, then the burden of proof moves to the employer. (10) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive. (12) That requires a Tribunal to assess not merely whether the employer has 10 proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in 15 the possession of the Respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.’[292]More recently in Madarassy v Nomura International plc [2007] IRLR (Madarassy) Mummery LJ held at [57] that ‘could conclude’ [The EA 2010 uses the words ‘could decide’, but the meaning is the same] meant: ‘[…] that “a reasonable Tribunal could properly conclude” from all the evidence before it.’[293]However, a simple difference of treatment is not enough to shift the burden of proof, something more is required: Madarassy per Mummery LJ at para 56: ‘The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without 30 more, sufficient material from which a Tribunal ‘could conclude’ that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination.’[294]The Court of Appeal in Anya v University of Oxford [2001] ICR 847 (at paras 2, 9 and 11) (Anya) held that the Tribunal should consider the direct oral and documentary evidence available and what inferences may be drawn from all the primary facts. Those primary facts may include not only the acts 5 which form the subject matter of the complaint but also other acts alleged to constitute evidence pointing to a prohibited ground for the alleged discriminatory act or decision. The function of the Tribunal is twofold: first, to establish what the facts were on the various incidents alleged by the Claimant; and, secondly, to decide whether the Tribunal might legitimately 10 infer from all those facts, as well as from all the other circumstances of the case, that there was a prohibited ground for the acts of discrimination complained of. In order to give effect to the legislation, the Tribunal should consider indicators from a time before or after the particular decision which may demonstrate that an ostensibly fair-minded decision was, or equally was 15 not, affected by unlawful factors. Issues in this Tribunal claim Disability Discrimination EHRC Code of Practice The Statutory provisions[295]s15 (4) of Equality Act 2006 provides that, the EHRC 2011 Statutory Code of Practice of, shall be taken into account wherever it appears relevant to the Tribunal to do so.[296]s13 of EA 2010 provides that “13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a 30 legitimate aim.(3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.(4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is 5 because it is B who is married or a civil partner.(5) If the protected characteristic is race, less favourable treatment includes segregating B from others.(6) If the protected characteristic is sex— (a)less favourable treatment of a woman includes less favourable treatment 10 of her because she is breast-feeding; (b)in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.(7) Subsection (6)(a) does not apply for the purposes of Part 5 (work).(8) This section is subject to sections 17(6) and 18(7). S13 EA 2010 Relevant case law[297]The Tribunal notes that in Burnett v West Birmingham Health Authority [1994] IRLR 7 (Burnett) the EAT identified that what amounts to less favourable treatment is an objective one. It is the treatment that must be 20 different and less favourable Balgobin v Tower Hamlets London Borough Council [1987] IRLR 401(Balgobin). Further in Watts v High Quality Lifestyles [2006] IRLR 850 (Watts) the EAT identified that the Tribunal had failed to consider whether the employee had in fact been treated less favourably than an equivalent hypothetical comparator, who should have 25 some attribute which must carry the same risk. Watts was subsequently Cited with approval in the Court of Appeal in Aitken v Commissioners of the Police of the Metropolis [2012] ICR 78 (Aitken). Issues in this Tribunal claim s15 EA 2010 Claims[298]For the remaining claims Tribunal considers that it is useful, having regard to the legal principles, when considering those claims, to group where there is a single asserted statutory basis, by the relevant section of the EA 2010, the claims asserted under s15 EA 2010 are;a. Pre-Dismissal Claim (SctSch Claim 16): the claimant’s claims that Mrs Stones was ignored for long periods while on sick leave and not kept up to date with developments (discrimination arising from disability under section 15 EA 2010); andb. Dismissal-Related Claim (SctSch Claim 2): the claimant’s claims of 10 Dismissal arising from disability (section 15 EA 2010). Issues for Tribunal Disability Discrimination, s15 EA 2010 The Statutory Provisions[299]s15 of the EA 2010 provides: “15 Discrimination arising from disability(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.” The Law Issues in this Tribunal claim Disability Discrimination EA 2010 s15 (1)(a) Relevant Case Law
The Law
[300]For CNC reference was made to IPC Media Ltd v Millar [2013] IRLR 705 (Millar) at the comments of Underhill J at para 26 to 27, those comments reflected the submissions on the evidence for IPC. It is noted that in this regard that that it was identified in Millar that there had been nothing, in the contemporary documents, evidencing any awareness on the 5 part of the individual, who had carried out the redundancy consultation of Ms Millar’s history of absences.[301]The Tribunal considers that Millar in essence identifies that no prima facie case of discrimination can arise sufficient to pass the burden of proof 10 to the respondent unless it can be shown that the putative discriminator was aware of the thing arising from disability (absences), this analysis is consistent with the EAT decision in Pnaiser v NHS England [2016] IRLR 170 (Pnaiser) and the Court of Appeal decision in City of York Council v Grosset [2018] IRLR 746 (Grosset).[302]In Pnaiser the EAT notes from para 69: “ “69 It is common ground that while the statute does not require knowledge (whether actual or constructive) of the precise diagnosis of the disability in question, it does require knowledge (actual or constructive) of the facts 20 constituting the disability. In other words, that the individual is suffering from a physical or mental impairment which has substantial and long-term adverse effects on his or her ability to carry out normal day-to-day activities… 72. The question what a respondent knew or should reasonably have been expected to know is one for the factual assessment of a tribunal. Here, the 25 tribunal made findings about the reference given” which referred to 2 surgical procedures which were the cause of 2 absences during a 12-month period in 2010. There was also a reference to a significant absence… “If linked, these facts could lead to the conclusion that the claimant had a physical condition that had substantial, long term adverse effects on her day-to-day 30 activities because it required two surgical interventions and caused her to have significant absences from work (consistent with not being able to perform normal day-to-day activities) over a period longer than 12 months. The tribunal found that Prof Rashid was a doctor with a high level of awareness of medical conditions. If he had asked Ms Tennant about the absences, and whether there was a link with the earlier surgery (as the tribunal found he should have done), it is implicit on the tribunal's findings that Ms Tennant (who knew that the claimant's significant absence was 5 disability related) would have told him that the claimant was disabled.”[303]In Grosset it was confirmed that Section 15(1)(a) EA 2010 did not require that the respondent should be shown to have been aware, when choosing to subject a disabled person to unfavourable treatment, that the 10 relevant “something” that provided him with his reason for treating the claimant unfavourably had arisen in consequence of the claimant’s disability.[304]Further in Gallop v Newport City Council [2014] IRLR 211, CA (Gallop) it was intimated that an employer cannot simply rubber stamp a 15 health practitioner’s opinion. A bare, unreasoned assertion from an Occupational Health adviser that an employee was not disabled did not mean that there was no constructive knowledge. The knowledge required was of the facts constituting disability, it was considered that the employer (the respondent), need not also realise that those particular facts meet the 20 legal definition of disability.[305]By contrast the Court of Appeal intimated that in Donelien v Liberata UK Ltd [2018] IRLR 535 (Donelien), to which CNC had referred, the employer was entitled to attach great weight to the informed and reasoned 25 opinion of an OH expert.[306]Grosset it was indicated that Section 15 of EA 2010 requires an investigation of two distinct causative issues:a. Did A treat B unfavourably because of an identified “something”; andb. Did that something arise in consequence of B’s disability. I). The first issue involves an examination of the putative discriminator’s state of mind – did the unfavourable treatment occur because of CNC’s attitude to the relevant “something”. II). The second issue is an objective matter, whether there is a causal link between B’s disability and the relevant “something”? There is no further requirement that CNC must be shown to have been aware, when choosing to subject B to the unfavourable treatment in question, that the relevant “something” arose in consequence of B’s disability. Liability can be established under s.15(1) even though the respondent does not know that the “something” arose from the claimant’s 10 disability. The test of justification under s.15(1)(b) is objective, the ET must make its own assessment.[307]Further the Tribunal notes that he Court of Appeal in Dunn v 15 Secretary of State for Justice [2019] IRLR 298, CA(Dunn), draws analogy with s.13 direct discrimination, intimating that the Claimant must establish, with aid of s.136 of EA 2010 if required, that the disability related factor operated on the mind of the putative discriminator as part of conscious or subconscious ‘mental processes.[308]The Tribunal, notes the EAT decision in Shiekholeslami v University of Edinburgh [2018] IRLR 1090, EAT(Shiekholeslami) the critical question was whether, on the objective facts, Ms Shiekholeslami’ s refusal to return arose “in consequence of” (rather than being caused by) 25 her disability.[309]At paragraph 64 of Seldon v Clarkson Wright & Jakes [2012] ICR 716, SC, Lady Hale suggests that where it is justified to have a general rule, then the existence of that rule will usually justify the treatment which 30 results from it. However, a different approach will normally be taken in absence management cases. The ET is concerned not merely with the scheme itself, but with a series of discretionary decisions taken under it. That can be contrasted with Seldon in which the treatment was mandated by the policy concerned. In such a case justification for the general rule will normally justify its application. They key case confirming this approach is Buchanan v Commissioner of Police of the Metropolis [2017] ICR 184 (Buchanan), EAT. Issues in this Tribunal claim Disability Discrimination EA 2010 s15 (1)(a) Discussion and decision[310]The Tribunal, concludes that, there is no basis for concluding that 10 CNC relied upon an unreasoned assertion from an Occupational Health. In so far as CNC relied upon opinions CNC were entitled to attach great weight to the informed and reasoned opinions including from Dr Policarp, Dr Moss and Dr Fernandez. The Tribunal is not critical of CNC’s Occupational Health advisers includer Karen Towers. However, on the 15 question of whether CNC, as set out in Paisner had actual or constructive knowledge of the facts constituting the disability, or other words, that Mrs Stones was suffering from a physical or mental impairment which has substantial and long-term adverse effects on her ability to carry out normal day-to-day activities, the Tribunal is satisfied that CNC had the requisite 20 knowledge by Thursday 17 December 2015.[311]The Tribunal, thus following the approach in Grosset considers that Section 15 of EA 2010 requires an investigation of two distinct causative issues: 25a. Did A treat B unfavourably because of an identified “something”; andb. Did that something arise in consequence of B’s disability. I) The first issue involves an examination of the putative discriminator’s state of mind – did the unfavourable treatment occur because of CNC’s attitude to the relevant “something”. II) The second issue is an objective matter, whether there is a causal link between B’s disability and the relevant “something”? The Tribunal considers that there is no further requirement that CNC must be shown to have been aware, when choosing to subject B to the unfavourable treatment in question, that the relevant “something” arose in consequence of B’s disability, further liability can be established under s.15(1) even though the respondent does not know that the “something” 5 arose from the claimant’s disability, and whether on the objective facts, as set out Shiekholeslami, that something arose “in consequence of” (rather than being caused by) her disability. The test of justification under s.15(1)(b) is objective, the ET must make its own assessment.[312]In respect of the claims before the Tribunal and set out in the findings of fact above where the Tribunal has considered each claim where it is suggested that CNC treated Mrs Stones unfavourably because of an identified something and where the Tribunal concludes that Mrs Stone was treated unfavourably because of an identified something arise in 15 consequence of Mrs Stones disability, CNC’s actions were justified in terms of s15(1) (b) of the EA 2010. Thus, taking the specific s15 EA 2010 claims as followsa. Pre-Dismissal Claim (SctSch Claim 16): the claimant’s claims that Mrs Stones was ignored for long periods while on sick 20 leave and not kept up to date with developments (discrimination arising from disability under section 15 EA 2010), the Tribunal does not accept that Mrs Stones was ignored for long periods while on sick leave and not kept up to date with developments. The Tribunal does not accept that, 25 taking matters as a whole, that Mrs Stones was ignored for long periods and kept up to date with developments. There was frequent contact made with Mrs Stones both by telephone and email during each year. There was no evidence adduced by Mrs Stones from which the Tribunal can accept that she 30 was ignored, nor that she was not reasonably kept up to date with matters. It is the Tribunal assessment that Mrs Stones was treated not unfavourably, she was not treated unfavourably because of something arise in consequence of Mrs Stones disability. There was no breach of s15 of the EA 2010.b. Dismissal-Related Claim (SctSch Claim 2): the claimant’s 5 claims of Dismissal arising from disability (section 15 EA 2010), it is the Tribunal assessment that Mrs Stones was treated unfavourably because of an identified something and where the Tribunal concludes that Mrs Stone was treated unfavourably because of an identified something arise in 10 consequence of Mrs Stones disability, CNC’s actions were justified in terms of s15(1) (b) of the EA 2010.[313]It is the Tribunal’s decision that Scott Schedule Claims 16 and 2 do not succeed. Issues in this Tribunal claim s18 EA 2010 Claims[314]For the remaining claims Tribunal considers that it is useful, having regard to the legal principles, when considering those claims, to group where 20 there is a single asserted statutory basis, by the relevant section of the EA 2010, and thus, taking the claims solely asserted under s18 EA 2010:a. Pre-Dismissal Claim (SctSch Claim 21): the claimant’s claims of Information being withheld on job opportunities (unfavourable treatment because of maternity under section 18 EA 2010); andb. Dismissal-Related Claim (SctSch Claim 3): the claimant’s claims of Dismissal for capability reasons when only physical problems were pregnancy related (unfavourable treatment because of maternity under section 18 EA 2010); andc. Dismissal-Related Claim (SctSch Claim 4): the claimant’s claims of a 30 flawed and rushed capability procedure aimed at dismissing Mrs Stones prior to the birth of her child (unfavourable treatment because of maternity under section 18 EA 2010); andd. Dismissal-Related Claim (SctSch Claim 5): the claimant’s claims of Maternity-related absences treated as sick leave, leading to dismissal (unfavourable treatment because of maternity under section 18 EA 2010).e. Dismissal Related Claim (SctSch Claim 15); the claims that she was overpaid whilst on sick pay and then hassled to agree a repayment plan 5 (unfavourable treatment because of maternity under section 18 EA 2010)[315]Section 18 of EA 2010 (pregnancy & maternity discrimination) provides “18 Pregnancy and maternity discrimination: work cases(1) This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity.(2) A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably— (a) because of the pregnancy, or (b) because of illness suffered by her as a result of it.(3) A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave.(4) A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has 20 exercised or sought to exercise, the right to ordinary or additional maternity leave.(5) For the purposes of subsection (2), if the treatment of a woman is in implementation of a decision taken in the protected period, the treatment is to be regarded as occurring in that period (even if the implementation 25 is not until after the end of that period).(6) The protected period, in relation to a woman's pregnancy, begins when the pregnancy begins, and ends— (a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she 30 returns to work after the pregnancy; (b) if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy.(7) Section 13, so far as relating to sex discrimination, does not apply to treatment of a woman in so far as— (a) it is in the protected period in relation to her and is for a reason mentioned in paragraph (a) or (b) of subsection (2), or (b) it is for a reason mentioned in subsection (3) or (4).” Section 18 of EA 2010 (pregnancy & maternity discrimination) Relevant case law[316]The provisions of s18 EA 2010 expressly sets out that it prohibits discrimination because of compulsory maternity leave or because the 10 employee exercises or seeks to exercise her right to take ordinary or additional maternity leave. S18 (2) provides protection against unfavourable treatment because of a pregnancy related illness[317]In order for a discrimination claim to succeed under s.18 EA 2010, the 15 unfavourable treatment must be ‘because of’ the employee’s pregnancy or maternity leave. The meaning of this expression was considered in this context in Indigo Design Build and Management Ltd. V Martinez (UKEAT/0020/14/DM). HHJ Richardson referred to Onu v Akwiwu [2014] ICR 571 (Onu), in which Lord Justice Underhill said: ‘What constitutes the “grounds” for a directly discriminatory act will vary according to the type of case. The paradigm is perhaps the case where the discriminator applies a rule or criterion which is inherently based on the protected characteristic. In such a case the criterion itself, or its application, plainly constitutes the grounds of the act complained of, and there is no need 25 to look further. But there are other cases which do not involve the application of any inherently discriminatory criterion and where the discriminatory grounds consist in the fact that the protected characteristic has operated on the discriminator’s mind… so as to lead him to act in the way complained of. It does not have to be the only such factor: it is enough if it has had “a 30 significant influence”. Nor need it be conscious: a subconscious motivation, if proved, will suffice.’[318]Where a discrimination claim is based upon multiple allegations, it necessary for the Tribunal to consider each allegation individually and also to adopt a holistic approach to consider the explanations given by the Respondent. The Tribunal should avoid a fragmented approach which risks diminishing the eloquence of the cumulative effect of primary facts and the 5 inferences which may be drawn, for example see X v Y [2013] UKEAT/0322/12 (X). It must consider the totality of the evidence and decide the reason why the Claimant received any less favourable treatment. Section 18 of EA 2010 (pregnancy & maternity discrimination) Discussion and Decision[319]In relation to the complaints asserteda. Pre-Dismissal Claim (SctSch Claim 21): the claimant’s claims of Information being withheld on job opportunities (unfavourable treatment because of maternity under section 18 EA 2010). It is not accepted on 15 the evidence adduced that CNC withheld job opportunities. Nor is it accepted that CNC withheld job opportunities because of the periods of pregnancy or of illness suffered as a result of it; nor because the claimant was on compulsory maternity leave; because she was exercising or seeking to exercise, or had exercised or sought to exercise, the right to 20 ordinary or additional maternity leave. In so far as matters are before the Tribunal it is not accepted that any asserted unfavourable treatment was because of any of the pregnancies or of illness suffered as a result of it; nor because the claimant was on compulsory maternity leave; nor because she was exercising or seeking to exercise, or had exercised or 25 sought to exercise, the right to ordinary or additional maternity leave.b. Dismissal-Related Claim (SctSch Claim 3): the claimant’s claims of Dismissal for capability reasons when only physical problems were pregnancy related (unfavourable treatment because of maternity under 30 section 18 EA 2010). It is not accepted on the evidence adduced that CNC withheld job opportunities. Nor is it accepted that CNC withheld job opportunities because of the periods of pregnancy or of illness suffered as a result of it; nor because the claimant was on compulsory maternity leave; because she was exercising or seeking to exercise, or had exercised or sought to exercise, the right to ordinary or additional maternity leave. In so far as matters are before the Tribunal it is not accepted that any asserted unfavourable treatment was because of any 5 of the pregnancies or of illness suffered as a result of it; nor because the claimant was on compulsory maternity leave; nor because she was exercising or seeking to exercise, or had exercised or sought to exercise, the right to ordinary or additional maternity leave.c. Dismissal-Related Claim (SctSch Claim 4): the claimant’s claims of a flawed and rushed capability procedure aimed at dismissing Mrs Stones prior to the birth of her child (unfavourable treatment because of maternity under section 18 EA 2010); and It is not accepted on the evidence adduced that CNC engaged in a flawed and rushed capability procedure 15 aimed at dismissing Mrs Stones prior to the birth of her child. Nor is it accepted that CNC operated a flawed and rushed capability procedure aimed at dismissing Mrs Stones prior to the birth of her child because of the periods of pregnancy or of illness suffered as a result of it; nor because the claimant was on compulsory maternity leave; because she 20 was exercising or seeking to exercise, or had exercised or sought to exercise, the right to ordinary or additional maternity leave. In so far as matters are before the Tribunal it is not accepted that any asserted unfavourable treatment was because of any of the pregnancies or of illness suffered as a result of it; nor because the claimant was on 25 compulsory maternity leave; nor because she was exercising or seeking to exercise, or had exercised or sought to exercise, the right to ordinary or additional maternity leave.d. Dismissal-Related Claim (SctSch Claim 5): the claimant’s claims of 30 Maternity-related absences treated as sick leave, leading to dismissal (unfavourable treatment because of maternity under section 18 EA 2010). It is not accepted on the evidence adduced, that CNC treated Maternity- related absences as sick leave leading to dismissal. Nor is it accepted that CNC treated Maternity- related absences as sick leave leading to dismissal because of the periods of pregnancy or of illness suffered as a result of it; nor because the claimant was on compulsory maternity leave; because she was exercising or seeking to exercise, or had exercised or sought to exercise, the right to ordinary or additional 5 maternity leave. In so far as matters are before the Tribunal it is not accepted that any asserted unfavourable treatment was because of any of the pregnancies or of illness suffered as a result of it; nor because the claimant was on compulsory maternity leave; nor because she was exercising or seeking to exercise, or had exercised or sought to exercise, 10 the right to ordinary or additional maternity leave.e. Dismissal-Related Claim (SctSch Claim 15): the claimant’s claims that she was overpaid while on sick leave and then hassled to agree a repayment plan (unfavourable treatment because of maternity under section 18 EA 2010). While CNC accept that there was an overpayment 15 it is not accepted on the evidence adduced, that there was a breach of s18 of EA 2010. It is not accepted that the overpayment or the request to repay were because of the periods of pregnancy or of illness suffered as a result of it; nor because the claimant was on compulsory maternity leave; because she was exercising or seeking to exercise, or had 20 exercised or sought to exercise, the right to ordinary or additional maternity leave. In so far as matters are before the Tribunal it is not accepted that any asserted unfavourable treatment was because of any of the pregnancies or of illness suffered as a result of it; nor because the claimant was on compulsory maternity leave; nor because she was 25 exercising or seeking to exercise, or had exercised or sought to exercise, the right to ordinary or additional maternity leave.[320]There was no evidence to suggest that the Claimant was treated less favourably than other employees who had not taken maternity leave in the 30 brief period that she was available to attend courses. The burden of proof does not shift to the Respondent.[321]All these head of claims are not well founded and are therefore dismissed. Mrs Stones asserted claims of maternity discrimination are therefore dismissed. It is the Tribunal’s decision that Scott Schedule Claims 21, 3, 4 and 5 do not succeed. Issues in this Tribunal claim s20 and 21 EA 2010 EA 2010 Claims (reasonable adjustments (for disability))[322]For the remaining claims Tribunal considers that it is useful, having regard to the legal principles, when considering those claims, to group where there is a single asserted statutory basis, by the relevant section of the EA 10 2010, and thus taking the claims asserted under ss20 and 21 EA 2010 a. Dismissal-Related Claim (SctSch Claim 1): the claimant’s claims of Failure to offer suitable alternative employment, failure to offer a phased return to work and/or additional breaks and refusal to consider a return to work in 2018 when Mrs Stones’ health had improved (failure to make 15 reasonable adjustments under sections 20 and 21 EA 2010); and f. Pre-Dismissal Claim (SctSch Claim 17): the claimant’s claims of Failure to provide funding for treatment of Mrs Stones’ medical conditions (failure to make reasonable adjustments under section 20 and 21 EA 2010); and Disability Discrimination s20 (and s21) The Statutory Provisions[323]s20 of the EA 2010 provides Adjustments for disabled persons 20. Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(4) The second requirement is a requirement, where a physical feature 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.(5) The third requirement is a requirement, where a disabled person 10 would, but for the provision of an auxiliary aid, be put 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 provide the auxiliary aid.(6) Where the first or third requirement relates to the provision of 15 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 20 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.(8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section. 25(9) In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to (a) removing the physical feature in question, (b) altering it, or (c) providing a reasonable means of avoiding it.(10) A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to (a) a feature arising from the design or construction of a building, (b) a feature of an approach to, exit from or access to a building, (c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or (d) any other physical element or quality.(11) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service.(12) A reference in this section or an applicable Schedule to chattels is to be read, in relation to Scotland, as a reference to moveable property.(13) The applicable Schedule is, in relation to the Part of this Act specified 15 in the first column of the Table, the Schedule specified in the second column.[324]s21 of the EA 2010 provides: s. 21 Failure to comply with duty(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise. S20 and 21 of EA 2010 Relevant case law[325]The tribunal notes the EAT’s decision in Environment Agency v Rowan [2008] IRLR 20 (Rowan) and Secretary of State for Work and Pensions v Higgins [2014] ICR 341 (Higgins) which confirms and updates guidance for EA 2010, and which indicates that that the Tribunal should identify and then make clear reasoned findings on:(1) any relevant PCP(2) the identity of non-disabled comparators (where appropriate)(3) the nature and extent of any substantial disadvantage suffered by the claimant(4) any step (or steps) which it would have been reasonable for the 15 employer to take.[326]The Tribunal has had regard to the Court of Appeal decision in Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 (Griffiths) which identifies the need for care when framing a PCP. The 20 context in Griffiths was absence and the application of absence management policies. The correct PCP was not the particular absence policy itself, but rather the underlying requirement, reflected in the policy, to “maintain a certain level of attendance at work so as to avoid disciplinary sanctions”.[327]Further the Tribunal notes that the EAT in General Dynamics Information Technology Ltd v Carranza [2015] ICR 169, EAT (Carranza) identifies that it is unsatisfactory to define a PCP in terms of a procedure which is designed, at least in part, to alleviate the disadvantages of 30 disability (e.g. a sickness management procedure), rather the appropriate approach would be to identify the feature of the procedure which causes the disadvantage. In Carranza the ET had correctly identified the PCP as the requirement for consistent attendance.[328]The Tribunal has had regard to the EAT’s decision in Nottingham City Transport Ltd v Harvey [2013] EqLR 4, EAT (Harvey) which 5 identifies that here must be a causative link between the PCP and the substantial disadvantage so identified. The substantial disadvantage must “arise out of” the PCP. It is not sufficient, merely to identify that an employee has been disadvantaged in the sense of badly treated, and to conclude that if he had not been disabled, he would not have suffered. That 10 would be to leave out of account the requirement to identify a relevant PCP.[329]The Tribunal notes that the content of the former s.18B DDA1995 is now largely replicated by paragraph 6.23 onwards of EHRC Code of Practice:• Extent to which taking the step would prevent the effect in relation to which the duty is imposed• Extent to which it is practicable for the employer to take the step• The financial and other costs which would be incurred by the employer in taking the step and the extent to which it would disrupt 20 any of his activities• The extent of the employer’s financial and other resources• The availability to the employer of financial or other assistance with respect to taking the step• The nature of the employer’s activities and the size of his 25 undertaking.[330]The Court of Appeal in Griffiths set out “So far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding 30 that success is not guaranteed: the uncertainty is one of the factors to weigh up when assessing the question of reasonableness.” (Elias LJ at paragraph 29)[331]The Tribunal considers that CNC were not under an obligation to place Mrs Stones into a role which there was no evidence that she could perform, reference is made to Wade v Sheffield Hallam University [2013] EqLR 951, EAT (Wade). In Wade the claimant had been assessed as ‘not 5 appointable’ and failed to meet the majority of 8 ‘essential’ criteria for the role. The EAT held that appointment would go beyond adjusting an essential requirement of the role. In any event the evidence as to Mrs Stones prognosis was such it would not have been reasonable to appoint Mrs Stones to any role. No medical evidence was provided to the Tribunal 10 that Mrs Stones lack of prognosis up to and including the date of dismissal had been resolved by the time of the Final Hearing.[332]While reference was made to Carphone Warehouse Ltd v Martin [2013] EqLR 481 (Martin), it is noted that the in that case the EAT was 15 considering a failure on the part of an employer to operate within it’s own time limits and observed that “ incompetence or a woeful lack of application, or a failure to stick to(the employers) won time limits, cannot, in our view, be properly characterised as a “provision, criterion or practice applied” by an employer.”[333]Further and again with reference to Griffiths it is noted that there was no reason in principle why absences relating to disability could not be discounted in the context of determining whether to dismiss or otherwise manage absenteeism. There was nothing unreasonable in the employer 25 being entitled to have regard to the whole of the employee’s absence record (and not just disability related absence) when making that decision. S20 and 21 of EA 2010 Discussion and decision[334]In relation to the claims solely under ss 20 and s21;a. Pre-Dismissal Claim (SctSch Claim 17): the claimant’s claims of Failure to provide funding for treatment of Mrs Stones’ medical conditions (failure to make reasonable adjustments under section 20 and 21 EA 2010) it is not factually accepted that there was a failure to provide funding for treatment of Mrs Stones medical conditions. CNC took steps to identify to Mrs Stones that they may consider funding of medical investigations in respect of employees who were not on a career break. CNC however gave no undertaking that in the 5 event that Mrs Stone elected no to take a career break they would provide funding for treatment. In so far as this head of claim is focussed on an asserted failure on the part of CNC to provide funding for medical investigations, it is not accepted that CNC were under any obligation to fund further medical investigations. The 10 Tribunal does not accept that the CNC were under obligation to provide funding for medical investigations up to a defined budget. In so far as there was a practice, it was that CNC relied upon their appointed medical advisers including Dr Moss, Dr Policarp and Dr Fernandez in considering whether further medical investigations 15 were merited, the Tribunal concludes that CNC were entitled to do so. No material evidence was adduced that there were further medical investigations as at the date dismissal or appeal which would have resolved the issue of the uncertain prognosis in respect of Mrs Stones. The Tribunal notes that no subsequent medical evidence 20 was provided to the Tribunal by Mrs Stones at the Final Hearing. There are no non-disabled comparators. Mrs Stones did not suffer any substantial disadvantage in terms of s20 and s21 of EA. There were no steps which it would have been reasonable for CNC to take having regard to the EHRC Code of Practice; andb. Dismissal-Related Claim (SctSch Claim 1): the claimant’s claims of failure to offer suitable alternative employment, failure to offer a phased return to work and/or additional breaks and refusal to consider a return to work in 2018 when Mrs Stones’ health had improved (failure to make reasonable adjustments under sections 20 30 and 21 EA 2010). Mrs Stones asserted failures, on the part of CNC to offer suitable alternative employment, failure to offer a phased return to work and/or additional breaks and refusal to consider a return to work in 2018 when it is suggested as part of this asserted claim Mrs Stones’ health had improved, are on the basis of the evidence adduced not accepted. There was no evidence presented to the Tribunal, that it could conclude that the prognosis in relation to Mrs Stones health had improved in or around 2018. In so far as CNC 5 operated a PCP it was a practice to establish what the relevant prognosis was in order to avoid the risk of harming its employees and or otherwise causing further ill health absences. The Tribunal accepts the evidence of Dr Fernandez, who while advising the relevant pension authority that it could not be said that Mrs Stones 10 condition could be said to meet the pension authority criteria, offered his clinical judgment to CNC that there was no clear prognosis and that in light of the continuing uncertainty, notwithstanding diagnosis of urticaria and IBS, of the underlying reasons for ill health and future prognosis there was no requirement on the part of CNC to offer 15 alternative employment, a return to work (whether phased or otherwise), or indeed additional breaks in 2018. The Tribunal concludes that on the facts and in the absence of a clear prognosis there was no suitable alternative employment, nor was a phased return to any work with CNC in 2018 appropriate against the clinical 20 advice of CNC’s medical advisers including Dr Fernandez. There are no non-disabled comparators. Mrs Stones did not suffer any substantial disadvantage in terms of s20 and s21 of EA. There were no steps which it would have been reasonable for CNC to take having regard to the EHRC Code of Practice.[335]It is the Tribunal’s decision that Scott Schedule claims 17 and 1 do not succeed. Issues in this Tribunal claim S26 Claims (Harassment)[336]For the remaining claims Tribunal considers that it is useful, having regard to the legal principles, when considering those claims, to group where there is a single asserted statutory basis, by the relevant section of the EA 2010, and thus taking the claims asserted under s26 EA 2010; anda. Dismissal-Related Claim (SctSch Claim 6): the claimant’s claims of errors in final termination payments (harassment under section 26 EA 2010); andb. Dismissal-Related Claim (SctSch Claim 7): the claimant’s claims of offer of pay in lieu of notice rather than termination of employment on expiry of notice (asserted as amounting to harassment under section 26 EA 2010). Issues in this Tribunal claim S26 Claims (Harassment) Statutory provisions[337]S 26 of the EA 2010 provides: “26 Harassment (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 20 offensive environment for B. (2)A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b). (3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (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—• age;• disability;• gender reassignment;• race;• religion or belief;• sex;• sexual orientation.” Issues in this Tribunal claim S26 Claims (Harassment) Relevant case law[338]The Court of Appeal in Rev Canon Pemberton v Right Rev Inwood [2018] IRLR 542 at para 88 sets out the relevant approach. “In order to decide whether any conduct falling within sub-paragraph (1)(a) 20 has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective 25 question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was 30 not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.” Issues in this Tribunal claim S26 Claims (Harassment) Discussion and decision[339]In relation to thea. Dismissal-Related Claim (SctSch Claim 6): the claimant’s claims of errors in final termination payments (harassment under section 26 EA 2010), the Tribunal notes that there were initial errors in CNC’s calculation of final termination payments. It is the Tribunal’s assessment that, in all the circumstances, it was not reasonable for 10 that conduct (the errors and the communication of same to Mrs Stones) to be regarded as violating the claimant's dignity or creating an adverse environment for Mrs. Stones. Those errors are not found to have done so; andb. Dismissal-Related Claim (SctSch Claim 7): the claimant’s claims of 15 offer of pay in lieu of notice rather than termination of employment on expiry of notice (asserted as amounting to harassment under section 26 EA 2010). It is the Tribunal’s assessment that, in all the circumstances, it was not reasonable for that conduct (the offer to pay in lieu of notice) to be regarded as violating the claimant's dignity or 20 creating an adverse environment for Mrs. Stones. The offer to pay in lieu of notice are not found to have done so.[340]It is the Tribunal’s decision that Scott Schedule Claims 6 and 7 do not succeed. Issues in this Tribunal claim Claims relying upon multiple provisions under the EA 2010 Discussion and decision[341]For the remaining claims before the Tribunal which are asserted in 30 terms of the EA 2010, the Tribunal has already set out the statutory provisions and relevant and case law fora. Pre-Dismissal Claim (SctSch Claim 20): the claimant’s claims of being requested to repay overpaid sick pay whilst on sick leave and with no earnings (harassment under section 26 EA 2010, failure to make reasonable adjustments under section 20 and 21 EA 2010). It is the Tribunal’s assessment that, in all the circumstances, it was 5 not reasonable for that conduct (of being requested to repay overpaid sick pay whilst on sick leave and while not in receipt of pay) to be regarded as violating the claimant's dignity or creating an adverse environment for Mrs. Stones. Those errors are not found to have done so; and the Tribunal is satisfied that in so far as there was 10 practice of requesting repayment of monies which are overpaid, having regard to the EHRC Code of Practice, it would not be practicable not to take the step of requesting repayment against the financial and other costs which would be incurred by the employer in taking the step and the extent to which it would disrupt any of CNC’s 15 activities. The Tribunal in any event concludes that CNC carried out such reasonable adjustments as were open to in in securing an extension to their sick pay arrangements of 3 months. In all the circumstances Mrs Stones did not suffer any substantial disadvantage in terms of s20 and s21 of EA. There were no further 20 steps which it would have been reasonable for CNC to take having regard to the EHRC Code of Practice;b. Pre-Dismissal Claim (SctSch Claim 22): the claimant’s claims of Discriminatory language used about Mrs Stones in email communications (unfavourable treatment because of maternity under 25 section 18 EA 2010, direct sex discrimination under section 13 EA 2010). The Tribunal does not accept, on the evidence, that there was discriminatory language used having regard to s13 of EA 2010. The Tribunal does not accept that the term non deployable was an act of direct discrimination, nor was CI Brotherston’s email of 28 March 30 2016 an act of direct discrimination in its tone or use of language. Nor was CI Brotherston’s email of 13 April 2016 identifying that he had placed a pause in career break process an act of direct discrimination, rather it was a responsible approach against the implications for both CNC and Mrs Stones, including the effect of depriving her from possible further medical investigation and income from CNC. Nor again was the use of an Emoji within Clair Lewis’s email of Friday 20 July 2018. Nor was the email from Lorraine 5 Holloway of 24 July 2018 which made reference to Mrs Stones case, an act of direct discrimination, the Tribunal accepts that it was a casual email with a simple factual statement. Nor having regard to s18 of EA 2010, in all the circumstances, would it be reasonable for any of those actions or conduct, either individually or cumulatively, to 10 be regarded as violating the claimant's dignity or creating an adverse environment for Mrs. Stones. Those actions and conduct are not found to have done so.[342]It is the Tribunal’s decision that Scott Schedule Claims 20 and 22 do 15 not succeed. Issues in this Tribunal claim Claims where no statutory basis asserted[343]In respect of the remaining claim before the Tribunal Pre-Dismissal 20 Claim (SctSch Claim 18): the claimant’s claims of Failure to keep proper written records, such as welfare reports, the Tribunal notes that the Scott Schedule throughout identified that the legal basis of this claim was unclear. Mrs Stones did not offer an explanation in respect of that claim, in her submissions which the Tribunal is able to accept as founding a relevant 25 claim. . 344. The Tribunal notes the asserted claim. The Employment Tribunal is a creature of statute. It has jurisdiction to consider those claims which statute has provided it may do so. It is not like the civil courts which may adjudicate 30 on other matters.[345]It is the Tribunal’s decision that Scott Schedule Claim 18 (the claimant’s claims of failure to keep proper written records, such as welfare reports), does not succeed. Conclusion[346]None of the claims within the Scott Schedule succeed.[347]In Particular Claims Scott Schedule Claims 8, 9, 10, 11, 12, 13, 19 and 14 do not succeed as the Tribunal does not have jurisdiction to consider 10 them.[348]The remaining claims do not succeed for the reasons set out above.[349]The Tribunal in reaching these conclusions has been minded to 15 avoiding a fragmented approach, being conscious of the diminishing the cumulative effect of primary facts and the inferences which may be drawn and considered the totality of the evidence, deciding the reason why the Claimant received less favourable treatment. In summary the reason why Mrs Stones was dismissed was due to capability, for reasons unrelated to 20 her pregnancy and maternity.[350]In coming to this view the Tribunal have applied the relevant case law.[351]If there are further submissions which either party considers it is necessary, in the interests of justice, to address supplemental to their respective existing submissions, they should set out their position in a request for reconsideration in accordance with Rule 71 of the 2013 Rules. 5 Date of Judgment: Rory McPherson Date of Judment: 28 April 2020 Date Sent to Parties: 13 May 2020 E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case Nos: 4122844/2018 Employment Judge: Rory McPherson Members Eddie McCall Martha McAllister Glasgow on 25 June 2020 (in Chambers) Mrs C Stones Claimant Civil Nuclear Police Authority Respondents RECONSIDERATION JUDGMENT OF THE EMPLOYMENT TRIBUNAL The unanimous judgment of the Employment Tribunal is that
Conclusion
[1]On reconsideration under Rule 70 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the 2013 Rules), the judgment 25 dated 28 April 2020 and sent to the parties on 13 May 2020 is not revoked, on the basis of subsequent application for reconsideration; and[2]The claimants’ application for reconsideration as set out in paragraphs 4 to 16 of her application is dismissed; and[3]The claimant’s application for reconsideration as set out in paragraphs 17 to 30 67 restricted to her claims in respect of s13 of the Employment Rights Act 1996 for unlawful deduction of wages and breach of contract claims in terms of Reg 3 Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994/1624 arising or outstanding on the termination of the employment of the employee, are allowed to proceed in respect those issues were not fully ventilated at the final hearing on 4, 5, 6, 7, 10, 11, 12 and 13 February 2020; and The claimant’s remaining claims are dismissed;[5]The Tribunal has issued separate Case Management Orders in relation to the appointment of a one day remote Final Hearing restricted to her claim in respect of s13 of the Employment Rights Act 1996 SI for unlawful deduction of wages and breach of contract claims in terms of Reg 3 Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994/1624 arising or 10 outstanding on the termination of the employment of the employee.
Introduction
[1]No findings of fact are made. The following background narrative reflects the 15 documentation available to the Tribunal and or where appropriate the existing finds of fact set out in the judgment dated 28 April 2020 and sent to the parties on 13 May 2020 (the judgment).[2]The claimant presented her ET1 on Friday 16 November 2018. The respondent presented its ET3 timeously.[4]As set out in the judgment, at para 2, the claimant’s ET1 included a number of claims including “failure to pay capability and sick pay”.[5]At page 6 of the ET1 the claimant had ticked boxes to indicate that she was claiming redundancy pay, holiday and “other payments”. In the description in the ET1, the claimant sets out her belief that the respondent dismissed her without notice, gave her a figure of money owed to include PILON (Pay In 30 Lieu of Notice), annual leave, capability payment and backdated sick pay, although for reasons which the claimant attributes to these failures do not fall to be considered further. The claimant sets out that different exit payment figures were issue by the respondent. The claimant continues at the foot of page 6 “I believe I am owed” and sets out at page 8 of the ET1 the sums she believed she was owed at termination.[6]The ET3, in the grounds of resistance, sets out the respondent’s position on 5 what it labels as Capability Payment and Sick Pay at para 70 to 71. The respondent concludes para 71 “If the Respondent has misunderstood this claim, it will seek permission to amend its Response once the basis of this claim is clarified”.[7]An order was granted on 27 November 2018 for the claimant to further information in relation to her disability discrimination claim. Following that order she prepared, what was subsequently described in the Note to the Preliminary Hearing on 22 January 2019 (the Jan 2019 Note) at which the claimant represented herself, as a lengthy letter.[8]The claimant provided a document headed “Additional Information to be added to the ET1 form”. Within that document the claimant provided paragraph headings including a heading of “harassment” to paragraphs 58 to 62 of the document within which she set out a criticism of the methodology of 20 the exit calculation.[9]At Preliminary Hearing on 19 March 2019 at which the claimant was unrepresented, the respondents, as set out in the note dated 2 April 2019 proposed, at para 13, that they set out their understanding of the claimant’s 25 claims utilising what they described as a Scott Schedule. The claimant agreed to participate. The respondents stated that “if details are lacking in any particular, to raise questions to the claimant to fill in those details”.[10]The Scott Schedule as prepared by the respondent, reflected the labelling exercise by the claimant in January 2019 and set out 22 heads of claim. Claim 6 of the Scott Schedule set out that that it was understood that the claimant asserted that she was subject to “harassment” in respect of the mechanism of the exit payment arrangement. The claimant provided her narrative to the 22 heads of claim as set out set out in the Scott Schedule. The claimant, who it appears remained unrepresented at this stage, did not set out that she maintained as a separate head of claim that she had suffered an unlawful deduction of wages and or breach of contract[11]The judgment dated 28 April 2020 and sent to the parties on 13 May 2020, addressed the 22 heads of claim listed for consideration at the Final Hearing.[12]The claimant was unrepresented at the Final Hearing on 4, 5, 6, 7, 10, 11, 12 10 and 13 February 2020, although assisted by her husband.
Relevant Law
[13]The Employment Tribunals (Constitution and Rules of Procedure) 15 Regulations 2013 provides as follows. Rule 70 Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider 20 any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Rule 71 Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 30 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Rule 72 Process (1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has been made and refused), the 5 application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the 10 application. …[14]The approach to be taken to applications for reconsideration was set out in the recent case of Liddington v Gether NHS Foundation Trust UKEAT/0002/16/DA (Liddington) in the judgment of Simler P. The tribunal 15 is required to: 14.1. identify the Rules relating to reconsideration and in particular to the provision in the Rules enabling a Judge who considers that there is no reasonable prospect of the original decision being varied or revoked refusing the application without a hearing at a preliminary stage; 14.2. address each ground in turn and consider whether is anything in each of the particular grounds relied on that might lead ET to vary or revoke the decision; and 14.3. give reasons for concluding that there is nothing in the grounds advanced by the Claimant that could lead him to vary or revoke his 25 decision.[15]In paragraph 34 and 35 of the judgment Simler P included the following: “A request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a 30 different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order 5 reconsideration. Where … a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.” 6. For the respondent, reference has been made to;6.1 , the interests of justice include the public interest in the finality of litigation: see Flint v Eastern Electricity Board [1975] ICR 395 (Flint) per Phillips J at 404G-405B: “it is very much in the interests of the general public that 15 proceedings of this kind should be as final as possible; that is should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry.”6.2 Council of the City of Newcastle upon Tyne v Marsden [2010] ICR 743 (Marsden), Underhill J, having reviewed the relevant case law, said 20 at [17]: “ … the weight attached in many of the previous cases to the importance of finality in litigation – or, as Phillips J put it in Flint (at a time when the phrase was fresher than it is now), the view that it is unjust to give the losing party a second bit of the cherry – seems to me entirely appropriate: 25 justice requires an equal regard to the interests and legitimate expectations of both parties, and a successful party should in general be entitled to regard a tribunal’s decision on a substantive issue as final …”6.3 Judge Hand QC, considering the new reconsideration jurisdiction under the 2013 ET Rules in the light of the previous case law, said in Serco Ltd 30 v Wells [2016] ICR 768 (Wells) at [43(a)]: “The draftsmen of both sets of Rules must be taken to have drafted them with the same universal principle in mind, namely what I have described as finality and certainty of decision and orders and the integrity of judicial decisions and orders; this principle, as the authorities in both jurisdictions illustrate, usually directs any challenge to an order towards an appeal to a tribunal of superior jurisdiction and discourages seeking the same judge or another judge of equivalent jurisdiction to look again at an order or 5 decision, save in carefully defined circumstances.”; and6.4 The Court of Appeal considered Rule 70 in Ministry of Justice v Burton [2016] ICR 1128 (Burton). Elias LJ said at [21]: “An employment tribunal has a power to review a decision ‘where it is necessary in the interests of justice’: see rule 70 of the Employment 10 Tribunals Rules of Procedure 2013. This was one of the grounds on which a review could be permitted in the earlier incarnation of the rules. However, as Underhill J pointed out in Newcastle upon Tyne City Council v Marsden [2010] ICR 743, para 17 the discretion to act in the interests of justice is not open ended; it should be exercised in a principled 15 way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray & Vials [1994] ICR 384 Mummery J held that the failure of a party’s representative to draw 20 attention to a particular argument will not generally justify granting a review.” 7. The Employment Tribunals Act 1996 provides at ss (2) and (3) that: (2) Subject to subsection (3), this section applies to—(a) a claim for damages for breach of a contract of employment or other contract connected with employment(b) a claim for a sum due under such a contract, and(c) a claim for the recovery of a sum in pursuance of any enactment relating to the terms or performance of such a contract, if the claim is such that a court in … Scotland would under the law for the time being in force have jurisdiction to hear and determine an action in respect of the claim. (3) This section does not apply to a claim for damages, or for a sum due, in respect of personal injuries. 8. The Employment Tribunals (Extension of Jurisdiction) (Scotland) Order 1994 provides that “3 Extension of jurisdiction Proceedings may be brought before an employment tribunal in respect of a 10 claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if— (a) the claim is one to which (s 3(2) Employment Tribunals Act 1996) applies and which a court in Scotland would under the law for the 15 time being in force have jurisdiction to hear and determine; (b) … (c) the claim arises or is outstanding on the termination of the employee's employment. 9. In terms of s13 of the Employment Rights Act 1996 (ERA 1996) provides 20 that an employer shall not make unlawful deduction of wages. s23 of the ERA 1996 provides that such claims may present such a complaint to the Employment Tribunal. s24 of ERA 1996 provides for determination of such complaints. DISCUSSION AND DECISION 10. The tribunal's powers concerning reconsideration of judgments are contained in rules 70 to 73 of the Employment Tribunals Rules of Procedure 2013 (the 2013 Rules). A judgment may be reconsidered where “it is necessary in the 30 interests of justice to do so.” Applications are subject to a preliminary consideration. They are to be refused if the judge considers there is no reasonable prospect of the decision being varied or revoked. If not refused, the application may be considered at a hearing or, if the judge considers it in the interests of justice, without a hearing. In that event the parties must have a reasonable opportunity to make further representations. Upon reconsideration the decision may be confirmed, varied or revoked and, if 5 revoked, may be taken again. 11. Under rule 71 of the 2013 Rules an application for reconsideration must be made within 14 days the date on which the judgment (or written reasons, if later) was sent to the parties. 12. As the respondents identify, in their response to the reconsideration application the claimant’s application is founded on her assertion thata. “some of the evidence has been misunderstood” andb. she “believe[s] wages remain outstanding” (see para 1). 13. In the claimant’s application for reconsideration she makes a number of comments at paragraphs 4 to 16. It is the unanimous decision of the Tribunal that the issues raised within those paragraphs were fully ventilated as falling within the 22 heads of claim listed for consideration at the Final Hearing and were properly argued and ventilated at the Final Hearing on 4, 5, 6, 7, 10, 11, 20 12 and 13 February 2020. Further, the Tribunal is satisfied that there was no identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice arising from the claimant’s comments at paragraphs 4 to 16 of her application for reconsideration. Reconsideration to that extent is refused. 14. The claimant, additionally refers at paragraphs 17 to 67 of her application, as noted by the respondent in their response, that she “was not paid all sums due to her on her termination of employment” and as the respondent puts it “sets out a detailed analysis of what she believe she believes she should have 30 been paid”. 15. The respondent, sets out that they consider that the “short answer to the application is that Mrs Stones did not make any claim for breach of contract or unpaid wages under Part II of the Employment Rights Act (and it would be far too late to make such claims now).” The respondent continues, that the claimant’s “only relevant claim, which was numbered Claim 6 in the Scott 5 Schedule, was that errors in her final termination payment amounted to unlawful harassment”. That is to say, claim 6, was one of the 22 heads of claim listed for consideration and which the Tribunal is satisfied were properly argued and ventilated at the Final Hearing on 4, 5, 6, 7, 10, 11, 12 and 13 February 2020.[16]The Scott Schedule reflected the written statement provided by the claimant to respondent and the Tribunal on or about 31 January 2019. That document was headed “Additional Information to be added to the ET1”.[17]The Scott Schedule containing the 22 Heads of Claim referred to above, was formulated for the claimant, by the respondent.[18]Having regard to the claimant’s reconsideration, Tribunal considers that there 20 has been an inadvertent labelling error arising from the claimant’s communication of 31 January 2019 which resulted in the claimant’s existing claim, for breach of contract/ unlawful deduction of wages being labelled exclusively as a claim based on harassment.[19]The Tribunal considers that the claimant, who on the information available appears to have been unrepresented at all material times in the period of the Tribunal claim, offered a causal label of harassment (that is say the reason), for her assertion that an underpayment occurred at the termination. The claimant did not expressly articulate, in response the respondent drafted 30 Scott Schedule, that regardless of that proposed reason, she continued to assert that there was such an underpayment (or unlawful deduction). However within narrative she provided in response to the Scott Schedule Claim 6 (harassment), the claimant asserted “As per already supplied documentation I believe I am owed several thousand pounds wrongly deducted from my final payment”, and sets out a number of arguments on where she believes error may have arisen.[20]The Tribunal’s relevant findings of fact in relation to asserted Scott Schedule 5 Claim 6 (harassment) are set out at 339 to 340 of the Judgement.[21]The respondent observes at para 18 of its response to the reconsideration, that the Tribunal found the respondent witnesses to be straightforward and honest. The finding in fact are in respect of the 22 Heads of Claim which were 10 the subject of the Final Hearing and which had been set out in the Scott Schedule.[22]From the claimant’s reconsideration, it is now considered that it had not been the claimant’s intention to not insist upon an underlying claim for unlawful 15 deduction of wages as a Head of Claim.[23]The Tribunal notes that unlike the position Burton and indeed Lindsay there is no indication that there was a representative acting, who failed to draw attention to the particular argument in terms of the Employment Rights Act 20 1996 and indeed The Employment Tribunals (Extension of Jurisdiction) (Scotland) Order 1994. The claimant had articulated that she was critical of the methodology adopted around the exit payment in the ET1. That criticism was, to a limited extent, responded to in the ET3 (and the respondents expressly reserved their position to provide Further and Better Particulars). 25 The criticism of the methodology of the exit payment calculation was further identified by the respondents as the 5th bullet point in Tribunal’s Note of the Preliminary Hearing on 19 March 2019.[24]The Scott Schedule as prepared by the respondent, reflected the labelling 30 exercise by the claimant in January 2019. The claims as set out in the Scott Schedule have been dismissed. Those claims were fully ventilated and properly argued, there was no administrative error nor any event occurring after the hearing that that requires a reconsideration in the interests of justice[25]The claimant’s claim for unlawful deduction of wages and breach of contract as set out in her ET1 and which was referenced by the respondent, subject to seeking permission to amend, in the ET3 response as out above, were not fully ventilated nor argued before the Tribunal. While there was no event 5 occurring after the hearing, the Tribunal is satisfied that the claimant’s claims for unlawful deduction of wages and breach of contract as set out in her ET1 having not been fully ventilated nor subject to findings of fact and thus satisfy the requirements for reconsideration in accordance with the interests of justice.[26]The Tribunal wishes to record that it offers no criticism of the respondents in their formulation of the Scott Schedule. Further, and while the claimant did not take steps to make clear that additional to the 22 Heads of Claim within the Scott Schedule, she insisted upon a sole additional 23rd Head of Claim, 15 originating from her ET1, it appears she was unrepresented at all material times.[27]The respondent argues that “typically, applications based on the interests of justice have succeeded only where there has been a serious procedural 20 irregularity, where a jurisdictional question has not been addressed, where there has been a manifest error of law or where significant new evidence has come to light since the hearing.” The Tribunal notes the respondent’s position and has reviewed the case law provided and as set out above. However, the unanimous decision of the Tribunal is that, in light of the reconsideration 25 application, it is necessary in the interest of justice to address her claims in respect of s13 of the Employment Rights Act 1996 SI for unlawful deduction of wages and breach of contract claims in terms of Reg 3 Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994/1624.[28]While the Tribunal considers that such limited reconsideration is necessary in the interest of justice, the Tribunal recognises that in its ET3 the respondent, in effect, reserved its position on the provision of Further and Better Particulars. In these circumstances, it is considered that having regard to the overriding objective, the respondent should be afforded to 30 July 2020 to provide Further and Better Particulars setting out its response to the claimants articulated position on asserted breach of contract and unlawful deductions as more fully set out in paragraphs 17 to 67 of the claimants application for reconsideration. Conclusion[29]A tribunal is required to receive the submissions of the parties before it. It is required to form a judgment as to the submissions which have persuasive 10 force in coming to a conclusion. It is not required to set out extensively the submissions of the parties in every case. It is required to explain the basis upon which it reaches its conclusion. Sometimes that requires it to set out submissions in summary and on other occasions more fully.[30]Having regard to paragraph 4 to 16 of the claimant’s application, it is the unanimous decision of the Tribunal that they do not support an application for reconsideration. The claimant appears to be arguing that she considers that the Tribunal ought to have made different findings of fact. If the claimant considers that tribunal erred in law, that is a matter that can be canvassed 20 before the Employment Appeal Tribunal.[31]Taking all these matters into account the Tribunal concludes that there is no reasonable prospect the original decision in respect of the 22 Heads of Claims being varied in the interests of justice.[32]For those reasons the Tribunal, refuses the claimant’s application for reconsideration set out in 4 to 16 of the claimant’s application.
Relevant Law
[33]The claimant’s application for reconsideration, as set out in paragraphs 17 to 30 67, restricted to her claims in respect of s13 of the Employment Rights Act 1996 for unlawful deduction of wages and breach of contract claims in terms of Reg 3 Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994/1624 arising or outstanding on the termination of the employment of the employee, are allowed to proceed to a one day Final Hearing, in respect those issues were not fully ventilated at the Final Hearing on 4, 5, 6, 7, 10, 11, 12 and 13 February 2020; and the Tribunal has made Orders in respect of same which are set out separately. Employment Judge Rory McPherson Date of Judgement 30 June 2020 Date sent to parties 30 June 2020 E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case Nos: 4122844/2018 V Employment Judge: Rory McPherson Members Eddie McCall Martha McAllister Glasgow on 29 September 2020 (via CVP) Deliberation 30 September 2020 (via Teams Video) Mrs C Stones Claimant In Person Civil Nuclear Police Authority Respondents Represented by D Stilitz QC Counsel and A Rathbone Solicitor RECONSIDERATION JUDGMENT OF THE EMPLOYMENT TRIBUNAL The unanimous judgment of the Employment Tribunal is that 1. the claimant’s claim for Breach of Contract (failure to pay contractual annual leave and contractual notice pay) in terms of Reg 3 Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994/1624 arising or outstanding on the termination of the employment of the employee succeeds and the respondent is ordered to pay to the claimant the sum of EIGHT THOUSAND 35 NINE HUNDRED AND NINETY FIVE POUNDSAND NINETY FOUR (£8,995.94) in respect of this claim for breach of contract and that sum is payable immediately; and 4122844/2018 V Page 2 2. the claimants’ claims in respect of s13 of the Employment Rights Act 1996 (ERA 1996) for unlawful deduction of wages (in respect of alleged unpaid backpay) do not succeed and are dismissed; and 3. in respect that the sums due reflect contractual sums due, the Employment Protection (Recoupment of Jobseekers Allowance and Income Support) 5 Regulations1996 do not apply.[1]By Judgment of this Tribunal dated Tuesday 28 April 2020 sent to the parties Tuesday 19 May 2020, some 22 claims asserted at the Final Hearing were dismissed following an eight-day Hearing.[2]Mrs. Stones sought reconsideration of the Tribunal’s judgment under Rule 70 of the 2013 Rules.[3]By Reconsideration Judgment dated Tuesday 30 June 2020 sent to the parties 30 June 2020 (the Reconsideration Judgment) this Tribunal held 20 that Mrs. Stones claims in respect of section of the Employment Rights Act 1996 (ERA 1996) and for breach of contract under regulation 3 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 (SI 1994/1624) arising or outstanding on the termination of her employment should be permitted to proceed to a Hearing setting out at para 33: “The 25 Claimant’s application for reconsideration … restricted to her claims in respect of section 13 of the Employment Rights Act 1996 for unlawful deduction of wages and breach of contract claims in terms of Reg 3 Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994/1624 arising or outstanding on the termination of the employment of the employee, are allowed to proceed 4122844/2018 V Page 3 to a one day Final Hearing.” This Tribunal rejected all other aspects of Mrs. Stones’ application for a reconsideration.[4]Directions were also made permitting CPNA to provide Further and Better Particulars in response and which were provided Friday 31 July 2020 and 5 CPNA provided updated calculations Monday 1 September 2020 which Mrs Stones responded to also on Monday 1 September 2020.[5]This Hearing took place via CVP (video- supplemented by audio telephone link in parts) by reason of the current pandemic and having regard to the 10 geographic location of the parties.[6]The claimant Mrs. Stones represented herself and Mr Stilitz QC represented CPNA, instructed by Ms. Rathbone. A Joint Bundle (titled Tribunal Index) was provided, which incorporated a number of documents, including a number of 15 spreadsheets provided by CPNA, copy payslips, HMRC extract records together with a document prepared by Mrs. Stone headed Calculation of Outstanding Payment. That Joint Bundle was supplemented by additional bundle (titled Case Papers Index). Both were collated by CNPA.[7]Both parties provided written submissions supplemented by oral submissions following the conclusion of this evidential hearing, reference to same where relevant, is made below.
Evidence
[8]The Tribunal heard evidence from the claimant Mrs. Clare Stones who provided a witness statement which she had prepared for this Hearing and which statement she confirmed at this Hearing and which was thereafter taken as read following upon which she was cross examined. Witness evidence on behalf of CPNA was also provided via witness statements; from 30 Rob Poole who is presently Chief Finance Officer of CPNA, and from Nigel Couzens as HR Business Partner of CPNA at material times and which was taken as read each of whom confirmed their statements at this Hearing and 4122844/2018 V Page 4 which were thereafter taken as read following upon which they were cross examined. The Tribunal found the evidence of Mr Poole straightforward. The evidence of Mr Couzens was factual. Where any dispute of fact occurred between the parties relevant to the issues in this Final Hearing the panel preferred the evidence of Mr Poole and Mr Couzens to that of Mrs. Stones. Findings in Fact[9]Mrs. Stones was initially advised, by letter dated Friday 24 August 2018 that in consequence of what was anticipated to be her employment terminating on Friday 17 August 2018, she would receive a contractual payment 10 constituted of 4 elements;a. Capability Payment, initially set out as £12,970.13 gross; andb. Pay In Lieu of Notice (PILON), initially set out as £5,666.58 gross; andc. Untaken leave, initially set out as £2,073.41; andd. Pay adjustment in respect of unpaid backpay, initially set out as 15 £15,112.49 gross all as identified in CPNA’s letter of Friday 24 August 2018 (the August 2018 letter).[10]Subsequent to that letter Mrs. Stones’ actual date of termination was agreed as Friday 16 November 2018. Annual Leave[11]The parties agreed in evidence, the annual leave calculation provided by CPNA which identified as a total sum to which Mrs. Stones was entitled as £2,792.12 (which is the same figure as set out by Mrs. Stones in her Calculation of Outstanding Payments). Mrs. Stones, had received part 25 payments in respect of unused holiday of £663.60 (as shown in the October 2018 payslip) and a further payment of £185.46 in the September 2018 payslip. Both these sums fall to be deducted from the total of £2,792.12, leaving a contractual entitlement £1,943.06. General Findings Regarding Pay Entitlements and Payments made: 4122844/2018 V Page 5[12]Prior to Monday 13 November 2017 Mrs. Stones had been entitled to;a. Half Pay and Statutory Sick Pay from Wednesday 18 January 2017 to Friday 3 February 2017; andb. Half Pay (and no Statutory Sick Pay) from Saturday 4 February 2017 to Sunday 13 August 2017; andc. Sick Pay at what CPNA describe as Pension Rate from Monday 14 August 2017 to Sunday 12 November 2017. However, during those periods Mrs Stone, was through error on the part of CPNA paid full pay. As such CPNA had made overpayments. Mrs Stones did not dispute the overpayments although she considered that the 10 overpayments were wholly extinguished by application of what she described as untaken annual leave. They were not.[13]It was not in dispute that Mrs. Stones was subsequently entitled to receive full pay from Monday 13 November 2017 to Friday 17 August 2018, for reasons set out at para 229 of this Tribunal’s Judgment dated 18 April 2020, 15 sent to the parties 13 May 2020.[14]The correct calculation balancing the overpayments with underpayments (that is the back pay) is calculated by CPNA to be £10,791.94 net. That sum was paid to Mrs. Stones in September 2018. It was wrongly labelled by CPNA as “Settlement Agree” rather than what might have been more 20 accurately (and usefully) described as Back Pay.[15]While Mrs. Stones, agreed in cross that this sum (£10,791.94), was the sum paid by CPNA in respect of Back Pay (although wrongly labelled as Settlement Agree”), her own Calculations of Outstanding Payment (in which she calculated back pay of £17,288.59) provided to the Tribunal in the Joint 25 bundle, made no provision either in respect of actual payment of backpay received or in respect of the periods of overpayment.[16]Specific net sums received by Mrs. Stones were ascertainable both from her payslips and her bank statements. In summary, and in so far as relevant to the issues for this Tribunal, she received: 4122844/2018 V Page 6a. On 30 August 2018: Net pay £1,382.27;b. on Thursday 27 September 2018: Net pay £10,791.94;c. on Tuesday 30 October 2018: Net pay of £7,978.03 being the final cumulative net payment.[17]CPNA’s breakdown spreadsheet explanation of the itemising of the August 5 2018 and September 2018 payslips provided in the course of the hearing within the Tribunal Index was accepted Mrs. Stones in the course of this hearing. Errors in the Penultimate Payslip (and sums paid)[18]In the Penultimate Payslip (which covers Sunday 1 September to Sunday 10 30 September 2018), CPNA included a payment (which is wrongly labelled as “Settlement Agree” and is wrongly stated to be £10,695.37) reflecting the balancing of the overpayments with underpayments being £10,791.94 net. That sum was paid to Mrs. Stones in September 2018 although was wrongly labelled by CPNA as “Settlement Agree” rather than what might have been 15 more accurately (and usefully) described as back pay and as indicated was wrongly set out in the penultimate payslip as £10,695.37. That backpay was attributed via communication to HMRC, for HMRC purposes over the relevant pay periods to which the back pay was attributable. Present Calculations It is a matter of agreement as between the parties that Mrs. Stones was contractually entitled, by the time of termination, to what is described as a Capability Payment (provided within CPNA’s Leavers Policy) and a Notice Payment.[19]On Tuesday 1 September 2020 CPNA set out its final position on the pay due 25 which it calculated (gross) at £7,835.30 comprising of;a. Sick Pay at what is described as pension rate for Nov 2017 being £235.66; and 4122844/2018 V Page 7b. Underpaid Untaken Annual Leave being £1,943.06; andc. Notice Pay being £5,666.58.58. which applying interest at 8% for 22 months would amount to £1,150.64 giving a total sum of £8,995.94 due to Mrs Stones. Findings of Fact re Mr Couzens and Mr Poole.[20]Mr Couzens had commenced employment with CPNA June 2018 as an HR Business Partner and had previously held a number of HR/Business Management positions in the private and public sector. A number of calculations had been provided to Mr Couzens by others within CPNA for incorporation in the August 2018 letter. Although those calculations were not 10 made by Mr Couzens he had no reason, based on the information provided to him by CPNA at the, time to consider that they contained errors. It is now accepted by CPNA and by Mr Couzens that those calculations contained errors.[21]The calculation table for the Capability Table was provided by and explained 15 by Mr Couzens. It was not challenged.[22]CPNA’s methodology of calculation of annual leave was explained by Mr Couzens. It was not challenged.[23]Mr Couzens had not been provided with copy of CPNA payslips by CPNA in course of preparing of the August 2018 letter. Mr Couzens had attended and 20 given evidence at the previous Full Hearing (4, 5, 6, 7, 10, 11, 12 and 13 February 2020) which culminated in the Tribunal’s Judgement dated 28 April 2018 and which sent to the parties 13 May 2020.[24]Mr Couzens accepts that errors have occurred in payroll information provided to him.[25]In 2018 CPNA’s payroll was carried out by an outsourced payroll company called CGI.[26]Mr Poole has been the Head of Finance for CNC for the last 4 years and for the last 18 months has been as its Chief Finance Officer. He is a qualified 4122844/2018 V Page 8 accountant and has previous experience in senior management in Local Government and the NHS.[27]Mr Poole in his capacity of Head of Finance oversees a team within CNC Finance. He instructed his team to provide an analysis of the pay position to him receiving data including pay information. Prior to attending the Tribunal, 5 he has satisfied himself based on his experience and the analysis of the team which he oversees that the position as set out by CPNA including by reference to its communication to the Tribunal and Mrs. Stones on Tuesday 1 September 2020 reflects the correct position. It was his evidence that a 2% pay award had been factored into the calculations as was an organisational 10 wide assimilation.[28]Mr Poole expressly apologised for the errors which had occurred. Errors in the Final Payslip (and sums paid)[29]An erroneous deduction was made by CPNA in the Final Payslip (which is described to cover to Wednesday 31 October 2018 but in fact covers to Friday 15 16 November 2018), deducting a figure of £5,666.64 (and which is wrongly labelled as Prior Year Adjus in that payslip). That error arose from a mistaken belief by CPNA, and those who provide payroll services to them, that CPNA had previously made a payment of a sum of 3 months’ Pay in Lieu of Notice (Notice Pay) when it had originally been anticipated by CPNA, that Mrs. 20 Stones’ employment would terminate as at Friday 17 August 2018. No such earlier Notice Pay payment had been made.[30]Mrs. Stones was paid the contractually due capability payment of £13,101.95 as part of the final payroll and contained within the Final Payslip (that payment being relatively accurately labeled as Capability Exit Pay) additional to her 25 basic salary covering the period to the termination of her employment on Friday 16 November 2018, in the sum of £5,738.17 together with a sum in respect of untaken annual leave (£663.60). General Findings Regarding Payments Not Otherwise Made 4122844/2018 V Page 9[31]Mrs. Stones is entitled to outstanding sums, as reflected in the CPNA communication of 1 September 2020 being a gross figure of £7,835.30 comprising of;a. Sick Pay at what is described as pension rate for Nov 2017 being £235.66; andb. Underpaid Untaken Annual Leave being £1,943.06; andc. Notice Pay being £5,666.58.58. which applying interest at 8% for 22 months would amount to £1,150.64 giving a total sum of £8,995.94 due to Mrs Stones. Additional matter[32]In the course of this hearing Mrs. Stones, in her witness statement stated, in broad terms, that in around June 2018 she was unable to apply for maternity leave, and put that position to Mr Couzens by reference to emails which were not addressed to him. Mr Couzens did not accept in his evidence Mrs. Stones’ 15 position when it was put to him by Mrs. Stones. Mrs. Stone in her written statement suggested that she raised a question on Tuesday 2 August 2018; it was not suggested that it had been raised with Mr Couzens, it was not put to Mr Poole. No findings of fact are made in relation to same. That matter was not set out in the application for reconsideration. The Tribunal has reminded 20 itself of the findings in fact set out at paragraphs 220, 221 and para 231 of this Tribunal’s Judgement of 28 April 2020 and sent to the parties 13 May 2020. No findings of fact or decision beyond the existing Tribunal’s Judgement of 28 April 2020 and sent to the parties 13 May 2020 is appropriate.
Relevant Law
[33]The Employment Tribunals Act 1996 provides at ss (2) and (3) that: (2) Subject to subsection (3), this section applies to—(a) a claim for damages for breach of a contract of employment or other contract connected with employment(b) a claim for a sum due under such a contract, and 4122844/2018 V Page 10(c) a claim for the recovery of a sum in pursuance of any enactment relating to the terms or performance of such a contract, if the claim is such that a court in … Scotland would under the law for the time being in force have jurisdiction to hear and determine an action in respect of the claim. (3) This section does not apply to a claim for damages, or for a sum due, in respect of personal injuries.[34]The Employment Tribunals (Extension of Jurisdiction) (Scotland) Order 1994 provides that “3 Extension of Jurisdiction Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if—(a) the claim is one to which (s 3(2) Employment Tribunals Act 1996) applies and which a court in Scotland would under the law for the time being in force have jurisdiction to hear and determine;(b) …(c) the claim arises or is outstanding on the termination of the 20 employee's employment.[35]In terms of s13 of the Employment Rights Act 1996 (ERA 1996) provides that an employer shall not make unlawful deduction of wages. s23 of the ERA 1996 provides that such claims may present such a complaint to the Employment Tribunal. s24 of ERA 1996 provides for determination of such 25 complaints. Relevant Law Additional matter raised by Mrs. Stones during this Final Hearing[36]In relation to the additional matters set out above, this Tribunal has reminded itself of the guidance set out in Ministry of Justice v Burton 2016 [2016] ICR 30 1128 (Burton) and Flint v Eastern Electricity Board [1975] ICR 395 (Flint) noting the importance of finality of litigation, both of which cases were 4122844/2018 V Page 11 identified and relevant sections were out at para 6 of this Tribunal’s (Reconsideration) Judgment dated 30 June 2020 and sent to the parties 30 June 2020. There was no fair notice of the additional matter in the application for Reconsideration to which CPNA would have been able to respond in their Further and Better Particulars.[37]The Tribunal has reminded itself that in C v D [2019] UKEAT 0132 19 1709 (C v D) the EAT at para 12 sets out “the author should seek to set out a brief statement of relevant facts, and the cause of action relied upon by the Claimant. The purpose of doing so is to allow the other side to understand what it is that they have done or not done which is said to be unlawful.” Further 10 the Tribunal has reminded itself that as the EAT observed in Khetab v AGA Medical Ltd [2010] 10 WLUK 481 (Khetab) that the purpose of pleadings “…is so that the other party and the Employment Tribunal understand the case being advanced by each party so that his opponent has a proper opportunity to meet it”, and further in Chandhok and Another v Tirkey [2015] 15 IRLR 195 (Chandhok) Langstaff J, commented at para 18 the parties should set out the essence of their respective cases and “… a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it”. 20 Relevant Law Payroll errors 38. Section 8(1) of Employment Rights Act 1996 provides that: (1) [A worker] has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written 25 itemised pay statement.[39]Section 11 of ERA 1996 provides that “(1) Where an employer does not give a worker a statement as required by section 1, 4 or 8 (either because the employer gives the worker no statement or because the statement the employer gives does not comply with what is 4122844/2018 V Page 12 required), the worker may require a reference to be made to an employment tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the section concerned. (2) Where— 5(a) a statement purporting to be a statement under section 1 or 4, or a pay statement or a standing statement of fixed deductions purporting to comply with section 8 or 9, has been given to a worker, and (b)a question arises as to the particulars which ought to have been 10 included or referred to in the statement so as to comply with the requirements of this Part, either the employer or the worker may require the question to be referred to and determined by an employment tribunal. (3) For the purposes of this section— 15 (a).(b) a question as to the particulars which ought to have been included in a pay statement or standing statement of fixed deductions does not include a question solely as to the accuracy of an amount stated in any such particulars. 20 (4) An employment tribunal shall not consider a reference under this section in a case where the employment to which the reference relates has ceased unless an application requiring the reference to be made was made— (a) before the end of the period of three months beginning with the 25 date on which the employment ceased, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the application to be made before the end of that period of three months.”[40]The role of the Tribunal would be restricted, in terms of s11 of ERA 1996 to ascertaining what information ought to have been included. 4122844/2018 V Page 13[41]Section 12 of ERA 1996 provides that a Tribunal may, where such an application is made within 3 months of termination, order an employer to pay the deducted sum where it is not otherwise paid. Recoupment[42]Employment Protection (Recoupment of Jobseekers Allowance and Income 5 Support Regulations 1996 (the Recoupment Regs 1996) have been considered by the EAT (Judge Pugsley presiding) in Homan v Al Bacon Ltd [1996] ICR 721 which stated “In our view the prescribed element deals with the element in the award which is attributable to loss of wages and the only period to which it can apply was the period for which compensation was 10 awarded”. SUBMISSIONS.[43]The panel do not consider it necessary to set out the full submissions. However, it is noted that Mrs. Stones sets out at;a. Para 11 “When I have made my calculation sheet for this bundle … I have 15 not stated I have been paid or am owed any amount in respect of any particular element, because I found it impossible to know which elements I have been truly been paid for, I have merely tried to make calculation based on what was due for each element to provide a total amount due”;b. Para 15 “It has been very difficult to try to pinpoint the sources of errors 20 and I believe it still remains difficult” describing that she considers that “there is simply a state of confusion which remains to (t)his day”. The panel notes that her submission does not offer an alternate methodology to that provided by CPNA and while she concluded in her oral submission that that the spreadsheets were complex and suggested 25 that they did not appear to show payments she had received, she did not state which payments she was referring to.[44]For CNPA their submission concludes “It is plainly unfortunate that calculating all sums due to Mrs Stones have proved so difficult” and sets out that it now (as at the date of submission) considers that it has “now correctly calculated 4122844/2018 V Page 14 the sums due to her” and invited the Tribunal to make an award of £7,845.30 plus interest on that sum at 8%, in line with the current applicable ET awards, for a period of 22 months (up to the date of this hearing) giving rise to a total sum as of the date of the hearing of £8,995.94. DISCUSSION AND DECISION[45]To say that it is unfortunate for CPNA to have taken so long to correct their errors is an understatement of some magnitude. CPNA confirmed their corrected calculation by email on Tuesday 1 September 2020, almost two 10 years after the termination of Mrs Stones employment with them. It was stated on behalf of CPNA at the conclusion of this hearing that CPNA can hardly take issue with Mrs Stones decision to proceed with this hearing against that delay. The panel wholeheartedly agrees.[46]The errors were those of CPNA and those who provide payroll to them. It is not open to this Tribunal to make an award of compensation for distress caused by CPNA. Having regard to the terms of s 8, 11 and 12 of ERA 1996 no articulated claim was presented with specific reference to s11 of ERA 1996. Had such a claim been presented it is considered that no additional 20 award beyond that set out above would have fallen to be made.[47]Mrs Stones offered criticism of the evidence Mr Poole that he had not carried out the calculations himself and suggested it was possible that the calculations identified at Tuesday 1 September 2020 could continue to contain 25 some errors (although no explicit specification as to where those errors may exist was provided by Mrs Stone).[48]In the context of the history of this case Mrs Stones reservations are entirely reasonable however, against the standard which the Tribunal is required to 30 apply being on the balance of probabilities; having regard to the oversight described by Mr Poole of his team and those who provided calculations for him; his own clear evidence; taken with his explicit apology, and the clear 4122844/2018 V Page 15 (and accepted by Mrs Stones in cross) correlation between payments which CPNA claim to have made and Mrs Stones own bank statements, the Tribunal accepts that CPNA’s calculations as of Tuesday 1 September 2020 are correct.
Conclusion
[49]It is plainly unfortunate that calculating all sums due to Mrs Stones has proved so difficult. The CPNA considers that it has now correctly calculated the sums due to her and invites the Tribunal to make an award in the sum of £7,845.30 10 plus interest on this sum at 8%, in line with the current rate applicable to Employment Tribunal awards, for a period of 22 months, totalling £1,150.64. This gives rise to a total contractual liability to Mrs Stones of £8,995.94 and that sum is payable immediately.