Miss E Veysey v Horizon Care South West Ltd: 6002694/2023
EMPLOYMENT TRIBUNALS
Case No 6002694/2023
Between
Miss E VeyseyClaimantHorizon Care South West LtdRespondent
Before
Employment Judge HastieIn person for claimantDate 24 March 2025
JUDGMENT
The claim for disability discrimination (section 15 Equality Act 2010) is dismissed. The claim for failure to make reasonable adjustments.(section 20 and 21 Equality Act 2010) is dismissed. The claim for breach of contract is conceded by the Respondent and is successful.
REASONS
Discussion
[1]The Claimant brings claims of disability discrimination, failure to make reasonable adjustments and breach of contract against her former employer, Horizon Care South West Limited.[2]The Respondent contends that(a) the Respondent was aware that shingles causing post herpatic neuropathy (PHN) was a condition that the Claimant had, but it is not a disability as defined in section 6 Equality Act 2010 (EqA10), and(b) the Claimants thyroid condition is a disability but that the Respondent had no knowledge at the material time that the Claimant had that disability.[3]The Claimant contends that the shift she was allocated on 25 September 2023 was discriminatory by reason of disability. Further, that the grievance meeting of 6 October 2023 should not have proceeded in her absence. The Respondent contends that the Claimant requested the shift that she was allocated on 25 September 2023. Further, that the Claimant agreed to the grievance meeting on 6 October 2023 proceeding in her absence.[4]The Claimants ET1 also contains a claim for breach of contract for nonpayment of a welcome bonus. This has been conceded by the Respondent. The Respondent will pay £500 to the claimant in respect of this claim.[5]The Claimant started the ACAS early conciliation process on 17 October 2023. The ACAS certificate was issued on 28 November 2023. The ET1 was presented on 16 December 2023. No issue in relation to time limits was raised at the hearing
The hearing
[6]The hearing took place by video with both parties joining remotely. The Claimant was not legally represented. The Respondent was represented by Ms Wahabi, a litigation consultant.[7]I was assisted by a bundle of 276 pages. I was also provided with witness statements by the Claimant, and by Ms D Hayes, the only witness for the Respondent. Both the Claimant and Ms Hayes gave evidence and were cross examined.[8]Reasonable adjustments were in place to assist the Claimant. The hearing had been agreed to take place by video so that she was not required to attend in person. The tribunal took a break every hour to allow for the Claimant to have regular breaks. The tribunal emphasised to the parties that they could request additional breaks at any time. Further, the Claimant said that she had separated the bundle into individual documents. I provided frequent breaks to allow the claimant to find the relevant document(s) that were being considered throughout the hearing. The Claimant confirmed that she was content with these arrangements[9]In reaching my decision, I have carefully considered the oral and documentary evidence and the closing submissions from both parties. The fact that I may not have not referred to a document in the bundle does not mean that I have not considered it.
Issues
[10]At the start of the hearing, the Respondent sought to amend three dates in the statement of Ms Hayes. At paragraph 21, the date should have read 2023. At paragraph 2, line 5, the date should read 2023, and at line 9 the date was amended to read 2023. It was accepted by the Claimant that these were typographical errors, and the amendments were allowed.[11]The parties agreed that the Case Management Order (CMO) of 13 May 24 contained a complete list of the issues. The Claimant confirmed that she was not seeking to bring additional claims, or raise other issues, in addition to those particularised in the CMO.[12]The CMO records as follows, Did the Claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:(i) Whether the Claimant had a physical or mental impairment. The claimant asserts she had the physical conditions of thyroid disorder and/or herpetic neuropathy.(ii) Did it have a substantial adverse effect on the Claimant’s ability to carry out day-to-day activities?(iii) If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?(iv) Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures? (v)Were the effects of the impairment long-term? (vi)The Tribunal will decide:• did they last at least 12 months, or were they likely to last at least 12 months?• if not, were they likely to recur? Discrimination arising from disability (Equality Act 2010 section 15). Did the Respondent treat the Claimant unfavourably by: (i) Allocating the Claimant a Monday morning shift on 25 September 2023, commencing at 8am and finishing at 12pm, which required the Claimant to see seven clients (the same number as the Claimant would have seen in a 7:30am to 1:45pm shift) who were geographically spaced out so requiring the Claimant to walk long distances between each, including one client who was 30 minutes’ walk up a steep hill. (The Claimant asserts that the respondent knew of the things arising from her disability at the point that it allocated the claimant the shift). (ii) Did the following things arise in consequence of the Claimant’s disability? The Claimant’s case is that:• Her thyroid condition was underactive; causing exhaustion and intense fatigue;• Her condition of herpetic neuropathy causes pain when the claimant walks for periods of longer than 15 minutes without a break;• Walking between the clients caused pain and intense fatigue because of the distances, the geography and the timescales involved. (iii) Was the unfavourable treatment because of any of those things? (iv) Was the treatment a proportionate means of achieving a legitimate aim?(v) The Tribunal will decide in particular:• Was the treatment an appropriate and reasonably necessary way to achieve those aims;• Could something less discriminatory have been done instead;• How should the needs of the Claimant and the Respondent be balanced?(vi) Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date? Reasonable Adjustments (Equality Act 2010 ss. 20 & 21). (i) Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date? (ii) A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs:• PCP 1: The requirement to work a shift on 25 September 2023 between 8am and 12pm in which the Claimant was required to visit seven clients who were significant distances from each other (as described above).• PCP 2: The practice of conducting grievance meetings in person. (iii) Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that the:• PCP 1: the requirement to walk distances between the client’s homes without reasonable breaks caused the Claimant pain and exhaustion.• PCP 2: the Claimant could not attend a grievance meeting which has been scheduled in person on 6 October 2023 because travel to do so would lead her to become exhausted because of her thyroid condition and/or the Claimant could not travel whilst she had contracted shingles. (iv) Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage? (v) What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests:• PCP1: allocating the Claimant fewer clients who were located closer to each other geographically to permit the Claimant reasonable breaks.• PCP2: permitting the Claimant to attend the grievance hearing remotely. (vi) Was it reasonable for the Respondent to have to take those steps and when?(vii) Did the Respondent fail to take those steps? Breach of Contract (Extension of Jurisdiction Order 1984) (i) Did this claim arise or was it outstanding when the claimants employment ended? (ii) Did the respondent do the following: - Fail to pay the claimant a welcome bonus of £500 in accordance with the terms advertised and reference in an email recruitment 31 May 2023? Facts The following facts were not in dispute.[14]The Respondent is an in-home care provider based in Exeter.[15]The Claimant was employed by the Respondent between 26 June 2023 and 26 September 2023 as a health care assistant.[16]The Claimant commenced her training with the Respondent on 26 June 2023. The training lasted for one week, Monday – Friday.[17]The Claimant has a thyroid condition known as Hashimoto disease. She was first diagnosed with this condition in 2003. The Claimant also has post herpatic neuralgia (PHN). The Claimant is on medication including thyroxine. She has regular blood tests.[18]The Claimant signed her contract of employment in July 2023. Prior to that the Claimant had refused to sign her contract as it contained errors in the rate of pay and that the business address for the Respondent was incorrect.[19]The Claimant suffered the effects of smoke inhalation following her intervention at a house fire on 16 August 2023, when she assisted the emergency services. She was hospitalised for four days. The effects of the smoke inhalation and her subsequent inability to maintain her thyroid medication, resulted in the Claimants thyroid levels being low, and caused her to contract shingles. This subsequently developed into PHN. The Claimant was off work from 16 August to 25 September 2023. The Claimant contacted the Respondent on several occasions whilst unfit for work from 16 August 2023.[20]The Claimant attended a return to work meeting with Ms Hayes on 21 September 2023. The email exchanges between the Claimant and Respondent in the week or so prior to this meeting reference nerve damage and the consequent inability of the claimant to walk far. Adjustments to the Claimants work were agreed at the return to work meeting. It was agreed that the Claimant would be allocated the Heavitree shift on reduced hours of 8am to 1230pm, and with a reduced number of clients.[21]On Friday 22 September 2023 the Respondent allocated a work shift to the Claimant. The shift was for the agreed hours of 8am to 1230pm. Seven clients were allocated.[22]The Claimant emailed the Respondent on Sunday 24 September 2023 raising concerns as to this shift.[23]On Monday 25 September 2023 the Claimant undertook her allocated shift. One client cancelled her visit on the day. One clients visit was cancelled as she required emergency care. Two of the clients lived in the same property. The anticipated walking distances between the clients increased due to these cancellations. The clients lived on or near to bus routes.[24]The Claimant resigned on 26 September 2023 and raised a grievance with the Respondent. A grievance meeting was scheduled for 6 October 2023.[25]The Respondent proceeded with the grievance meeting in the absence of the Claimant on 6 October 2023. The period of time during which the grievance procedure was dealt with was covered by a Fit Note.[26]The Claimant accepts she was not disabled by PHN at the time of her employment.
Findings of Fact
[27]I made the following findings of fact on the balance of probabilities.[28]I find that the Claimant had the physical impairments of PHN and a thyroid condition in August and September 2023. This is not disputed by the Respondent.[29]I find that PHN was not a disability within the definition of the Equality Act 2010 (EqA) at the material time. The Claimant had been diagnosed with PHN after she had been in hospital in mid-August 2023. The Respondent accepts it knew that the Claimant had PHN when the Claimant returned to work on 25 September 2023. The PHN did have an adverse effect on the Claimant’s day to day activities in that she experienced pain and increased fatigue. The impairment had a substantial adverse effect on the Claimant as, if she had not been taking measures to treat it by taking medication, the PHN would be likely to have had more substantial effect. At the relevant time, the PHN condition had not lasted for at least 12 months. There is no evidence that the condition at that time was anticipated to be likely to last for 12 months or for the rest of the Claimants life. The Claimant accepts that it was anticipated at the time of her employment that the PHN would not be a long term condition. The Claimant accepts at paragraph 1.1 of her statement that her PHN is now considered to be a long term condition but that she was not disabled by PHN at the time of her employment.[30]I find that the thyroid condition was a disability at the material time, the time of the claimants employment. The Respondent accepted that position. The Claimant had been diagnosed with the thyroid condition in 2003. The Claimant was taking medication. Without the medication, the impairment would have had a substantial adverse effect on the Claimant’s ability to carry out day to day activities. The inability of the Claimant to continue her medication owing to the smoke inhalation caused by the fire on 16 August 2023, caused a substantial adverse impairment including pain and fatigue. The effects of the thyroid impairment were long term, this was not disputed.[31]In relation to the Claimants thyroid disability, the Respondent asserts that it had no knowledge of it at the material time.[32]The Claimant asserts that she informed the Respondent of her disability on five occasions:(a) at her interview,(b) when given the 5 day training schedule, (c ) prior to her blood test appointment in July 2023, (d) during the meeting with John and Fiona on 24 July 2023, and ( e) during her return to work interview in September 2023.[33]The Claimant is clearly someone who is attentive to correspondence and follows up on her interactions with others. This is illustrated by, for example, the notes she made after her interview, the notes of the 25 September 2023 shift, and the notes of the meeting with John and Fiona. The emails sent by the Claimant to the Respondent further establish that the Claimant follows up on relevant issues in correspondence. The handwritten notes on the bundle were not provided to the Respondent at the material time. The Claimant did not assert that these notes had been provided to the Respondent during her employment. There is no written communication in the bundle that establishes that the Claimant informed the Respondent of her thyroid condition. I accept the evidence of Ms Hayes who emphasised how the Claimant followed up after every interaction she had with the Claimant. Ms Hayes was clear that the Claimant always followed up Iin writing after conversations. The Claimant clearly communicated frequently with the Respondent in respect of, for example, shift patterns, location of clients, rate of pay, the contract, from hospital following the fire in August 2023, and during her unfitness for work. I find that on none of the five occasions that the Claimant asserts she raised her disability with the Respondent, did she do so either orally or in writing. Whilst there was no requirement for her to do inform the Respondent in writing, the absence of follow up on these occasions is inconsistent with her usual approach. I conclude that the thyroid disability was not raised with the Respondent.[34]The brief interview notes of 7 June 2023 do not reference the Claimants disability. The Claimant was a candidate with relevant experience for the type of employment that the Respondent was offering. I am satisfied that if information as to disability or impairment had been provided at the interview, such information would not have been overlooked by the Respondent. It is clear that the interview questions are not extensive or complex. The interview questions were not such as would cause information such about impairment or disability to become lost in the detail of the interview process. The notes do reference that the Claimant walks her dogs. If the thyroid condition had been raised, I consider that it would have been noted here. The Claimants notes of the interview (page 85) are more extensive and do reference ‘own health issues – thyroid’. I am not persuaded that the Respondent would not explore further with the Claimant had this been made clear at the interview. In conclusion, I find that the Claimant did not inform the Respondent of her disability at the interview.[35]The Claimant was required to attend five days of training, Monday – Friday at the start of her employment. The Claimant considered that she was already qualified in one aspect of the training and notified the Respondent of this. The Respondent considered that the Claimant was still required to undertake the training in full as it had different content to that the Claimant was qualified in. The Claimant did not raise the thyroid condition with the Respondent at this time. The issue raised by the Claimant was about not having to do a day’s training in a subject that, in her view, she was already qualified in. I do not consider that the issue of not attending a day of the training due to the asserted disability was raised by the Claimant. Again, it was not followed up with the Respondent.[36]The Claimant did not inform the Respondent of her thyroid condition in July 2023. I find that she was offered a shadow shift at the start of her employment and informed the Respondent that she was unable to attend as she had a blood test appointment. This was not followed up and the Respondent knew nothing other than the Claimant could not attend the shadow shift due to a blood test appointment. This alone, would not give rise to an expectation that the Respondent would enquire further of the Claimant in relation to her health.[37]The meeting of 24 July 2023 between the Claimant, Fiona, and John did take place. The Respondent did not record this meeting. The Claimant produces her notes of this meeting at page 102 and 179. There are two versions of these notes as the date appears to have been corrected on one version. These notes reference the thyroid condition. The notes were not provided to the Respondent at the time. It is the case that there was no requirement for the Claimant to provide them. The meeting was an unplanned interaction rather than a formal conversation between the Claimant and management. It was not followed up by the Claimant as was her usual approach to exchanges with the Respondent. Ms Hayes was clear that the Claimant always followed up on interactions and conversations about her working terms, conditions, and relationships. I accept her evidence as it was consistent and persuasive. I find that the thyroid condition was not raised during this meeting as it would have been followed up.[38]After the fire of 16 August 2023, the Claimant followed the Respondents absence policy. The emails sent to the Respondent by the Claimant after the fire in August 2023 reference nerve damage and the need for ‘reasonable adjustments’ on her return to work. There is no mention of her thyroid condition. The Claimant suggests a phased return, office work, or doubles with a driver. She says she certainly cannot walk about and has nerve damage in her spine and legs. It is unfortunate that Ms Hayes was on annual leave during this time as the responses that the Claimant received from the Respondent were of a poor standard and not reassuring for her.[39]Prior to the return to work meeting on 21 September 2023, the Claimant and Ms Hayes had exchanged emails about the need for adjustments on the Claimants return to work. There was no mention by the Claimant of the thyroid condition in these emails. The Claimant attended a back to work interview on 21 September 2023. The Claimant was not made welcome by the staff present in the office whilst she waited for Ms Hayes to become available. The Respondent did not take notes of the back to work interview. The Claimant produces a note of the meeting. The note was not provided to the Respondent after the meeting or during the material time. Reasonable adjustments were discussed in relation to the Claimants return to work after an absence due to smoke inhalation, shingles and nerve damage. The Claimant agreed that she would be able to do the Heavitree shift on her return to work if it was similar or easier than the shift she had been doing prior to the 16 August 2023.[40]The Respondent allocated the 25 September 2023 “Heavitree” shift to the Claimant at her request. Heavitree is an area near to Exeter city centre. The Claimant does not live in Exeter but was able to catch a bus to Heavitree. The shift was allocated to the Claimant as a result of her disclosure to the Respondent that she had nerve damage. The time of the shift was 8am – 1230pm. The shift included a 30 minute break. There were seven clients. This was a reduction made by the Respondent as there were due to be nine clients. I accept the evidence of Ms Hayes in relation to the break and the reduction in the number of clients. Two of the clients lived in the same property. One client cancelled a visit. A different client needed other assistance and the appropriate agency was informed. This client did not require a visit from the Claimant. I find that the reduction in the number of clients did cause the Claimant to walk for a longer period of time between clients. This change was not what was originally planned by the Respondent with the agreement of the Claimant. Instead, it was a consequence of changing events on the day. The shift changes were unexpected and, on the evidence of Ms Hayes, which I accept, it was common that shifts changed whilst being undertaken. Clients became ill, did not require a visit, or cancelled at very short notice. I do not accept that the Google maps on the bundle establish that the shift included a requirement for the claimant to walk up a steep hill. I find that the Claimant knew that there was a hill on this route as she was familiar with Heavitree having undertaken shifts for the Respondent in this area during her employment and prior to 25 September 2023. It was not in dispute that the hill was on a bus route.[41]It was not in dispute that the rota the Claimant was sent for Monday 25 September was sent on Friday 22 September. It was also not in dispute that the Claimant could not contact the office by telephone about this rota as the office had closed after the rota was sent. The Claimant emailed the office about the rota at 11.26am on Sunday 24 September (page 140). She emailed again on the Monday morning.[42]The Claimant resigned on 26 September 2023. She raised a grievance with the Respondent whilst she was off sick. The grievance meeting was scheduled for 6 October 2023 at the Respondent’s office. The Claimants fit note for this period stated that she was unfit for work due to shingles. The email from the Claimant sent to the Respondent on 3 October does not indicate that she wished to attend the grievance meeting. The Claimant explains that she remains contagious with shingles ‘and to be getting two busses with nerve pains like I have is unreasonable.’ The Claimant states that she is more than happy to await their reply via email or letter about what happens next. I find that the Respondent understood this to mean that the Claimant wanted them to proceed with the grievance process on 6 October. Ms Hayes was clear that she considered the content of the Claimants email and was certain that the Claimant did not wish to attend the grievance meeting or have it postponed. I find this to be a reasonable conclusion for the Respondent to draw. The email does not state that the Claimant wanted to attend remotely or on a different date. The Respondent replied to the Claimants email on 3 October stating that the grievance meeting would take place in her absence on 6 October. Further, that the outcome would be notified to the Claimant in writing. There was no reply from the Claimant and she did not indicate to the Respondent that she was not satisfied with this proposal. I find that the Claimant received this second email from the Respondent. The Claimant did not dispute that she received it. The Claimant did not contact the Respondent to ask for the grievance meeting to be dealt with remotely or postponed. The Law Disability
The Law
[43]An individual has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. A substantial adverse effect is one that is more than minor or trivial, and a long term effect is one that has lasted or is likely to last for at least 12 months or is likely to last the rest of the life of the person.[44]The definition of disability poses four essential questions:(1) Does the person have a physical or mental impairment?(2) Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?(3) Is that effect substantial?(4) Is that effect long-term? These questions may overlap to a certain degree; however, the Tribunal should ensure that each step is considered separately and sequentially: Goodwin v Patent Office [1999] IRLR 4.[45]The activities affected must be “normal.” The EqA Guidance states (paragraph D3): “In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.”[46]Para. 5(1), Sch. 1, EqA states that an impairment will be treated as having a substantial adverse effect if measures are being taken to treat it or correct it and, but for those measures, the impairment would be likely to have that effect.[47]Para. 2(1), Sch. 1, EqA states that an impairment will have a long-term effect if:(1) it has lasted at least 12 months;(2) the period for which it lasts is likely to be 12 months; or(3) it is likely to last for the rest of the life of the person affected. In respect of the meaning of the word ‘likely’ as used in the above context, this means whether something “could well happen”: SCA Packaging Ltd v Boyle [2009] UKHL 37.[48]The burden of proof is upon the Claimant to prove she is disabled within the meaning of the statutory definition on the balance of probabilities. Discrimination arising from disability (section 15 Equality Act 2010)[49]Section 15 of the Equality Act states: 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.[50]In Pnaiser v NHS England [2016] IRLR 170, Simler P emphasised the focus of the analysis to be on the state of mind of the alleged discriminator as to the underlying reason for the allegedly unfavourable treatment. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but it must have at least a significant (or more than trivial) influence on the mind of the person alleged to have caused the unfavourable treatment.[51]As to knowledge for the purposes of section 15, there need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see City of York Council v Grosset [2018] EWCA Civ 1105, [2018] ICR 1492 CA.[52]It is for the Respondent to show that it was unreasonable for it to be expected to know that a person(a) suffered an impediment to her physical or mental health, or(b) that the impairment had a substantial and(c) long term effect.[53]The question of reasonableness is one of fact and evaluation. Nonetheless, such assessments must be adequately and coherently reasoned and must take into account all relevant factors and not take into account those that are irrelevant.[54]The approach adopted to answering the question thus posed by s 15(2) is to be informed by the Code, which (relevantly) provides as follows: “5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”[55]Reasonableness, for the purposes of s 15(2), must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee, as recognised by the Code.”[56]In respect of the burden of proof, there is a two-stage process for analysing the complaint of discrimination. At the first stage, the Claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent had committed an unlawful act of discrimination against the Claimant. At the second stage, if the Claimant is able to raise a prima facie case of discrimination following an assessment of all the evidence, the burden shifts to the Respondent to show the reasons for the alleged discriminatory treatment and to satisfy the tribunal that the protected characteristic played no part in those reasons (Igen -v- Wong [2005] EWCA Civ 142 as affirmed in Ayodele -v- CityLink Ltd [2018] ICR 748).[57]Also, considering Madarassy v Nomura International Plc [2007] ICR 867, Mummery LJ stated: “The Court in Igen v Wong expressly rejected the argument that it was sufficient for the Claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an act of discrimination.”[58]The burden of proof does not shift to the Respondent simply on the Claimant establishing a difference in status and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that the Respondent had committed an unlawful act of discrimination (Madarassy). “Could conclude” must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the Claimant in support of the allegations of discrimination. It would also include evidence adduced by the Respondent contesting the complaint. Reasonable Adjustments (sections 20 and 21 Equality Act 2010)[59]Section 20 of the Equality Act states, 20(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 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.[60]Paragraph 20(1) of Schedule 8 to the EqA provides that a person is not subject to the duty to make reasonable adjustments if he or she does not know and could not reasonably be expected to know that a disabled person has a disability and is likely to be placed at a disadvantage by the employer’s PCP, the physical features of the workplace, or a failure to provide an auxiliary aid.[61]Knowledge, in this regard, is not limited to actual knowledge but extends to constructive knowledge (i.e., what the employer ought reasonably to have known). In view of this, the EAT has said that a tribunal should approach this aspect of a reasonable adjustments claim by considering two questions:a. A. first, did the employer know both that the employee was disabled and that his or her disability was liable to disadvantage him or her substantially?b. B. if not, ought the employer to have known both that the employee was disabled and that his or her disability was liable to disadvantage him or her substantially? Secretary of State for Work and Pensions v Alam 2010 ICR 665, EAT.[62]It is only if the answer to the second question is ‘no’ that the employer avoids the duty to make reasonable adjustments.[63]There is guidance in the case of Environment Agency v Rowan [2008] IRLR 20, [2008] ICR 218 as to what needs to be found in such claims, namely that in order to make a finding of failure to make reasonable adjustments there must be identification of:(a) The provision, criteria or practice applied by or on behalf of an employer; or(b) the physical feature of premises occupied by the employer; (c). The identity of non-disabled comparators (where appropriate); and (d). The nature and extent of the substantial disadvantage suffered by the claimant.[64]Tribunals should “set out what it was about the disability of the [claimant] which gave rise to the problems or effects which put him at the substantial disadvantage identified”: Chief Constable of West Midlands Police v Gardner EAT 0174/11
Discussion
[65]It is not in dispute that the Claimant is disabled by reason of her thyroid condition. I accept the Claimant is a disabled person for this reason.[66]The Claimant also asserts in her ET1 that she has a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about, by reason of nerve damage (page 8 and 11). The Claimant had a longstanding diagnosis of a thyroid condition. This was managed by medication. As a result of the fire on 16 August 2023, the Claimant suffered the effects of smoke inhalation and was unable to take her medication. This caused her thyroid level to be low and she contracted shingles. The shingles caused nerve damage and this subsequently developed into PHN.[67]The burden of proof is on the Claimant to show disability where such is disputed. I found that the Claimant had not discharged that burden in respect of PHN. This was accepted by the Claimant, both in her statement and in evidence, who accepted she was not disabled by way of PHN at the time of her employment or at the time of the grievance meeting.[68]As the Claimant did not raise the thyroid condition with the Respondent at any time on which she asserts that she did, the Respondent had no knowledge of the thyroid condition at the material time. In relation to whether the Respondent should have known, it is the case that there were a number of times during which the Claimant raised health conditions and specified these as nerve damage, shingles and PHN. The Respondent took the opportunity to discuss the Claimants health after the fire of August 2023. Prior to that date, the Claimant had been undertaking the required duties of her employment and her health had not been in issue. The Respondent was careful to discuss the Claimants health prior to her return to work in September 2023 and proceeded on the basis of the disclosed health conditions. The Respondent was on notice in September 2023 that the effects of the smoke inhalation and the Claimant contracting shingles in hospital, had resulted in nerve damage. The Respondent implemented adjustments in full consultation with the Claimant. The Respondent did not know and could not reasonably be expected to know about the thyroid condition. The Claimant had raised several other health conditions, but not the one that had a substantial and long term effect on her.[69]If though I am wrong about the Respondents knowledge, I have considered whether the unfavourable treatment, the shift of 25 September and the grievance procedure, was because of any of those things.[70]Was there unfavourable treatment and by whom? I do not find that there was unfavourable treatment of the Claimant in the shift of 25 September 2023, and the Respondent proceeding with the grievance in her absence. The shift of 25 September was requested by the Claimant and there was a clear and careful discussion between the Claimant and Ms Hayes at the return to work meeting of 21 September as to the detail of the shift. It was agreed that this would be the familiar Heavitree shift, be of shorter duration, and consist of fewer clients. The doubles shift was agreed as being inappropriate as it was too onerous. Ms Hayes incorporated a 30 minute break in the shift and had carefully considered the walking distances and the bus routes required for the shift. The Claimant informed the Respondent that she had no intention of attending the office for the grievance meeting. It is the case that she had been diagnosed with shingles during this time. The Claimant did not indicate to the Respondent that she wanted to attend the meeting and said that she would await the outcome in writing. The fact of the meeting proceeding in her absence did constitute unfavourable treatment as she was not able to put her case and she was not offered alternate methods of attendance such as via video.[71]What caused the impugned treatment or what was the reason for it? The Respondent was sure that the Claimant intended for the grievance meeting to proceed without her. The Claimant asserts that this is a misreading of her email of 3 October. She accepted in evidence that the email is unclear and she does not state that she wanted to attend.[72]Was the cause/reason arising in consequence of the Claimants disability? The reason for the shift of 25 September 2023 and the way the grievance meeting was conducted did not arise in consequence of the Claimants disability. The Respondent was aware of the Claimants health issues, shingles, the consequences of the fire, and nerve damage, but was not aware of the thyroid disability. If they had been, then they could have done nothing more to make adjustments for the Claimant. They took her lead and carefully considered, and allocated, what was reasonable. They did not for instance, consider the allocation of a more onerous doubles shift to be reasonable in spite of the Claimant asking for this allocation. The Respondent accepted the Claimants position that the grievance meeting should proceed in her absence. They confirmed this position with her on 3 October. The Claimant did not inform the Respondent that she wished to attend, either on 6 October or on an alternate date.[73]I therefore do not find that the unfavourable treatment was because of any of the asserted things said to arise as a consequence of the claimants disability.[74]In relation to the claim of a failure in the duty to make reasonable adjustments. The asserted PCP of requiring employees to undertake walking shifts to visit clients is not disputed. The Claimant claims that the PCP put her at a substantial disadvantage compared to someone without her disability, in that she was required to undertake a shorter shift with the same number of clients as a longer shift, and with long distances between clients. I accept the evidence of Ms Hayes that a usual shift would consist of up to nine clients. The number of clients seen depended on the length of each scheduled visit. I accept the evidence of both the Claimant and the Respondent, that the Claimant sought the shorter shift that was allocated for 25 September 2023, and that the Claimant was content to be given a walking shift around Heavitree. I accept the evidence of Ms Hayes as it was clear that she had very carefully considered adjustments to assist the Claimant by reducing the usual number of clients and refusing the more onerous doubles shift. The Claimant was aware of the detail of the shift prior to 25 September 2023. She emailed the office on 24 September 2023 about the shift. She did not contact the office by telephone on the morning of 25 September 2023 to raise her concern. The Respondent was not on notice that the Claimant had any issue with the alterations to the shift due to the cancellations and illness of clients until after she had finished work on 25 September 2023.[75]The PCP of conducting grievance meetings in person was not disputed by the Respondent. The Claimant had a fit note covering the 6 October 2023 but I am satisfied that she indicated to the Respondent that she had no intention of attending the meeting in person and sought for the Respondent to proceed in her absence. The Respondent put the Claimant at a substantial disadvantage as she could not attend the meeting with a diagnosis of shingles. The Respondent was aware of the diagnosis. The Respondent could have conducted the meeting by video or rescheduled it. I am satisfied though that the Claimant did not seek either of these things. She wished for the meeting to proceed on 6 October and for the outcome to be notified to her in writing. On 3 October 2023, the Respondent informed the Claimant that they intended to proceed with the meeting on 6 October. The Claimant did not request any alteration to this arrangement.[76]What the Respondent knew of the Claimants disability is in dispute and is a key element for this complaint. I need to consider whether the Respondent knew or whether it could be reasonably expected to know that the Claimant had the disability, and if so, from what date. Further whether the Respondent knew, or whether it could reasonably be expected to know that the Claimant was likely to be placed at the asserted disadvantage.[77]The Respondent knew that the Claimant had a health condition in that she had suffered from smoke inhalation, shingles, nerve damage, and PHN. The Respondent knew that the Claimant needed an adjustment to her working arrangements based on the information provided by the Claimant and the references to these conditions contained in the fit notes. The Claimant detailed what adjustments she required prior to, and during the return to work meeting. At no point did the Claimant assert either directly or indirectly that she had a thyroid condition or other condition that would have a long term substantial adverse effect. The fit notes that were supplied to the Respondent contained no reference to the thyroid condition. The Claimant has not established that the Respondent had the requisite knowledge of disability and in particular, the long term effect. This complaint therefore fails. If I am wrong about that, I find that the adjustments put in place for the Claimants return to work were requested and agreed by her. The walking distances were affected by the cancellation of the two clients, one by the client herself and one due to an emergency. The Claimant accepts in her evidence that she was not disabled by way of PHN at the time of her employment. I find that the Claimant did not inform the Respondent of her thyroid condition at any time during her employment or during the grievance process. The Respondent was alive to the Claimants health and made reasonable enquiries to identify her condition, its effect, and the adjustments she reasonably required. The reasonable adjustments were made as a consequence of the disclosed health conditions and were agreed by the Claimant herself. The Claimant accepted in evidence that she had initially requested a ‘doubles’ shift with a driver but that this had not been agreed by the Respondent owing to the clients visited on a ‘doubles’ shift being more difficult to deal with in terms of the gravity of their health conditions. The Claimant accepted that the allocation of a doubles shift would not have been appropriate or reasonable.[78]The Respondent was aware of some of the Claimants health conditions by reason of the information she had provided, the fit notes, and their enquiries, such as at the return to work meeting. The Respondent did not know and could not reasonably have known that the Claimant was disabled by way of a thyroid condition.[79]The Respondent offered a welcome bonus of £500 in its job advert for the position that the Claimant took. At the hearing, the Respondent accepted that this constituted an implied term of the Claimants contract and conceded this claim.[80]The Claimants complaints of discrimination arising from a disability and a failure in the duty to make reasonable adjustments fail and are dismissed.[81]The Claimants claim for breach of contract is conceded by the Respondent and therefore succeeds. The Respondent will pay £500 to the Claimant.[1]A communication from the Claimant dated 24 April 2025 was received by the Tribunal on 24 April 2025 by means of the ET portal. The Claimant seeks reconsideration of the judgment of 24 March 2025 .[2]A reserved judgment and reasons was sent to the parties on 22 April 2025. The Claimants claim for disability discrimination (Section 15 Equality Act 2010) was dismissed. The claim for failure to make reasonable adjustments (Section 20 and 21 Equality Act 2010) was dismissed. The claim for breach of contract was conceded by the Respondent and was successful.[3]The Claimant's application for reconsideration is set out in her communication dated 24 April 2025; “I have sent the required form to the appeals address given . There are several reasons . The main one is that as video evidence will show I was overcome by an anxiety attack before the summary part . I feel I was not in the correct frame of mind and due to this I missed out vital referrals to forms of evidence that I am confident would give a different view from my perspective. In addition, I have since sought legal and professional advice on the way the definition of disability is applied and strongly believe the judge has applied this law incorrectly.”[4]The Claimant has also lodged an appeal. Her appeal relates to other matters including the findings of fact and the constitution of the Tribunal. I will not address those matters here, because they are the subject of an appeal and the Claimant does not ask for them to be part of the reconsideration.[5]Reconsideration applications are governed by the Employment Tribunal Procedure Rules 2024.[6]Rule 68 provides that the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider a decision where it is necessary in the interests of justice to do so. On reconsideration, the decision may be confirmed, varied or revoked.[7]Rule 69 provides that an application for reconsideration must be made within 14 days of the date on which the decision (or, if later, the written reasons) was sent to the parties.[8]Rule 70 provides the process by which the Tribunal considers an application for reconsideration. Where the Judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application shall be refused. Otherwise, the Tribunal shall send a notice to the parties setting out 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.[9]The importance of finality in litigation was confirmed by the Court of Appeal in Liddington v 2Gether NHS Foundation Trust EAT/0002/16. Simler P said that: “34. […] 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 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. 35. 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.”[10]The Claimant’s application was received within the relevant time limit. I therefore consider it under Rule 70.[11]I have kept in mind the overriding objective in Rule 3 that cases must be dealt with fairly and justly. This includes, as far as practicable, ensuring the parties are on an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just process. The application for reconsideration[12]In her communication of 25 April 2025, the Claimant states there are ‘several reasons’. Her application for reconsideration refers to two reasons. In summary,a. The claimant was overcome by an anxiety attack and did not refer to vital forms of evidence.b. The definition of disability was applied incorrectly.
Facts
[13]The two day hearing was the Claimant’s opportunity to give information, ask questions and raise issues, which she did. The Claimant had the opportunity to ask questions of the Respondent’s witness and advance all relevant arguments.[14]The parties were informed at the start of the hearing that the hearing was being recorded. This is an audio recording, not a video recording. Reasonable adjustments were made to assist the Claimant to participate appropriately in the hearing and give her best evidence. Breaks of between 5 and 15 minutes were regularly taken. There were three breaks, plus a lunch adjournment of approximately 75 minutes on day one. There were five breaks, plus a lunch adjournment of approximately 60 minutes on day two. The Judge made frequent enquiries with the Claimant to check if she needed further breaks, for example, to locate documents.[15]The Claimant had the benefit of giving her submission after the Respondent. This assisted her to see what was involved. The Claimant stated that she would not be able to state her case in the same way as the Respondents representative. She confirmed that she had made notes but not referenced page numbers. The Judge tried to reassure the Claimant by reiterating that she had read the bundle and witness statements and taken a full note throughout the hearing and had listened carefully throughout. The Judge further sought to reassure the Claimant that she was not at all expected to summarise her case in the way that the Respondent had. The Judge said to the Claimant to take a break, look at her notes, then come back and either read them off the page or off the top of her head, and not to worry about page numbers. The Tribunal then took a break of approximately seven minutes. The Claimant confirmed that she had had an opportunity to consider what she wanted to say. The Claimant was then able to summarise her case in what appeared to be a calm manner. There was no observable effect on the Claimant of an anxiety attack before, during, or after her closing submission. Her ability to speak, communicate, and participate in the hearing appeared to be the same as it had been throughout the two day hearing. The Claimant did not raise any further issues regarding her closing submission. When asked if there were any additional matters that she wanted to raise, the Claimant did not raise any further matters.[16]In her application the Claimant has referred to missing out vital referrals to forms of evidence. In this respect it appears that the Claimant is referring to documents in the bundle. While the Claimant may now feel that her closing submission may have been assisted if she had referred to particular documents, the Judge reassured the Claimant during the hearing that she had read the trial bundle. The bundle was also referred to by the Judge when writing the reserved judgment. She was therefore aware of the documents presented.[17]The Claimant has asserted that the Judge applied the law incorrectly in regard to the definition of disability. The Claimant has not set out in her application any detail in this regard. The Claimant has given no explanation of how the asserted misapplication of the law had a material effect on her claim.[18]The Respondent accepted that the Claimant was disabled due to her thyroid condition. The issue was in regard to the Respondents knowledge of that disability. The Respondent’s case in relation to the Claimant’s PHN was that PHN was not a disability at the material time. In relation to PHN the Claimant in her witness statement at paragraph 1.1 stated that she appreciated that at the time of her employment, she was not disabled by way of PHN. The Claimant did not assert any alternate position at the hearing. Disability was a live issue in regard to the Respondent’s knowledge of the thyroid condition.[19]A reconsideration is potentially a route for a party to raise new matters, but only where these have subsequently come to light after the hearing and where that party can adequately explain why the matter was not raised before. The Claimant’s application does not identify or explain any new matters.[20]I have kept in mind the decision in Outasight v VB Brown 2015 ICR D 11. In this case it was confirmed that Employment Tribunals have a broad discretion in determination of reconsideration applications. It was stated that discretion must be exercised judicially: “which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation”.[21]Accordingly, I refuse the application for reconsideration pursuant to Rule 70(2) because there is no reasonable prospect of the Judgment being varied or revoked. Approved by: