Employment Judge ReadIn person for claimantMs C Cheng (instructed by Counsel) for respondentDate 29 May 2025
REASONS
[1]The claimant was employed by the Respondent, a property letting /management company, as a Head of Centre (Team Leader) on 26 September 2023. On 1 Jul 2024, the Claimant's service was terminated on the grounds of misconduct. The claimant issued proceedings on the basis that her termination was an act of discrimination arising from disability contrary to s15 of the Equality Act 2010.[2]The employment relationship appears to have progressed well for around 6 months. However, in late March 2024, the claimant engaged in conversations with her HR department as she was going through some personal issues due to the illness of her father, as well as having to deal with a difficult client. Page 1 of 10[3]From May 24 there were several incidents of note. Unless otherwise stated, these are agreed-upon facts. On 1 May 24 the claimant was on a call to a Landlord, Ms Lockwood. We heard a recording of the phone call that showed the claimant was frustrated, and the Landlord seemed to take significant offence at how the claimant handled her. The conversation deteriorated to the point that the claimant threw down her headset and left the room, leaving another employee to handle the call. The respondent considered this unprofessional, given her leadership role. We also heard a recording of a call from another employee this, too, was a difficult call, and the employee handled it in a less than professional manner; however, we further note the employee was a more junior colleague. The call by the claimant is referred to as, the Landlord Call incident.[4]The next day, the claimant discussed her stress dealing with the call with Karen Shepard, her line manager, but did not go into the specifics of her diagnosis back in 2009 of Bipolar II Disorder.[5]Throughout the months of May to June 2024, the claimant had a deteriorating relationship with a fellow employee, Ms “Jess” Phillips. This was outlined in evidence before us of inappropriate emails about Ms Phillips and derogatory comments at a quiz. This culminated on 5 Jun, when working in the same office, the claimant said seven times, in increasing levels of loudness and intensity for Ms Phillips to “shut up”. This resulted in a formal claimant of how Ms Phillips felt “stupid, embarrassed and low”. The claimant accepted her behaviour was unacceptable; she snapped. She gave the reason was due to the noise levels in the office. The Claimant contacted her manager, Ms Shepard, to say she was in touch with HR to talk with a mental health first aider.[6]On 11 June 2024, the claimant communicated she had issues with one of her superiors, Adam Beven’s, work in relation to Gas Safety Certificates and took a sample of the certificates to demonstrate the poor quality of the Page 2 of 10 work to her line manager. The Claimant did not report her concerns directly to Mr Beven to rectify the situation before checking up on him.[7]On 12 June 2024, the Claimant shared with her team that she had been ‘told off’ about the incident with Jess.[8]Given the general amount of non-specific discussion about Mental Health by the claimant, it was discussed on 11 June 2024 (between Ms Shepard and HR) that an Occupational Health report may be beneficial. This was engaged. At this time, the claimant had not told the respondent of her extant diagnosis of Bipolar II Disorder.[9]As a result of the incident with “Jess”, the claimant received an informal warning, in writing. It was at that meeting, on 14 Jun 24 the claimant first informed the respondent of her Bipolar II Disorder diagnosis. In evidence, the claimant confirmed that she has been undergoing treatment for the condition since 2009, but since then, due to medication, she has been stable. She defined this as not in crisis; however, she maintains that she still suffers from lower-level effects, specifically at times of stress. As a result of this conversation, an Occupational Health meeting was set up for 25 Jun 24.[10]One of the claimant's subordinates, Denise Hurn, complained about the claimant's tone in an email chain between 24-26 June 2024. Ms Hurn felt the email was condescending and felt demeaned by the phraseology used by the claimant, indicating that she should know better given her senior status. This prolonged email chain was seen as poor management behaviour by Ms Shepard, and she was exasperated why this could not have been handled by a simple 10-minute phone call. This goes some way to contextualising the meeting of the subsequent meeting of 28 June 2024.[11]On 26 June Ms Shepard and the claimant corresponded about the outcome of the Occupational Health report that confirmed the claimant's Page 3 of 10 Mental Health condition was stable but suggested some adjustments that may assist her, namely, keep using noise-cancelling headphones, more time working away from the office and finally, a work stress analysis. Occupational Health recommendations are just that, recommendations, and an employer is entitled to consider if these are reasonable adjustments or not, considering the workplace. Therefore, a meeting was scheduled on 28 June 2024 to discuss these adjustments and how they would work.[12]We find Ms Shepherd was either going to use the meeting to understand better the claimant's rationale for her management/poor behaviours towards others, and if that went well, then move on to how they could take the reasonable adjustments forward and integrate those into the workplace. We note that some of the termination paperwork was completed with the Human Resources department before the meeting on the 28 June 2024. We heard evidence and accepted it that was done as an option, depending on how the meeting went.[13]Before the meeting on 28 June 2024 had taken place, the claimant and Mr Hurn were due to have a 1-to-1 meeting. The meeting did not go well, Ms Hurn wanted to talk about objectives, but the claimant was not able to at that point. The claimant wanted to give Ms Hurn a welfare task, but Ms Hurn felt the task was inappropriate given her low position. It became apparent in the evidence Ms Hurn was correct in her resisting the task. Ms Hurn felt she was being belittled by the claimant again to the point she picked up her diary and tea and went to leave. The claimant then suddenly and aggressively moved her arm to the door, preventing Ms Hurn’s exit, stating she must stay and sought this out. Ms Hurn asked the claimant to let her leave, and the claimant then moved her arm. Ms Hurn immediately reported this behaviour that she found distressing and worried about her ability to work with the claimant again. Statements were taken about the incident. The evidence of Ms Hurn was compelling, she demonstrated the sudden action preventing her from leaving the room, and we find that this was, matter of fact, an act of aggression in the workplace. Page 4 of 10[14]Later that day, the claimant's termination paperwork was completed. A meeting was held to decide on the termination on 1 July 2024 with a Ms Atkins in attendance.[15]The grounds for the termination were set out in a letter dated 2 July 2024 and are largely undisputed as factually happened. As the claimant had been employed for less than 2 years, an abbreviated misconduct process was followed under their disciplinary procedure 1b. No adjustments were requested to the process, and no Reasonable Adjustment claim has been made in the ET1 or the Case Management Hearing. The only discrimination arising from disability contrary to s15 of the Equality Act 2010 has been put forward.[16]Due to the claimant's limited amount of service with the respondent there is no claim for unfair dismissal. The respondents, in law, were free to dispense with the claimant's service at will, so long as they met their contractual obligations, such as notice periods. It is the claimant's case that the dismissal was something arising from her disability.[17]It is agreed that the Claimant suffered from a disability as defined in the Equality Act 2010.[18]We find that on 12 June 2024, when Ms Hampshire (HR) and Ms Shepard communicated their ‘joining of the dots’ of her condition, the Respondents knew or could have reasonably been expected to know of her disability. We do not find that the oblique references made up to that point are sufficient to put the Respondent on notice of disability status. Shortly after the meeting on 12 June 2024, on 14 June 2024, the claimant informed Ms Shepard she suffered from Bipolar II Disorder.[19]We find that the behaviour of the respondent was swift and appropriate on realisation of the claimant's condition. Before actual knowledge of the claimant's condition, they were already considering an Occupational Page 5 of 10 Health report. This was authorised, engaged, an interview conducted, and results received at pace. They sent the risk assessment (one of the possible reasonable adjustments) form to the Claimant with a plan to discuss it on 28 June 2024.[20]Other than the risk assessment that was due to be discussed, we find that all the adjustments were already in place; the respondent had permitted working from home days whenever they had been asked for, on top of one day a week, and the noise-cancelling headphones were already in use. The meeting on 28 June 2024 did not happen and was changed to a short welfare meeting post the Ms Hurn meeting incident. We have not heard any request for other adjustments.
The Law
[21]This case concerns discrimination arising from disability contrary to s15 of the Equality Act 2010 has been cited. It states: (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.[22]The law requires there to be unfavourably treatment, in this case it is agreed that it is the termination of the claimant’s employment.[23]We then went on to consider what the ‘something’ was that led to the alleged unfavourable treatment; we found it to be the behaviour of the claimant in the incidents that were cited in the letter of dismissal letter dated 2 July 24. Page 6 of 10[24]However, it is the respondent's case that these behaviours were not a consequence of the claimant's disability. The Respondent questioned the witness extensively on this issue, seeking to demonstrate that her condition was stable and her reactions should be interpreted in light of the stresses any employee would go through. However, the claimant had a differing argument; she states that her behaviours were due to stress that activated her Bipolar II Disorder, thereby causing the behaviours, which are symptoms of her disability. Noting the fact the claimant’s father was ill, she was having challenges in workplace relationships and a busy portfolio with workforce resourcing issues we accept stress was a factor in this case. We went onto examine both the claimants GP letter of 13 Feb 25 and the occupational health report, nether directly mentioned symptoms to aggression or ‘snapping’, but did talk of symptoms such as irritability, on the balance of probabilities we find it more likely than not that her inappropriate behaviour was in whole or part due to Bipolar II Disorder. In reaching this decision, we were assisted by Pnaiser v NHS England and Anor [2016] IRLR 170 EAT, Mrs Justice Simler stated at paragraph 31(d): “The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of section 15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of section 15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.” Page 7 of 10[25]Having considered that the first elements of s15 are found proven, we went on to consider if the Respondent had a defence by showing that the treatment is a proportionate means of achieving a legitimate aim.[26]The respondents took us to their Code of Ethics, which clearly set out a requirement for employees to show respect and dignity for others. We find that securing a safe working environment of mutual respect for both staff and clients is clearly a legitimate aim.[27]The claimant agrees that she committed the acts set out in the dismissal letter and that her behaviour was unacceptable and below the standard expected in the Code of Ethics.[28]As this is not a claim of Unfair Dismissal, the claimant not having two years qualifying service, procedural failures are not significantly relevant in determining proportionality under s.15 unless they relate to the disability claim. Furthermore, it is specified in the discipline policy cases of employees with under 2 years' service, they can follow a bespoke expedited process at the sole discretion of the Respondents.[29]Were the respondents' actions objectively proportionate to meet the stated legitimate aim? This case did not consider one incident of misconduct but misconduct over time, a pattern of unacceptable behaviour. Some of the incidents were more serious than others, but they cannot be seen in isolation; they form part of a pattern of behaviour by the claimant, and it was appropriate that the decision maker, Ms Shepard, considered the totality of the claimant's behaviours.[30]We note that the ‘Jess Incident’ resulted in a warning as to her conduct and that further incidents could amount to dismissal. We consider the email exchange between the claimant and Ms Hurn comparatively minor, but it set the scene for the meeting that took place on 28 June 2024. The behaviour of the claimant in the meeting of 28 June 2024 is highly troubling; however, short, of physically preventing a fellow employee from Page 8 of 10 leaving a room and fear for their safety is gross misconduct. It was the evidence of Ms Hurn that the claimant was aggressive and that it left her distressed, and she does not feel safe with the claimant, feeling physically threatened. Regardless of other incidents, this on its own was an act of Gross Misconduct and could be worthy of dismissal.[31]We note and consider reasonable adjustments concerning the process. Failure to apply reasonable adjustments to the process was not part of the claimant's claim. We saw a short record of the disability meeting on 1 July 2024, and no reasonable adjustments were requested. We considered that the Occupational Health report made a small number of suggested adjustments subject to feasibility, and these were scheduled to be discussed in a timely manner, but the incident with Ms Hurn intervened. The Adjustments were simply more working from home and a stress risk assessment; the former was seemingly done in any event.[32]We gave considerable thought when considering proportionality if there was some lesser sanction that could have been given. However, given the claimant has left one employee in distress, effectively saying she was bullied as a result of the claimant's conduct and another employee who was physically prevented from leaving the room (coupled with the additional lesser misconduct) we consider it proportionate that the employer felt their only option was terminating her service.[33]We went onto considered if it was possible to further pause the disciplinary action and apply the Adjustments over some time but given last incident was of such a gravity that it would have been inappropriate for her to return to work with fellow workers coupled with the fact the majority of the adjustments were in effective in any rate.[34]We find the treatment, dismissing the claimant, was a proportionate means of achieving a legitimate aim. It is for that reason that we find the claim of discrimination arising from disability contrary to s15 of the Equality Act 2010 unfounded and dismissed. Page 9 of 10 Approved by: