Ms C O’Donnell v Network Rail Infrastructure Ltd: 8001166/2024
JUDGMENT
The Judgment of the Employment Tribunal is as follows:[1]The claimant’s claim under Section 19 of the Equality Act 2010 is dismissed.[2]The claimant’s claim is, by agreement, amended as reflected in paragraphs 3.1.12, 3.1.13, 3.1.14, 3.1.15, 4.2.8, 4.2.9, 4.2.10, 4.2.11 and 4.2.12 of the List of Issues attached.[3]The final hearing in the claim, scheduled to commenced on 2 June 2025, shall proceed in accordance with the List of Issues agreed by the parties, attached.REASONS
[1]This was an open preliminary hearing fixed to agree a final list of issues for the final hearing as well as to consider whether certain aspects of the claim required to be considered as amendments and whether certain aspects of the claim should be struck out as having no reasonable prospects of success.[2]The claimant and the respondent’s solicitor helpfully co-operated in agreeing the final list of issues. As part of that, the claimant indicated that she wished to withdraw her claim under Section 19 of the Equality Act. The respondent’s solicitor did not advance any other strike out application.[3]For those aspects of the claim where it was suggested that amendment was required, these issues were resolved by agreement in the formulation of the List of Issues set out in the attached appendix.[4]Subject to finalising documents, the parties are ready to proceed with the final hearing and agreed to co-operate in reducing the number of documents where possible. APPENDIX JOINT LIST OF ISSUES 5 1 Disability Discrimination by Association1.1 Does the Claimant’s son have a disability or disabilities within the meaning of Section 6 of the Equality Act 2010 (the "EqA 2010")? The Claimant relies on the impairments of autism spectrum disorder (ASD).1.2 It is accepted that the Claimant's son is a disabled person for the purposes of the EqA 2010 from March 2023 onwards.1.3 Did the Respondent know, or could the Respondent be reasonably expected to have known that the Claimant’s son was a disabled person within the meaning of the EqA 2010? If so, from what date did the Respondent have such knowledge, or from what date could the Respondent be reasonably expected to have such knowledge? 15 2 Direct Disability Discrimination by Association– Section 13 Equality Act 20102.1 What was the less favourable treatment? The alleged treatment relied upon by the Claimant is: -:2.1.1 She was informed that she would not be promoted on 26 October 2023;2.1.2 Prior to that, high profile complex cases (as specified in the claimant’s grievance in November 2023) were removed from her; 202.1.3 Her performance rating showed as "good" rather than "exceeded" on the Respondent's internal system between April and August 2023;2.1.4 Her leave entitlement was reduced; and2.1.5 On 26 October 2023, Elaine Tennant said during a meeting, "we have supported you in other ways with Lochlainn" 252.2 Was the treatment because of the Claimant's association with her disabled son?2.3 Has the Claimant shown that she has been treated less favourably than a real or hypothetical comparator, whose circumstances are not materially different to hers? The Claimant relies upon the following comparators: -2.3.1 The claimant relies on a hypothetical comparator for all allegations.2.3.2 A real comparator for allegation 2.2.1 (Bernadette Tolan); and2.3.3 A real comparator for allegation 2.2.1 (Emma McMillan) Disability Related Harassment – Section 26 Equality Act 2010 53.1 Did the Respondent engage in the following unwanted conduct:3.1.1 Did Gillian Robinson state to the claimant via a team’s message on 3rd of July 2023 that their son went to speech therapy “but it was a waste of time as there was nothing wrong with him “so he didn’t need it” Indicating there was something wrong with the claimant’s son? 103.1.2 Did Gillian Robinson fail to offer time off from September 2023 until November 2023 for the claimant’s therapy sessions, by failing to carry out a carer’s passport or offering more flexibility to attend these sessions. Instead, the claimant had to work the time back?3.1.3 Did Gillian Robinson, in July 2023, change the claimants flexible working agreement after the claimant advised she needed time off for therapies related to her son’s disabilities and reduce annual leave to part time, and did Gillian Robinson make comments that the claimant was receiving more than others?3.1.4 Did Elaine Tennant and Gillian Robinson repeatedly book meetings during the claimant’s therapy sessions between October 2023 and November 2023?3.1.5 Did Elaine Robinson ask for a call with the claimant on the 22nd of September 2023 during a therapy session?3.1.6 Did Gillian Robinson message the Claimant during a therapy session asking where she was on the 27th of October?3.1.7 Did Gillian Robinson ask Pete Thomson on November 1st, 2023, to book a meeting in for important handovers during the claimant’s annual leave days? 253.1.8 Did Elaine Tennant tell the claimant ‘The business has supported you in other ways’ in a conversation around promotion on October 27th, 2023, and did Elaine Tennant advise the claimant to leave the business in this meeting by stating ‘4 and half years is probably time to move on’?3.1.9 Did Gillian Robinson state to the claimant after the claimant raised a complaint about the comments in this meeting (26.10.23), not to ‘box herself in’ and they needed the claimant to be more flexible?3.1.10 Did Gillian Robinson between October and November 2023 micromanage the claimant, including emailing on days off to return to a list of things to check and respond on if they were completed including items not in her role remit?3.1.11 Did Gillian Robinson text the Claimant while the claimant was under extreme distress on the 8th of November 2023 pressuring the claimant to withdraw from the senior HRBP position to reduce the possibility that the claimant would raise a formal complaint?3.1.12 During the claimant’s grievance process, did the claimant’s line manager use threatening language in saying that the claimant should be careful making allegations?3.1.13 In witness statements provided as part of the grievance process, did Gillian Robinson and Elaine Tennant make discriminatory or ableist comments relating to the claimant's son's disability, namely that the claimant had received preferential treatment and had ongoing issues due to the need to attend therapy for her son?3.1.14 In witness statements provided as part of the grievance process, did Gillian Robinson and Elaine Tennant make false allegations about the claimant’s conduct, namely:3.1.15 Did the respondent exclude the claimant from work, remove her reporting line, and indicate that her employment would be terminated under a redeployment process falling outside any formal policy and without consultation or agreement?(i) that she made a colleague, Graham Bryce, leave the respondent’s employment; or(ii) that the claimant’s trade union refused to attend meetings with her due to her behaviour; or(iii) (in respect of Gillian Robertson alone) that the claimant’s conduct was an issue in her handling of a dismissal meeting concerning employee Scott Pryor?3.2 Was the conduct related to the protected characteristic of disability?3.3 Did the conduct have the purpose of violating the Claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?3.4 If not, did the conduct have the effect of violating the Claimant's dignity or creating such an environment for the Claimant, having regard to the Claimant's perception, the other circumstances of the case and whether it is reasonable for the conduct to have had that effect? Victimisation – Section 27 Equality Act 2010 54.1 What is the protected act relied upon by the Claimant? The protected acts relied upon by the Claimant are: -4.1.1 The Claimant raising concerns with Gillian Robinson on the 8th of August 2023 that her rating was downgraded by Elaine Tennant to give them a reason to not promote her into the vacant senior position; that since disclosing her son’s disabilities, she felt she had been treated differently and wished they had never disclosed4.1.2 The Claimant raised with Elaine Tennant and Gillian Robinson via email on the 10th of November 2023, the change in treatment after disclosing her son’s disabilities and the need to attend therapy; rating reduced, flexible working challenged, annual leave reduced and refused promotion and the need to raise these issues formally 154.1.3 The Claimant raised a formal grievance on the 14th of December 20234.2 Did the Claimant suffer the following disadvantages: -4.2.1 Did Gillian Robinson fail to follow sickness absence policy and procedure by refusing to take the claimants call to report as absent on the 13th of November 2023?4.2.2 Did Gillian Robinson text the Claimant advising they would not take their call on the 13th of November 2023?4.2.3 Did Gillian Robinson and Elaine Tennant from the 13th of November 2023 until March 2024 refuse to allow an independent welfare manager the Claimant could be open with?4.2.4 Did Elaine Tennant fail to provide adequate Occupational health guidance or report to the claimant in November 2023? 254.2.5 Did Elaine Tennant and Alex Dobbie fail to follow company policy from November 2023 until March 2024 by not holding any welfare meetings, by refusing to appoint an independent welfare manager and not following the guidance from the occupational health report received on 12th of March 2024 causing stress and anxiety?4.2.6 Did Elaine Tennant and Nicola Ferguson from May 2024 until July 2024 fail to follow a fair and impartial grievance investigation and process?4.2.7 Did Elaine Tennant unreasonably require the claimant to participate in employment tribunal process whilst absent from work around March 2024? 54.2.8 Did Rob Davis interview the Claimant's union representative in an inappropriate manner as part of the grievance process?4.2.9 During the claimant’s grievance process, did the claimant’s line manager use threatening language in saying that the claimant should be careful making allegations?4.2.10 In witness statements provided as part of the grievance process, did Gillian Robinson and Elaine Tennant make discriminatory or ableist comments relating to the claimant's son's disability, namely that the claimant had received preferential treatment and had ongoing issues due to the need to attend therapy for her son?4.2.11 In witness statements provided as part of the grievance process, did Gillian Robinson and Elaine Tennant make false allegations about the claimant’s conduct, namely: (i) that she made a colleague, Graham Bryce, leave the respondent’s employment; or (ii) that the claimant’s trade union refused to attend meetings with her due to her behaviour; or (iii) (in respect of Gillian Robertson alone) that the claimant’s conduct was an issue in her handling of a dismissal meeting concerning employee Scott Pryor?4.2.12 Did the respondent exclude the claimant from work, remove her reporting line, and indicate that her employment would be terminated under a redeployment process falling outside any formal policy and without consultation or agreement?4.3 If so, was it because the Respondent believed that the Claimant had done or might do a protected act? Time Limits5.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?5.2 If not, was there conduct extending over a period of time?5.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?5.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:5.4.1 Why were the complaints not made to the Tribunal in time?5.4.2 In any event, is it just and equitable to extend time? 5 6 Remedy6.1 What declarations, if any, as to the rights of the Claimant and Respondent would be appropriate?6.2 What compensation, if any, should the Respondent be ordered to pay to the Claimant? In particular:6.2.1 What financial losses has the Claimant sustained as a result of any acts of discrimination which the tribunal finds to be made out? 106.2.2 Has the Claimant made reasonable attempts to mitigate losses?6.2.3 What injury to feelings, if any, has the Claimant sustained?6.3 Did the Respondent or the Claimant unreasonably fail to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures? If so, would it be just and equitable to increase or decrease the award of compensation? If so, by what percentage (up to a maximum of 25%)? 156.4 What interest, if any, should be added to the compensatory award?6.5 Does the compensatory award need to be grossed up to take into account the impact of taxation?6.6 What recommendations, if any, would be appropriate?