MS P PATEL v THE GOVERNING BODY OF LISTER COMMUNITY SCHOOL [2018] UKEAT 0289_16_0103
[1]APPEARANCES For the Appellant MS PRABHA PATEL (The Appellant in Person) For the Respondent MS HEATHER PLATT (of Counsel) Instructed by: One Source Legal Services Newham Dockside 1000 Dockside Road London E16 2QU SUMMARY PRACTICE AND PROCEDURE The Claimant brought claims of unlawful disability discrimination, unfair and wrongful dismissal, and claims relating to accrued holiday pay said not to have been paid. She had previously brought proceedings under claim number 3201756/2013 against the same Respondent, also for unlawful disability discrimination and extending to unlawful age and sex discrimination as well, but those claims were dismissed on withdrawal by Employment Judge Ferris, who acknowledged that the Claimant had been unwell for an extended period of time. Initially, the current claim included claims covering the same period as the earlier claim and were in identical terms. However, at a Preliminary Hearing on 2 March 2015, the Claimant conceded that matters pleaded in the earlier claim (3201756/2013) or that could have been contained in that claim could not be pursued in the present claim pursuant to the rule in Henderson v Henderson [1843] 3 Hare 100 . Employment Judge Ferris recorded that concession in a case management order and direction sent to the parties on 25 March 2015, but made clear that " It will be open to the Claimant to refer to the earlier material as background and as evidence of subsequent discrimination " (paragraph 1).[2]On appeal she argued (among other things) that the Employment Tribunal in rejecting her substantive claims misapplied the rule in Henderson v Henderson by failing to consider facts pre-dating May 2013 when addressing and determining her unlawful disability discrimination and unfair dismissal claims.[3]The appeal failed. The Employment Tribunal did not misapply the rule in Henderson v Henderson ; nor did it fail to consider facts from the earlier period. It reached conclusions that directly addressed the earlier period and were permissible on the evidence and not in error of law. THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT) The Facts The Tribunal's Conclusions on the Material Issues"179. In any event, before July 2013, the Tribunal finds that the Respondent had been acting on the advice of Human Resources, which was that a grievance was to be heard along with a capability process, where it concerned a capability process, to avoid duplication or multiplicity of proceedings. The Respondent had told the Claimant, in February 2013, that her grievance would be heard when she returned to work. That would have addressed the grievance without unreasonable delay on her return, in accordance with paragraph [32] of the ACAS Code .180. The Tribunal is satisfied that the Respondent would have sought to hear any grievance within the capability procedure, on the employee's return to work, where the grievance concerned the capability procedure. This was Human Resources standard practice. When the Respondent did commission an investigation report, it did so again acting on advice, this time from Occupational Health.181. The Tribunal finds that, at all times, the Respondent was following advice on how best and appropriately to address the Claimant's grievance issues. The Tribunal finds that it would have acted in the same way in relation to any other grievance, whether the person bringing a grievance was disabled or not. The Tribunal is satisfied that the Respondent did not treat the Claimant less favourably than a comparator in the same circumstances, who was not disabled." Accordingly the allegation in issue 10.1 was not made out and failed. "207. … the school could not reasonably have been expected to do more. It had already spent considerable sums on sick pay. It had taken reasonable steps to ensure her return to work, so that she did not suffer further financial loss. As a school, it had considerable other financial commitments. It did not fail to make a reasonable adjustment when it decided not to extend her sick pay." "… not yet quite ready to come back to school and it will take some time to heal the wounds and regain her confidence. …" (ET Judgment, paragraph 101) The Appeal Costs Application