M Hanif v Department for Work and Pensions: 2500446/2019 and 2504225/2019
| Jurisdiction | England & Wales |
| Judgment Date | 24 August 2021 |
| Date | 24 August 2021 |
| Citation | 2500446/2019 and 2504225/2019 |
| Court | Employment Tribunal |
| Published date | 07 June 2021 |
| Subject Matter | Disability Discrimination |
Case Numbers: 2500446/2019 & 2504225/2019
1
THE EMPLOYMENT TRIBUNALS
Claimant:
M Hanif
Respondent:
Department for Work and Pensions
HELD AT:
North East region; by video
ON:
15-22 February
2021
In chambers: 23
February, 8 April
and 28 April 2021
BEFORE:
Employment Judge Aspden
Mr R Dobson
Mr S Moules
REPRESENTATION:
Claimant:
Respondent:
Mr Barker, solicitor
Mr Crammond, counsel
JUDGMENT
1. The following complaints made by the claimant under the Equality Act 2010 are
dismissed, having been withdrawn by the claimant:
a. the complaints that the respondent subjected the claimant to direct
discrimination within section 13 of the Act and discrimination within section
15 of the Act;
b. the complaint that the respondent harassed the claimant and victimised
her by returning files to the claimant without cause and falsely claiming
that she was removing barcodes from files.
2. The following complaints made by the claimant under the Equality Act 2010 are
well founded:
Case Numbers: 2500446/2019 & 2504225/2019
2
a. The complaint that the respondent failed to comply with a duty to make
reasonable adjustments, and thereby discriminated against the claimant,
by failing to permit the claimant to listen to music at work.
b. The complaint that the respondent failed to comply with a duty to make
reasonable adjustments, and thereby discriminated against the claimant,
by failing to allow her to work from home reporting to someone other than
Ms Hepperle from 8 November 2018.
3. The remainder of the claimant’s complaints are not well founded and are
dismissed.
REASONS
The claims and issues
1. The claimant is an employee of the respondent. In March 2019 the claimant
brought proceedings in the employment tribunal comprising complaints under the
Equality Act 2010 that she had been subjected to discrimination and harassment
related to disability and sexual orientation, and victimisation. Those complaints
proceeded under case number 2500446/2019.
2. In November 2019 the claimant brought further complaints against the respondent
under the Equality Act 2010. Those complaints proceeded under case number
2504225/2019. There were originally said to be three discrete complaints of
harassment and victimisation within those proceedings. The claimant’s
representative subsequently withdrew one of the complaints.
3. A direction was made that both sets of proceedings be heard together. The
hearing was originally due to take place in April 2020 but the hearing had to be
postponed due to the Covid pandemic.
4. Orders were made requiring the parties to agree a list of issues ahead of this
hearing. Regrettably, at the start of this hearing the precise claims being pursued by
the claimant remained unclear. Therefore, we prepared a list of the claims that
appeared to be being made. In the course of discussions the claimant’s
representative withdrew all complaints of direct discrimination and discrimination
within section 15 of the Equality Act 2010. That left complaints of harassment related
to sexual orientation and disability, victimisation and discrimination by failing to
comply with a duty to make reasonable adjustments.
5. After discussing matters with his client Mr Barker refined the list of claims further.
Both parties agreed that the claims being made by the claimant are those annexed
to this judgment. After the claimant had given evidence one of the complaints was
withdrawn ie allegation 20.
6. The parties agree that all of the alleged unlawful acts occurred in or after
December 2017. Mr Crammond confirmed that the respondent accepts the claimant
had a mental health impairment constituting a disability from then and that the
Case Numbers: 2500446/2019 & 2504225/2019
3
respondent knew, or could reasonably have been expected to know, that was the
case from the date it received an occupational health report in that month.
7. The claimant makes a number of claims that the respondent subjected her to
detriment amounting to victimisation within section 27 of the Equality Act 2010.
Consistently with what has been the claimant’s position throughout these
proceedings, Mr Barker confirmed that the claimant relies on two alleged protected
acts:
7.1. Firstly, she alleges she brought proceedings under the Equality Act 2010 against
her former employer. This would be a protected act under section 27(2)(a).
7.2. Secondly, the claimant alleges that the claimant did a protected act by sending a
letter to Ms Pattison dated 22 June 2018. The claimant’s case is that this was a
protected act under section 27(2)(d) or (c) in that it constituted either making an
allegation that someone has contravened the Equality Act 2010 or ‘doing any
other thing for the purposes of or in connection with’ the Equality Act 2010.
Evidence and findings of fact
8. We heard evidence from the claimant.
9. For the respondent we heard evidence from:
9.1. Ms Hepperle, who had been the claimant’s line manager;
9.2. Ms Pattison, who was Ms Hepperle’s line manager at the material times;
9.3. Mr Humphray, who managed the claimant for a period during 2018 and 2019;
9.4. Mr Garrick, who was the claimant’s manager from March 2019; and
9.5. Mr Foster, who investigated a grievance brought by the claimant in 2019.
10. In addition, we took into account the documents to which we were referred in a
bundle of documents prepared for this hearing together with certain other documents
to which we were referred.
11. Important elements of this case were dependent on evidence based on people’s
recollection of events that happened some 18 months ago. In assessing that
evidence we bear in mind the guidance given in the case of Gestmin SGPS -v-
Credit Suisse (UK) Ltd [2013] EWHC 3560. In that case Mr Justice Leggatt observed
that is well established, through a century of psychological research, that human
memories are fallible. They are not always a perfectly accurate record of what
happened, no matter how strongly somebody may think they remember something
clearly. Most of us are not aware of the extent to which our own and other people’s
memories are unreliable, and believe our memories to be more faithful than they are.
In the Gestmin case, Mr Justice Leggatt described how memories are fluid and
changeable: they are constantly re-written. Furthermore, external information can
intrude into a witness’ memory as can their own thoughts and beliefs. This means
that people can sometimes recall things as memories which did not actually happen
at all. In addition, the process of going through Tribunal proceedings itself can create
biases in memories. Witnesses may have a stake in a particular version of events,
especially parties or those with ties of loyalty to parties, including employees and
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