Miss B Norgrove v The Back Up Trust: 2300404/2020
| Judgment Date | 23 July 2021 |
| Citation | 2300404/2020 |
| Published date | 12 August 2021 |
| Court | Employment Tribunal |
| Subject Matter | Disability Discrimination |
Case no. 2300404/2020
1
EMPLOYMENT TRIBUNALS
Claimant: Miss B Norgrove
Respondent: The Back Up Trust
Heard at: London South Employment Tribunal (by CVP)
On: 14 – 16 July 2021, in chambers 21 July 2021
Before: Employment Judge Dyal, Ms Jane Forecast, Dr Nigel Westwood
Representation:
Claimant: in person
Respondent: Mr Johnston, counsel
RESERVED JUDGMENT
1. The complaint of unauthorised deduction from wages fails and is dismissed.
2. The complaints of sex discrimination fail and are dismissed.
3. The complaint of harassment related to disability succeeds.
4. The complaint of failure to make reasonable adjustments:
a. relating to the failure to keep the course evaluation documentation confidential
succeeds;
b. otherwise fails and is dismissed.
5. The complaint of indirect disability discrimination:
a. relating to the failure to keep the course evaluation documentation confidential
succeeds;
b. otherwise fails and is dismissed.
REASONS
Introduction
The issues
1. At the outset of the hearing we heard applications from the Claimant to add complaints of
sex discrimination and harassment related to disability by amendment. For reasons we
Case no. 2300404/2020
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gave at the time we allowed the applications in respect of sex discrimination and one, but
only, of the allegations of harassment related to disability.
2. In advance of the hearing the Respondent had a produced a draft list of issues and sent
it to the Claimant. We discussed that draft list at the hearing and through that discussion
agreed certain amendments to it, including adding to the list of issues the complaints
added to the claim by amendment. Mr Johnston then revised the list of issues and
circulated it. It was agreed that the revised list of issues was faithful to our discussion.
3. However, at that point the Claimant indicated for the first time that she wished to also
bring a s15 Equality Act 2010 claim. She had not mentioned this in her previous
applications to amend (which had been made both in writing in advance of the hearing
and orally on the morning of the hearing). The tribunal explained that there was no time
limit for making an application to amend but that if the Claimant was to make an
application to add a s15 Equality Act 2010 claim she would need to identify what the
claim was with sufficient detail for it to be understood, we would need to hear from the
Respondent on the application and then take time to adjudicate upon it. At that point the
Claimant indicated that she did not pursue the application.
4. The list of issues below is therefore an agreed list:
The Claims
1. The Claimant brings the following claims:
a. Direct sex discrimination, contrary to section 13 Equality Act 2010;
b. Failure to make reasonable adjustments under section 20 Equality Act 2010;
c. Indirect disability discrimination contrary to section 19 Equality Act 2010;
d. Disability-related harassment, contrary to section 26 Equality Act 2010; and
e. Unlawful deduction of wages under section 13 Employment Rights Act 1996
Jurisdiction
2. Have the Claimant’s complaints of direct sex discrimination been presented in time?
For the avoidance of doubt, it is the Respondent’s position that each of the
complaints relied upon was already substantially out of time at the date of the
presentation of the Claimant’s original ET1 on 29th January 2020.
3. If the Claimant’s complaints of direct sex discrimination (or either of them) have been
presented out of time, would it be just and equitable to permit the Claimant to pursue
it/them?
Direct Sex Discrimination
4. Did the Respondent treat the Claimant less favourably than it treated or would have
treated a male comparator:
a. by not paying her an increased salary during the period between 10th May
2019 and 16th July 2019 when there was not a full complement of staff in the
Respondent’s Events and Challenge team?
b. By not appointing her to the role of Events and Challenge Fundraiser on or
about 16th July 2019?
5. In respect of the complaint at 4(a), the Claimant seeks to rely upon Jack Phillips, a
male Communications Assistant, as her comparator. It is the Respondent’s case that
the circumstances relating to Mr Phillips’ case were materially different to those of
Case no. 2300404/2020
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the Claimant such that he is not an appropriate comparator. Alternatively a
hypothetical comparator.
6. In respect of the complaint at 4(b), the Claimant relies upon the successful male
applicant, Reece Remedios, as her comparator. Alternatively a hypothetical
comparator.
7. If the Claimant establishes that she was treated less favourably than an appropriate
comparator in respect of the matters complained of at 2(i) or 2(ii) above, has the
Claimant established facts from which the Tribunal could decide, in the absence of
any other explanation, that the difference in treatment was because of her sex?
8. If so, can the Respondent establish that any difference in treatment was not because
of the Claimant’s sex?
Disability
9. It is accepted that the Claimant was, at all material times for the purposes of her
claim, a disabled person within the meaning of section 6 of the Equality Act 2010 by
reason of a mental impairment, namely acute anxiety and depression.
10. Did the Respondent know or ought the Respondent reasonably to have known that
the Claimant was a disabled person by reason of the said mental impairment? If so,
from what date did the Respondent have such actual or constructive knowledge?
Duty to make Reasonable Adjustments - s.20 Equality Act 2010
11. Did the Respondent operate any of the following provisions, criteria or practices
(“PCPs”)?
a. Requiring the Claimant to share a hotel room while attending the Edinburgh
City Skills course from 26th September 2019 to 1st October 2019;
b. The requirement and/or expectation that employees must share a room with
a course ‘buddy’ participant (it was agreed in closing submissions that the
word participant was intended and this change could be made);
c. The requirement and/or expectation that employees on the training course
are required to undertake duties that fall outside the scope of their role;
d. The practice, provision and/or criteria of providing an unfavourable course
evaluation, specifically referring to actions taken out of necessity by a
disabled employee;
e. The practice, provision and/or criteria of making the course valuation free to
access to all colleagues of said employee, causing further humiliation.
12. If so, did any of the PCPs place the Claimant at a substantial disadvantage as a
disabled person in comparison with person who were not disabled?
13. If so, did the Respondent know (or could it reasonably have been expected to know)
that the Claimant would be placed at a substantial disadvantage by the relevant
PCP?
14. If so, did the Respondent take such steps as were reasonable for it to have taken to
avoid that disadvantage?
15. The Claimant suggests that the following would have amounted to reasonable
adjustments:
a. In respect of the PCPs at 11(a) and 11(b) above:
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