Miss D Dube v The Centre for Health and Disability Assessment Ltd: 3201413/2018
| Jurisdiction | England & Wales |
| Judgment Date | 15 January 2020 |
| Citation | 3201413/2018 |
| Court | Employment Tribunal |
| Published date | 03 February 2020 |
| Subject Matter | Unfair Dismissal |
Case Number: 3201413/2018
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RM EMPLOYMENT TRIBUNALS
Claimant: Miss D Dube
Respondent: The Centre for Health & Disability Assessment Limited
Heard at: East London Hearing Centre
On: 17, 18 & 19 September 2019
Before: Employment Judge John Crosfill
Members: Mr T Burrows
Mrs G Everett
Representation
Claimant: In person aided by Mr R J Whitbread
Respondent: Ms R Thomas of Counsel
JUDGMENT
(Liability only)
1. The Claimant’s claim of unfair dismissal brought under Part X of the
Employment Rights Act 1996 is not well founded and is dismissed.
2. In one respect the Claimant’s claim that the Respondent failed to make
reasonable adjustments brought under sections 20, 21 and 39 of the
Equality Act 2010 succeeds. All other claims under that act are
dismissed.
REASONS
1. The Respondent is a company which provides independent health
assessments to the Department for Work and Pensions (‘DWP’) to assist that
Case Number: 3201413/2018
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department in determining whether individuals are eligible for benefits due to
long-term illness or as a result of a disability or health condition. The contract
between the DWP and the Respondent commenced on 1 March 2015. Prior to
that date the same service was conducted by ATOS Healthcare.
2. The Claimant is a Registered Nurse and Disability Analyst. She started
work for ATOS on 20 August 2007 as a disability analyst conducting
assessments for the DWP. From 2011 the Claimant has been affected by a
mental health condition. Over time, this has resulted in her having difficulties
conducting face-to-face assessments with clients. In these proceedings the
Claimant says that not enough was done to accommodate her mental health
condition and that as a consequence she had no choice but to resign. Her
employment with the Respondent ended on 23 March 2018. She has brought
claims of unfair dismissal and alleges that there have been failures to make
reasonable adjustments required by the Equality Act 2010.
Procedural Matters
3. The Claimant’s ET1 was by any standards remarkably spartan. The
Claimant had indicated that she was bringing claims of unfair dismissal and
discrimination based on disability but where invited to provide details of her claim
had simply said “Discriminated at work, treated unfavourably and less favourably
since March 2017”. The Respondent had understandably responded to this claim
in a short ET3 which suggested that the Claimant needed to provide particulars
of her claim.
4. A Preliminary Hearing took place on 8 November 2018 before
Employment Judge Reid. In the course of that hearing the issues were identified
and are set out at paragraph 4 of record of the Preliminary Hearing that order is
at pages 27 to 34 of the agreed bundle. It is those issues that were determined
by the Tribunal in this decision.
5. At the time of the Preliminary Hearing the Respondent had not conceded
that the Claimant met the definition of a disabled person set out in Section 6 of
the Equality Act 2010. Employment Judge Reid made orders requiring the
Claimant to provide a statement dealing with the impact of her condition upon her
ability to carry out day to day activities and to provide the Respondent with any
relevant medical records. Thereafter the Respondent was required to state its
position as to whether it accepted the Claimant met the statutory definition. In
compliance with Employment Judge Reid orders the Respondent sent an email
to the Tribunal and Claimant on 22 February 2019 in which it said:
“The Respondent accepts that the Claimant was disabled by virtue of
depression and anxiety at the relevant time.
Whilst the Claimant is also asserting that she was disabled by virtue of
post traumatic stress disorder, the medical evidence provided does not
demonstrate conclusively that the Claimant would have been disabled by
virtue of post-traumatic stress disorder at the relevant time, and so that is
not accepted. That said, given that the Respondent accepts that the
Claimant was disabled by virtue of depression and anxiety it should not
matter in practice for the purposes of the Claimant’s claim is whether the
Claimant was also disabled by virtue of post-traumatic stress disorder.”
Case Number: 3201413/2018
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6. At the Preliminary Hearing the Claimant had indicated that she did not
know whether she was sufficiently well to conduct Employment Tribunal
proceedings. In the event the Claimant and Respondent showed a high degree of
cooperation and the Tribunal was presented with an agreed bundle of documents
running to 499 pages and a separate bundle of witness statements containing
statement, from the Claimant, from her partner Mr Whitbread and from
Munyaradzi Zowa who at the material times had been the Assessment Centre
Manager for the Romford Assessment Centre.
7. At the outset of the hearing the Tribunal explained the process that it
would ordinarily follow to the Claimant. We made enquiries about how the
Claimant’s ability to conduct the proceedings might be affected by her disability.
We told the Claimant that she should let us know if she needed a break or
whether there was anything we could do to assist her to give her best evidence.
She told us that she would ask for a break if she needed one.
8. After our explanations we released the parties until lunchtime in order
that we could read the witness statements and familiarise ourselves with the
documents in the agreed bundle. After lunch on the first day we heard from the
Claimant. Despite the fact that Miss Thomas conducted her cross examination in
a measured and courteous way the Claimant became distressed and required a
break in proceedings. When we resumed she indicated she was content to carry
on but later became distressed again and we decided to stop her cross
examination that day and resume the following day. The following morning we
indicated that we would take a break after one hour, whether or not requested by
the Claimant. In the event the Claimant was able to complete her evidence that
morning. We then heard from her partner Mr Whitbread. In the afternoon we
heard evidence from Mr Zowa. Mr Whitbread asked him questions to start with
then the Claimant asked that she be allowed to take over. There was no
objection from the Respondent and we permitted that. At one point we adjourned
for 15 minutes to allow the Claimant time to ensure that she had asked all of the
questions she wanted. His evidence was completed by the end of the second day
of the hearing. We had suggested that it would be useful if the parties could
provide bullet points of their key submissions. The Claimant was able to do so
and produced a one-page summary of the reasons why she said her claims
should succeed. Miss Thomas had produced written submissions which
comprehensively set out legal framework for the claims and contained her
submissions as to the findings of fact she invited the Tribunal to make.
9. Having heard the parties’ submissions we were unsure that we would be
able to reach a decision on that day but indicated that attempt to do so. The
Claimant expressed a strong preference for receiving a decision in writing. In
those circumstances, we formally reserved our judgment. We were able to reach
a decision in what remained of the day. Unfortunately, it has taken some time for
the Employment Judge to write up these reasons. We apologise for any delay.
Findings of fact
10. The Claimant commenced work with ATOS Healthcare on 20 August
2007. Her job was to provide medical assessments of individuals who were
applying for benefits. The Claimant was initially based in Wembley and on
occasions was expected to travel throughout the country to carry out
assessments. In March 2011 there was an incident where the Claimant was
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