Miss N Undre v Commissioners for HM Revenue and Customs: 2601166/2015
| Judgment Date | 13 April 2018 |
| Citation | 2601166/2015 |
| Published date | 23 August 2018 |
| Court | Employment Tribunal |
| Subject Matter | Disability Discrimination |
Case No: 2601166/15
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EMPLOYMENT TRIBUNALS
Claimant: Miss N Undre
Respondent: Commissioners for Her Majesty’s Revenue & Customs
Heard at: Lincoln
On: 3 March 2017, 6 – 9 March 2017, 1 September 2017, 4-7
September 2017 and 25 and 26 October 2017 (in
chambers)
Before: Employment Judge Milgate
Members: Mr G Kingswood
Mr C Bhogaita
Representation
Claimant: Mr N Bidnell-Edwards of Counsel
Respondent: Mr J Hurd of Counsel
RESERVED JUDGMENT
1. The complaints of disability discrimination fail and are dismissed.
2. The Claimant was unfairly dismissed by the Respondent. The Claimant is
entitled to a basic award, but the compensatory award is reduced by 100
per cent in accordance with the principles set out in Polkey v AE Dayton
Services Limited.
REASONS
A. Claims and Issues
1. By her Claim Form presented to the Tribunal on 6 October 2015, the
Claimant, who was dismissed by the Respondent following a period of sickness
absence, brings a complaint of unfair dismissal and also various complaints of
disability discrimination.
2. As far as the disability discrimination claims are concerned, at a
Preliminary Hearing on 5 August 2016 Employment Judge Hutchinson decided
that the Claimant suffered from two disabilities at the ‘relevant time’, namely
hypothyroidism and stress and anxiety. Mr Hurd conceded, on behalf of the
Respondent, that this meant that the Claimant was disabled by reason of the
thyroid condition from the summer of 2014 and by reason of stress and anxiety
from 22 September 2014. Mr Bidnell-Edwards did not take issue with either of
these dates.
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3. At the same Preliminary Hearing Employment Judge Hutchinson also
granted the Claimant’s application to amend her claim to include various claims
of disability discrimination arising out of the Claimant’s treatment under the Civil
Service Compensation Scheme.
4. The individual complaints were detailed by the Claimant in Further and
Better Particulars. These were supplemented by an agreed list of issues which
was produced at the start of the hearing. However as various aspects of the
discrimination complaints were far from clear, the Judge directed Mr Bidnell-
Edwards to revise the list of issues. He did so, producing a final version (to which
the Respondent took no objection) during the hearing. References in this
judgment to the List of Issues are therefore to the revised document which
disclosed the following disability discrimination claims:
3.1 4 complaints of direct disability discrimination;
3.2 24 complaints of indirect disability discrimination;
3.3 7 complaints of discrimination arising from disability; and
3.4 6 reasonable adjustment claims.
4A. At the direction of the Judge, Mr Bidnell-Edwards also produced a
document headed ‘Further Information’ towards the end of the hearing which
contained further clarification of the indirect discrimination and reasonable
adjustment claims. Despite these efforts, as explained in more detail below, it
was not always easy to understand parts of the pleaded case.
5. Having reviewed the claims in this case, the Judge noted that a number
were pleaded in the alternative. (For example, the Claimant’s dismissal gave rise
to a number of discrimination claims.) In addition, some of the indirect disability
discrimination claims appeared to lack coherence. She therefore suggested at
the outset of the hearing that Mr Bidnell-Edwards might wish to refine the claim in
the interests of proportionality. However, he indicated that he wished to pursue
each of the pleaded claims and the case proceeded accordingly.
5A. Unfortunately there has been considerable delay in determining this claim.
This was due, in the first instance, to the fact the matter went part heard in March
2017 and could not be relisted until September 2017. That delay was then
compounded because the Judge suffered a sustained period of serious ill-health not
long after the tribunal met to make its reserved decision. The Judge very much
regrets this delay and is grateful to both parties for the patience they have shown in
waiting for the promulgation of this judgment. Given the passage of time, the
judgment and reasons have been read and approved by both of the Tribunal’s wing
members.
B. Evidence
6. The Tribunal heard evidence over 7 days. The Claimant gave evidence on
her own behalf. She also called Mr Martin Page, Mr Alex Morgan, Mr Sanjesh
Sodha, and Mr Jesal Jivanji. For the Respondent we heard from Mr Daniel Goad,
Ms Dana Camm, Mr Jonathan Boat, Mr Adam Povey, Mr Daniel Gurr, Mr
Kalpesh Patel, Mr Kishore Daudia, and Mr Lee Sales.
7. All the witnesses prepared witness statements which were taken as read.
The Tribunal also had before it an agreed bundle of some 1440 pages.
8. Counsel for the parties prepared written submissions which were
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supplemented by oral submissions on the final day of the hearing. Judgment
was reserved. Our conclusions were unanimous.
C. Findings of fact
Background
9. The Claimant was employed as an administrative officer by the
Respondent at their Leicester office from 8 December 2008 until her dismissal,
which took effect on 12 June 2015. Prior to the events in this case she worked 6
hours per day, Monday to Friday, on the evening shift.
10. On or around 21 March 2014 the Claimant attended a performance review
meeting with her then line manager, Miss Falguni Naik. Miss Naik told her she
was to be graded as having ‘achieved’ rather than ‘exceeded’ her objectives for
the year 2013/14. The Claimant was bitterly disappointed by this decision, feeling
it was very unfair.
11. On 27 March 2014, the Claimant underwent a thyroidectomy. Following
her operation, the Claimant was told that she had hypothyroidism and would be
reliant on medication to be able to live a normal life. She remained on sickness
absence until 26 June 2014 but was assured by Miss Naik that this post-
operative recovery period (some 60 working days) would not count towards her
sickness absence record. Although the Claimant informed Miss Naik on 2 June
2014 that she was taking ‘levothyroxine for my under active thyroid which I’ll be
having bloods done for on the 20th to see if my levels are coming down’, she did
not explain that she would have to take medication for the rest of her life.
12. The Claimant’s GP advised that there should be a phased return to work,
and it was agreed that the Claimant should work 2 hours per day for the first 4
weeks of her return, beginning on 26 June 2014. In addition, her working hours
were brought forward to 2 - 4 pm so that she did not become overtired. A
number of adjustments were also made to her working conditions, including
providing her with a car parking space.
HR advice and relevant policies
13. The Respondent has an in-house Human Resources Department and
managers involved in the Claimant’s case were able to consult with HR as
necessary.
14. As Mr Goad, one of the Respondent’s HR Directors, explained to the
Tribunal, the Respondent has significant problems with staff absence. Figures for
average days lost for June 2014 to May 2015 (the relevant period for the
purposes of this case) show that HMRC was performing badly when compared
with private sector organisations and also with many parts of the public sector. At
the Leicester office, where the Claimant worked, the problem was particularly
acute, with absences considerably over target. As Mr Goad stated in his
evidence to the Tribunal, these high levels of absence had considerable financial
implications for HMRC. However, they also had an impact on customer service,
on management time and on those employees who experienced an increased
workload as a result of having to cover for absent colleagues.
15. The Respondent has adopted a number of policies, guidance documents and
procedures for use when dealing with cases of sickness absence and disability.
Those with particular relevance to this case are:
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