Mr Andrew Weeks v Department for Work and Pensions: 2411174/2019
| Jurisdiction | England & Wales |
| Judgment Date | 01 February 2021 |
| Citation | 2411174/2019 |
| Published date | 18 February 2021 |
| Court | Employment Tribunal |
RESERVED DECISION
Case No. 2411174/19 Code V
EMPLOYMENT TRIBUNALS Claimant
Mr Andrew Weeks
Respondent:
Department for Work and Pensions
Heard at:
Manchester
Before:
Employment Judge A M Buchanan Mr B Rowen
Mr W Haydock
On: 10 – 13 November 2020 In Chambers Deliberations 14 December 2020
REPRESENTATION:
Claimant:
Respondent:
Ms Carol Jackson - Lay Representative Mr Tariq Sadiq of counsel
JUDGMENT
It is the unanimous judgment of the Tribunal that:
1.
The claim of disability discrimination by reason of a failure to make reasonable adjustments advanced pursuant to sections 20/21 of the Equality Act 2010 (“the 2010 Act”) is not well founded and the claim is dismissed.
2.
The claim of discrimination arising from disability advanced pursuant to section 15 of the 2010 Act is not well founded and the claim is dismissed.
3.
The claim of unfair dismissal advanced pursuant to sections 94 – 98 of the Employment Rights Act 1996 (“the 1996 Act”) is not well founded and the claim is dismissed.
REASONS
Preliminary Matters 1.The claimant instituted proceedings on 28 August 2019 supported by an early conciliation certificate on which day A was shown as 8 July 2019 and day B of 29 July 1
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2019. A response was filed on 16 December 2019 after an extension of time had been granted and in which the respondent denied all liability to the claimant.
2. At a private Preliminary Hearing (“PH”) before Employment Judge Ainscough on 2 January 2020 the various claims advanced and the issues arising for determination were discussed and Case Management Orders were made.
3. A public PH was scheduled to take place on 31 March 2020 to determine whether the claimant was a disabled person for the purpose of Section 6 of the 2010 Act at the material time and whether any claims should be struck out or made the subject of a deposit order. The claimant filed a Disability Impact Statement (pages 30-32) and his medical records in advance of that hearing.
4. On 27 February 2020, the respondent wrote to the Tribunal with a concession that the claimant “is disabled on the basis that he has a condition called Hyde’s disease”.
It was suggested by the respondent that the public PH need not take place and as a result the Tribunal vacated that hearing.
5. On 20 July 2020, the claimant filed further and better particulars of claim. The respondent objected to those particulars given that no application to amend the claim had been made and as a result a public PH was listed to take place on 23 October 2020 to decide the question of the amendment. On 20 October 2020, the respondent wrote to the Tribunal to advise that it was no longer opposing the application to rely on the further and better particulars filed on 20 July 2020 and, as a result, the hearing scheduled for 3 October 2020 was vacated. This matter had been listed for final hearing at the private PH held on 2 January 2020 and came before this Tribunal as noted at the outset of this Judgment.
6. The hearing took place by Cloud Video Platform. The Employment Judge and Mr B Rowen attended the Tribunal office. Mr W Haydock attended remotely as did both parties, their representatives and their witnesses.
7. At the outset of the hearing a discussion took place as to the claims advanced and a list of issues was duly prepared by the Employment Judge and agreed by the parties before any evidence was called and the issues set out below are those agreed during that discussion. This step was taken in light of the fact that this case had not received case management attention from an Employment Judge since 2 January 2020 at which time the claims were not clear. At the conclusion of the hearing on the afternoon of 13 November 2020 the Tribunal reserved its decision to deliberate on another day.
Those deliberations took place on 14 December 2020 and we now issue our judgment with full reasons in order to comply with the provisions of Rule 62(2) of Schedule I of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.
The Claims
8. The claimant advances the following claims to the Tribunal:8.1 A claim of disability discrimination through a failure to make reasonable adjustments relying on the provisions of sections 20/21 and Schedule 8 of the 2010 Act.
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8.2 A claim of discrimination arising from disability relying on the provisions of sections 6, 15 and 39(2)(c) and (d) of the 2010 Act.
8.3 A claim of ordinary unfair dismissal relying on the provisions of sections 94 and 98 of the1996 Act.
Issues
9. The issues in the various claims advanced to the Tribunal were clarified at the outset of the hearing as detailed above and are as follows:Claims of Disability Discrimination 9.1 Was the claimant a disabled person for the purposes of section 6 of the Equality Act 2010 (“the 2010 Act”) at the material times? The claimant claims to have been a disabled person at all material times by reason of the conditions of asthma, eczema,
boils, insomnia, anxiety and depression.
9.2 It is noted that the respondent accepts that the claimant was disabled by reason of Hyde’s Disease (page 54G) and that that disease manifested itself in the impairment of boils. The respondent accepts the claimant was also disabled at the material time by the impairments of eczema and insomnia. No concession is made in respect of asthma, anxiety and/or depression.
9.3 It will be for the Tribunal to determine if the claimant was a disabled person by reason of asthma, anxiety and depression at the material times. Did the claimant suffer from those impairments at the material time? Did those impairments (individually or collectively) have a substantial and long-term adverse effect on the ability of the claimant to carry out normal day to day activities?
Claim of Failure to make Reasonable Adjustments: sections 20/21 Equality Act 2010
9.4 Which impairment/s is/are relied on by the claimant in support of this claim?
9.5 Did the respondent know or should the respondent reasonably have been expected to know that the claimant was disabled by reason of the impairments relied on by the claimant and that the claimant was likely to be placed at a substantial disadvantage at the material time?
9.6 Did the respondent apply a provision, criterion or practice (PCP) of requiring employees to adhere to a fixed start time of 8am for six months from February 2019 at the start of the next Employee Deal Rotation? It is noted that the respondent will say that adjustments enjoyed in respect of this PCP by the claimant from August 2018 were not withdrawn in February 2019 as the claimant alleges.
9.7 If so, did that PCP place a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled?
9.8 If so, did the respondent fail to make reasonable adjustments which would have removed that disadvantage for the claimant? The claimant will contend that 3
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adjustments previously made by the respondent should have been continued and that they would have removed the substantial disadvantage to him.
9.9 Has any claim been advanced in time by reference to section 123 of the 2010 Act?
When did the respondent fail to make the adjustments contended for? When did the period expire during which the respondent might reasonably have been expected to make the adjustments?
9.10 If the claim is out of time, is it just and equitable to allow a period greater than 3 months from that date to allow proceedings to be instituted?
Claim of Discrimination arising from Disability: section 15 Equality Act 2010 9.11 Did the respondent treat the claimant unfavourably by dismissing him on 27 April 2019?
9.12 Did the respondent treat the claimant unfavourably in the following ways prior to/subsequent to the dismissal:
9.12.1 by failing to believe his insomnia was as bad as the claimant contended?
9.12.2 by removing in February 2019 reasonable adjustments previously enjoyed by the claimant in relation to the above PCP or otherwise?
9.12.3 by denying knowledge of the claimant’s skin condition when it was clearly known to certain members of the same team?
9.12.4 by failing to keep written records of conversations surrounding the claimant’s health and treatment?
9.12.5 by failing in August 2018 to complete a workplace adjustment passport, stress risk assessment, stress reduction plan or wellness action plan?
9.12.6 by failing to refer the claimant to occupational health during the disciplinary process which led to his dismissal on 27 April 2019?
9.12.7 by referring to the claimant’s training on unconscious bias as a reason to move to dismissal?
9.12.8 by failing to investigate complaints of disability discrimination made by the claimant against his Line Manager and the Decision Maker?
9.13 If so, was such treatment because of something arising in consequence of the claimant’s disability?
9.14 What disability/ies is/are relied on in support of this claim?
9.15 What was the something arising in consequence of such disability?
9.16 If so, does the respondent show that any such treatment was a proportionate means of achieving a legitimate aim?
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9.17 It is noted that the respondent will rely on the following aims:
9.17.1 the need to protect its customers from derogatory and offensive comments made by its employees (the equality argument)
9.17.2 to ensure disciplinary standards are maintained (the consistency argument).
9.18 Are such aims legitimate and does the Tribunal conclude the respondent acted proportionately to any one or more of such aims in acting as it did?
9.19 Did the respondent know or should the respondent reasonably have been expected to know that the claimant was disabled by reason of the impairment/s relied on at the material time?
9.20 Is any claim advanced in time by reference to section 123 of the 2010 Act?
9.21 If any claim is out of time, was...
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