Mr C Mansfield v Queen Mary University of London: 3201205/2019

Case Number: 3201205/2019 EMPLOYMENT TRIBUNALS Claimant Mr C Mansfield Respondent: Queen Mary University of London Heard at: East London Employment Tribunal On: 28 July 2020, 30 July 2020, 31 July 2020, 4 August 2020, 17 August 2020, 18 August 2020 & 21 August 2020 Before: Members: Employment Judge Russell Mr M Rowe Ms G Forrest Representation Claimant: Respondent: Ms G Churchhouse (Counsel) Ms S Tharoo (Counsel) JUDGMENT The Judgment of the Employment Tribunal is that: (1) The claim of failure to make reasonable adjustments fails. (2) The claim of discrimination arising from disability fails. (3) The claim of harassment related to disability fails. (4) The claim of direct disability discrimination fails. (5) The claim of unauthorised deduction from wages succeeds. (6) There will be a remedy hearing, with a time estimate of one-day, to determine the amount of the unauthorised deductions. 1 Case Number: 3201205/2019 REASONS 1. By a claim form presented to the Tribunal on 26 April 2019, the Claimant brought complaints of unfair dismissal (relying on Hogg v Dover College), unauthorised deduction from wages and disability discrimination under sections 13, 26, 19, 15 and 20 of the Equality Act 2010. The Respondent resisted all claims but accepted that the Claimant is a disabled person by reason of anxiety and depression. In closing submissions, Ms Churchhouse on behalf of the Claimant, withdrew the unfair dismissal complaint and the indirect disability discrimination complaint. All other complaints were maintained. 2. The hearing took place by video conference facility due to the Covid-19 pandemic and the restriction on the ability to hold in-person hearings. Both parties consented to this mode of trial. 3. The Tribunal was provided with a bundle of documents extending over three lever arch files, in excess of 800 pages. Added to this were a further 233 pages referred to as the Claimant’s supplementary bundle. Ms Tharoo did not take any issue as to admissibility on the few occasions when a document arose from that part of the bundle. 4. The Tribunal heard evidence from the Claimant and on his behalf from Mr Tom Jordaan (UCU Branch Appointed Health and Safety Representative). On behalf of the Respondent, the Tribunal heard evidence from Professor Kathryn Richardson (Chair of the Language Centre), Professor David Adger (Professor of Linguistics). Dr Simon Pate (Co-ordinator of Foundation Programmes, Language Centre) and Ms S Lopez-Barillas (HR Consultant). 5. The parties had produced an agreed list of issues. By the conclusion of the case, the claims to be decided were as follows: Unauthorised Deduction from Wages 5.1 Did the Respondent make unauthorised deductions from the Claimant’s wages by paying him only 0.37 of his full salary since 21 February 2019 instead of his full pay? 5.2 Are these deductions a series of deductions which are ongoing? Harassment related to Disability 5.3 Did the alleged treatment referred to in paragraph 51 of the grounds of claim amount to unwanted conduct related to disability? 5.4 If so, did that conduct have the purpose or effect of violating the Claimant’s dignity or creating an intimidating hostile degrading humiliating or offensive environment for him to work in? 5.5 Taking into account the Claimant’s perception and the other circumstances of the case, was it reasonable for the conduct to have that effect. 2 Case Number: 3201205/2019 Direct Disability Discrimination 5.6 If not an act of harassment, did the Respondent subject the Claimant to the detriments set out in paragraph 51 of his grounds of claim? 5.7 If so, did the Respondent treat the Claimant less favourably than it treated or would treat others because of the Claimant’s disability or is the Respondent able to show that the less favourable treatment was for a reason unconnected to disability? 5.8 The Claimant relies on a hypothetical non-disabled comparator or a comparator that does not have his disability for the purposes of Section 23 Equality Act 2010? Discrimination Arising in Consequence of Disability 5.9 Was the Claimant subjected to the unfavourable treatment as set out in paragraphs 49a – 49f of the grounds of complaint? 5.10 If so, was the unfavourable treatment because of something arising in consequence of the Claimant’s disability. In particular, did the treatment occur because of the Claimant’s inability to carry out all of the duties of his role and/or his requirement for reasonable adjustments? 5.11 Is “ensuring employees are paid appropriately for the work they are carrying out”, as pleaded at paragraph 33 of the Grounds of Resistance and/or “ensuring that work allocated to employees does not exacerbate an existing medical condition” as pleaded at paragraphs 36 of the Grounds of Resistance a legitimate aim? 5.12 Can the Respondent show that the treatment was a proportionate means of achieving that legitimate aim? The Claimant relies on paragraphs 48a – g in showing that the Respondent’s actions were not a proportionate means of achieving a legitimate aim. Failure to make reasonable adjustments 5.13 Did the Respondent apply a PCP or PCPs which put the Claimant at a substantial disadvantage in relation to a relevant matter compared with non-disabled persons? The Claimant considers that the Respondent applied the following PCPs: (i) (ii) 5.14 The requirement that the Claimant worked a total of 18 contact hours per week; The requirements as to workloads. The Claimant’s depression and anxiety means that there are aspects of his role he is unable to carry out because he finds them challenging and cause him considerable stress. Did the Respondent take such steps as were reasonable to avoid that disadvantage/those disadvantages? The Claimant relies on paragraph 3 Case Number: 3201205/2019 44a – g of his grounds of claim as the requested reasonable adjustments. Time Limits 5.15 Were any or all of the complaints set out above presented within time, if not, is it just and equitable in the circumstances for the Tribunal to extend time? Findings of Fact 6. The Respondent is one of approximately 30 academic institutions which form part of the University of London. It has approximately 2,800 full-time equivalent staff and operates across three sites. One site is based at Mile End in East London. It comprises a number of academic schools, one of which is ‘The School of Languages, Linguistics and Film’, part of that school is the Language Centre. Professor Adger was Head of School between September 2017 and September 2019. 7. Since 1 September 2012, Professor Richardson has been Chair of the Language Centre, reporting to Professor Adger. The Language Centre has been established for over 20 years and employees 36 permanent employees and 35 fixed term contract employees. The Language Centre provides a number of programmes and modules designed to ensure that students have the knowledge and skills needed to succeed in their studies both at undergraduate and postgraduate level. Some modules are credit bearing, that is that they count towards the students’ degree; some are non-credit bearing, in other words they are studied as an optional extra. In addition to in-sessional courses offered during the academic year, the Language Centre offers pre-sessional courses over the summer months with the aim of enabling predominantly international students to develop their English language and academic study skills. There are foundation programmes to prepare for undergraduate courses (the international foundation year) and postgraduate Masters courses. The Language Centre also provides English language and study skills modules to courses run by other departments or faculties, such as science and engineering. The programmes are aimed at students who have just missed meeting the entry criteria to access their chosen degree programme directly. Finally, the Language Centre offers a Masters programme in English language teaching. 8. The Claimant has been employed as a Teaching Fellow by the Respondent since 27 September 2010, based at the Mile End site. His contract is a full-time professional services contract at grade 5, spinal point 35. It is an express term that the appointment may be terminated on three months’ notice. The contract provides that the duties of the post will be assigned by or on behalf of the Head of the Department and a copy of the current job description was enclosed. The contract provides for an average of 18 contact hours per week, spread over the three terms and the summer programme. There is no clause in the contract or attached terms and conditions permitting pro rata payment. The summer programme refers to the pre-sessional courses offered by the Respondent and comprised approximately a third of the Claimant’s duties. 9. The Claimant’s case is that 18 hours per week was the maximum and not the minimum expected contact time, relying upon one answer of Professor Richardson in cross-examination which appeared to accept that most people only do 16 hours per week. The Tribunal does not accept that this was a concession by Professor Richardson 4 Case Number: 3201205/2019 that the average across the year was 16 hours per week but, as she went on to explain, a reflection of the fact that the amount of contact teaching would vary according to semester. For example, teaching time on science and engineering foundation courses would reduce to 16 hours per week to reflect the increased marking in the first semester and then revert to 18 hours per week or more in the second semester as marking reduced. Similarly, contact hours could be negotiated to take into account the administrative requirements of a module and individual circumstances, such as for the 13 or 14 members of teaching staff with reasonable adjustments as a result of Occupational Health reports or other adjustments required for flexible working. A practical example given by Professor Richardson spontaneously in cross-examination and which the Tribunal accepted had...