Mrs G Ewart-Bannister v Aberdeenshire Council: 4109080/2021

EMPLOYMENT TRIBUNALS (SCOTLAND) 5 Case No: 4109080/2021 Final Hearing Held Remotely by Cloud Video Platform on 29 and 30 November, and 1, 2, 3, 6 and 7 December 2021 10 Employment Judge A Kemp Tribunal Member J McCaig Tribunal Member N Richardson 15 Mrs Gillian Ewart-Bannister Claimant Represented by Mr A Bannister Husband Aberdeenshire Council Respondent Represented by Ms K Stein Advocate Instructed by Ms K George Solicitor 20 25 30 JUDGMENT OF THE EMPLOYMENT TRIBUNAL The unanimous Judgment of the Tribunal is that 1. The claimant was dismissed by the respondent under section 35 95(1)(c) of the Employment Rights Act 1996 (“the 1996 Act”). 2. That dismissal was unfair under section 98(4) of the 1996 Act. 3. The respondent dismissed the claimant under section 39 of the Equality Act 2010 (“the 2010 Act”). 4. That dismissal was in breach of sections 15 and 21 of the 2010 Act. E.T. Z4 (WR) 4109080/2021 Page 2 5. The Tribunal makes a declaration under section 124 of the Equality Act 2010 that the said dismissal was in breach of its terms. 6. The claimant is awarded the sum of FIFTEEN THOUSAND SEVEN HUNDRED AND SEVENTY FIVE POUNDS (£15,775) payable by the respondent. 5 REASONS Introduction 1. This Final Hearing was arranged to address claims of constructive unfair dismissal and disability discrimination under sections 15 and 20 of the 10 Equality Act 2010. The claimant’s status as a disabled person has been admitted by the respondent at an earlier stage prior to a Preliminary Hearing to address the issue, and the respondent further accepted that it had the actual or imputed knowledge of that from 17 June 2020. 15 2. There have been three earlier Preliminary Hearings, after which the claimant provided further specification of her claims under section 20. 3. The hearing was arranged to be held by Cloud Video Platform. It was however delayed in its start as there was a network outage caused by Storm Arwen in the area in which the claimant resides. She had had no 20 power since the previous Friday evening, had no internet provision, and that was expected to continue for some days. The hearing was adjourned on 29 November 2021 to the following day to see what alternative could be arranged, the claimant’s husband having attended the hearing by telephone after driving to near Aberdeen to secure a 25 signal. On 30 November 2021 the claimant and her husband had arranged internet access at business premises near Aberdeen, and the hearing was able to take place accordingly. The claimant did not move an application to adjourn the Final Haring fully that solicitors acting on her behalf had sought in an email on 29 November 2021. The hearing 30 therefore commenced on 30 November 2021. It was conducted successfully on that remote basis. 4109080/2021 Page 3 Preliminary Matters 4. The claimant sought a number of adjustments for the hearing, on the basis of a letter tendered from her General Practitioner. There was a discussion about them. Although one adjustment put forward for consideration was to have questions and answers in writing the Judge 5 explained that that was not likely to be within the overriding objective save where there was sufficiently clear medical evidence to support it, which he did not consider the GP report provided. The claimant’s husband did not suggest that such an arrangement was required, but proposed that it would be reasonable to proceed with firstly evidence in 10 periods of thirty minutes with a break after each such period, with the length of that break discussed at the time, and secondly whenever the claimant wished to seek a break during her evidence the ability to make an application for that. The respondent confirmed that it was also content with such adjustments, and the Tribunal considered that doing so was in 15 accordance with the overriding objective. Breaks were taken regularly on that basis by agreement of the parties. 5. The respondent had in an earlier email referred to seeking strike out of the claims but as the hearing was able to proceed Ms Stein confirmed that she did not move it at that stage. 20 6. Prior to the hearing of evidence the Judge explained to the claimant and her husband how the Final Hearing would be conducted. He explained about the reference to the written witness statement as evidence in chief, and that if a party wished to seek to supplement it that permission to do 25 so could be sought. He explained that the witness would be crossexamined, and that doing so covered firstly evidence that was challenged as to its accuracy but also if it did not cover matters understood to be within the knowledge of that witness but not covered in the witness statement. He explained that the Tribunal could ask 30 questions, and that re-examination permitted further questioning on matters raised only in cross examination or by the Tribunal’s questions. The Judge explained that documents before the Tribunal should be referred to where relevant, including identifying the part of the document 4109080/2021 Page 4 considered to be relevant. He explained that after the evidence for the claimant was given, she being her only witness, the claimant’s case would be closed and that the respondent’s evidence would be given, and subject to the same process. Once the respondent’s case was closed, it was only in exceptional circumstances that further evidence was 5 permitted, and therefore this was the opportunity to give evidence whether oral or written. Following the closure of the respondent’s case there would be an opportunity to make submissions on the law, the facts, and the application of the law to the facts, and the Tribunal would then consider matters and issue a written Judgment, which would be sent to 10 parties and then added to the online Register of Judgments. Neither side had any further issues to raise at that stage. The evidence 7. The parties had prepared documentation in the form of three lever arch files, most but not all of which was spoken to in evidence. Evidence in 15 chief was given by way of written witness statements that the parties had exchanged. The claimant gave her evidence first. For the respondent evidence was given by; Ms Julie Rogers, Head Teacher at Tarland Primary School; Mrs Lilian Field, Head Teacher at Strathdon School; Mr Peter Wood, Quality Improvement Manager; Ms Marian Youngson, 20 Quality Improvement Officer; and Mrs Nicola Shiels (nee Robertson) HR Adviser. The claimant introduced a late production being an envelope, which was received of consent on the basis that the witness to which it related, Ms Rogers, could provide a supplementary statement to address it. That was also permitted of consent, and a short supplementary 25 statement dated 30 November 2021 was tendered and accepted. The respondent later submitted a supplementary inventory of productions which was received without objection. 8. 30 In the evidence there was reference to various pupils at the School at which the claimant taught. They are children, some very young. They have been referred to in the Judgment where that has been necessary by a single letter. The parties had arranged to do so in their own documentation, although on occasion there was reference to someone 4109080/2021 Page 5 by name either in written documentation or oral evidence. The Tribunal considered that it was appropriate to grant an order that the names of children referred to in the case, or the names of their parents or carers, or their initials, from which the child may be identified, should not be disclosed and should be anonymised, in order to respect their privacy. 5 Doing so is in accordance with the overriding objective and is made under the terms of Rule 50(3)(b). The law relating to such issues was summarised and considered in Fallows and others v News Group Newspapers Ltd 2016 ICR 801 and A v Secretary of State for Justice [2019] IRLR 108. 10 The Issues 9. At the commencement of the hearing the Tribunal proposed the following as the issues in the case: (i) Did the respondent dismiss the claimant in terms of section 95(1)(c) of the Employment Rights Act 1996 (“the 1996 Act”) and 15 in that regard has the respondent, without reasonable and proper cause, conducted itself in a manner calculated or likely seriously to damage or to destroy the relationship of trust and confidence between the respondent and claimant? 20 (ii) If so, what was the reason or principal reason for the dismissal? (iii) If that reason was potentially a fair one under section 98 of the 1996 Act was it fair or unfair under section 98(4) of that Act? (iv) Was the dismissal of the claimant something arising in consequence of the claimant’s disability under section 15(1)(a) of the Equality Act 2010 (“the 2010 Act”)? 25 (v) If so has the respondent shown that the dismissal was a proportionate means of achieving a legitimate aim under section 15(1)(b) of the 2010 Act? (vi) 30 Did the respondent apply any of the provisions, criteria or practices on which the claimant founds to her? 4109080/2021 (vii) Page 6 If so, did doing so put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled? (viii) If so, did the respondent take such steps as it was reasonable for them to have taken to avoid that disadvantage under section 20 of 5 the 2010 Act and if not is the respondent in breach of duty under section 21? (ix) In the event that any claim succeeds to what remedy is the claimant entitled having regard to (i) losses sustained, (ii) mitigation, (iii) contribution, (iv) whether there could have been 10 a fair dismissal from a different process, and (v) any failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures? 10. 15 The parties approved that draft after having an opportunity to consider it. The facts 11. The claimant is Mrs Gillian Ewart-Bannister. 12. The respondent is Aberdeenshire Council. 13. The respondent is responsible for the provision of...