Mrs R Wright-Turner v London Borough of Hammersmith and Fulham and Ms K Dero: 2206237/2018

JurisdictionEngland & Wales
Judgment Date05 November 2021
Citation2206237/2018
Date05 November 2021
Published date29 November 2021
CourtEmployment Tribunal
Case No: 2206237/2018 1 EMPLOYMENT TRIBUNALS Claimant: Mrs R Wright-Turner Respondents: London Borough of Hammersmith and Fulham (1) Ms K Dero (2) Heard at: London Central (by video using Cloud Video Platform) On: 13-16, 19, 21-23, 26-29 April 2021 In chambers: 30 April, 5 May, 1, 3 & 9 June 2021 Before: Employment Judge Khan Ms S Plummer Mr D Kendall Representation Claimant: Mr B Collins QC, Counsel Respondent: Mr D Basu QC, Counsel JUDGMENT The unanimous judgment of the tribunal is that (1) At all relevant times, the claimant was disabled by reference to ADHD and PSTD / other psychological symptoms and the respondents had knowledge of the same. (2) The harassment complaint succeeds in part (paras 37(1)(a), (c) & (d) POC) (3) The direct discrimination complaint succeeds in part (paras 37(2) & (5) POC) (4) The discrimination arising from disability complaint succeeds in part (paras 39(1) & (4) POC). (5) The first respondent failed unreasonably to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. (6) All the other complaints fail and are dismissed. Case No: 2206237/2018 2 REASONS 1. By a claim presented on 28 September 2018 the claimant brought complaints of disability discrimination, detriment and automatic unfair dismissal (protected disclosures) and unauthorised deductions / breach of contract. The respondents resisted these complaints. 2. The description of disability which the claimant relied on was amended by agreement on day one of the hearing as set out below. The issues 3. We were required to determine the issues listed below which were agreed by the parties in advance and refined following discussion with them during the final hearing. A. Disability (section 6 & Schedule 1 of the Equality Act 2010 (“EQA”)) 1. Did the claimant suffer from a mental impairment at the relevant times by reason of (i) ADHD and/or (ii) PTSD / other psychological symptoms identified in the Joint Statement of the expert psychiatrists? 2. Did the impairment/s have a substantial and long-term adverse effect on the claimant’s ability to carry out normal day-to-day activities? In particular: (1) was the effect of the impairment/s (taken in the absence of treatment or other measures) more than trivial? (2) did the impairment/s last, or were they likely to last, at least 12 months? 3. Did the first and/or the second respondent know, or could they reasonably be expected to have known, that the claimant was disabled? B. Direct discrimination (section 13 EQA) 4. Did the treatment alleged by the claimant at paras 37(1) – (6) of the particulars of claim (“POC”) occur? The alleged treatment is alleged to have been carried out by both respondents. Paras 37(1) – (6) POC (1) In the course of the meeting on 2 May 2018: a. Repeating to the claimant the suggestion that her brain “doesn’t work like other people’s”. b. Suggesting that the claimant’s actions in sending the email in question were inappropriate or irrational, and Case No: 2206237/2018 3 that someone who did not have ADHD would not have sent the email. c. Telling the claimant that she did not realise she was being serious when discussing ADHD. d. Accusing the claimant of failing to declare her disabilities to the first respondent during the recruitment process. e. When the claimant attempted to explain her conditions, taking no interest in learning about them. f. Asking about reasonable adjustments when the circumstances did not disclose a need for that enquiry. g. Suggesting that the claimant was incapable of performing her role. h. Conveying to the claimant that, in light of her disabilities, she regretted her appointment. i. Informing the claimant (without prior discussion) that the HR Director would be appointed a “buddy” to support the claimant, when no such buddy was required. (2) Informing the claimant that her probation period had been extended by three months (by letter dated 10 May, postmarked 17 May and received by the claimant on 19 May 2018). Furthermore, doing so: a. without giving her the opportunity to discuss or comment on the decision before it was taken; b. without having provided feedback on her performance in accordance with the first respondent’s policy or at all; c. after (by both the second respondent and Mr Grimley) having described the claimant’s in positive terms; d. without explaining which areas of performance required improvement; and e. when she was on sick leave. The respondents accept (a) & (e) and deny (b) – (d). (3) Making repeated attempts to meet with the claimant while she was on disability-related sick leave i.e. on 24 May and 24 July 2018. (4) Refusing to deal with the claimant’s grievance as sent by her solicitors on 1 August 2018. (5) Dismissing the claimant with effect on 9 August 2018. The claimant says this decision was taken on 2 August. The respondents say this decision was taken around 23 July with a final discussion between the second respondent and Mark Grimley on 30 July 2018. Furthermore, doing so without giving her: a. the opportunity to be heard before the decision to dismiss was taken; b. any warning that she was at risk of dismissal; or c. any opportunity to appeal. Case No: 2206237/2018 4 (6) Failing to respond adequately or at all to the claimant’s further grievance and request for an appeal sent by her solicitors on 15 August 2015. 5. Was the claimant thereby treated less favourably than a hypothetical non-disabled comparator because of her alleged disability/ies? C. Discrimination arising from disability (section 15 EQA) 6. Did the treatment alleged by the claimant at paras 39(1) – (5) POC occur? Paras 39(1) – (5) POC (1) Informing the claimant that her probation period had been extended by three months (by letter dated 10 May, postmarked 17 May and received by the claimant on 19 May 2018). Furthermore, doing so: a. without giving her the opportunity to discuss or comment on the decision before it was taken; b. without having provided feedback on her performance in accordance with the first respondent’s policy or at all; c. after (by both the second respondent and Mr Grimley) having described the claimant’s in positive terms; d. without explaining which areas of performance required improvement; and e. when she was on sick leave. (2) Making repeated attempts to meet with the claimant while she was on disability-related sick leave i.e. on 24 May and 24 July 2018. (3) Refusing to deal with the claimant’s grievance as sent by her solicitors on 1 August 2018. (4) Dismissing the claimant. Furthermore, doing so without giving her: a. the opportunity to be heard before the decision to dismiss was taken; b. any warning that she was at risk of dismissal; or c. any opportunity to appeal. (5) Failing to respond adequately or at all to the claimant’s further grievance and request for an appeal sent by her solicitors on 15 August 2015. 7. Was the claimant thereby treated unfavourably because of her actual and/or alleged disability-related sickness absence? 8. Was the claimant’s actual and/or alleged sickness absence something arising in consequence of her alleged disability/ies? Case No: 2206237/2018 5 9. Can the first or second respondent show that the treatment was a proportionate means of achieving a legitimate aim? The respondents rely on para 34 of the amended grounds of resistance (“GOR”). Para 34 amended GOR As to justification: (i) It was both reasonable and standard practice for the first respondent to extend the probationary period of an employee, where that period had not been satisfactorily completed owing to performance issues. (ii) In the circumstances, it was reasonable for the respondents to try to maintain some level of contact with the claimant while she was absent with what the respondents understood to be work- related stress. (iii) The letter referred of 1 August indicated that the claimant intended bringing a grievance; the first respondent was entitled to respond as it did. (iv) The first respondent was entitled to dismiss the claimant in circumstances where her probationary period had been extended and there were ongoing performance issues and to do so without involving her in that decision. (v) The first respondent’s response to the claimant’s solicitor’s letter of 15 August was adequate in the circumstances. D. Failure to make reasonable adjustments (section 20 & 21 EQA) 10.Did the respondents operate the provisions, criteria or practices (“PCPs”) at paras 41(1) – (7) POC1? Paras 41(1) – (7) POC (1) Informing an employee of a decision to extend probation while she is absent on disability-related sick leave. (2) Failing to give an employee who is absent on disability-related sick leave: a. the opportunity to discuss or comment on a decision to extend probation before it was taken; b. proper and timely feedback on her performance (in accordance with the first respondent’s Probation Policy or at all); c. an explanation as to which areas of performance required improvement. (3) Attempting to hold meetings with an employee when she is absent on disability-related sick leave. (4) Refusing to deal with a grievance filed by solicitors. 1 There is no para 41(5) Case No: 2206237/2018 6 (6) Dismissing an employee while on disability-related sick leave and without giving: a. the opportunity to be heard before the decision to dismiss was taken; b. any warning that she was at risk of dismissal; c. any opportunity to appeal. (7) Failing to respond adequately or at all to a further grievance and request for an appeal sent by an employee who is absent on disability-related sick leave. 11.If so, did those PCPs put the claimant at a substantial disadvantage in comparison with a non-disabled employee? 12.Was it reasonable for the respondents to take the steps at paras 42(1) – (9) POC2 in order to avoid the disadvantage to the claimant? Paras 42(1) – (9) POC (1) Ensuring no decision was taken to extend her probation while she was absent on disability-related sick leave (2) Ensuring that the claimant...

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