Ms N Lal v Driving and Vehicle Standards Agency: 3333432/2018
| Jurisdiction | England & Wales |
| Judgment Date | 13 October 2023 |
| Date | 13 October 2023 |
| Citation | 3333432/2018 |
| Court | Employment Tribunal |
| Published date | 28 November 2023 |
| Subject Matter | Disability Discrimination |
Case Number: 3333432/2018
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EMPLOYMENT TRIBUNALS
Claimant Respondent
Ms N Lal v
Driving & Vehicle Standards Agency
Heard at: Watford, in person On: 25-
29 September 2023, 2 and 3
(and, in private, 4 and 5) and 6
October 2023
Before: Employment Judge Hyams Members: Ms B Robinson
Mr A Scott
Representation:
For the claimant: On 25-29 September 2023, Mr Kevin Harris, of
counsel, and after then, the claimant in person
For the respondent: Mr Julian Allsop, of counsel
UNANIMOUS JUDGMENT ON LIABILITY
The claimants’ claims of
(1) unfair dismissal within the meaning of section 98 of the Employment Rights
Act 1996 (“ERA 1996”), contrary to section 94 of that Act,
(2) unfavourable treatment within the meaning of section 15 of the Equality Act
2010 (“EqA 2010”), contrary to section 39(2)(c) and (d) of that Act,
(3) a failure to make a reasonable adjustment within the meaning of sections
20 and 21 of the EqA 2010,
(4) direct discrimination within the meaning of section 13 of the EqA 2010
because of race and/or disability, contrary to section 39(2)(c) and (d) of that
Act,
(5) victimisation within the meaning of section 27 of that Act, contrary to section
39(4)(c) and (d) of that Act,
Case Number: 3333432/2018
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(6) detrimental treatment within the meaning of section 47B of the ERA 1996,
and
(7) unfair dismissal within the meaning of section 103A of the ERA 1996,
do not succeed and are accordingly dismissed.
REASONS
Introduction; the claims and the procedural history
1 The claimant was employed by the respondent as a driving examiner. She was
dismissed summarily, i.e. without notice, on 8 November 2017. Her claims in
these proceedings relate to the manner in which she was treated before she was
dismissed, and the fact that she was dismissed. The claimant approached ACAS
on 5 June 2018, and the early conciliation certificate was issued on that day. The
claim form was presented on 25 September 2018. The claims made in the claim
form related to events which occurred from 2010 onwards. The claimant had
made a claim to an employment tribunal of disability discrimination in 2010, which
was settled and dismissed on its withdrawal accordingly in 2011.
2 By agreement with the respondent and Employment Judge (“EJ”) Manley,
recorded by the latter in her record of a preliminary hearing which took place on
27 June 2019, the claimant was permitted to add claims of unfair dismissal and
further claims of discrimination in relation to her dismissal. The parties informed
EJ Manley on that date that they had nearly agreed a list of issues. An agreed
list of issues was then sent to the tribunal in compliance with an order made by
EJ Manley at that hearing, and that list was the one which was put before us at
the start of the hearing on the basis that it was an apt list of issues. We accepted
that it stated the issues on the claims as they were advanced to us, and we
concluded that the claims were best determined by reference to it. However, we
do not set out that list in these reasons in full below. The claims made are listed
in our above judgment. The list was long (it was at pages 87-94). The following
claims on the facts were made in it.
The claimed factual basis of the claims
3 In paragraph 4 of the list of issues it was claimed that in the following respects,
the respondent treated the claimant “less favourably because of her race and/or
disability”.
“a. The non-appointment to the LDTM position in or shortly after August
2017;
b. The instigation and continuation of disciplinary proceedings;
c. The imposition and continuation of suspension;
d. The actions of Mr Perkins towards the Claimant at the time of
suspension as detailed in her grievance;
Case Number: 3333432/2018
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e. The manner in which the investigation was conducted;
f. The contents of the investigation reports;
g. The manner in which the disciplinary hearing was conducted;
h. The decision to dismiss”.
4 In paragraph 5 of the list of issues, it was claimed that “the Claimant [was]
subjected to the following unfavourable treatment arising in consequence of her
disability and/or perceptions of her condition and associated absences:
a. Requiring the Claimant to use annual leave for her medical appointments
in 2010;
b. Failing to appoint the Claimant to the LDTM position in or soon after August
2017;
c. The nature and tone of the meeting on 4 October 2017;
d. The issuing of a formal absence warning on 26 October 2017;
e. The rejection of the appeal against that warning on 3 January 2018,
f. Failing to manage the Claimant’s disability-related information in a sensitive
and appropriate manner (i.e. by leaving such information visible in the
workplace);
g. Suspending the Claimant ostensibly due to her concerns as to the
inappropriate handling of disability-related information in or around April
2018;
h. Dismissing the Claimant on the ostensible grounds set out at (g)”.
5 In paragraph 7 of the list of issues, four claimed provisions, criteria or practices
(“PCPs”) within the meaning of section 20(3) were claimed to have arisen, putting
the claimant at a substantial disadvantage as compared with persons who were
not disabled. Those PCPs were in the form of (1) the “requirement for consistent
and regular attendance in general and/or enforced by way of attendance
warnings”, (2) the “requirement to undertake driving tests”, (3) “Suspension of
the Claimant (such as to lead to an exacerbation of her health)” and (4)
“Dismissing the claimant (such as to lead to an exacerbation of her health)”. In
paragraph 8 of the list of issues, it was claimed that the following were
adjustments which it would have been reasonable, within the meaning of section
20(3) of the EqA 2010, to make to avoid those disadvantages:
‘a. Not issuing an attendance warning and/or upholding the appeal;
b. Extending the absence triggers and/or excluding disability-related
absences;
c. Extending the period of “one on one off” tests;
d. Not suspending the Claimant;
e. Not dismissing the Claimant.’
6 In paragraph 9 of the list of issues, the following protected acts within the
meaning of section 27 of the EqA 2010 were stated to be relied on by the
claimant.
“a. Lodging earlier Employment Tribunal proceedings on in [sic] 2010.
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