You are not legally required to tell the employer that you have disability. However, if you do not tell them you are, you may be unable to proceed a claim in Employment Tribunal.
This is the second part of the investigation into the case of Ms. Douglas, who lost her case due to not disclosing the disability she later relied on in the tribunal.
Learn how to avoid common mistakes
From June 2017 to May 2019, the claimant was under the management of Sharon
Barnett, a senior probation officer. In Ms. Barnett's absence, the claimant was managed by Sandra Clement. The claimant’s unchallenged testimony to the tribunal stated that she “repeatedly complained that my workload was beyond capacity and disproportionately high
compared to other probation officers” but that this was not acknowledged, nor was
her concern that her mental health was being adversely affected.
As we learn later in this judgement no reference to Ms. Douglas's disability in her emails to Ms.Barnett opened the employer a door to common defence under Section 15(2) of EqA2010.
15Discrimination arising from disability
(1)A person (A) discriminates against a disabled person (B) if—
(a)A treats B unfavourably because of something arising in consequence of B's disability, and
(b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2)Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
In the first part of this case, we examined baseless claims of unfair and discriminatory dismissal. It was determined that Ms. Douglas was compelled to withdraw these claims due to their lack of any chance of success.
What follows next is a set of unfounded victimization, harassment, and a weak attempt to justify the non-disclosure of a disability by alleging that her manager was a bully. There is no justification; if a manager is a bully, there are other ways to inform the employer of a disability, especially if the employer is not a small family business.
Reading through dismissed cases like this is very beneficial as this is the best way to learn what we should avoid while building our case.
Case Number: 2501444/2020
THE EMPLOYMENT TRIBUNALS
Claimant: Ms L Douglas
Respondent: National Probation Service
Heard at: Teesside Justice Hearing Centre
On: Monday 14th February – Thursday 17th February 2022
Before: Employment Judge Johnson
Members: Mrs C Hunter
Mr G Gallagher
Representation:
Claimant: Mr R Owen (CAB)
Respondent: Mr J McHugh of Counsel
JUDGMENT
Fact finding
11. The claimant was employed by the respondent as a probation officer from 1st April
1998 until she was dismissed on 29th April 2020, a period of over 22 years. It is
acknowledged by the respondent that the claimant was a loyal, competent and
devoted employee, with a clean disciplinary record.
12. The claimant originally worked for the Sex Offender Management Unit (SOMU),
which was responsible for managing all the sex offenders in the Cleveland area.
That unit was disbanded in or about June 2017 when the claimant transferred to
the Stockton-on-Tees probation team.
13. The claimant’s witness statement explains that she experienced “severe stress
due to the pressure of work” for some 2 years when working with SOMU and that
she had a short period of sickness absence in April 2017. The minutes of a
formal attendance review meeting held on 15th March 2017 gave the reason for
the claimant’s absence as “stress”. The claimant had a second period of stress-
related absence in September/October 2018, following which there was an
assessment by the respondent’s occupational health team.
14. Between June 2017 and May 2019, the claimant was managed by Sharon
Barnett, a senior probation officer. Whenever Ms Barnett was absent, the
claimant was managed by Sandra Clement.
15. The claimant’s unchallenged evidence to the tribunal was that she “repeatedly
complained that my workload was beyond capacity and disproportionately high
compared to other probation officers” but that this was not acknowledged, nor was
her concern that her mental health was being adversely affected.
16. Sharon Barnett resigned from the respondent’s employment in May 2019 and on
22nd May 2019 Sandra Clement became the claimant’s manager. The claimant
explained to the tribunal that she had “concerns about Sandra Clement as a
manager, as she was aggressive in her manner and quick-tempered. She
became angry and shouted at a meeting with her team, which resulted in some of
the team crying.” The claimant described how the Stockton office “had become a
hostile environment for me, causing me additional stress”.
17. On 22nd May 2019 the claimant learned that Sharon Barnett was no longer to be
her manager and that Sandra Clement would take her place. The claimant says
that her concerns about Sandra Clement “increased my stress and anxiety”.
18. On 23rd May the claimant reported at work at 7.30am to prepare for a parole
hearing. The claimant described how she became “unwell with a severe stress
headache, was not able to concentrate and became very anxious”. The claimant
was unable to attend the parole hearing, having informed a colleague to contact
the prison to advise them accordingly. The claimant went home and began her
period of sickness absence and e-mailed Sandra Clement the same day to inform
her.
19. On 28th May, Sandra Clement contacted the claimant by telephone to enquire
about her whereabouts on 22nd May, as a solicitor had contacted the respondent
about a problem with a parole hearing. The claimant explained that she had been
present in the office throughout that day and then became “very anxious as I
thought it must be something serious if the Head of Area (Ann Powell) was e-
mailing me direct whilst on sick leave.” The claimant retrieved an e-mail from Ms
Powell dated 28th May, which suggested that the claimant may have missed
attending a parole hearing. The claimant could not, and did not, understand what
the problem was and says that this caused her “even greater anxiety. I needed to
know what was being inferred and if I had failed professionally in some way as I’d
never missed a parole hearing during all of my career.”
20. The claimant attempted to return to work on 17th June and the following day
received an e-mail from Sandra Clement inviting her to a “return to work meeting”.
The claimant could not locate her diary and telephoned Ms Clement to enquire as
to its whereabouts. The claimant described Ms Clement’s attitude as “dismissive
and showed no concern about a missing diary. I became very anxious,s as after
checking back through my e-mails there was no evidence of a problem on 22nd
May. I became unwell at lunchtime as a result and left work.” The claimant did
not return to work thereafter.
21. The claimant alleges that Ms Powell enquiring as to her whereabouts, amounted
to “harassment”, because it was unwanted conduct related to her disability and
which had the effect of creating an intimidating, hostile, degrading, humiliating or
offensive environment for her. The tribunal found that there had been a genuine
enquiry raised of the respondent in respect of the meeting in question. Copies of
the e-mails appear at pages 142 – 148 in the bundle. The tribunal found that the
tone of those e-mails from the respondent was reasonable in all the
circumstances and that Ms Powell was entitled to make enquiry of the claimant.
No reasonable person would associate any of the contents with the claimant’s
disability.
22. The claimant complains that Sandra Clement “ignored the claimant’s concerns
about having meetings with her and insisted that such meetings take place.” This
relates to Ms Clement having followed the respondent’s absence management
policy by inviting the claimant to attendance management meetings on 28th June
2019 and 19th July 2019. On 18th June the claimant had sent an e-mail to Ms
Clement stating, “because of how I perceive your attitude to me, I feel unable to
meet with you today as you requested.” The claimant accepted that neither of the
meetings which Ms Clement tried to organise actually took place. The claimant
subsequently asked that any meetings should be between herself and a member
of HR, and that is what eventually happened. The claimant says, “because of her
persistence I regarded as this as bullying and harassment”. The tribunal found
that there had been no such persistence. The requests for the claimant to attend
attendance review meetings were entirely appropriate and reasonable in all the
circumstances. The meetings were cancelled as soon as the claimant objected to
them and alternative arrangements were made.
23. The claimant was invited to attend an occupational health assessment on 12th
July. A copy of the OH report appears at page 153 – 154 in the bundle. The
relevant extracts are as follows:-
• It is my opinion that Ms Douglas is likely to be fit to return to work in mid-
August 2019.
• I suggest a phased return to work to help with her disturbed sleep pattern.
• In the short-term (3 months) with the continued support from her GP and
accessing counselling to explore her emotions, Ms Douglas should hopefully
be able to manage her anxiety and low mood.
• In the mid-term (6 months) it is advised to monitor to stress and anxiety
manifesting in the workplace and for Ms Douglas to monitor self and register
her own red flags in working and personal life.
• In the long-term (12 months) I would foresee a potential shift on how they
can self-manage anxiety and well-being.
• My interpretation of the relevant UK legislation is that Ms Lynn Douglas’
condition/impairment is likely to be considered a disability, because it has
lasted longer than 12 months or is likely to last longer than 12 months/is
likely to recur.
That was the very first indication that the claimant’s stress/anxiety condition could
last for more than 12 months and may satisfy the definition of “disability” in
Section 6 of the Equality Act 2010. Prior to that, the only information in the
possession of the respondent relating to the claimant’s condition were her fit-
notes referring to work-related stress.
24. On 12th September 2019 the claimant submitted a formal grievance about the
behaviour of Ann Powell and Sandra Clement. The grounds of the grievance run
to 10 pages, but may be distilled into the following complaints:-
(i) The claimant objected to Sandra Clement being allocated to her as
manager.
(ii) The claimant was being micro-managed by Ms Clement and Ms Powell.
(iii) Ms Powell’s e-mail of 24th May enquiring as to her whereabouts.
(iv) Ms Clement was angry with the claimant for being off sick.
(v) Ms Clement sent the claimant invitations to attend 2 formal attendance
meetings whilst she was on sick leave, which increased the claimant’s
stress, anxiety and depression symptoms.
The claimant’s “requested outcome” was that her grievance be examined
by an external person. Regarding Ms Powell, the claimant wanted
“transparency regarding why Ms Powell did not trust my account of where I
was on 22nd May 2019 and why she felt it necessary to scrutinise me
during my sick leave, especially when my leave is directly linked to work-
related stress. I would like to make Ms Powell aware of how her actions
during my sick leave had impacted upon my mental health. Ms Powell
questioned my honesty and professional integrity and from information she
sent to me she’d led me to believe I’d not performed my work satisfactorily.
This caused me significant stress and her claims now appear unfounded.”
Against Ms Clement the claimant wanted “transparency with regard to Ms
Clement’s role in questioning my honesty about my whereabouts on 22nd
May 2019. I want Ms Clement to be made aware of how her actions have
impacted upon me negatively during my sick leave. I believe Ms Clement
needs to undertake some training to address her anger and hostile
presentation to her staff and offenders, those she has power over.”
25. The meeting to consider the claimant’s grievance took place on 4th October 2019.
The grievance outcome report by Ian Cavanagh appears at page 264 – 269 in the
bundle. The complaints against Ann Powell were rejected, but those against
Sandra Clement were upheld in part, as Mr Cavanagh “identified failings on the
part of Sandra Clement in her line management of you. I find that these failings
were the result of Sandra Clement’s inexperience as an SPO and not intentional
bullying or harassment.”
26. The claimant appealed against that outcome on 29th November 2019. The letter
of appeal appears at pages 270 – 274 in the bundle. The basis of the appeal was
that the original grievance “had not been properly investigated or considered”. At
page 274, at paragraph 19 of the appeal letter, the claimant clearly states, “I
would also like to point out that the actions of both Ann Powell and Sandra
Clement have been very damaging to my health and my trust in HMPPS. The
grievance process which has been extended because of the need for this appeal
is also impacting very negatively on my health. I am finding the process stressful
and worrying.”
27. The grievance appeal meeting took place on 14th January, at which the claimant
was told that it would take approximately 28 days to conclude the grievance
appeal. The claimant at that meeting made no complaint about that indication of
28 days. The final grievance appeal meeting, when the claimant was given the
outcome of the appeal, took place on 10th February 2020. The appeal was
chaired by Karin O’Neill. The outcome report (page 275 – 280) upheld in part the
claimant’s appeal regarding Ann Powell. Ms O’Neill recommended that any
issues between Ann Powell and the claimant should be referred to mediation. At
page 279 of her report, Ms O’Neill states as follows:-
“Delays during the grievance investigation were due to annual leave and
individual availability. Ian Cavanagh says he informed them of the
reasons for the delays and she accepted the delays as being reasonable.
The delay in concluding the appeal stage was in part due to availability of
staff and in part due to an error which resulted in the letter notifying Lynn
of the hearing date on the 2nd of January, not being sent. A balance had
to be struck between the need to minimise the time taken and the need for
a detailed and proper investigation into the complaint.”
28. There is no complaint raised by the claimant in these employment tribunals
proceedings about the conduct of the grievance procedure and the appeal
procedure, other than the length of time taken. The claimant alleged that the
respondent applied a provision, criterion or practice of following its normal
grievance process and that this put her at a substantial disadvantage because of
her mental health condition. The claimant alleges that it would have been a
reasonable adjustment to expedite the time taken to complete the process. What
the claimant made clear to the respondent throughout the process was that she
required a “thorough investigation” into her complaints. The claimant appears to
have accepted at the end of the first appeal meeting that it would take up to 28
days to undertake and complete that investigation. No complaint was raised by
the claimant at the time. The tribunal found that the time taken by the respondent
was reasonable in all the circumstances. The tribunal accepted the respondent’s
explanation that the entire process could not have reasonably been completed
within a shorter period of time. Indeed, the claimant’s evidence to the tribunal was
that the respondent had failed to follow its normal grievance process and had, in
fact, taken longer than was allowed by the policy. That also is incorrect.
29. The claimant’s complaints against Sandra Clement, as set out in her grievance,
are the reasons why the claimant did not wish to be managed by Sandra Clement.
One of the complaints raised before the tribunal by the claimant is that the
requirement for her to work under Sandra Clement was a provision, criterion or
practice which placed her at a substantial disadvantage because it adversely
affected her stress, anxiety and depression. The tribunal found that the claimant
was never required to work under Sandra Clement. The claimant was notified
that Sandra Clement was to be her manager on 22nd May 2019 and the claimant
was, thereafter, on sick leave until she was dismissed. Joe Howard became the
claimant’s line manager from approximately 14th August 2019. Between 23rd May
2019 and 14th August 2019, the claimant was at work for only one day. The
tribunal was not satisfied that she was required to work under Sandra Clement.
30. During her period of absence, the claimant underwent formal attendance review
meetings in accordance with the respondent’s absence management policy on
17th October 2019, 27th January 2020, 13th March 2020 and 29th April 2020.
Occupational health assessments took place on 12th July 2019, 13th January
2020, 20th March 2020 and 7th April 2020. At the formal meeting on 29th April
2020, the claimant acknowledged and accepted that she had been continuously
absent for almost 11 months (save for 2 days) and that, at that date, there was no
indication whatsoever as to when she may be fit enough to return to work. The
claimant explained at that meeting that she felt unable to return to work and did
not want to return to work, as she no longer had any trust in the organisation. The
claimant said she did not want to apply for ill-health retirement. The claimant was
asked whether she would agree to release her medical notes so that there could
be a further occupational health assessment as to whether the claimant would be
able to return to work in the future. The claimant confirmed that she did not wish
to proceed in that manner. The claimant was told that she would qualify for a
medical inefficiency payment and would be granted 100% entitlement, which
amounted to £17,586.16. The claimant was told at the end of the meeting that her
contract was being terminated on the grounds of medical inefficiency and that she
would receive 13 weeks pay in lieu of notice together with the medical inefficiency
payment. The claimant did not appeal against that decision.
31. The claimant has complained about things which were said during the formal
attendance review meeting which took place on 13th March 2020. The claimant
alleges that during that meeting, she was told that, if her period of sickness
absence continued, her contract of employment could be terminated on
incapability grounds due to ill-health. The claimant alleges that she was told she
may receive up to 2 years’ salary as compensation and that it may be more
beneficial for her mental health, as that would be a more speedy resolution than
going to a tribunal. The claimant alleges that this amounted to a detriment
because she had done a protected act by commencing ACAS early conciliation.
The respondent concedes that the claimant had, in fact, commenced ACAS early
conciliation, that it was aware of that act at the time of the meeting on 13th March
and that, in so doing, the claimant had done a protected act. The tribunal was not
satisfied that the claimant had been subjected to a “detriment” by being told that
she was likely to lose her job if she was unable to return to work. The tribunal
found that it was entirely reasonable in all the circumstances for the respondent to
explain to the claimant exactly what the consequences were of her long-term
absence once the stage was reached when the respondent could not be expected
to wait any longer for her to return to work. The comment was made because at
that meeting the claimant gave a first indication that she did not believe she was
ever likely to return to work for the respondent.
32. At the second appeal meeting which took place on 10th February 2020, the
claimant was accompanied by someone described as the “mental health ally”,
who was Ms Fiona O’Neill. The purpose of the mental health ally is to give
support to an employee who suffers from a mental health condition and who may
otherwise be unaccompanied at a formal meeting. During the course of the
meeting, the mental health ally is recorded as having said to the claimant,
“Sometimes when you are stressed you can feel a bit paranoid.” The claimant
replied, “No I’m not paranoid. I know the process - why didn’t she speak to me on
my day off?” The claimant alleges that this comment amounted to harassment in
that it was unwanted conduct related to her disability which had the effect of
violating her dignity or creating an intimidating, hostile, degrading, humiliating or
offensive environment for her. The tribunal found that this was an inappropriate
comment which may have had a tenuous connection to the claimant’s disability.
However, the allegation itself is that Karin O’Neill (who was chairing the meeting)
failed to challenge the mental health ally when the comment was made. The
claimant does not allege that the comment itself was an act of victimisation by
Karin O’Neill and not Fiona O’Neill. Later in that meeting, Karin O’Neill is
recorded having said, “I think given the mental health issues you have described,
that these concerns may have become bigger than they are to you and you have
an idea of a vendetta”. The claimant immediately replied by denying that there
had been a vendetta, whereupon Karin O’Neill said, “No, that’s my word, but you
alleged the grievance was around bullying.” The claimant’s complaint is that, “I
felt I was being pressured to forget about my complaint and they seemed to be
blaming my mental health.” The tribunal found that Karin O’Neill’s failure to reply
to the comment made by Fiona O’Neill was in no sense whatsoever related to the
claimant’s disability. The claimant found that Karin O’Neill’s comment to the
claimant about the vendetta was unwanted conduct, which potentially could relate
to her disability. However, the tribunal was not satisfied that they had either the
purpose or effect set out in the definition of Section 26.
Comments