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drart concusion

William Slivinsky

As we learned in the first part of this case law, the Claimant's entire case has been dismissed. At the start of the final proceedings, the Claimant withdrew the claims of unfair and discriminatory dismissal, with reasons explained in the first section. In the conclusion below, you will discover how the Judge reached the decision to dismiss claims of victimization, harassment, and failure to make reasonable adjustments. We will also consider how the claimant should have acted while establishing her claims throughout the employment and all internal procedures.


Key elements


Grievance - when a person with a disability experiences unfavorable treatment at work, they should file a grievance. We explain what such a grievance should include.



Conclusions 

 

Disability/Knowledge 


 

39.  The respondent concedes that the claimant is and was at all material times

suffering from a mental impairment which amounts to a disability as defined in

Section 6 of the Equality Act 2010. The tribunal found that the respondent did not

know, and could not reasonably have been expected to know, that the claimant

suffered from that disability, until it received the Occupational Health report dated

12h July 2019.


 Until then, the respondent was not in possession of facts whichtended to show that the claimant suffered from a mental impairment which had a substantial and long-term adverse effect on her ability to carry out normal day to day activities.    The impairment  had by then  not lasted for  12 months. In considering whether it was likely to last for more than 12 months, the respondent would have to be in possession of facts which tended to show that it could well

happen that the claimant’s impairment would last for more than 12 months. [SCA  Packaging v Boyle – 2009 ICR1056].  The tribunal found that the respondent did not know and could not reasonably have been expected to know that the claimantsuffered from a disability until it received the Occupational Health report dated 12th  July 2019.

 

Failure to make reasonable adjustments

 

A.  Failing to agree to the claimant’s request for her to be allocated to a different

manager or office.

 

The tribunal found that the claimant had failed to establish that the respondent had applied  to her a  provision, criterion  or practice which  placed her  at a substantial disadvantage. The tribunal found that the claimant was not required to work under Sandra Clement and did not do so from the time she went on long-term sick leave. Sandra Clement was, in any event, replaced as the claimant’s manager on 14th August 2019. The allegation of failure to make reasonable adjustments in that regard is not well-founded and is dismissed.

 

B.  Unreasonably delaying and failing to expedite the grievance process.

 

The claimant originally maintained that the provision, criterion or practice applied

to her by the respondent was failing to follow the normal grievance process,

knowing that the adverse effect that would have on the claimant’s mental health.

The claimant’s evidence to the tribunal was that the respondent actually failed to

follow  the  normal  grievance process,  and  this  was  what  placed  her  at a

disadvantage. The tribunal found that the claimant had failed to properly establish

exactly what was the provision, criterion or practice that was applied to her and

which placed her at a disadvantage. The claimant’s complaint was that the

grievance  process  took  too  long.    That  ignores  the  claimant’s  own

acknowledgment at the first appeal meeting that the process was likely to last for

28 days and was in fact completed within 28 days. The claimant has failed to

show how the process could have been expedited, particularly when it was her

insistence that there be a thorough investigation into the numerous complaints

which she had raised. The complaint of failure to make reasonable adjustments is

not well-founded and is dismissed.

 

Harassment

 

A.  Sandra Clement ignoring the claimant’s concerns about having meetings with her

and insisting that meetings take place.

 

The tribunal found that there were only 2 requests for the claimant to attend a

meeting with Ms Clement.  The tribunal found that the claimant did not in fact

attend either of those meetings. The tribunal found that Ms Clement was entitled

to ask the claimant to attend absence review meetings and that she acted entirely

reasonably in so doing.  Whilst the claimant may well not have wished to attend

those meetings, the tribunal was not satisfied that the claimant had established

that the requests were in any way related to her disability, about which the

respondent only learned when they received the occupational health report dated

12th  July 201p.    The  complaint  of harassment  is  not  well-founded  and is

dismissed.

 

B.  Ann Powell and Sandra Clement repeatedly contacting the claimant while she

was on sick leave to question her about her whereabouts on 24th May and failing

to explain the reason for the questioning.

   

The tribunal found that Ms Powell or Ms Clement were entitled to enquire as to the

claimant’s whereabouts on that date, because there was an element of uncertainty due

to an enquiry being raised about a parole hearing.  The tribunal found it was entirely

reasonable for Ms Powell and Ms Clement to make those enquiries. The tribunal found

that there was nothing in those enquiries which could reasonably be described as

violating the claimant’s dignity or creating the relevant environment for the purposes of

Section 26. The tribunal acknowledges that it must take into account the employee’s

perception, but it must also consider all the circumstances of the case and whether it is

reasonable for the alleged conduct to have that effect. The tribunal found this allegation

of harassment to be not well-founded and it is dismissed.

 

C.  Ann Powell  intimating to  the claimant  that partner  agencies had  expressed

concern about the claimant, but that she repeatedly refused to tell the claimant

what those concerns were.

 

This allegation follows on from the one referred to in B (above).   The tribunal was

satisfied that the contents of the exchange of e-mails between Ms Powell and the

claimant was a sufficient explanation in all the circumstances as to why the claimant

was being asked to explain her whereabouts on that date. The tribunal found that the

questions and the manner in which they were put did not violate the claimant’s dignity

nor create the relevant environment for the purposes of Section 26. No reasonable

person in  all the circumstances  would consider that  those requests  amounted to

harassment under Section 26. The complaint is not well-founded and is dismissed.

 

D.  Karin O’Neill failed to challenge the mental health ally at the meeting on 10th 

February when the ally said, “sometimes when you are stressed you can feel a bit

paranoid.”   

 

E.  It was not Karin O’Neill who made that comment. It was the mental health ally.

The tribunal was not satisfied that Karin O’Neill’s failure to challenge the mental

health ally about that comment could reasonably be interpreted as harassment

contrary to Section 26. The claimant also says that Karin O’Neill’s comment, “you

                                                                                   Case Number:  2501444/2020 

22 

 

have an idea of a vendetta” was itself an act of harassment. The tribunal noted

that the claimant immediately replied and denied that she had a vendetta. Whilst

Ms O’Neill subsequently accepted that hers was an inappropriate comment,  the

Tribunal (following the guidance in Land Registry v Grant above) found that any

minor upset caused to the claimant by this comment could not and did not amount

to harassment contrary to Section 26. That complaint is not well-founded and is

dismissed.

 

Victimisation

 

A.  The claimant alleges that being told that her employment may be terminated due

to  capability as  a  result  of  her sickness  absence  amounted  to  an act  of

harassment. The tribunal found that it was entirely appropriate for Ms Hutchinson

to inform the claimant as to the potential consequences of her continued absence

and the lack of any information as to when the claimant may be in a position to

return to work.  The tribunal found that no reasonable person would consider that

information being imparted could amount to an act of harassment contrary to

Section 26. That complaint is not well-founded and is dismissed.

 

 

      ___________________________________ 

            EMPLOYMENT JUDGE JOHNSON

 

            JUDGMENT SIGNED BY EMPLOYMENT

            JUDGE ON 

            24 March 2022

 

              

 

Public access to employment tribunal decisions

Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-

tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.

 
 
 

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