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
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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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