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EMPLOYMENT TRIBUNALS · PDF fileearlier preliminary hearing was to nail down the issues for the sake of clarity and certainty. The Tribunal at the Preliminary Hearing on 21 March allowed

Aug 30, 2019

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  • Case No: 1800135/2017

    10.7 Judgment with reasons rule 62 March 2017

    EMPLOYMENT TRIBUNALS

    Claimant: Mrs AJ Milton Respondents: (1) North Yorkshire County Council (2) The Wolds and Vale Governing Body Heard at: Leeds On: 18-21 July and (deliberations only) 14 September 2017 Before: Employment Judge Maidment Members: Mrs JL Hiser Mr K Lannaman Representation Claimant: Mr A Mugliston, Counsel Respondent: Mr A Webster, Counsel

    RESERVED JUDGMENT

    1. The Claimants complaints of disability discrimination pursuant to Sections 13, 15 and 20 of the Equality Act 2010 fail and are dismissed.

    2. The Claimant was not dismissed and therefore her complaint of unfair

    dismissal must fail and is dismissed.

    REASONS

    The issues

    1. The issues in these proceedings were identified at a Preliminary Hearing on 21 March 2017, where both parties were represented by the same Counsel who appear at this final hearing. Since that Preliminary Hearing it has been accepted that the Claimant was at all material times a disabled person by reason of her suffering from Crohns disease. The case management summary recorded the issues still live before this Tribunal as follows:

  • Case No: 1800135/2017

    10.7 Judgment with reasons rule 62 March 2017

    Unfair dismissal claim 7.1 The claimant maintains that she was constructively dismissed and that the respondent by its treatment of her acted in a way which was calculated or (viewed objectively) likely to destroy or seriously damage the obligation of trust and confidence. In terms of the treatment to which she was subjected, the claimant relies on the acts of alleged discrimination set out below and on no other acts save that the 4 October 2016, personal development review, where the claimant says that the respondent failed to acknowledge the claimants difficulties and confirmed that there would be no pay progression, was an effective last straw albeit such event is not pleaded as a freestanding complaint of disability discrimination. It is for the claimant to prove that the respondent was in fundamental breach of her contract of employment. It is noted that following the claimants decision to resign from her employment she submitted a grievance which was subsequently rejected and then an appeal but no reliance can obviously be placed on acts which post date the decision to resign - it is noted that no freestanding complaints of discrimination arise and are brought in respect of the claimants grievance/appeal and/or its handling. 7.2 Did the claimant resign in response to such fundamental breach of contract or did she delay in so doing so as to be taken to have affirmed the contract of employment? 7.3 If the claimant was dismissed, does the respondent show a potentially fair reason for dismissal and that it acted fairly and reasonably in all of the circumstances?

    Section 13: Direct discrimination because of disability.

    9.1 Has the respondent subjected the claimant to the following treatment falling within section 39 of the Equality Act, namely 9.1.1 In July 2015 determining that the claimant could not continue to act up when she needed an operation.

    9.1.2 the timing of a meeting regarding potential redundancy for 6 May 2016 shortly before the claimant was due to undergo an operation so as to ensure that she was not in the right frame of mind.

    9.1.3 On 6 May 2016, notifying the claimant that she was being given a warning regarding a colleagues complaint about her and without following any procedure.

    9.2 Has the respondent treated the claimant as alleged less favourably than it treated or would have treated the comparators? The claimant relies on hypothetical comparators.

    9.3 If so, has the claimant proved primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic?

  • Case No: 1800135/2017

    10.7 Judgment with reasons rule 62 March 2017

    9.4 If so, what is the respondents explanation? Does it prove a non- discriminatory reason for any proven treatment?

    Section 15: Discrimination arising from disability 10.1 The allegations of unfavourable treatment as something arising in

    consequence of the claimants disability falling within section 39 of the Equality Act 2010 are as follows:

    10.1.1 In January 2016, the claimant had been asked to attend Occupational Health for the production of a report in circumstances where normal trigger points were applied for someone without a disability in the respondents implementation of its managing attendance at work policy.

    10.1.2 On 4 July 2016, the claimant being told that she couldnt move up the pay scale if she was absent for more than 7 days.

    10.1.3 On 22 September 2016, the claimant being told that there would be further absence monitoring and that must be no absences in a subsequent 3 month period.

    10.2 Does the Claimant prove that the Respondent treated the Claimant as set out in paragraph 10.1 above?

    10.3 Did the Respondent treat the Claimant as aforesaid because of the something arising in consequence of the disability?

    10.4 Does the Respondent show that the treatment was a proportionate means of achieving a legitimate aim? The Respondent relies on the following:

    Reasonable adjustments: section 20 and section 21 11.1 Did the respondent apply the following provision, criteria and/or

    practice (the provision) generally,

    11.1.1 A requirement to work with and the duties involved in acting as a general teaching assistant for pre-school children of 3 4 years old from July 2016. 11.1.2 The requirement to lift heavy items. 11.1.3 The requirement of a general teaching assistant working with

    pre-school children to work at their level and being at risk of being reprimanded for not doing so.

    11.1.4 The requirement of employees to maintain a consistent level of attendance so as to avoid being placed on the respondents management of attendance procedures involving warnings given at defined trigger points, the inability to progress through pay scales if absent and being monitored in the event of absence levels being unsatisfactory to the respondent.

    11.2 Did the application of any such provision put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled in that the claimant struggled to perform more physical tasks involved with caring for

  • Case No: 1800135/2017

    10.7 Judgment with reasons rule 62 March 2017

    younger children, the claimant struggled due to her physical condition to work at the same level as the children, the claimant had difficulty in lifting heavy objects, the claimant was more likely to pick up viruses from children of pre-school age and the claimant was at greater risk of being subjected to attendance management policies by reason of her impairment.

    11.3 Did the respondent take such steps as were reasonable to avoid the disadvantage? The burden of proof does not lie on the claimant, however it is helpful to know the adjustments asserted as reasonably required and they are identified as follows: 11.1.1 Working with older children.

    11.1.2 Appointing a designated employee to carry out lifting/manual handling. 11.1.3 Allowing the claimant appropriate breaks.

    11.1.4 Providing equipment to assist with lifting and carrying heavy equipment.

    11.1.5 Not reprimanding the claimant for failing to get down to the childrens level.

    11.1.6 Not subjecting the claimant to the trigger points and monitoring ordinarily applicable under the management of attendance at work policy nor disallowing pay progression in respect of disability related absence.

    11.4 Did the respondent not know, or could the respondent not be reasonably expected to know that the claimant had a disability or was likely to be placed at the disadvantage set out above? [NB The claimant has confirmed today that she is not pursuing any complaint of disability related harassment and that such complaints are therefore to be treated as withdrawn].

    2. During the cross-examination of the Claimant in respect on the alleged non-renewal of her HLTA contract, it was clear that questions were being put to the Claimant (correctly) on the basis of this being a complaint of direct discrimination, Mr Webster deliberately omitting to pursue any line of questioning which may have been relevant had this been a complaint, pursuant to section 15 of the 2010 Act, of discrimination arising from disability. Mr Mugliston, whilst not considering it necessary for the complaint to be pursued also as one under section 15, made then an application to amend to include such cause of action. The Tribunal rejected his application having heard submissions on behalf of both the Claimant and Respondent.

    3. On behalf of the Claimant, what was being sought was a relabelling of a

    set of facts already pleaded. The test to be applied by the Tribunal was the balance of hardship and interests of justice. The Claimants request to amend her complaint was reactive in the sense that it arose out of an argument raised by Mr Webster on behalf of the Respondent. It is not accepted by the Claimant that his argument about the (legal) difficulty of

  • Case No: 1800135/2017

    10.7 Judgment with reasons rule 62 March 2017

    her pursuing a direct discrimination complaint is of merit. The Claimant does not feel she needs to add a claim, but wishes to do so to cover off a line of contrary argument. The Claimant, of course, still has a direct discrimination complaint related to the HTLA contract and other si