EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No: 4123823/2018

5 Held in Glasgow on 28, 29 and 30 May 2019

Employment Judge C McManus

Tribunal Member EA Farrell

Tribunal Member E Borowski 10

Mrs S Smith Claimant

Represented by

Mr D McCusker

Solicitor 15

Karen Cullen and Rhonda Reid t/a Craigend Out of School Care

Respondent Represented

by Mr L Anderson

20 Solicitor

JUDGMENT OF THE EMPLOYMENT TRIBUNAL

On the unanimous decision of the Tribunal, the judgment of the Tribunal is that:-

• The claimant’s claim of disability discrimination under section 19 of the

Equality Act 2010 is unsuccessful and is dismissed.

25 • The claimant’s claim of disability discrimination under section 26 of the Equality Act

2010 is unsuccessful and is dismissed.

• The claimant’s claim of disability discrimination under section 13 of the

Equality Act 2010 is withdrawn and is dismissed.

• The claimant’s claim of in respect of unpaid wages is withdrawn and is

30 dismissed

REASONS

4123823/2018 Page 2

Introduction

E.T. Z4 (WR)

1. This is a claim of disability discrimination. The claimant continues to be employed

by the respondent. The claimant’s representative confirmed in preliminary discussions

at the commencement of the Hearing on 28 May that the only statutory provisions relied

upon by the claimant are section 19 and 5 section 26 of the Equality Act 2010.

Background

2. The ET1 claim form was submitted on behalf of the claimant against Craigend Out

of School Care on 21 December 2018. Claims were made for disability

discrimination, arrears of pay and other payments. The paper apart to the

10 ET1 specified the particular statutory provisions which were then being relied upon in

respect of the disability discrimination claim, being the Equality Act 2010 s13 (direct

discrimination), s19 (indirect discrimination) and s26 (harassment). The ET3 response

was submitted on behalf of the respondent on 31 January 2019. The respondent denied

that the events relied upon by 15 the claimant in June 2018 took place, denied any

discrimination and raised an issue of time bar. Agenda forms were completed by both

parties. A Preliminary Hearing in this case took place before EJ F Eccles on 7 March

2019, with issues discussed as set out in the PH note of that hearing, dated

14 March 2019. Further specification was sought of the claimant’s claims, to

20 be provided by 29 March. No Orders were issued or requested by either

party’s representative at any time. There was some response to the

specification sought, by way of emails from the claimant’s representative of 1

and 4 April 2019.

Preliminary Discussions on 28 May 2019

25 3. This Judgment sets out dismissal of all of the claims brought by the claimant in the

ET1. At the outset of proceedings, clarification was sought on the claims

pursed by the claimant. The claimant’s representative confirmed that the

claims pursued by the claimant are only disability discrimination under the

4123823/2018 Page 3

Equality Act 2010, section 19 (indirect discrimination) and section 26

30 (harassment) and the claim under section 13 is not pursued. It is on that basis

that the claim under section 13 Equality Act 2010 and claimant’s claim in

respect of unpaid wages are withdrawn and dismissed.

4. The respondent accepts that the claimant has the protected characteristic of

disability, following her diagnosis of cancer. The respondent accepts that they

had knowledge of the claimant’s disability status from May 2018, which is prior

to the dates of the events relied upon in respect of the disability discrimination

5 claims brought.

5. Following discussions before the Tribunal at the outset of proceedings in an

attempt to identify the issues for determination by the Tribunal, some time was

given for the claimant’s representative to consider what PCP(s) was / were

being relied upon by the claimant, and what disadvantage was said to have

10 suffered by the claimant as a result of the application of that / those PCP(s),

and for the respondent’s representative to consider their position in respect of

whether or not they accepted that any PCP relied upon by the claimant was

in place, and their position on any legitimate aim in respect of such PCP.

There were short adjournments on the morning of 28 May for the purposes of

15 both representatives’ consideration of these points, and for their agreement on the

issues for determination by this Tribunal.

6. In respect of the claim for disability discrimination under section 26 of the Equality

Act (harassment), it was confirmed in preliminary discussions that the claimant relies only

upon a discussion between herself and Karen Cullen 20 on or around 27 or 28 June 2018,

as set out at .2 of the claimant’s further and better particulars included within the joint

inventory of productions (at page 51), as follows:-

“In or around the 27 or 28 June 2018. Ms Cullen suggested that the

claimant resign from her employment because of the claimant’s cancer

25 diagnosis. Ms Cullen offered to pay the claimant some money for her

resignation.”

4123823/2018 Page 4

7. The claimant relies upon Karen Cullen’s conduct towards her on that single

occasion as having the purpose or effect of violating the claimant’s dignity in

terms of section 26(b)(i) only. Clarification was sought that the claimant’s 30

representative did not rely on s26(b)(ii) and that was confirmed.

8. It was accepted by the claimant’s representative that that claim under section 26

was not raised within the relevant statutory time period. It was the

claimant’s representative’s position that it would be just and equitable for that

claim to be allowed outwith the relevant statutory time period.

5 9. It was the respondent’s representative’s position that that section 26 claim is time

barred and that it is not just and equitable for that claim to be allowed. The

respondent denies that the conduct on 27 or 28 June 2018 took place as

alleged by the claimant.

10. In respect of the claim for disability discrimination under section 19 of the

10 Equality Act (indirect discrimination), following adjournment, the claimant’s

representative’s position was that the claimant relies only upon the following

PCP:-

‘The managerial administration of payments, including lack of

communication and erratic payments of both wages and SSP.’

15 11. In respect of that claim for disability discrimination under section 19 of the

Equality Act (indirect discrimination), it was the claimant’s representative’s

position that the claimant suffered disadvantage because of the application of

that PCP, as set out at .9 of the claimant’s further and better particulars

included within the joint inventory of productions (at 51), as follows:-

20 ‘The PCP put the claimant (as a person with a cancer diagnosis) at a particular

disadvantage when compared with persons without the same

protected characteristic as the claimant had to deal with financial

irregularities, and attempt to resolve these irregularities, while being

unfit to work and receiving treatment for her cancer. The respondent’s

4123823/2018 Page 5

25 employees (who did not have cancer diagnosis and who were fit to work) were

advantaged in that they could resolve such issues with the respondent

in- person and in the workplace. The claimant was disadvantaged due

to her protected characteristic as the claimant’s unfit to work status

meant the claimant was not in the workplace and

30 could not address or fix the issue in- person with the respondent. The claimant had to

resort to communicate with the respondent over

messaging apps. This made it more difficult for the claimant to resolve

these financial irregularities and difficulties, and caused further stress,

anxiety and inconvenience to the claimant’s already stressful and

difficult circumstances.’

5

12. It was agreed that, given that there is a dispute in respect of what occurred

between the claimant and Karen Cullen on 27 or 28 June, Karen Cullen would

step outside the Tribunal room while the claimant’s evidence in chief in

respect of what then occurred was heard.

10 13. It was agreed that the Hearing would proceed for determination on the identified

issues without a Preliminary Hearing on the time bar issue. This was in line

with the overriding objective as set out in Rule 2 of the Employment Tribunal

Rules of Procedure.

14. The respondent’s representative confirmed that the correct identity of the

15 respondent is ‘Karen Cullen and Rhonda Reid t/a Craigend Out of School

Care.

Proceedings

15. Evidence was heard on oath or affirmation from all witnesses. For the

claimant, evidence was first heard from the claimant herself and then from the 20

claimant’s husband, Robert Smith. The respondent then presented evidence from

4123823/2018 Page 6

Karen Cullen (owner of the respondent’s business), Louise Collins (Manager) and Lucy

Madden (Practitioner).

16. The parties relied upon documents included in a Joint Inventory of

Productions. The numbers in brackets in this Judgment refer to the 25

consecutive page number in that Joint Inventory.

Issues

17. The following was agreed as being the issues for determination by the

Tribunal:-

Harassment (s 26)

30

(i) Is it just and equitable for the Tribunal to consider the claimant’s

claim under section 26 of the Equality Act 2010?

(ii) Did the respondent engage in unwanted conduct relating to the

claimant’s cancer diagnosis on 26 or 27 June 2018?

5 (iii) Did the respondent’s conduct towards the claimant have the

purpose or effect of violating the claimant’s dignity?

Indirect discrimination (s 19)

(iv) Did the respondent apply a provision, criterion or practice of ‘the

10 managerial administration of payments, including lack of

communication and erratic payments of both wages and SSP’?

(v) Did the PCP apply to the claimant as well as to others who did not

share the claimant’s protected characteristic?

(vi) Would the PCP put other persons with the claimant’s protected

15 characteristic at a particular disadvantage compared to others

without this protected characteristic?

(vii) Did the PCP put the claimant to that disadvantage?

(viii) Was the application of the PCP a proportionate means of achieving

a legitimate aim?

4123823/2018 Page 7

20 18. The Tribunal determined the issues agreed between the parties’

representatives, as set out above. If either or both of the claims pursued by the claimant

were found to be successful, the Tribunal would require to determine what award should

be made. It was confirmed in discussions at the outset of proceedings on 28 May that

the claimant does not dispute that 25 she has been paid all monies due to her from

the respondent. The award sought by the claimant was in respect of solatium (injury to

feelings) only.

Findings in Fact

19. The following material facts were not in dispute or were found by the Tribunal to

be proven:-

30 20. The respondent is a provider of out of school hours child care. As at the date of

this hearing, the claimant continues to be employed by the respondent. The

claimant’s normal place of work is Craigend Out of School Care. The

respondent operates out of hours child care provision in Stepps, Craigend and

Coatbridge. The Craigend operation provides care after school and during

school holidays to school children attending a school within Glasgow City

Council. The operations at Stepps and Coatbridge provide similar care but in

5 respect of school children attending North Lanarkshire Council schools. During school

holidays the service provision by all of the out of school care services owned by Karen

Cullen is from Stepps only. The respondent business is owned by Karen Cullen. Karen

Cullen also operates a bar and restaurant business. In her out of school care operations

there are 10 approximately 20 employees.

21. The claimant’s normal working hours for the respondent are 20 hours a week.

During term times these 20 hours are worked over five days, on Mondays to

Fridays from 3pm to 6pm. During school holiday times, the 20 hours are normally worked

in two 10 hour working days. During school holiday time the 15 child care is provided by

the respondent from 8am until 6pm. The respondent requires a smaller number of

employees for its services during school holidays because the total number of children

4123823/2018 Page 8

utilising their services at the one location during school holidays (all at Stepps) is smaller

than the total number of children utilising the term time after school services at the three

20 locations.

22. From September 2017, Karen Cullen operated a system in all of her out of hours

care provision services that wages would be paid on a monthly basis. Wages

were then normally paid at a regular monthly rate. Since September

2017, wages to the respondent’s employees in its out of hours care services

25 are normally paid between the 25th of the month and the last day of the month.

There have been occasions when an employee was paid early, prior to the

25th of the month. Earlier payment has been made when an employee has

asked Karen Cullen to be paid early because they were going on holiday or

because they had an extraordinary expense such as a car repair. On these

30 occasions Karen Cullen decided whether or not it was appropriate to pay that

employee earlier than the normal time. Karen Cullen’s daughter is an

employee of the respondent. She has asked to be paid early on occasions

and Karen Cullen has allowed that. There have been times when Karen

4123823/2018 Page 9

30

Cullen has refused an employee’s request for early payment. She has

refused a request for early payment where she understood that the request

was made not because of some extraordinary expense but where the

employee had overspent in the month. Karen Cullen refused to pay early on

5 such occasions because she had learned from past experience that in doing so the

employee would often just get into more financial difficulties. Wages

payments are often paid early at Christmas time, particularly when requested

by an employee. The respondent does not operate a provision, criterion or

practice of erratic payments. Payments are normally made by the respondent

10 between 25th of the month and the end of the month, with some exceptions to that

normal pattern, for particular reasons.

23. Karen Cullen does not utilise a computer system in her business operations or

use internet banking. She finds computer systems to be difficult to operate

and prefers a system where she goes into the bank branch to make a cash

15 transfer of payments, including wages payments. Because wages are paid by cash

transfer rather than by any automated computer system, there may be a delay

in the cash transaction being processed i.e. if the cash transaction of wages

payments by the respondent is made later in an afternoon, it may not be

processed and therefore paid to the employee until the following working

20 day. When Karen Cullen is on holiday, Louise Collins is usually responsible

for going into the bank branch to make wages payments on the respondent’s

behalf for employees in all of the respondents out of hours services. Louise

Collins is the manager of Karen Cullen’s out of school service in Coatbridge.

When Karen Cullen is on holiday, Louise Collins acts as general manager for

25 all of the out of school services owned by Karen Cullen. Louise Collins has worked for

the respondent for nearly 14 years. Louise Collins is usually responsible for

making wages payments to the employees normally based at the Coatbridge

out of hours service. When making wages payments, Karen Cullen and

4123823/2018 Page 10

30

Louise Collins normally go into the bank branch on or shortly after the 25th of

each month.

24. The bank statements at 24 – 47 shows transactions in the bank account for

Craigend’s Out of School Care from 18/ 05/ 2018 to 31/12/2018. These bank

statements show that the respondent’s normal practice is to make payments

of wages to its employees between the 25th and the end of the month. The

transactions shown include payments of wages in this period to the

respondent’s employees based at Craigend Out of School Care. These bank

account statements show payments to the claimant as follows:-

5 Document 46 25/05/2018 £520.00

Document 43 29/06/2018 £520.00

Document 41 03/08/2018 £220.92

Document 37 31/08/2018 £368.00

Document 34 03/10/2018 £368.00

10 Document 32 29/10/2018 £423.43

Document 28 29/11/2018 £405.02

Document 24 28/12/2018 £386.61

25. The claimant’s wages slips in respect of payments to her from Craigend Out

15 of School Care in the period from 27/04/ 2018 to 31/12/2019 are at documents 19A, 19

B, 19 C and 19 D. These wage slips show net payments to the claimant as

follows:-

Document 19A 27/04/2018 £520.00

Document 19A 25/05/2018 £520.00

20 Document 19A 29/06/2018 £520.00

Document 19B 31/07/2018 £220.92

Document 19B 31/08/2018 £368.20

4123823/2018 Page 11

30

Document 19C 30/09/2018 £368.20

Document 19C 31/10/2018 £423.43

25 Document 19C 30/11/2018 £405.02

Document 19D 31/12/2018 £386.61

Document 19D 31/01/2019 £368.20

26. The respondent’s wage slips are produced by an accountancy firm instructed

by the respondent. Karen Cullen’s usual contact at that accountancy firm is

an individual called Kinga. Normally, Karen Cullen speaks to Kinga on the

25th of each month to confirm the amounts of the wages payments to be made

by cash transfer.

27. The claimant was diagnosed with cancer in April or May 2018. The claimant

told the then Manager at Craigend Out of School Care, Renee Kennedy of

this diagnosis in May 2018. Renee Kennedy informed Karen Cullen of the

claimant’s diagnosis. Karen Cullen expected the claimant to personally inform

5 her of her diagnosis, but the claimant did not then do so. Around one or two

weeks after being informed of the claimant’s diagnosis by Renee Kennedy, in

late May or early June 2018, Karen Cullen approached the claimant and said

to the claimant that she was really sorry to hear that the claimant had cancer.

At that time the claimant told Karen Cullen that she had to undergo some

10 more tests in respect of that diagnosis. Later in June 2018, the claimant and

Karen Cullen had a further informal conversation about the claimant’s

diagnosis and its consequences. Karen Cullen understood from the claimant that she

was undergoing tests. From this conversation Karen Cullen understood that the claimant

would work the 20 hrs ‘owed’ in early July. 15 These 20 hours was time which the claimant

had had off during term time. The respondent’s normal practice was to allow variations in

the normal hours worked by its employees during term times, on the basis that those

hours would be ‘owed’ and worked by that employee during the summer holidays, while

maintaining a regular amount of monthly wages payment to the

4123823/2018 Page 12

30

20 employee.

28. Around 28 June 2018, it was a live topic for discussion between the claimant and

Karen Cullen that the claimant was due to have a long term absence while

she underwent cancer treatment. Prior to the claimant’s absence, Karen

Cullen had not experienced an employee requiring long term absence

25 because of a serious illness or condition. The claimant was not sent any

written communication by the respondent inviting her to attend any meeting

to discuss her impending absence or any issues arising from her cancer

diagnosis. The respondent’s normal practice in respect of arranging formal

meetings with its employees is for Louise Collins to send a written invitation

for meetings and for her to take minutes of such meetings. No such formal

meeting has been arranged by the respondent to discuss the claimant’s health

and its consequences on her employment.

29. Lucy Madden is a Practitioner employed by the respondent to provide child care.

Prior to becoming employed by the respondent, Lucy Madden worked at the

respondent’s Craigend premises in a college placement position. Around 28

June 2018, Lucy Madden was commencing being employed by the

5 respondent directly, following her placement time with the respondent while at college,

and required to give the respondent her bank details to enable payment from

them. Around 28 June 2018 it was a live topic for discussion between Lucy

Madden and Karen Cullen that details required to be communicated in respect

of the commencement of Lucy Madden’s

10 employment with the respondent. Lucy Madden continues to be employed by

the respondent This employment is Lucy Madden’s first professional

employment.

30. On 28 June 2018, the claimant attended at the respondent’s premises in Stepps.

That day was the last day of the summer term for North Lanarkshire

4123823/2018 Page 13

30

15 schools, including the primary school at Stepps where the respondent’s operation is

based. North Lanarkshire Council schools were finishing for the summer

holidays at 1 PM on 28 June 2018. The respondent also has operations at

Glasgow City Council schools, including at Craigend, where the claimant is

normally based. Glasgow City Council schools finished for the

20 summer holidays the day before, on 27 June 2018. In 2018, 27 June was the end of

the term time period when the claimant would normally work from 3 PM until 6 PM,

Mondays to Fridays. Arrangements required to be made between the claimant and the

respondent as to when the claimant would be working during the summer holidays. The

normal arrangement would be for the 25 claimant (and other employees) to work her

contractual 20 hours per week over two days of 10 hours each. Normally agreement

would be reached between the employee and the respondent as to how these days would

be work e.g. over consecutive days to then allow a number of weeks with no working

days, two days a week, or some other agreed pattern. In June 2018 Karen Cullen

understood that the claimant continued to be fit for work, although she was diagnosed as

having cancer. The claimant had continued to work her normal hours with the respondent

since her cancer diagnosis in April or May 2018. From the time of diagnosis she had

continued to undergo

4123823/2018 Page 14

tests. No Med 3 Fitness for Work forms (‘sick lines’) had been provided by

the claimant to the respondent by 28 June 2018.

31. The claimant and Lucy Madden arrived at the Stepps premises mid morning

on 28 June 2018. Care was being provided by the respondent’s employees

5 to children who attended Glasgow City Council Schools, who had finished for

their summer holiday the day before. The respondent’s employees who were

present at the Stepps premises by mid - morning of 28 June 2018 were Karen

Cullen, Heather, Paula, the claimant, Lucy Madden and Louise Collins.

Louise Collins had gone to Stepps on that day to deliver information to parents

10 and pupils on activities which were planned for the summer holidays (‘the

summer planner’). Louise Collins had previously prepared the summer

planner and was not working on it that day.

32. The claimant was present at Stepps on 28 June 2018 to provide cover for a

period. Karen Cullen took that opportunity to have a conversation with the

15 claimant about her forthcoming absence. While she was at Stepps on 28 June 2018,

Louise Collins asked the claimant to speak to Karen Cullen. The claimant then had a

conversation with Karen Cullen. This was not a formal meeting, but was a ‘meeting’ in

the sense that it was a face-to-face conversation between the claimant and Karen Cullen.

This conversation took 20 place in a small room next to the room where the children were

being cared for. During this conversation, Karen Cullen asked the claimant when she was

due to start her chemotherapy treatment. Karen Cullen understood from what the

claimant said to her on that day that that treatment was due to start in mid

July 2018. Karen Cullen understood that the claimant would be absent from

25 work from when the chemotherapy treatment started. The claimant discussed with

Karen Cullen that she was not looking forward to the treatment and the side

effects of the treatment. Karen Cullen asked the claimant how long she was

likely to be off work for. The claimant told her that she would be likely to be

off for a year, being 10 months of treatment and a further two months to

30 recover. The conversation included the claimant informing Karen Cullen that

4123823/2018 Page 15

the claimant’s husband is not fit for work. Karen Cullen had not known that

previously.

33. After speaking to Karen Cullen on 28 June 2018, the claimant worked at Stepps

for a short while to provide cover until other staff arrived. This cover was required

because additional children would be under the care of the respondent from 1pm. There

were additional children from then because in 5 addition to the Glasgow Council

schoolchildren who were being cared for that morning, care was also being provided to

children at the North Lanarkshire schools, from when those schools finished at 1pm. The

claimant and Lucy Madden provided cover until some other of the respondent’s

employees arrived. Those employees had separate employment within different schools

10 and so could not be at Stepps for 1pm on that day. After those employees arrived, the

claimant and Lucy Madden were told that they were no longer needed that

day.

34. The claimant travelled to and from Stepps on 28 June 2018 in a car driven by

her son, Robert Smith. Also in the car on those journeys was the claimant’s

15 husband (also Robert Smith) and Lucy Madden. On the return journey, Lucy

Madden was dropped off before the end of the claimant’s journey home.

When she returned home the claimant spoke in her living room to her husband

about her conversation with Karen Cullen that day. The claimant was upset.

35. On 28 June 2018, Karen Cullen had been seeking to establish whether the

20 claimant would be at work on the first two Tuesdays in July 2018, being 3 July and 10

July. Following that meeting, the claimant was rota-ed to work a 10 hour shift

at Stepps on both 3 July and 10 July 2018. The claimant worked at Stepps

on those days. On 10 July 2018 the claimant worked with Karen

Cullen and Karen Cullen allowed the claimant to leave work early to attend

25 a medical appointment.

36. At no time prior to the submission of her ET1 did the claimant raise any issue

with the respondent about any concern she had in respect of anything said to

her by Karen Cullen on 28 June 2018.

4123823/2018 Page 16

37. The Fitness for work Med 3 forms (‘sick lines’) at documents 12 – 19 are 30

duplicates provided by the claimant’s GP surgery of original forms issued in

respect of the claimant. These duplicate forms show that sick lines were

issued certifying the claimant’s unfitness for work as follows:-

• Document 12 - assessment on 9/07/ 2018, certified unfit

from 27/06/2018 to 30/07/2018

• Document 13 – assessment on 10/07/2018, certified

unfit for work from 30/07/2018 to 10/08/2018

5 • Document 14 – assessment on 10 / 08/ 2018, certified unfit for work for 12 weeks

• Document 15 – assessment on 30/10/2018, certified

unfit for work for 12 weeks

• Document 16 – assessment on 17/01/2019, certified

10 unfit for work for 12 weeks

• Document 17 – assessment on 12/ 04/2019, certified

unfit for work from 12/04/2019 to 19/04/2019

• Document 18 – assessment on 1/ 05/2019, certified unfit

for work from 19/04/2019 to 01/05/2019

15 • Document 19 – assessment on 1/05/2019, certified

unfit for work for 8 weeks

38. The Fitness for work Med 3 forms (‘sick lines’) at documents 20, 21 and 23 are

copies of the original sick lines provided by the claimant’s GP in respect of the

claimant, which were handed to the respondent on behalf of the

20 claimant to certify her absence, and have been located by the respondent.

These are:-

• Document 20 - assessment on 9/07/ 2018, certified unfit

from 27/06/2018 to 30/07/2018 (as per document 12)

• Document 21 – assessment on 10/08/2018, certified

25 unfit for work from 30/07/2018 to 10/08/2018 (as per document 13)

• Document 23 – assessment on 30 / 10 /2018, certified unfit

for work for 12 weeks (as per document 15)

4123823/2018 Page 17

39. The Fitness for work Med 3 form (‘sick line’) at document 22 is a duplicate

30 issued by the claimant’s GP on 02/10/2018. That is a duplicate of a Med 3

form which certifies the claimant’s unfitness for work as follows:-

• Document 22 - assessment on 10/08/ 2018, certified unfit

for 12 weeks. (as per document 14)

40. There are dates handwritten on documents 20, 21 and 22. These dates show

the date when that sick line was handed in to the respondent on behalf of the

5 claimant. These sick lines were handed to the respondent by either the

claimant’s son, or the claimant’s husband, who was driven to the respondent’s

premises by their son. Document 20 was handed in to premises where the

respondent operated on the date which is handwritten on that document 20,

which is 30 / 07 / 2018. When hand writing that date, an error had been made

10 initially to state 30/ 8 /2018, but this was corrected to state 30/7 /2018.

Document 21 was handed in to the respondent on 23 / 08 / 2018, and not on

23/9/2018, which is the date hand written on document 21. Document 22 was

handed in to the respondent on 2 / 10 / 2018, which is the date hand written

on document 22. There is no date hand written on document 23.

15 41. Karen Cullen was on holiday in America for two weeks at the end of July 2018. She

returned to the UK on or around Monday 1 August. The documents numbered

7 (with pages from 7 – 7/9) show the text communications between the

claimant and Karen Cullen between 31 July 2018 and 14 March 2019. On

31 July (at 10:11 and at 11:23) and on 2 August the claimant sent a text to

20 Karen Cullen asking ‘what’s happening’ with her sick pay, because she had not received

payments. Prior to Karen Cullen replying to the claimant by text on 2 August

(shown at document 7/1), Karen Cullen had received a text from Louise

Collins, informing her that the claimant had handed in a sick line and the dates

were ‘wrong’. The claimant had worked at Craigend on 27 June

25 2018 and had worked for a short period to provide cover at Stepps on 28 June

4123823/2018 Page 18

2018. The claimant had worked for the respondent from 8 AM until 6 PM on

Tuesday 3 July and on Tuesday 10 July 2018. The sick line which had been

passed to Louise Collins certified the claimant as being unfit for work from 27

June 2018. This was the sick line which is at Document 20, showing the

30 claimant having been assessed on 9/07/ 2018, and being certified as unfit to work from

27/06/2018 to 30/07/2018 (as per Document 12). Document 20 had been

handed in to Renee Kennedy on 30 July 2018, and Renee Kennedy had

informed Louise Collins where she had put that sick line. When Louise

Collins collected that sick line at document 20, she noticed that that sick line

certified the claimant as unfit for work from 27 June 2018. Louise Collins

knew that the claimant had worked in the period from 27/ 06/ 2018. That was

why Louise Collins told Karen Cullen that the claimant’s sickline was ‘wrong’.

5 42. Louise Collins put the sick line which is at document 20 in an envelope and left it at

the premises in Stepps where the respondent operates during the summer

holidays, to be collected by Karen Cullen. Karen Cullen contacted Kinga at

the accountancy firm instructed by the respondent about a sick line being

received for a period when the claimant had worked for the respondent.

10 Kinga is the only person who Karen Cullen has contact with at that accountancy firm.

Kinga told Karen Cullen that it was not appropriate for the claimant to receive

sick pay and also wages in respect of work done in the same period. Kinga

told Karen Cullen that if the claimant had been working in the period covered

by the sick line, then she should get paid for the hours

15 worked and should obtain a sick line certifying her as being unfit from work from the

date when she was unfit for work.

43. The claimant was not paid as normal between 25 and 31 July 2018 because the

respondent had received the sick line which is at document 20 on 30/07/2018 and required

to clarify the position in respect of that sick line 20 certifying the claimant as unfit for work

in days when the claimant had worked for the respondent. The text message

correspondence between the claimant and Karen Cullen between 31 July and 3 August

4123823/2018 Page 19

2018 confirms that the claimant worked on the first two weeks in July 2018. The text

correspondence in this period is as follows:-

25 Tuesday, 31 July 10:11

Claimant Hi Karen, could you let me know what’s

happening with my sick pay, as I haven’t received

anything yet

30 Tuesday, 31 July 11:23

Claimant Hi Karen will you let me know what’s happening

please

Thursday 2 August 11:39

Claimant Hi Karen will you let me know what’s happening with

my sick pay please as I haven’t been paid.

5 Karen Cullen Hi Susan

You need to change your sick line to the 16th as

you worked the first two weeks ?

Claimant The only I worked them is because you were

10 going to take 20 hours of my wages from last

month unless your going to pay me for the 20

hours (sic)

Karen Cullen Susan the hours you worked you owed?

15

And it wasn’t from last month?

Claimant Exactly. No, but it was last months wages you were

going to take the money

20

Friday 3 August 12:06

4123823/2018 Page 20

Karen Cullen Hi Susan I’m going to pay your money in today

can you let me know which way you want me to

do it?

25

Friday 3 August 12: 06

Claimant Hi Karen same way it’s always done thanks

44. Document 41 shows that the sum of £220.92 was paid to the claimant by the

respondent on 03/08/2018. That sum was paid in respect of statutory sick

30 pay (‘SSP’), as shown in the wage slip at Document 19B, dated 31/07/2018.

Payment to the claimant for July 2018 was due to be paid to the claimant by

31 July 2018, but was delayed because the claimant had given the

respondent a sick line certifying her as unfit for a period when the claimant

had worked and the respondent required to discuss with their instructed

accountancy firm the position in respect of what payment should be made.

The timing of payments from the respondent is important to the claimant

because she had direct debits which come out of her bank account and she

5 required payments from the respondent by the end of the month to cover

these.

45. On 10 August 2018, the claimant sent a text to Karen Cullen asking her to email

some of her wage slips. Karen Cullen replied by giving her accountant’s

contact telephone number and stating ‘ask for Kinga’ (document 7/2).

10 46. On 10 August 2018, the claimant was assessed by her GP and her GP gave the

claimant two Med 3 forms (sick lines), both showing assessment on 10 August 2018.

These are the sick lines which are at document 13 (which is also at document 21) and

document 14 (a duplicate of which is at document 22). The sick line which is at document

13 (which is also at document 21) is 15 ‘backdated’, certifying the claimant’s absence in a

period prior to the assessment on 10 August, being from 30/07/2018 until 10/08/2018.

The sick line which is at document 14 (which is also at document 22) certifies the

claimant’s absence for a future period, after the assessment on 10 August, being certified

by her GP as being unfit for work for 12 weeks from 10/08/2018.

4123823/2018 Page 21

20 47. The claimant understood at that time that both the sick line which is at document 13

(also at document 21) and the sick line which is at document 14 (also at

document 22) had been delivered by her husband and / or son to the

respondent’s premises at Craigend. Both of these sick lines were given by

the claimant to her husband and / or son to deliver to the respondent. The

25 sick line at document 14 (a duplicate of which is at document 22) was then either

mistakenly not delivered to the respondent’s premises, or was delivered and

has been misplaced in the respondent’s premises. Even if it were delivered

to the respondent, the sick line at document 14 was not received by Karen

Cullen. The claimant believed that both the sick lines at document 13

30 and at document 14 had been delivered to the respondent’s premises at Craigend and

had been received by Karen Cullen. The communication from

Karen Cullen to the claimant in October 2018 is consistent with the finding

that Karen Cullen did not receive the sick line which is at document 14

(although that sick line may have been delivered to the respondent’s premises

and been mis-layed thereafter).

48. The sick line at document 21 and also at document 13, which certifies the

5 claimant as unfit for work in the period from 30/07/ 2018 to 10/08 /2018 was

handed to Renee Kennedy at the respondent’s premises at Craigend by either

the claimant’s husband (driven there by the claimant’s son) or by the

claimant’s son himself on 23 /08/2018, and not 23/ 09/2018, as handwritten

on document 21. It was handed in after the period for which it certified the

10 claimant as being unfit for work had expired. The school term time began before

23/08/2018 and the respondent were operating from Craigend at that time. Karen Cullen

attends at the respondent’s premises at Craigend about once a fortnight during school

term time. On 24/08/2018, Renee Kennedy sent a text to Karen Cullen. That text is at

document 48. That text refers to a 15 sick line from the claimant, in the singular. It states:-

“Karen Susan’s sick line is in the wooden locked cupboard

under Meath (sic) the money tin x”

4123823/2018 Page 22

49. The locked cupboard at Craigend referred to in Renee Kennedy’s text is a

cupboard where the respondent’s paperwork is kept at that premises, 20

including policies. Each employee has a key to access that cupboard when they

are working there.

50. Karen Cullen was at the Craigend premises on Tuesday 28 / 08/2018. When

she was there, Lucy Madden gave her the sick line which is at document 21 and

also at document 13. That sick line certified the claimant as unfit for 2

25 working weeks, from 30/07/ 2018 to 10/08 /2018. Karen Cullen forwarded that sick line

to Kinga at the accountancy firm instructed by the respondent. There was no

communication sent to the claimant seeking to confirm the position with her in

respect of certification of her absence from 10/08/2018.

51. The claimant sent a text to Karen Cullen on 28 August and 30 August asking

30 when she would be paid. On 30 August, the claimant further stated to Karen Cullen in

the text that she had a direct debit coming out. Karen Cullen then

replied by text, stating ‘Hi today.” These texts are shown at 7/3. It was not

raised with the claimant at that time that there was any issue in respect of the

respondent not having sick lines covering the period after 10/08/2018. The

claimant did not receive payment from the respondent on 30 August.

5 Document 37 shows that the claimant was paid the sum of £368.00 from the

respondent on 31/08/2018. Document 19B shows the wage slip dated 31/08/2018

detailing payment of SSP to the claimant of £368.20. Karen Cullen made an error when

processing this transaction and read the pence figure as ‘00’ rather than ‘20’. Karen

Cullen authorised payment of SSP to the 10 claimant for the whole of the month of August

2018.

52. No payment was made to the claimant from the respondent in September 2018.

The text message correspondence between the claimant and Karen Cullen

between 28 September and 1 October 2018 is at 7/3 – 7/6 and is as follows:-

15 Friday, 28 September 17:24

4123823/2018 Page 23

Claimant Hi Karen, when will my wages be paid in as I have direct

debit coming out

Karen Cullen Susan I haven’t had a sick line in 6 weeks and

20 haven’t heard anything from you. ?

Claimant Karen the last sick line I held in was for 12 weeks

25 Karen Cullen The acc said it was 2 weeks? I sent you a letter a couple of weeks ago

to say that Craigend was now shut down and

could you contact me regarding your wages?

30 Friday, 28 September 18:14

Karen Cullen I will need to check on Monday?

Claimant No if you look at the sick lines there was two and

I can get a copy on Monday and I never got a

35 letter from you

Monday 1 October 15:27

Claimant Hi Karen, will you be putting my sick pay in today

5

Monday, 1 October 17:04

Karen Cullen Hi, we only have a sick line for 2 weeks that’s all I

was given ?

10

Claimant I will get another copy of the 12 weeks sick line

that was already handed in by my husband

Have just phoned doctors and will drop it off

15 tomorrow at Craigend

53. Shortly after Karen Cullen received the text message from the claimant on 1

October 2018 stating that a 12 week sick line had already been handed in by

the claimant’s husband, Karen Cullen contacted Kinga. Kinga’s position to

4123823/2018 Page 24

20 Karen Cullen was that the last sick line from the claimant which the accountancy firm

had was for two weeks. There was no letter before this Tribunal purporting to

be a the letter referred to by Karen Cullen in her text sent to the claimant on

28 September 2018.

54. The claimant was concerned about her financial situation. The fact that

25 payments from the respondent were made to the claimant on 03/08/2018 and

03/10/2018, and not by the last day of the months of July and September

2018, caused the claimant financial difficulties because of the date when

direct debits were taken from the claimant’s bank account. She sought money

advice. Around 1 October 2018, the claimant wrote a letter to Karen Cullen.

30 That letter has been misplaced by Karen Cullen and was not before this Tribunal. In

that letter, the claimant raised her concern with Karen Cullen about delay in

payments to her. In that letter, the claimant alleged that she was being

discriminated against by the respondent in respect of these late payments.

That letter was handed in to the respondent’s premises by the

35 claimant’s husband, together with a duplicate sick line. The duplicate sick line handed

in then was that at Document 22, which has the date of 2/10/2010 handwritten

on it and which shows assessment on 10/08/ 2018, and the

claimant being certified unfit for 12 weeks (as per document 14). The

claimant’s husband had collected the duplicate sick lines which are at document 12 and

document 22 from the GP surgery reception. The claimant’s son had driven the

claimant’s husband to the GP surgery and to 5 the premises at Craigend to deliver these

duplicate sick lines.

55. The payment made to the claimant on 03/10/2018, as shown at Document 34,

was made because Karen Cullen received the duplicate sick line which is at document 22

on 2/10/2018. That payment on 03/10/2018 is the delayed payment shown on the

claimant’s pay slip of 30 September (at Document 10 19C). That pay slip was issued by

the respondent’s instructed accountancy firm. That firm calculates the amount of any

statutory sick pay due to employees of the respondent. On or around the 25th of each

month, Karen

4123823/2018 Page 25

Cullen, or (Louise Collins in Karen Cullen’s absence) discusses with the Kinga

at the accountancy firm what payments should be made to each employee.

15 Karen Cullen, or Louise Collins in Karen Cullen’s absence, then physically goes into

the bank to process the wages and any SSP payments in the amounts

detailed by Kinga.

56. The claimant obtained professional advice in respect of her situation with the

respondent. The claimant acted on that professional advice by writing to 20 Karen Cullen

on or around 1 October 2018. In that letter the claimant alleged

that the respondent had discriminated against her. Karen Cullen’s response

to that letter is at document 8 and is as follows:-

“Thank you for your letter which I received on 1st October.

Firstly I would like to apologise for the confusion over sick line /

25 sick pay, just to let me explain, your first sick line was handed to Louise from Renee on

30th of July and the second sick line was handed in on 24th of

August this was for two weeks, this was then handed to me from

a member of staff on the 27th. I did not receive a further sick

line for 12 weeks which is stated

30 in your letter that there was two sick lines handed in. I have spoken with Lucy and

Renee and both have said they only got one sick line, but I now

have received a duplicate with your

4123823/2018 Page 26

letter. In order to save any further confusion, it would be much

appreciated when the lines are being handed into the service if

you could just drop me a text to let me know it’s been handed

in. This allows me to go in and collect it straight away because

5 as you are aware I am not in the service on a daily basis. A new line must be handed

in within 3 working days prior to the line date running out, this

also allows us to process your wages on time for that month.

Re. pay slips these are processed on the 25th of each month

10 and are sent out automatically to all staff so unless we have a sick line stating otherwise

the pay slip would be sent out wrong, which is why then the

wages will be processed late, how ever the accountant should

have since sent out the correct pay slips for July/august if you

have not received these yet can you

15 please get in touch and let me know so this can be dealt with

promptly. Don’t hesitate to give me a call if I can help with any

more information.

Also Please find I have enclosed a copy of our absence

management policy in with this letter.”

20 57. The absence management policy enclosed with that letter is at document 9 and is

dated 17 June 2018. Under the heading ‘Long-term sick’, it states as follows:-

“(1) Sick line must be handed in by 3 working days from old line

running out, failure to do so could result in statutory sick

25 pay not being paid.

(2) A weekly call is required to the manager for any updates. (3)

After 3 months off sick we will require an attendance monitoring

meeting to assess fitness to return to work.”

58. That absence management policy was not followed by the respondent in respect

of the claimant. Although there was a short delay in statutory sick pay being

paid to the claimant in July and September 2018 (when payment was instead

4123823/2018 Page 27

30

received on 3 August and on 3 October 2018), the claimant did receive all

payments, including statutory sick pay, due to her from the respondent, even

when at the time of payment the respondent was not in receipt of a Med 3

form (sick line) certifying the claimant as unfit for work.

5 Payments of SSP were made to the claimant in August and in September at a time

when the respondent was not in receipt of a Med 3 form certifying the claimant

as unfit for the entire month. Weekly calls did not take place with the

claimant. After three months of absence, an attendance monitoring meeting

did not take place to assess the claimant’s fitness to return to work.

10 59. The sick line which is at document 14 was not received by Karen Cullen. The

duplicate of that document 14 is document 22, which was received by Karen

Cullen, on 2 October 2018. That document 22 was handed to Karen Cullen

with the letter from the claimant which has been misplaced, but to which Karen

Cullen replied to the claimant in document 8. In her letter at document 8,

15 Karen Cullen erroneously refers to having received the claimant’s letter on 1 October

2018. That document 22 shows that the claimant was certified as unfit for work

for 12 weeks from 10/08/2018, although Karen Cullen did not have sight of

that certification until 2/10/2018. The claimant did receive payments of

statutory sick pay from the respondent in the period when Karen

20 Cullen had not received Med 3 forms covering the claimant’s absence i.e. from

11/08/2018 (on the expiry of the sick line at document 21, covering the period

from 30/07/2018 until 10/ 08/2018 but not having been received by the

respondent until 23/08/2018) until 2/10/2018, when the duplicate sick line at

document 22, covering the 12 week period from 10/8/2018 was received. The

25 claimant received payment of SSP for all of August 2018, despite the

respondent only being in possession of a sick line certifying the claimant’s

absence until 10/08/2018 because at the time of processing the payments to employees

at the end of August 2010, Karen Cullen erroneously believed that the sick line at

document 21 was for a period longer than 2 working weeks, 30 expiring on 10 August.

Karen Cullen made that assumption because she

4123823/2018 Page 28

knew about the claimant’s diagnosis and treatment and knew that previous

sick lines had been for longer than 2 working weeks. The payment made to

the claimant on 31 / 08/ 2018 (as shown in the respondent’s bank statement

at Document 37 and in the payslip issued to the claimant at document 19B,

also dated 31/08/2018) was made prior to Karen Cullen being informed by

Kinga at the accountancy firm that the sick line at document 21 only certified

the claimant’s absence until 10/08/2018. Karen Cullen did not then contact

5 the claimant to seek clarification of the position. The respondent did not seek to reclaim

any amounts from the claimant in respect of payments made to her in a period

when Karen Cullen had not received Med 3 forms certifying the claimant’s as

unfit for work.

60. The claimant has not worked for the respondent since 10 July 2018. Since

10 that time the claimant has undergone chemotherapy treatment for cancer. The ET1

raising these Employment Tribunal proceedings was submitted to the

Employment Tribunal on 21 December 2018. That ET1 was in the terms set

out at document A1 – A14. At no time prior to her receipt of that ET1 had

Karen Cullen received any indication from the claimant that she had any

15 concern about what Karen Cullen had said to her on or around 27 June 2018. The

claimant did not consult her GP or any other medical professional in respect

of what Karen Cullen had said to her on or around 27 June 2018. From May

2018 the claimant has had the protective characteristic of disability in terms of

the Equality Act 2010. The respondent has had knowledge of this

20 from early June 2018.

Relevant Law

61. The claimant’s claims are brought under the Equality Act 2010. The relevant law

in relation to time limits is the Equality Act 2010 section 123. In accordance

with section one 231 the claims may not be brought after the end

25 of –

4123823/2018 Page 29

30

(a) the period of three months starting with the date of the act to which

the complaint relates, or

(b) such other period as the employment tribunal thinks just and

equitable.

62. The claimant relies on section 19 of the Equality Act 2010 (indirect

discrimination). The provisions of section 19 are as follows:-

(1) A person (A) discriminates against another (B) if A applies to B a provision,

criteria or practice which is discriminatory in relation to a relevant

protected characteristic of B’s.

(2) For the purposes of subsection 1, a provision, criteria or practice is

5 discriminatory in relation to a relevant protected characteristic of B’s if –

(a) A applies, or would apply, it to persons with whom B does not share

the characteristic.

(b) It puts, or would put, persons with whom B shares the characteristic

at a particular disadvantage when compared with persons with

10 whom B does not share it,

(c) It puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a

legitimate aim.

63. A provision, criterion or practice is normally referred to in this context as a

15 ‘PCP’. Disability is one of the relevant protected characteristics listed in section 19(3).

64. The claimant relies on section 26 of the Equality Act 2010 (harassment). The

relevant provisions of section 26 are as follows:-

(1) A person (A) harasses another (B) if –

20 (a) A engages in unwanted conduct related to a relevant protected

characteristic, and

(b) the conduct has the purpose or effect of –

(i) violating B’s dignity, or

(ii) creating an intimidating, hostile, degrading and

25 humiliating or offensive environment for B.

4123823/2018 Page 30

(Subsections (2) and (3) are not relevant to this claim)

(4) In deciding whether conduct has the effect referred to in subsection (1)(b),

each of the following must be taken into account –

30 (a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect.

65. Disability is listed as one of the relevant protected characteristics in section

26(5).

5 Submissions

66. Both parties’ representatives spoke to their written submissions on 30 May.

There was no dispute on the applicable law. The claimant’s representative

submitted that the evidence of both of the claimant and her husband was

credible and reliable and should be preferred to the evidence of the

10 respondent. The claimant’s representative submitted that Karen Cullen’s

evidence was incredible and unreliable, and ‘repeatedly and consistently

contradicted by the use of productions’. This was not accepted by the

Tribunal. The claimant’s representative submitted that Louise Collins and

Lucy Madden were biased as they continue to be employed by the 15

respondent. That was taken into account by the Tribunal. The claimant’s representative

invited the Tribunal to make findings in fact on the basis of the claimant’s version of events.

67. In respect of time bar, the claimant’s representative relied on British Coal

Corporation v Keeble [1997] IRLR 336 and DPP v Marshall [1998] IRLR 494.

20 His position was that although the only act relied upon in respect of the harassment

claim occurred around 28 June 2018, and the ACAS Early Conciliation would

have required to begin no later than 27 September 2018, the claimant was

4123823/2018 Page 31

30

undergoing chemotherapy treatment at that time. He relied on the early

conciliation being entered into in October 2018 coming to an end

25 in November and the claim being lodged with the Employment Tribunal in

December. He submitted that the Tribunal ‘consider …the shortness of the

time delay of only a month against the life-saving priorities of the claimant.’

He submitted that it would be ‘unreasonable to expect the claimant to put a

legal dispute ahead of her health and survival’. He submitted that the cogency

of the evidence had not been affected by the delay. He relied on the

respondent being able to gather witnesses and prepare the hearing. He

submitted that the respondent ‘cannot demonstrate that the Tribunal’s ability

to conduct a fair hearing has not been affected’.

68. The claimant’s representative relied on what the claimant alleged in her evidence

to have been said to her by Karen Cullen on 27 June as being a 5 one-off act, which was

unwanted conduct related to the claimant’s protected characteristic of disability and

which was harassment in terms of section 26 of the Equality Act 2010, having had the

effect of violating the claimant’s dignity. He submitted that lack of intent is not a defence,

relying on Reed and Bull Information Systems Ltd v Steedman [1999] IRLR 299 EAT

10 69. In respect of the indirect discrimination claim, the claimant’s representative

submitted that the respondent’s evidence and bank statements show that the

managerial administration, including erratic payments was applied to all

employees. He relied on Eweida v British Airways plc [2009] ICR 303 in his

submission that the claimant has a particular disadvantage when the

15 complaint was about a practice with which they had reluctantly accepted and in his

submission that there was a causal link between the protected characteristic

relied upon, and the particular disadvantage. His position was that the

claimant suffered a particular disadvantage because could not resolve

‘face to face’ any issues she had with the respondent. There was some 20

discussion at the stage of his submissions with the claimant’s representative

in respect of whether it could be said that all disabled people would suffer that

disadvantage. His position as stated in his written submission was:-

4123823/2018 Page 32

“It is obvious that people with disability status may have more medical

needs and thus may be unfit to work more than people without this

25 protected characteristic. The claimant and / or a group may be placed at a particular

disadvantage by a PCP if they experience difficulty in communicating with

their managerial staff about absence management and payments. Being

unfit to work, the claimant was forced to correspond with the respondent

via text message. The respondent’s evidence stated

30 that the claimant would be able to access policies, procedures if they simply contacted

the respondent, however, the evidence shows that the respondent took

significant delays in responding to the claimant’s text

4123823/2018 Page 33

messages, if responded to at all. The respondent also stated that if

employees were able to ask for advances of payments, she was able to

have a conversation with the employee about whether further

advancement was justified. Such conversation is easier to be had in

5 person than over messages, as demonstrated. In addition the policies / procedures

that the respondent and the claimant were relying upon were only freely

accessible in the place of work, where the claimant could not attend due

to her fitness to work due to her protected characteristic. This pre-empts

that such employees know the precise and necessary policies,

10 and that their employer will respond to their communication. Persons

sharing the claimant’s protected characteristic of having a disability, which

in turn requires more time off are at a particular disadvantage compared

to those whom the claimant does not share that characteristic and who

are in comparable circumstances (such as employees working in a team

15 with one-to-one access with managerial guidance and in-person

conversations about advancements and policies.”

70. That position in submissions was not supported by the evidence. The claimant

was not forced to correspond with the respondent via text. The claimant wrote

a letter to the respondent, which was replied to in terms of

20 document 8. There was no suggestion in evidence that text communication was the

only option open to the claimant during her absence. The documentary evidence did not

support the submission that there were ‘significant delays’ to the claimant’s text messages

to Karen Callen being replied to. There was no suggestion in evidence that the claimant

ought to 25 have had access to any policy, which was not provided to her. There was no

reliance on any written policy. It was not in dispute that the written sickness absence

policy was sent to the claimant with the letter at document 8. The terms of that policy were

not relied upon by the claimant. It is not correct that all those with the protected

characteristic of disability are or would be unable

30 or, less able, to attend at the workplace. That was discussed with the

4123823/2018 Page 34

claimant’s representative at the stage of him speaking to his oral submissions

and in the context of the provisions of the Equality Act 2010 section 15.

71. The claimant’s representative submitted that the claimant was at a particular

disadvantage because she was reliant on information from the respondent.

He submitted that the respondent has failed to prove that they were pursuing

an appropriate means of achieving a legitimate aim. Reliance was placed on

5 the respondent instructing an accountancy firm and then relying on going into

the blank to make cash transfer payments rather than utilising any

computerised system of payments. He submitted:-

‘The respondent did not provide an adequate explanation as to why

there was administrative practice (in the form of Internet banking,

10 automatic debits or otherwise) or an applied policy to support / manage the payroll for

employees on long-term sick leave. The respondent, and their

employees, neither applied nor effectively communicated with the

claimant to make her aware in advance of their absence management

policy, nor responded promptly to payments queries /

15 concerns. The respondent had multiple opportunities to text or write

to the claimant when it was clear there were issues regarding sick

lines. The respondent only provided the claimant with the absence management

procedure in October 2018 in response a letter by the claimant raising concerns about

discrimination. The absence 20 management procedure was provided to the claimant

months after the

claimant needed it and even longer after it was reviewed in June 2018.’

72. It had not been put to the respondent’s witnesses that they ought to have

communicated to the claimant more than they did. In his written submissions, the

claimant’s representative summarised the position in respect of the 25 claimant’s indirect

discrimination claim as follows:-

‘Under the Equality Act 2010 it may not always be necessary to create

a formal pool and use statistics or other evidence of particular

4123823/2018 Page 35

disadvantage. We move the Tribunal to note that those possessing

the claimant’s protected characteristic is very clear. People with

30 disabilities will experience more time unfit for work due to their disabilities, therefore be

off site from work more. The need for effective

managerial administration, including communication is vital for

persons sharing the claimant’s protected characteristic.’

73. In respect of remedy, the claimant’s representative relied upon his schedule of

loss, seeking a solatium (injury to feelings) payment of £20,000 as the only

5 remedy. When pressed, he broke this down to an award being sought of £10,000 in

respect of each claim pursued.

74. In his written submissions, the respondent’s representative’s position was that

the claimant’s claims brought under section 26 and 19 of the Equality Act 2010

are refuted by the respondent entirely. It was submitted that the claimant has

10 been unable to make a prima facie case of either harassment or indirect discrimination.

In respect of the harassment claim, no esto position was pled.

It was the respondent’s position that the meeting did not happen as alleged

by the claimant. It was submitted that the claimant ‘…has been unable to

show the violation to her dignity, contrary to section 26 or any relevant

15 provision, criteria or practice in relation to section 19.’ In respect of the indirect

discrimination claim, it was submitted that if the Tribunal find that there is a

provision, criteria or practice applied as alleged, which was denied, then the

claimant has been unable to identify that this subjected her to any detriment

when compared with persons who do not share the particular

20 disadvantage. It was accepted that the claimant is disabled in terms of the Equality Act.

75. The respondent’s representative submitted that the harassment claim brought

under section 26 of the Equality Act 2010 is time barred. Reliance was placed

on the conduct relied on in respect of that claim having occurred on 28 June

25 2018, giving the claimant until 27th of September 2018 to enter into ACAS early

conciliation. Reliance was placed on early conciliation not being entered into

4123823/2018 Page 36

until 7 November 2018. It was submitted that the claimant was in receipt of

legal advice from August 2018, and that there was ‘no good reason put

forward as to why the claim was not presented in time’. Reliance was placed

30 on the claimant being asked why the claim was presented out of time and her

answer being ‘I don’t know’. It was stated in the written submissions-

‘The respondent has sympathy for the claimant’s medical condition and

understands that she was undertaking serious medical treatment and of

course, this is a factor that the Tribunal could and should consider,

however, it is apparent that she was able to consult with solicitors at

5 various stages prior to her claim being lodged and with the benefit of

advice, we do not see that the Tribunal can find it just and equitable to

extend the time limitation in order for her to present a claim.’

76. In respect of the claimant’s representative’s submissions that it would be just

10 and equitable to allow the harassment claim, although brought out of time, the

respondent’s representative relied upon Robertson v Bexley Community

Centre [2003] EWCA Civ 576. It was submitted that the exercise of discretion to extend

time is the exception rather than the rule and that the claimant has not discharged the

onus of proof incumbent upon her under section 123 (1) 15 of the Equality Act 2010.

77. If allowed, the respondent’s representative’s position in respect of the section 26

claim was that the conduct did not occur as alleged by the claimant. The

respondent’s representative made submissions on the application of the

burden of proof under section 136 of the Equality Act 2010. It was submitted

20 that the initial burden of proving, on the balance of probabilities, facts from which

harassment would be presumed, was on the claimant and that the claimant

has not done so on the evidence before the Tribunal. It was submitted that

the burden of proof did not then shift to the respondent.

78. In respect of the PCP identified by the claimant’s representative, it was

25 submitted that what was identified was not a valid PCP, and that no such policy, criteria

or practice exists. It was submitted that in the event that the Tribunal finds

4123823/2018 Page 37

that there is such a PCP, the claimant has been unable to show the substantial

disadvantage she would have been placed at when considered with those

staff members not shaving her protected characteristic. In the

30 event of the Tribunal finding against the respondent in that matter, there was reliance

on the respondent seeking to achieve a legitimate aim by proportionate means

in paying employees when the respondent was in possession of ‘the correct

sickline certification’.

79. It was submitted that in terms of section 136(3) of the Equality Act 2010, section

136(2) did not apply because the respondent has led evidence to the effect

that, if not time barred the incident of harassment alleged to have taken place

on 28 June did not take place, and that a PCP was not present.

5 Reliance was placed on Laing v Manchester City Council UKEAT/1028/06 DA as

authority for the proposition that a Tribunal is entitled to have regard to all material facts

in its consideration of a different version of events being put forward by the claimant and

the respondent. It was submitted that the respondent’s evidence was clear in that the

claimant was not offered money 10 to leave and that no such offer would have been made.

Reliance was placed on Madrassy v Nomura International plc 2007 ICR 867 . It was

stated that an employer should at stage 1 be able to adduce evidence to show that the

acts which are alleged to be discriminatory never happened. It was submitted that the

respondent has done so, and that there was no incident of harassment

15 and no PCP.

80. It was submitted that the claimant has failed to provide evidence upon which

influences could be drawn that there was a prima facie case of discrimination.

It was submitted that any inferences must have an evidential basis and that

following B & another v A, EAT 0503/08, there must be evidence of

20 discrimination. It was submitted that the claimant has been unable to produce any

evidence of harassment, save for her version of events on 28 June, which is

rejected by the respondent, and that the claimant has not proven that a PCP

was applied by the respondent as pled. It was submitted that following Igen

v Wong [ 2005] ICR 93, in the event that the burden of proof is shifted, the

4123823/2018 Page 38

25 respondent must show on the balance of probabilities, that there was in fact no

discrimination. It was submitted that the burden of proof has not shifted.

81. It was submitted that if the Tribunal finds against the respondent, and finds that

a PCP as alleged by the claimant was applied by the respondent, then the

claimant has been unable to show that she suffered any substantial 30

disadvantage because of this.

82. It was the respondent’s position that the claims were denied and that the claimant

is not entitled to any compensation. It was submitted that in the

event of the Tribunal finding that the claimant’s claims were successful, the

Tribunal should make its conclusions on the basis of any award in

consideration of the harassment claim being in respect of a one off act, which

would attract an award at the lowest end of the Vento scale of around £900-

5 £1000 and that the indirect discrimination is effectively in respect of two late sick pay

payments, each being made around three days late. It was submitted that

that was not substantial and would attract only an award at the low end of the

Vento scale of £900-£1000.

83. Comment was made by the respondent’s representative on the witnesses’ 10

evidence. He submitted that the respondent’s witnesses were credible and reliable and

wholly believable in their evidence. His submission was that, in contrast to the claimant

and her husband, the respondent’s witnesses were ‘clear, cogent and consistent’, that

they ‘presented as hard-working and diligent individuals who did their best to honestly

recall the events’ and that 15 the respondent’s witnesses’ evidence should be preferred.

Reliance was placed on Karen Cullen being candid in her evidence on when errors had

been made on dates or in administrative matters, and being more than happy to clarify

any matters in her evidence. The respondent’s representative submitted that the claimant

gave evidence in an inconsistent way, and her

20 answers were framed in such a way as to ‘attempt to support her claim’. Reliance was

placed on the claimant being unable to state that she had been offered any

amount of money, or that there was any mechanism by which this payment

4123823/2018 Page 39

would have been made to her. Reliance was placed on the claimant in her

evidence, saying that she ‘took to mean’ from the respondent’s words

25 that there had been an offer to be paid off. It was submitted that the claimant’s

account was not credible and that the respondent’s position should be

preferred. Reliance was placed on the claimant having not handed any sick lines to the

respondent herself and therefore simply not being in a position to confirm what sick lines

were actually handed in to her employer. The Tribunal 30 was asked to place very little

weight on the claimant’s husband’s evidence, because of his memory problems following

his stroke. It was submitted that although there was no reason to dispute the claimant’s

husband’s honesty,

he had admitted himself that he ‘didn’t have a clue’ about a lot of the matters

being discussed.

84. In respect of the indirect discrimination complaint. Reliance was placed on the

claimant’s admission that only two payments to her by the respondent

5 were made outwith the normal timescale, i.e. by the end of the month.

Reliance was placed on the respondent’s position that those late payments

can be explained by the fact that sick lines were not in the respondent’s

position at the appropriate times.

85. The respondent’s representative invited the Tribunal to find in fact that (1) the 10

respondent’s Karen Cullen and the claimant had a discussion on 28 June at the out-of-

school care service at Stepps (2) that no offer was made by the respondent to pay off the

claimant and (3) that the respondent does not apply a provision, criteria or practice as

pled by the claimant or at all. He submitted that the claimant’s claims must fail and that

Tribunal should find in the 15 respondent’s favour and dismiss the claims.

Standard of Proof and Burden of Proof

86. The burden of proof is first on the claimant. The Tribunal required to consider

the strength of all the evidence, presented to it by both parties, and decide

whether the claimant has made out her case, on the balance of probabilities.

20 The standard of proof applied in Employment Tribunal cases is the civil

4123823/2018 Page 40

standard of proof of ‘on the balance of probabilities’. Mr Justice Denning in

Miller v Minister of Pensions 1947 2 All ER 372,KBD, explained the civil

standard proof in these terms:-

“[The degree of cogency] is well settled. It must carry a reasonable

25 degree of probability, but not so high as is required in a criminal case. If the evidence

is such that the tribunal can say “we think it more probable than not”,

the burden is discharged, but if the probabilities are equal, it is not.’

Comment on that is given in IDS Employment law handbook on

30 ‘Discrimination at Work, chapter 33.61, as follows:-

“In other words, if the party upon whom the legal burden of proof lies

is able to convince the Tribunal that the evidence that he or she has adduced makes it

more likely than not that his or her version of events is correct, then the Tribunal should

decide in his or her favour. 5 Anything less and the party will have failed to make out his

or her case. It should be noted that the standards of proof applicable in civil and criminal

proceedings are different, whereas civil proceedings are decided on the ‘balance of

probabilities’, the criminal standard of proof is that a charge must be proved ‘beyond

reasonable doubt’. Th latter

10 is a much higher and more exacting standard….”.

87. In recognition that some facts are harder to prove than others, following Lord

Nicholls comments in Re H and ors (Minors) (Sexual Abuse: Standard of

Proof) 1996 AC 563, HL:-

‘the inherent probability or improbability of an event is a matter to be

15 taken into account when weighing the probabilities and deciding whether, on balance,

the event occurred. The more improbable the event, the stronger must

be the evidence that it did occur before, on the balance of probability,

its occurrence will be established.’

88. The Court of Appeal provided guidance on the standard of proof in civil cases

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20 (including Employment Tribunals) in Igen Ltd (formerly Leeds Careers Guidance) and

ors -v- Wong and other cases 2005 ICR 931, CA, revising the guidance in

Barton. In approving the Barton principles, the Court of Appeal said:-

“The statutory amendments clearly require the ET to go through a two-

25 stage process if the complaint of the complainant is to be upheld. The first stage

requires the complainant to prove facts from which the ET could, apart from the section,

conclude in the absence of an adequate explanation that the respondent has committed,

or is to be treated as having committed, the unlawful act of discrimination against the 30

complainant. The second stage, which only comes into effect if the complainant has

proved those facts, requires the respondent to prove

that he did not commit or is not to be treated as having committed the

unlawful act, if the complaint is not to be upheld.”

89. The guidance provided by the EAT in Barton -v- Investec Henderson Crosthwaite

Securities Ltd [2003] IRLR 332 (referred to in Igen), applies

5 equally to claims brought under the Equality Act in respect of protected characteristics

other than sex (including disability) and is as follows:-

• “(1) Pursuant to s.63A of the Sex Discrimination Act 1975 , it is for the

Applicant who complains of sex discrimination to prove on the balance

10 of probabilities facts from which the Tribunal could conclude, in the absence of an

adequate explanation, that the Respondents have committed an act of

discrimination against the Applicant which is unlawful … These are

referred to below as ‘such facts’.

• (2) If the applicant does not prove such facts he or she will fail.

15 • (3) It is important to bear in mind in deciding whether the applicant has proved such

facts that it is unusual to find direct evidence of sex discrimination. …

• (4) In deciding whether the applicant has proved such facts, it is

important to remember that the outcome at this stage of the analysis 20 by the tribunal will

4123823/2018 Page 42

therefore usually depend on what inferences it is proper to draw from the primary facts

found by the tribunal.

• (5) It is important to note the word is ‘could’. At this stage the tribunal

does not have to reach a definitive determination that such facts would lead it to the

conclusion that there was an act of unlawful 25 discrimination. At this stage a tribunal is

looking at the primary facts proved by the applicant to see what inferences of secondary

fact could be drawn from them.

• (6) These inferences can include, in appropriate cases, any

inferences that it is just and equitable to draw … from an evasive or equivocal

30 reply to a questionnaire …

• (7) Likewise, the tribunal must decide whether any provision of any

relevant code of practice is relevant and if so, take it into account …

This means that inferences may also be drawn from any failure to

comply with any relevant code of practice.

5 • (8) Where the applicant has proved facts from which inferences could be drawn that

the Respondents have treated the applicant less favourably on the

grounds of sex, then the burden of proof moves to the respondent.

• (9) It is then for the respondent to prove that he did not commit, or, as 10

the case may be, is not to be treated as having committed that act.

• (10) To discharge that burden it is necessary for the respondent to prove, on

the balance of probabilities, that the treatment was in no sense whatsoever on

the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the

Burden of Proof Directive.

15 • (11) That requires a tribunal to assess not merely whether the respondent has proved

an explanation for the facts from which such inferences can be drawn,

but further that it is adequate to discharge the burden of proof on the

balance of probabilities that sex was not any part of the reasons for the

treatment in question.

4123823/2018 Page 43

20 • (12) Since the facts necessary to prove an explanation would normally be in the

possession of the respondent, a tribunal would normally expect cogent

evidence to discharge that burden of proof. In particular the Tribunal

will need to examine carefully explanations for failure to deal with the

questionnaire procedure and/or code of practice.”

25 90. The Court of Appeal in Igen did not uphold the approach of the EAT in University of

Huddersfield v Wolff [2004] ICR 828, where Burton J had set out the correct

approach was for the Tribunal to first find material facts and as follows:-

“26. The right course, therefore, for the tribunal, had it set out at first

30 to find material facts, but in any event even though it did not quite follow that format,

would be to address section 63A and, in particular, to

conclude that the burden moves where the applicant has proved facts

from which inferences could be drawn that the respondent has treated

the applicant less favourably on the grounds of sex. It must therefore

arrive at a conclusion that there is a prima facie case that the

5 respondent has treated the applicant less favourably on the grounds of sex. Once it has

done that, then it passes to consider the respondent's explanations; it must, if it has not

already done so, make findings of fact, or draw inferences from findings of fact, for the

purposes of concluding whether any of the explanations put forward 10 by the respondent

satisfy it, the burden being on the respondent to show that the less favourable treatment

was not on the grounds of sex.”

91. The Court of Appeal in Igen decided that in considering what inferences or

conclusions can be drawn from the primary facts, the ET must assume that

15 there is no adequate explanation for those facts, although that does not prevent the ET

from taking into account at the first stage the fact that the respondent has

given an inadequate explanation. The Court of Appeal decided:-

“The words “in the absence of an adequate explanation”, followed by

20 “could”, indicate that the ET is required to make an assumption at the first stage which

may be contrary to reality, the plain purpose being to shift the burden of proof at the

second stage so that unless the respondent provides an adequate explanation, the

4123823/2018 Page 44

complainant will succeed. It would be inconsistent with that assumption to take account

25 of an adequate explanation by the respondent at the first stage. We think that Miss

Slade seeks to extract more significance from the words used by Burton J. in Wolff than

they can reasonably have. It is of course possible that the facts found relevant to the first

stage may also relate to the explanation of the respondent.”

30 92. The Court of Appeal went on to conclude that it may be helpful for the Barton

guidance to include a paragraph stating that the ET must assume no

adequate explanation at the first stage’. In that way the Barton guidance has

been amended by Igen. That is what has been applied by this Tribunal.

93. There is comment in on the guidance in Igen in IDS Employment Law handbook

on ‘Discrimination at Work, chapter 33.62, as follows: :-

5 “The Court of Appeal’s guidance in Igen Ltd (formerly Leeds Careers Guidance) and

ors v Wong and other cases 2005 ICR 931, CA ….contains several

reminders of the standard of proof in civil cases and notes that it is for the

claimant to prove, on the balance of probabilities, the facts that might lead to

an inference of discrimination. If the claimant succeeds in shifting the

10 burden of proof, it then falls to the respondent to prove again on the balance of

probabilities that its treatment of the claimant involved no discrimination

whatsoever. The guidance goes on to state that ‘the tribunal would normally

expect cogent evidence [from the respondent] to discharge that burden’. This

is because the relevant evidence in most discrimination cases will normally

15 be in the hands of the respondent rather than the claimant — for example, where

discrimination is alleged in a recruitment exercise, the respondent will be in

possession of material such as assessment scores and interview notes and

should be able to demonstrate convincingly that no discriminatory

considerations were involved. So, although the standard of proof is the same

20 for both parties — both have to make out their case on the balance of probabilities —

tribunals will have regard to the respective positions of employee and

employer and they will expect the cogency of the evidence the parties present

to be commensurate with the availability to them of relevant evidence.”

4123823/2018 Page 45

25 94. In respect of the indirect discrimination claim under section 19 of the Equality Act

2010, all four conditions in section 19(2) must be met before a successful claim for indirect

discrimination can be established. That is, there must be a PCP which the employer

applies or would apply to employees who do not share the protected characteristic of the

claimant; that PCP must put people 30 who share the claimant’s protected characteristic

at a particular disadvantage when compared with those who do not share that

characteristic; the claimant must experience that particular disadvantage; and the

employer must be

unable to show that the PCP is justified as a proportionate means of achieving

a legitimate aim.

95. Section 136 of the Equality Act 2010 applies to any proceedings brought under

the Act. It requires the claimant to show ‘prima facie evidence’ from

5 which the tribunal could conclude, in the absence of any other explanation, that an

employer has committed an act of discrimination. Section 136 goes on to

provide that once the claimant has shown a prima facie case, the tribunal is

obliged to uphold the claim of discrimination unless the respondent can show

that no discrimination occurred.

10 96. Mr Justice Langstaff, then President of the EAT, commented on the application of

the burden of proof in indirect discrimination in Dziedziak v Future Electronics

Ltd EAT 0271/1, a claim of indirect sex discrimination. There, Mr Justice

Langstaff, stated:-

‘In this case the matters that would have to be established before 15

there could be any reversal of the burden of proof would be, first, that there was a

provision, criterion or practice, secondly, that it disadvantaged women generally, and

thirdly, that what was a disadvantage to the general created a particular disadvantage to

the individual who was claiming. Only then would the employer be required

20 to justify the provision, criterion or practice, and in that sense the provision as to reversal

of the burden of proof makes sense; that is, a burden is on the

employer to provide both explanation and justification’.

4123823/2018 Page 46

97. Following this approach, in her claim brought under section 19, the burden

25 lies with the claimant to establish the first, second and third elements of the statutory

definition of indirect discrimination. Only then does it fall to the respondent to justify the

PCP as a proportionate means of achieving a legitimate aim. That position was confirmed

by the Supreme Court in the combined cases of Essop and ors v Home Office (UK Border

Agency) and 30 another case 2017 ICR 640, SC.

Comments on Evidence

98. The Tribunal had no doubt that the months following the claimant’s diagnosis of

cancer have placed her in stressful and difficult circumstances.

99. In respect the claimant’s case it was notable and considered to be significant

(1) that the claimant’s position in her ET1 form in respect of what Karen Cullen

5 had said to her in June was not the same as what the claimant in her oral evidence

alleged was said. (2) that it was not disputed that the claimant had not raised

with the respondent any issue in respect of what Karen Cullen said to her in

June 2018 prior to the submission of the ET1.

10 100. In respect the respondent’s position, it was notable that the ET3, which was a

blanket denial said to be lodged to protect the respondent’s position, having

just received the ET1, was then not later amended to give detail of the

respondent’s defence to the claims

101. Neither party’s representative presented to the Tribunal a clear picture of what

15 was said to have had occurred. In particular, neither party’s representative set out for

the Tribunal that on 10 August 2018 the claimant’s GP had issued two sick lines, one

being ‘backdated’ for a period prior to 10 August, and one for 12 weeks after 10 August.

Unfortunately, neither the claimant nor the respondent’s full position in evidence was put

to the other party’s witnesses.

20 There was a lack of documentary evidence before the Tribunal to establish the

background to what was being relied upon by both parties. For the claimant,

other than the Med 3 forms, there was no documentary evidence showing the

4123823/2018 Page 47

dates of any medical appointments. In particular there was no documentary

evidence showing when the claimant had commenced

25 treatment, which may have been helpful in establishing what had been discussed

between the claimant and Karen Cullen in respect of when the claimant’s sick

leave should commence. Extracts from the claimant’s medical records or a

report from the claimant’s GP would have been helpful in establishing when

the claimant was issued with sick lines, which could have

30 been objective evidence which would have assisted the Tribunal in establishing the

factual position and would have assisted the Tribunal in respect of establishing

the credibility of witnesses. In the circumstances, the

Tribunal placed substantial weight on the documentary evidence which was

before it, as providing an objective picture.

102. For the respondent, despite undisputed evidence that the respondent operates

in highly regulated sector, there was no documentary evidence 5 showing which

employees had been working in particular premises on particular days. Given the highly

regulated child care sector within which the respondent operates, including requirements

to operate with a certain ratio of children to staff, it was surprising to the Tribunal that no

evidence was produced by the respondent to prove that the claimant had been rota-ed

to

10 work at Stepps in order to provide cover for a short period of time on 28 June 2018.

Such documentary evidence would have assisted the Tribunal in

circumstances where there was a clear dispute as to whether the claimant

had been asked to go to Stepps for a meeting, or to work.

103. The claimant’s case was presented first. The claimant’s position was that she

15 was not scheduled to work at Stepps on 28 June 2018, but had been contacted by

Karen Cullen previously and asked to come for a meeting there on that day.

The claimant’s evidence was that she had spoken privately to Karen Cullen

on 28 June and that her health situation had been discussed. It was the

claimant’s evidence that Karen Cullen had asked the claimant how

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20 long she was likely to be off work for and that the claimant had said she would be likely

to be off for a year, being 10 months of treatment and a further two months to

recover. The claimant’s evidence was that in response to the claimant telling

Karen Cullen the likely length of her absence, the following had occurred:-

25 “She said, ‘are you not better handing in your notice?’ I said ‘No. cos

I’ll be barred from the bru’. She said ‘I could pay you off.’ and I said

‘No, cos I’ll be barred from the bru.’ She then said ‘your husband

works’ and I said ‘No. My husband doesn’t work, he’s on Disability

Living Allowance.’ and she said ‘oh. I didn’t know that.”

30 104. In cross examination it was the claimant’s evidence that ‘she did say I’ll pay you

off.”, The claimant was asked if the respondent had offered her money to

resign. Her reply was ‘No. She said I’ll pay you off.’ She was then asked

to confirm that the respondent had not offered to pay her anything and her

reply was ‘she just said I’ll pay you off.’ There was no suggestion that the respondent had

taken any action after this alleged conversation to terminate the claimant’s employment.

It was the claimant’s evidence that the claimant 5 understood that if her employment was

ended by her employer, then she would not be able to claim benefits. This was what the

claimant said she meant by the phrase ‘barred from the bru.’ The claimant’s evidence was

that immediately after that conversation with Karen Cullen, the claimant had returned to

where the children and other of the respondent’s members of staff 10 were and that she

had told Lucy Madden and other employees, Heather and Paula about the conversation

and that they had all said ‘I can’t believe that she said that to you.” This appeared to the

Tribunal to be plausible. That evidence was not however supported by either Lucy

Madden or Louise

Collins. The Tribunal did not hear evidence from the other employees or

15 former employees of the respondent who were mentioned in evidence, being Renee,

Heather and Paula. No request for a witness order was made by either party

for any of those individuals.

4123823/2018 Page 49

105. There were a number of matters on which there was a dispute in evidence. In

respect of some of those matters, direct evidence was given, and in respect

20 of others, witnesses could only speak to what others had done, such as evidence from

the claimant that her husband or son had delivered her sick lines to the

respondent’s premises.

106. There was a dispute as to whether or not the claimant had been upset after

her conversation with Karen Cullen and in the car on the journey home. It 25 was put to

the claimant that the evidence of the respondent’s witnesses would be that she had not

been visibly upset after this conversation. The claimant was asked if that evidence would

surprise her and her position was that it would. It was then the evidence of respondent’s

witnesses that there was no indication that on 28 June the claimant had been upset at

what had been said 30 to her by Karen Cullen.

107. It was not in dispute that those present in the car when travelling back from

Stepps on 28 June 2018 were the claimant, the claimant’s husband (Robert

Smith), the claimant’s son (also Robert Smith) and Lucy Madden (who was

dropped off before the end of the claimant’s journey home). It was the

evidence of the claimant and the claimant’s husband that the claimant had

been upset during this car journey, and that that was because of what Karen

5 Cullen had said to the claimant on 28 June. It was not put to the claimant or her

husband in cross examination that she had not been upset while Lucy

Maddens was in the car. It was Lucy Madden’s evidence that the claimant

had not been upset, and that discussion in the car had been about the children

in care that day and about Lucy Madden having given her bank details to

10 Karen Cullen. Lucy Madden was not in the car for all of the claimant’s journey

home. The claimant’s husband’s evidence was that the claimant was upset

in the car and when she got home. The claimant said in evidence that she was upset

when she told her husband what had happened, which was in her living room when she

returned home on 28 June. She had earlier said that 15 she had been upset in the car.

4123823/2018 Page 50

108. It would have been helpful for the Tribunal to hear evidence from the claimant’s

son, Robert Smith, in respect of this car journey, in respect of when the

claimant had been upset, what the claimant had told him at the time about her

conversation with Karen Cullen on 28 June and in also respect of his

20 position on what sick lines had been handed to the respondent for his mother. No

explanation was offered as to why the Tribunal did not hear from the claimant’s

son, Robert Smith.

109. The Tribunal did hear evidence from the claimant’s husband, Robert Smith,

that their son, also Robert Smith, is his carer. Unfortunately, the claimant’s 25 husband

had suffered a stroke some time before the claimant’s diagnosis of cancer. It was

explained to the Tribunal, that that stroke has caused the claimant’s husband some

continuing speech difficulties, which was apparent when he was giving evidence. There

were a number of times during his evidence, when the claimant’s husband was very

unclear in his recollection 30 of events. The claimant’s husband was asked whether his

stroke had caused him to have any continuing problems with his memory. He confirmed

that it had, along with some other stated problems. For this reason, and through no

fault of the claimant’s husband, the Tribunal did not find the claimant’s

husband’s recollection of events to be entirely reliable.

110. In respect of the car journey, the Tribunal concluded on the basis of the

evidence of the witnesses and on the balance of probabilities that the claimant 5 had been

upset in her living room when she returned home. Given what was the undisputed

content of the conversation between the claimant and Karen Cullen on 28 June, it was

not surprising and was entirely credible and plausible that the claimant was upset after

the conversation, even without the element which is disputed. This was clearly an

emotional and upsetting time

10 for the claimant, when she was coming to terms with her diagnosis and treatment. The

fact that the claimant was upset when she got home on 28 June was not

conclusive to the conversation with Karen Cullen having occurred as stated

by the claimant in her evidence before the Tribunal.

4123823/2018 Page 51

111. In respect of what had been said to the claimant by Karen Cullen on 28 June,

15 it was not disputed that there had been a conversation between the claimant and Karen

Cullen on that day, which was memorable because it was the last day of the school term

in Stepps. It was not in dispute that that conversation did not take place in a formal

meeting to which there had been a written invitation. It was not in dispute that in their

conversation on 28 June 2018, 20 Karen Cullen asked how the claimant was, they

discussed that the claimant had cancer, where the cancer was, that she would undergo

treatment for the cancer and that she would be off work for a lengthy period of time. The

claimant’s evidence was that she said that she would be off work for a year, with treatment

lasting 10 months and giving herself a couple of months 25 thereafter to recover. The

claimant’s section 26 claim for harassment was purely in respect of the disputed part of

that conversation. It was not in dispute that in that conversation there had been discussion

about the claimant’s husband not being fit for work, although the claimant and Karen

Cullen gave different accounts of the precise words said in respect of that.

30 112. On consideration of all the evidence before it and taking into account the credibility

and reliability of witnesses, the Tribunal did not conclude that the disputed

part of the conversation had occurred as alleged by the claimant. In

reaching this conclusion, the Tribunal took into account and considered it to

be significant that the claimant’s evidence was not entirely in line with what

was set out in the ET1 (at A12 – A13). That was considered to be particularly

significant in circumstances where those words were the only conduct relied

5 upon as being harassment. The Tribunal considered it to be significant that what is

set out in that ET1 to have been said by Karen Cullen (mis-spelled as

Karen Collin in the ET1) is as follows:-

“At this meeting, Ms Collin asked the claimant what was wrong with

her. The claimant confirmed again that she had breast cancer. Ms 10 Collin asked the

claimant why don’t you just hand in your resignation then Ms Collin then asked the

claimant why she was unwilling to hand in her resignation if her husband was working.

The claimant replied that husband was not working and that even if he were, it would not

4123823/2018 Page 52

matter. Ms Collin then offered to pay the claimant money for her to 15 design the claimant

was refused. This payment Ms Collin questioning

about the claimant’s cancer. Her encouragement to resign and to

financial offer for her to resign is less favourable treatment and is not treatment that Ms

Collin would give to the person who was not diagnosed with cancer, since Ms Collin had

treated the claimant less 20 favourably then Ms Collin would treat others because of the

claim of disability. This is an example of direct discrimination under section 13, one of the

Equality Act 2010. The encouragement by Ms Collin for the claimant to resign and its

associated financial offer for her to define with unwanted conduct related to the claimant’s

disability. The 25 conduct had the purpose or effect of a violation of the claimant’s dignity

as well as creating an intimidating, hostile to creeping, humiliating or offensive

environment for the claimant. The claimant enjoyed working at the respondent

organisation, and through the questions asked about her cancer were degrading and

unwanted claimant required to 30 explain to us: that she did not want to resign from her

employment as

well as discussing her husband’s employment status is not reasonable

for any business opportunity of a person diagnosed with cancer in

order for him to escape being sick pay or from having to engage interim

workers. The unwanted conduct. It falls under section 26. One of the

Equality Act 2010.”

113. Aside from what was stated as the legal position set out as above, the Tribunal

considered it to be significant that the claimant’s evidence before the Tribunal

5 as to what had been said by Karen Cullen which the claimant relied on as being

discriminatory was not what is set out in that ET1. The ET1 does not say that

Karen Cullen said to the claimant ‘I’ll pay you off’, or ‘I could pay you off’. It

was not the claimant’s position in her evidence before the Tribunal that she

had been offered money or that Karen Cullen had said to her ‘why don’t

10 you just hand in your resignation then’. There is no mention in the ET1 of the claimant

having told other employees of the respondent what Karen Cullen had said to

her on that day. The Tribunal took into account and accepted the

4123823/2018 Page 53

respondent’s representative’s submissions on the claimant’s evidence before

the Tribunal.

15 114. It was not disputed the claimant did not raise with Karen Cullen that she was upset

or in any way concerned about what had been said to her on 28 June

2018, and that the first time Karen Cullen knew that the claimant’s position

was that she had been upset by a conversation on 28 June was when she received the

ET1. The Tribunal considered that to be significant. The Tribunal 20 also considered that

could have been a factor in Karen Cullen’s recollection of what had been said on 28 June,

however Karen Cullen was clear in her position that she had never offered to ‘pay off’ the

claimant. It seemed to the Tribunal that it was plausible in the context of the conversation

for Karen

Cullen to have said to the claimant words to the effect of ‘you could resign’,

25 but for Karen Cullen to have no recollection of that, given that she had not understood

at the time, or until receipt of the ET1, that the claimant had been upset. It

was accepted that no concerns about what was said were raised by the

claimant until the time of lodging her ET1. Those words could have been said

in a perhaps misguided attempt to seek to find the best course of

30 action for the claimant. That was however not the respondent’s position and the

Tribunal required to conclude on the evidence before it whether Karen Cullen

had said what was alleged by the claimant in her oral evidence. The

Tribunal made its conclusions on the evidence before it, taking into account

the documentary evidence and witnesses’ credibility and reliability. The

Tribunal took into account that it was not disputed that there had been no

financial offer to the claimant, that the respondent has paid the claimant all

sums due to her in the course of her lengthy sickness absence and that no

5 steps have been taken by the respondent to seek to terminate the claimant’s

employment. Given that the claimant’s position is that she said ‘no’ to Karen

Cullen’s proposal on 28 June, the fact that no steps were then taken to

progress termination of employment was considered to be neutral in the

Tribunal’s initial assessment of what had occurred.

4123823/2018 Page 54

10 115. It was the claimant’s evidence that in a GP appointment she had been given 2 sick

lines (i.e. statements of fitness for work) at the same time. It was the

claimant’s evidence that her husband was present at the GP appointment

when she had been given both sick lines and that her husband and son had

later given both of these sick lines to the respondent. The claimant’s husband

15 had no recollection of being at a GP appointment with the claimant when she had

obtained two sick lines from her GP at the same time. His evidence was that he did not

attend many GP appointments with the claimant. He recalled collecting two sickliness at

the same time from the GP’s receptionists and his evidence was that he had then

delivered these to the respondent. There was 20 no clear evidence from the claimant’s

husband that he had been present with the claimant at an appointment with her GP when

the claimant had been given two sick lines, or that some time later he had delivered those

two sick lines to the respondent, before delivering the duplicate sick lines. The Tribunal

accepted that the sick lines which had been collected from the GP receptionist

25 were the duplicate sick lines. Given that it was the claimant’s position that her husband

cannot drive and is therefore driven by her son, and that either her son had

delivered the original two sick lines to the respondent, or had driven her

husband to deliver those two sick lines to the respondent, it would have been

helpful to hear evidence from the claimant’s son as to his recollection of

30 having driven to deliver any sick lines to the respondent in respect of his

mother.

116. It was the claimant’s evidence that the original of the sick lines of which

duplicates are provided at documents 12 and 13 were delivered to the

respondent shortly after the appointment (either that day or the following day)

by either her son or her husband handing two sick lines at the same time to

Renee Kennedy. The Tribunal heard that Renee Kennedy was no longer

employed by the respondent and evidence was not heard from her.

5 117. The Tribunal considered the dates stated on the Med 3 forms (sick lines). As set

out in the findings in fact, the sick line shown at both Document 12 and

4123823/2018 Page 55

document 20 shows that the claimant was assessed on 9/07/ 2018 and

certified unfit from 27/06/2018 to 30/07/2018. The sick line at both Document

13 and document 21 shows that the claimant was assessed on 10/08/2018

10 and certified unfit for work from 30/07/2018 to 10/08/2018. The sick line at both

Document 14 and document 22 shows that the claimant was assessed on 10

/ 08/ 2018 and certified unfit for work for 12 weeks. The sick line at both

Document 23 and document 15 shows that the claimant was assessed on 30

/ 10 /2018 and certified unfit for work for 12 weeks. On the basis of these 15

dates, the Tribunal concluded that on 10/08/2018 the claimant was assessed by her GP

and her GP issued her with 2 sick Lines. One of these sickliness was the sick line at both

Document 13 and document 21, which was a

‘backdated’ sick line, certifying the claimant’s absence in the period from

30/07/2018 to the date of the claimant’s assessment on 10/08/2018. The

20 other sick line issued to the claimant on that day was the sick line at both Document

14 and document 22, which show that the claimant was assessed on 10 / 08/ 2018 and

certified unfit for work for a future period of 12 weeks from that date. The Tribunal

concluded from the dates on the documentation that it was these two sick lines which had

been given to the claimant at the 25 same time and which the claimant believed were then

handed to the respondent.

118. It was not contested that the claimant had obtained two sick lines from her GP

on the same date. It does not necessarily follow that these two sick lines were

then delivered to the respondent. The Tribunal concluded that even if two

30 sick lines had been handed in to one of the respondent’s employees together, it is

possible that one of those may have gone missing, or have been misplaced,

in a similar way to the mislaying of the claimant’s letter to the respondent

replied to by Karen Cullen in early October 2018.

119. The Tribunal took into account that Karen Cullen processed payment of SSP

to the claimant for the entire month of August 2018, although it was her

position that at the time of payment the only sick line which she had received

(at document 21 and at document 13) did not certify the claimant as unfit for

4123823/2018 Page 56

5 work for that entire month. There was no explanation as to why payment of SSP for

the whole month of August 2018 had been paid, in circumstances where it

was alleged that Karen Cullen knew at the time of processing the payment

that she only had a sick line certifying the claimant as unfit for work until

10/082018.

10 120. It was put to the claimant in cross examination that there were only two occasions

when there had been a delay in payment of SSP to her, and that that was not

a ‘PCP’. The claimant’s response was “No. I actually felt that Karen didn’t

want to pay me sick pay. I had to message her every month for my wage.”

The claimant may well have believed that Karen did not want to

15 pay her sick pay, and there were messages from the claimant at the end of months

requesting payment of sick pay, but in circumstances where SSP to the

claimant was paid even when the respondent did not have sick lines certifying

the claimant’s absence for the whole payment period, the Tribunal could not

accept that Karen did not want to pay the claimant sick pay.

20 121. The first witness for the respondent was Karen Cullen. Karen Cullen’s position in

evidence was that the claimant and Lucy Madden had been at the respondent’s operation

in Stepps on 28 June in order to provide cover for a short period before other staff were

available . That detail had not been put to the claimant. That was raised with the

respondent’s representative during 25 proceedings. It was his position that the claimant

had been asked if she was working at Stepps on that day and her evidence was that she

had not. There was no request for the claimant to be recalled on any point. Evidence

was later heard from Louise Collins and Lucy Maddens, both of whom confirmed

Karen Cullen’s position as to why the claimant and Lucy Maddens had been

30 at Stepps on 28 June.

122. In making its Findings in Fact, the Tribunal placed significant weight on the

documentary evidence, the content of which was not in dispute and much of

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30

which was contemporaneous to the events relied upon. The Tribunal

observed that Karen Cullen’s’ oral evidence was largely in line with the text

message correspondence set out at item 7. Weight was attached to that. The

Tribunal did not accept the claimant’s representative’s submissions in respect

5 Karen Cullen’s credibility. Karen Cullen was open in her answers to the Tribunal

and did not seek to avoid any questions. She feely admitted to having made errors

and mislaying the claimant’s letter to her. Where her understanding at the time had

been erroneous, e.g. in relation to the claimant’s contact with the firm of

accountants instructed by the respondent,

10 Karen Cullen freely admitted that she had been wrong and was able to explain her

position e.g. that her only contact at the accountancy firm had been Kinga, and

Kinga had told her that the claimant had not been in touch with her and that at that

time Kinga did not know that the claimant had been in contact with anyone else in

that firm. The Tribunal did not accept that Karen Cullen could

15 be said to be unreliable in her evidence. The Tribunal found her to be credible.

123. There was a dispute in evidence as to why the claimant had been present at

the respondent’s operation in Stepps on 28 June 2018. It was the respondent’s

position that the claimant had attended at Stepps to work. It was the

respondent’s position, supported by the evidence of Karen Cullen,

20 Louise Collins and Lucy Madden, that the respondent had been operating out of

school care at Stepps following the Glasgow schools finishing for the summer

holidays the previous day, on 27 June 2018. It was their position that the North

Lanarkshire schools, including the primary school in Stepps where the respondent

provided their out of school care during the summer holidays,

25 finished for the summer holidays at 1 PM on 28 June 2018. It was the evidence

of Karen Cullen and Louise Collins that some cover was required for a short

period after 1 PM on 28 June because some of the staff were working in other in

their other jobs in other primary schools until 1 PM, and therefore could not be at

Stepps in time for the out of ours care starting at 1 PM for children from that

4123823/2018 Page 58

30

school, as well as the Glasgow-based children who were already on holiday.

The Tribunal did not have the benefit of any documentary evidence supporting

that position, such as scheduling of staff rotas, but that was the consistent

evidence of Karen Cullen, Louise Collins

and Lucy Madden. It was put to the claimant in cross examination that she

had been working at Stepps on 28 June, rather than attending there for the purpose of a

meeting with Karen Cullen and then agreeing to work for a short period of time. The

claimant denied that. Unfortunately, the detail of that work 5 which was later heard from

the respondent’s witnesses was not put to the claimant. It was the claimant’s position

in evidence that she had been called to a meeting at Stepps by Karen Cullen and after

the meeting had agreed to work for a short period of time.

124. It was not disputed that the claimant had worked for a short time at Stepps on

10 28 June 2018. Karen Cullen’s position that the claimant had not been invited to a

meeting on that day was supported by Louise Collins’ evidence that the respondent’s

normal practice in respect of formal meetings was for an invitation to be given in writing

and for her to be present to take minutes of the meeting, which had not occurred re a

meeting on 28 June. Lucy Maddens 15 evidence was that she knew that she was to go

to Stepps to provide cover for a period on 28 June 2018 and that she also had a

conversation with Karen Cullen while there, about bank details and matters to be

discussed on her commencing employment with the respondent. Lucy Madden’s

evidence was that she travelled to and from Stepps in a car with the claimant, the

claimant’s

20 husband and the claimant’s son.

125. In respect of Lucy Maddens evidence, the claimant’s representative had

submitted that her evidence was not entirely reliable because the respondent is

Lucy Madden’s first employer in her professional career. The Tribunal took that

into account and also took into account that although Lucy Madden 25 answered

4123823/2018 Page 59

30

the questions put to her, she did so in very short answers, without providing detail

or elaboration.

126. The Tribunal found Louise Collins to be an entirely credible witness, although

the importance of her evidence was limited because she could not speak directly

to most of what was in dispute. The Tribunal accepted Louise Collins’ credible,

undisputed, evidence that the respondent’s normal practice was to send a written

invitation for meetings and for her to take minutes of such meetings. There was

no suggestion that any such written invitation had been

sent in respect of a meeting on 28 June 2018. The claimant did not suggest

that she had told Louise Collins about what had been discussed between her

and Karen Cullen on 28 June. Louise Collins’ evidence was that she had ‘not

noticed anything untoward’. It was not the claimant’s evidence in examination

5 in chief that she had been upset immediately after the meeting, while still at Stepps.

During cross examination, the claimant was asked if she had been upset when she came

out of the room after the conversation with Karen Cullen. Her answer was ‘I was in shock.

Yes.’ The claimant was then asked if it would surprise her that the respondent’s witness’s

position was that she 10 was not upset. Her answer was ‘Yes. It would surprise me.’ The

claimant did not dispute that she had stayed on after the conversation with Karen Cullen

to work at Stepps for a short period, which was consistent with the evidence of Karen

Cullen, Louise Collins and Lucy Madden that it had been arranged that the claimant work

for a short period at Stepps on that day, to

15 provide cover until other staff members arrived. That position was also

consistent with the claimant’s evidence that on 28 June Louise Collins had

told her that she thought she was ‘working on.’ It was also consistent with the

undisputed fact that the claimant did work at Stepps to provide cover for a

short period on 28 June 2018. It was not helpful that the detail in Louise

20 Collins’ evidence on what the claimant had done while working on 28 June had not

been put to the claimant.

4123823/2018 Page 60

30

127. It was plausible that the claimant had been telephoned by Karen Cullen and

asked to go to Stepps on 28 June, which was the claimant’s position. Karen

Cullen was not asked in her evidence how the claimant knew to go to Stepps

25 on 28 June. Whether the claimant was at Stepps on 28 June purely for the purpose of

a conversation (or informal meeting) with Karen Cullen, or to provide cover for

a short time, there must have been some communication to her to go to

Stepps that day. The Tribunal did not hear evidence about that specifically.

Karen Cullen’s evidence was that sometime earlier in June it had been

discussed that the claimant would work the 20 hours she ‘owed’ in early July,

but she was not asked about how the claimant knew to attend at Stepps on

28 June.

128. It was not in dispute that both the claimant and Lucy Madden had something to

speak to the Karen Cullen about on 28 June. The claimant’s evidence was

that she had ‘finished up’ with the school holidays starting in the Glasgow

schools on 27 June. The claimant’s evidence was that normally she would

5 work for the respondent ‘as required’ over the summer holidays. That was

consistent with Karen Cullen’s’ evidence that employees are allowed time off

e.g. to attend funeral’s doctors appointments etc during terms time, but are

paid a fixed monthly wage, with hours given in such time off during term time

being worked during the summer holidays, when 10 hour days are worked, in

10 whatever pattern suits the particular employee and the respondent. Around 28 June,

it was a live topic for discussion that the claimant was due to have a long terms absence

while she underwent cancer treatment. Around 28 June, Lucy Madden was commencing

being employed by the respondent, following her placement time with the respondent

while at college, and required to give 15 the respondent her bank details to enable payment

from them.

129. On balance, the Tribunal considered that if it had been intended that the

claimant go to Stepps only for a discussion with Karen Cullen, then it is likely

4123823/2018 Page 61

30

that there would have been some form of written communication to her in

respect of that. The Tribunal considered it to be more likely, on the balance

20 of probabilities, that both the claimant and Lucy Madden were at Stepps in order to

provide cover until other staff were available and that Karen Cullen took the

opportunity while they were both at Stepps to have a conversation with the

claimant, and, separately, with Lucy Maddens on the issues which were live

for each of them at that time.

25 130. For these reasons, the Tribunal concluded that the claimant was present at Stepps

on 28 June 2018 to provide cover for a short period and that Karen Cullen

took that opportunity to have a conversation with the claimant about her

forthcoming absence.

131. The Tribunal considered it to be significant that the claimant’s actions after 28

June were not consistent with her position that what Karen Cullen had said to

her on that day violated the claimant’s dignity. It was not disputed that the

claimant had worked for the respondent on 3 and 10 July 2018. Karen

Cullen’s evidence was that she had worked with the claimant on 10 July. That

was not put to the claimant in cross examination. It was not put to Karen

Cullen in cross examination that she had not worked with the claimant on 10

July. The claimant accepted in cross examination that Karen Cullen had

5 allowed her to leave work early on an occasion to attend a medical

appointment. It was Karen Cullen’s position in evidence that that occasion

had been on 10 July. The Tribunal concluded that the claimant had worked

for the respondent on 3 and 10 July and had worked with Karen Cullen on 10

July. The Tribunal considered Karen Cullen to be credible in her response to

10 it being put to her that allowing the claimant to leave work early to attend a medical

appointment would in the circumstances, be a reasonable adjustment for the

respondent to make. Karen Cullen immediately replied to this question ‘of

course it would. The claimant was not asked for an explanation why the sick

line obtained from her GP on 9 July had not been given to Karen Cullen

4123823/2018 Page 62

30

15 on 10 July.

132. It was not in dispute that the claimant did not raise any concerns about what

Karen Cullen had said to her on 28 June with the respondent at any time prior

to the submission of her ET1. The Tribunal took into account the claimant’s

representative’s submission that the claimant’s focus was on her health and

20 her financial situation at that time. The Tribunal considered it to be significant that

although it was not disputed that around 1 October 2018, the claimant wrote

to the respondent specifically alleging discrimination, there was no suggestion

that at that time the claimant had raised any issue in respect of what Karen

Cullen had said to her on or around 28 June. The Tribunal

25 considered that to not be consistent with the claimant’s position that her dignity had

been violated by what Karen Cullen said to her on 28 June. In circumstances

where the claimant had raised issue with the respondent in respect of financial

matters, and had alleged discrimination in respect of that, the Tribunal

considered it to be significant that the claimant had not raised directly with the

respondent any issue with the alleged conduct the claimant now relies upon

as harassment. That fact was relevant in the Tribunal’s determination of what

facts had been proven by the claimant, prior to any consideration of whether

the burden of proof had shifted to the respondent.

133. Not all of what was Karen Cullen’s position in evidence had been put to the

claimant in cross examination. That did not assist the Tribunal. It was Karen

Cullen’s position that when she came back from America at end July /

beginning of August, she had a phone call with the claimant about the 5 claimant’s wage

slip being wrong. That was not put to the claimant. It was consistent with the documentary

evidence showing that the wage slip for July 2018 was not in line with the payment made

to the claimant, which was late and in a different amount. Karen Cullen’s evidence that

she had a phone call with the claimant on her return from America was not consistent with

the 10 position in the ET3 at document B8, paragraph 5, which is as follows:-

4123823/2018 Page 63

30

“There was no meeting between the claimant and the respondent on

26 June 2018 and the respondent’s position is that they have not

spoken to the claimant in relation to her illness, instead receiving

sporadic sick lines. The claimant will be put to strict proof, on the

15 meeting she alleges took place on 26 June 2018 with the respondent

and that she spoke with the respondent’s accountant, both of which

are denied.”

134. The erroneous date references in the ET1 and ET3 were noted.

135. In respect of the credibility of Karen Cullen, Karen Cullen accepted that the

20 date hand written on document 20 might be wrong. Her evidence was that

that document had been handed in to the respondent’s premises, probably to

Renée, while Karen Cullen had been on holiday in America. Karen Cullen

was clear in her explanation that the payment due to the claimant at the end

of June 2018 was late and not paid until early July because the claimant’s sick

25 line was received late and was ‘wrong’ in that it covered her for a certified her as being

unfit for work in a period when the claimant had been working. That was

accepted as being an explanation for the deviation from the respondent’s

normal pattern of processing making cash transfer payments of wages to its

employees between the 25th and the end of each month. On the basis of the

documentary evidence before it, the Tribunal accepted that the respondent’s

normal practice was to pay wages between 25th of the month and the end of

the month, with exceptions to his normal practice for particular reasons, as

4123823/2018 Page 64

set out in the findings in fact. The claimant accepted in her evidence that the

date of the bank processing payments would depend on the date and time of

the transfers being authorised, and that sometimes the payment would not be

made until the day after authorisation had been made. On the basis of the

5 documentary evidence before it, the Tribunal did not find that there was a provision,

criterion or practice of erratic payments by the respondent.

136. The Tribunal attached weight to the text messages as being an accurate record

of communications at that time. The Tribunal accepted Karen Cullen’s position

in evidence that on the face of it, the text from Renée Kennedy sent 10 on 23

August 2018 (document 48) mentions only one sick line.

137. Karen Cullen’s position in evidence was that in the letter which Karen Cullen

replied to by the letter at document 8, the claimant had ‘said she wanted the full

amount paid’ and that was why Karen Cullen had said in the letter at document

8 that she was ‘sorry for the confusion’. The position in the letter

15 at document 8, which is Karen Cullen’s reply to the misplaced letter from the claimant

which, could not be found for these Tribunal proceedings, was consistent with

Karen Cullen’s evidence before the Tribunal. That was considered to be

significant and weight was attached to that. There is confusion in dates

between the letter at document 8, which refers to the

20 claimant’s letter been received on 1 October, and the sick line at document 22, which

has handwriting on it indicating receipt on 2 October, although it was the

evidence of both the claimant and Karen Cullen that they were handed in

together.

138. Neither the claimant nor Karen Cullen could provide an explanation for the

25 text messages on 3 August 2018 in respect of which way the claimant would

like to be paid. Karen Cullen’s evidence was that she thought that there were

some occasions when the claimant had been paid into a different bank

account. The claimant’s evidence was that she had only one bank account.

139. The Tribunal accepted as credible Karen Cullen’s explanation that the

4123823/2018 Page 65

30 reference in the ET3 to there being no contact by the claimant with the respondent’s

accountant is based on the position that Karen Cullen’s only contact at the

accountancy firm instructed by the respondent is an individual

named Kinga, and that at the time of submission of the ET3 Kinga had told

the Karen Cullen that the claimant had not contacted her, and that she was

not aware of the claimant having spoken to anyone else at that accountancy

firm. The Tribunal accepted Karen Cullen’s explanation as being consistent

5 with the text messages at 7/ 2, where Karen Cullen informed the claimant of

the accountancy firm’s telephone contact number and stated ‘ask for Kinga’.

140. Although the claimant did not seek to deceive the Tribunal or exaggerate her

position, there were occasions when she could not recall a matter, and on those

occasions she voluntarily accepted that. The claimant was asked for 10 an

explanation why Karen Cullen would have said to her what the claimant

alleged her to have said on 28 June. The claimant’s evidence was ‘I don’t know’.

Although the claimant’s version of what had been said by Karen Cullen to her was

plausible, there were factors which did not support the claimant’s recollection of that

conversation as being accurate. The claimant’s 15 representative’s explanation for

the claimant not having raised the matter with the respondent until the time of lodging

the ET1 was that the claimant was focussed on her health and her financial situation.

That was also the explanation for the claimant not having raised what was alleged to

have been said on 28 June in a letter which the claimant sent to the respondent around

20 1 October 2018. The Tribunal did not have sight of that letter, but it was not in

dispute that there was a letter from the claimant to the respondent, which the

respondent replied to by the letter at document 8 and that in the claimant’s letter she

had claimed that she was being discriminated against and raised issue of improper

payment to her. The claimant relied solely on what she

25 alleged to have been said by Karen Cullen on 28 June as the basis for her claim

under s27 of the Equality Act 2010. She gave no explanation for Paula or Heather

not giving evidence on what they had been told by the claimant that Karen Cullen

had said to her on 28 June. The Tribunal was not asked to draw any inferences

from any other conduct of the respondent. There was

4123823/2018 Page 66

30 no other conduct from which an inference of disability discrimination could be drawn.

There were no other allegations of anything discriminatory having been said to the

claimant. Although there were two occasions when payment was made to the

claimant on the 3rd of the month rather than by the end of

the previous month, on the evidence before it, the Tribunal accepted Karen

Cullen’s explanations for that.

141. In reaching its conclusions as to what had occurred on 28 June 2018, the

Tribunal took into account all the facts and circumstances of the case , as set

5 out in this Judgment. The Tribunal took into account and considered to be significant

the undisputed position that

• that day was the last day of school for the North

Lanarkshire Council school children (finishing at 1pm)

and the first day of the school holidays for the Glasgow

10 City Council school children

• the evidence of Karen Cullen, Louise Collins and Lucy

Madden that the claimant and Lucy Madden had

attended at Stepps on 28 June to provide cover for a

short period until other staff could arrive at the Stepps

15 premises

• the claimant had worked to provide cover for a short

period on 28 June

• the lack of any text messages or other written

communication confirming arrangements for the

20 claimant to attend at Stepps on 28 June 2018

• the claimant had worked for the respondent, and with

Karen Cullen, after 28 June 2018.

4123823/2018 Page 67

• The claimant had not raised concern with the respondent

about anything said to her by Karen Cullen on or around

25 28 June until the submission of her ET1.

• On or around 1 October 2018, and after having received

professional advice, the claimant wrote to Karen Cullen

alleging discrimination but did not mention any issue with

Karen Cullen’s conduct towards her on or around 28

30 June 2018.

• What was alleged to have been said by Karen Cullen as

stated in the ET1 is not what was alleged to have been

said by the claimant in her evidence before the Tribunal.

142. It was considered to be significant that what was set out as being alleged to

5 have been said by Karen Cullen as stated in the ET1 is not what the claimant in her

evidence alleged to have been said. This was considered to be particularly

significant as the only incidence of alleged harassment was what Karen

Cullen was alleged to have said on that single occasion.

143. Taking into account all of the above, the Tribunal decided that, on the balance

10 of probabilities, taking into account the claimant’s actions after 28 June, the claimant

had not proven that Karen Cullen said to her words to the effect of ‘You could

resign’ or ‘I’ll pay you off’. Although the Tribunal considered that it was

plausible that those words had been said, the burden of proof was on the

claimant and had not been met.

15 144. In making its conclusions, the Tribunal took into account the confusion about dates

as stated in the ET1 and ET3 and the uncontested evidence that 28 June 2018

was the day when the children at Stepps finished for the summer holidays,

those at Glasgow schools having finished the day before. The

Tribunal took into account that the last day of term would be a memorable one

20 for the witnesses, given that they were providing out of school childcare.

4123823/2018 Page 68

Decision

145. The Tribunal took into account the evidence, the credibility and reliability of

witnesses and the parties’ representatives’ submissions. It applied the relevant standard

of proof and burden of proof to reach its decisions in respect 25 of findings in fact and then

applied the relevant law.

146. The Tribunal approached its considerations of the claimant’s claims under

the

Equality Act in terms of the Burden of Proof provisions as set out in s136 of

Equality Act 2010 and the Barton Guidelines as modified by the Court of

Appeal in Igen Ltd. (formerly Leeds Careers Guidance) and ors. –v- Wong

30 and others 2005 ICR 931, CA (as approved by the Supreme Court in Hewage –v-

Grampian Health Board [2012] IRLR 870). In respect of the s 26 claim of harassment,

the Tribunal decided that the claimant had not shown evidence from which the Tribunal

could conclude, on the balance of probabilities that Karen Cullen had said to her words

to the effect of ‘you could resign and ‘I’ll pay you off’. That was the only conduct relied

upon by the claimant in respect

5 of the s 26 claim. There was no other conduct of the respondent which was

consistent with the respondent acting so as to violate the claimant’s dignity

because of cancer. There was no other conduct of the respondent which was

consistent with the respondent acting so as to violate the claimant’s dignity

because her protected characteristic of disability.

10 147. The claimant did not prove her case brought under section 26 of the Equality

Act (harassment) because :-

a. What was alleged to have been said by Karen Cullen as stated in the

ET1 is not what was alleged to have been said by the claimant in her

evidence before the Tribunal. This was considered to be particularly

15 significant as the only incidence of alleged harassment was what

Karen Cullen was alleged to have said on that single occasion.

4123823/2018 Page 69

b. The claimant’s conduct after 27 June, in not raising any issue with

what had been said to her by Karen Cullen on 27 June (until the time of lodging the

ET1), while having raised other allegations of 20 discrimination by Karen Cullen,

and continuing to work with Karen

Cullen, is not consistent with the claimant’s position that her dignity

had been violated by what Karen Cullen said to her on 27 June.

148. On the evidence before the Tribunal, the claimant has not proved facts from

which an inference could be drawn that the respondent subjected the claimant

25 to victimisation because of her protected characteristic of disability. The claimant has

not proven that on or around 26/27/28 June 2018 Karen Cullen said to her

words to the effect of ‘you could resign’ and / or ‘I’ll pay you off’.

149. Had the claimant proven that on or around 26/27/28 June 2018 Karen Cullen

had said to her words to the effect of ‘you could resign’ and ‘I’ll pay you off’,

30 the burden of proof would then have shifted to the respondent. It would then have been

for the respondent to prove, on the balance of probabilities, that

the treatment was in no sense whatsoever related to the claimant’s protected

characteristic. Those words, if said, would clearly have related to the claimant’s

protected characteristic of disability because they were said to have arising from the fact

of the claimant’s then forthcoming lengthy absence 5 because of cancer treatment.

150. There were facts before the Tribunal which went against an inference of

harassment. There was only one occasion when the respondent was alleged

to have harassed the claimant. It was not argued that the respondent’s

conduct otherwise than on 27 June was consistent with a finding of

10 harassment on that day. It was not dispute that the claimant had worked for the

respondent after when it was alleged that the harassment took place.

151. The Tribunal determined the issues before it as follows:-

Harassment (s 26)

a. Is it just and equitable for the Tribunal to consider the claimant’s claim

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15 under section 26 of the Equality Act 2010?

152. It was not in dispute that the s26 claim was presented out of time, given that

the claimant relied only on alleged conduct on 26 or 27 June. The claim was presented

on 21 December 2018. Although the early conciliation period requires to be taken into

account, it is the date of submission of the ET1 to 20 the Employment Tribunal Office which

is the determinative date in respect of time bar. The Tribunal took into account that the

claimant’s evidence was that she has taken professional advice. The claimant had sought

advice and then acted on that advice before the ET1 was presented, being when she

wrote to the respondent alleging discrimination. The Tribunal had no doubt that in

25 the months following her cancer diagnosis in May 2018 the claimant would

have been suffering symptoms including tiredness and that the claimant’s

focus at that time would have been her health. It was not however the

claimant’s evidence that she was so incapacitated so as to be unable to

present a claim within the normal statutory time period, or at any other time

30 before 21 December 2018. The claimant’s response to being asked why her claim was

not presented before 21 December 2018 was ‘I don’t know’. Her position was

that she had sought money advice. It was submitted on her

behalf that at that time the claimant’s focus was on her health and her financial

situation. Had the Tribunal been required to apply the test of whether it was

‘reasonably practicable’ for the claim to have been lodged within the normal

statutory timescale, in circumstances where the claimant took professional

5 advice within that timescale, and acted on the advice given to her, the Tribunal would

have concluded that it was reasonably practicable for her to have presented her claim to

the Employment Tribunal in time. The claimant’s remedy would then have been against

the professional who failed to ensure that her claim was lodged timeously, for the lack of

opportunity to bring that 10 claim. That was not the test which had to be applied.

153. The test which required to be applied to the claim brought under section 26 of

the Equality Act 2010, was whether it was just and equitable to allow the claim outwith the

statutory time limits. In considering this test, the Tribunal took into account and

considered it to be significant that there was no suggestion 15 that the respondent’s

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defence of the claim were prejudiced in any way by the claim being presented late. The

Tribunal heard the evidence presented by the respondent in defence of the claim. Taking

into account all the circumstances, including the claimant’s health situation and that there

was no argument that the delay had affected the respondent’s opportunity to defend

20 the claim, the Tribunal decided that it was just and equitable to allow the section 26

claim. The Tribunal then made its determination on the section 26 claim, as

well as the section 19 claim.

154. The Tribunal determined the issues before it as follows:-

a. Did the respondent engage in unwanted conduct relating to the

25 claimant’s cancer diagnosis on 26 or 27 June 2018?

155. For the reasons set out above, the claimant has not proven that that on (or

around) 26 or 27 June 2018 Karen Cullen said to her words to the effect of

‘you could resign’ and ‘I’ll pay you off’, which was the only alleged conduct

relied upon as unwanted conduct relating to the claimant’s cancer diagnosis.

30 156. The next issue identified was:-

b. Did the respondent’s conduct towards the claimant have the purpose

or effect of violating the claimant’s dignity?

Had the alleged conduct been held to have been proven, the Tribunal would

have taken into account the provisions of section 26(4) in deciding whether 5 that conduct

had the purpose or effect of violating the claimant’s dignity, which was the only purpose

or effect relied upon by the claimant. The Tribunal would have taken into account that a

single act can be an act of harassment. The Tribunal would have taken into account that

there was no evidence that the claimant had sought any medical advice in respect of

how she felt because

10 of what the respondent had said to her. The Tribunal would have taken into account

that the claimant continued to work for the respondent without raising any issue in respect

of how she felt because of that alleged conduct. Although the claimant had not proven,

on the balance of probabilities, that Karen Cullen had said to her words to the effect of ‘I

4123823/2018 Page 72

could pay you off’, the Tribunal 15 considered that it was plausible that Karen Cullen could

have said that to the

claimant, in the context of a conversation about the claimant’s diagnosis,

treatment and likely long term absence. Words to those effect themselves

would not necessarily be conduct which was harassment within the meaning

of section 26 of the Equality Act 2010. It is recognised that a one off incident

20 may be harassment within the meaning of section 26 of the Equality Act 2010.

The Tribunal would have considered the claim in terms of s26(4) of the

Equality Act 2010. In all these circumstances, even if the claimant had proven

that on 27 June Karen Cullen had said to her ‘you could resign’ and ‘I’ll pay

you off’ (or words to that effect), the Tribunal would not have found that that

25 conduct had the purpose or effect of violating the claimant’s dignity. The

Tribunal would have taken into account the meaning of the word ‘violating’,

which is a strong word.

157. In respect of the issues for determination in respect of the indirect discrimination

claim, the Tribunal decision is as follows:-

30 c. Did the respondent apply a provision criterion or practice of

The managerial administration of payments, including lack of

communication and erratic payments of both wages and SSP.

The Tribunal did not accept that that was a PCP i.e. a provision, criterion or

practice applied by the respondent. The PCP relied upon by the claimant’s

representative lacked specification. There was no adjective or description to

the managerial administration which was said to have been applied. Time

5 had been given for the claimant’s representative to particularise the PCP relied upon.

During discussion on the wording of the PCP relied upon at the stage of

submissions, the claimant’s representative was asked if he was seeking to

change the wording of the PCP relied upon and his position was that he was

not so seeking. At the stage of submissions, the claimant’s

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10 representative sought to include in his PCP a lack of communication to the claimant

about her return to work as part of the PCP relied upon. It was pointed out to the

claimant’s representative that the PCP relied upon related to payments. That was

accepted by the claimant’s representative. His position was that he had meant the PCP

to include a lack of communication, 15 including in relation to a lack of arrangements

having been made for the

claimant’s return to work. The claimant’s representative confirmed that he

was not seeking to amend the wording of the PCP to in respect of that

position. The claimant’s position in her evidence was that she had had no

response to a query re arranging her return to work. There were no questions

20 asked of the respondent’s witnesses on any lack of response from the respondent in

respect of her return to work. The claimant was not asked how she felt

because of any lack of communication from the respondent, including any

lack of communication in relation to her return to work. Even taking the PCP

to include communication and lack of communication in respect of the

25 claimant’s return to work, the claimant has not proven that there is a PCP

within the respondent’s organisation of lack of communication.

158. From the evidence before it, the Tribunal concluded that the respondent does

not have robust systems in place in respect of absence management. There is no clear

system in place for dealing with Med 3 forms when these are 30 received. There was

evidence of the claimant’s sick lines being put in a cupboard, in a box and in a folder at

the Craigend premises and (document 20) being left in an envelope for Karen Cullen at

the Stepps premises. There was clearly scope for one or more sick line(s) to be misplaced

in the process

between being handed in to premises where the respondent operated and

being received by Karen Cullen. On the evidence before it the Tribunal could not

conclude that there was a provision or criterion in respect of ‘The managerial

administration of payments, including lack of communication and 5 erratic payments of

both wages and SSP.’ There was clearly some managerial administration, of payments

and otherwise, in arrangements in respect of the respondent’s relations with its

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employees. On the evidence before it, the Tribunal could not conclude that there was

erratic payment of wages or SSP. The bank statements produced by the respondent

showed

10 that wages were normally paid between the 25th of the month and the end of the month

for . The PCP relied on by the claimant lacked specification and has not been

proven on the evidence before the Tribunal.

159. If the claimant had proven that there was a PCP applied by the respondent as

alleged, the next issue for determination by the Tribunal would have been:-

15 d. Did the PCP apply to the claimant as well as to others who did not

share the claimant’s protected characteristic?

There was no evidence of the claimant having been treated differently from

any other employee of the respondent in respect of managerial

administration.

160. If the claimant had proven that there was a PCP applied by the respondent as

20 alleged, which applied to the claimant as well as to others who did not share

the claimant’s protected characteristic, the next issue for determination by the

Tribunal would have been:-

e. Would PCP put other persons with the claimant’s protected

characteristic at a particular disadvantage compared to others without

25 this protected characteristic?

If addressing that issue, the Tribunal would have required to consider the

effect of that PCP on others with the protected characteristic of disability,

compared to others without that protected characteristic. Sedley LJ’s

comments on solitary disadvantage in Eweida and ors v United Kingdom

30 2013 IRLR 231, ECtHR, are relevant to that consideration. There was no suggestion

in evidence that the claimant was disadvantaged by not having

sight of any written policy or procedure. There was no suggestion in evidence

that the claimant could not have asked Karen Cullen for early payments, or that she had

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done and this was refused. Even if the claimant had proven that because of her disability

she was disadvantaged by not being able to have 5 face to face conversations with the

respondent (which was the claimant’s representative’s submission), the Tribunal would

not have concluded that all individuals with the protected characteristic of disability could

be said to be so disadvantaged. Not everyone who is disabled is unable to attend at

their workplace. As said to the claimant’s representative at the stage of his

10 submissions, it is because of that hurdle that those with the protective characteristic of

disability can rely on the provisions of section 15 of the Equality Act 2010 i.e.

discrimination arising from disability. No claim has been brought on behalf of

the claimant under section 15. Had a claim been brought on behalf of the

claimant under section 15 of the Equality Act 2010, that claim

15 may have been successful.

161. Given that the claimant had not proven that the respondent had applied a PCP

as alleged, or that those with the protected characteristic of disability were put

to a disadvantage by the application of that PCP, the Tribunal could not

consider the questions:-

20 f. Did the PCP put the claimant to that disadvantage?

g. Was the application of the PCP a proportionate means of achieving a

legitimate aim?

162. The remedy sought by the claimant’s representative was in respect of solatium

(injury to feelings) only. The sum of £20,000 was sought. On being

25 pressed in oral submissions, the claimant’s representative broke this down to an award

of £10,000 being sought in respect of each of the claims (under section 26

(harassment) and under section 19 (indirect discrimination). No medical

evidence was relied upon to support an award in the middle band of

Vento. Had the claimant’s claim been successful in respect of either of her

30 claims, on the evidence before the Tribunal, the award made for either claim would not

have exceeded the lower band of Vento.

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163. The respondent’s handling of the claimant’s absence has been less than ideal.

Although the respondent has a relatively small number of employees, there

ought to have been steps taken to have formal meetings with the claimant to

discuss her absence. The dates of sick lines should have been

5 checked at the time of receipt and there ought to have then been communication with

the claimant if any issues arose from the dates of the claimant’s certified

absences. There was no PCP in respect of that established by the claimant.

Although not requested to do so, had the

Tribunal determined that either of the claimant’s claims were successful, in

10 these circumstances where there is a continuing employment relationship,

and the arrangements for the claimant’s return to work are outstanding, the

Tribunal would have made a recommendation under the Equality Act 2010

section 124 in the following terms:-

• That within 14 days of the date of this Judgment, the

15 Respondent write to the claimant inviting her to attend a meeting with them to discuss

arrangements for her return to work.

• That that invitation sets out to the claimant the

respondent’s proposed arrangements for the claimant’s

20 return to work, including any phased return to work

arrangements.

• That that invitation sets out to the claimant an undertaking

from the respondent that the claimant will not be

subjected to any detriment by them as a result of

25 having raised these proceedings.

• That that invitation sets out that the claimant may be

accompanied at that meeting by a person of her choice.

• That that invitation sets out that that meeting take place

at a neutral venue such as a hotel, the particular location

30 to be proposed by the respondent and agreed by the

claimant.

4123823/2018 Page 77

• That that invitation sets out that the respondent will, in

advance of the meeting, pay the claimant travel

expenses in respect of her attendance at that meeting,

and any reasonable additional travel expenses for the

individual who the claimant wishes to accompany her at

that meeting.

5 • That that invitation sets out that minutes of that meeting will be taken for the

respondent and those minutes will be sent to the

claimant, for her comment on anything she does not

consider to be a an accurate reflection of the discussions

at the meeting, with those comments to be

10 sent to the respondent within 14 days.

164. It is noted that by raising these proceedings the claimant has done a protected

act in terms of section 27 of the Equality Act 2010.

165. The claimant’s claims under both section 26 and section 19 of the Equality 15 Act

2010 are unsuccessful and are dismissed.

20

Employment Judge C McManus

Date 20 June 2019 25

Date sent to parties 24 June 2019