The claimant had a stammer and type II diabetes. He was dismissed after a probationary period. Issues were his attendance, communication style (eg tending to argue, upset people), and pace of work. The employment tribunal rejected his claims for race and disability discrimination. As regards his stammer, the tribunal found that criticisms of his communication style did not arise from his stammer. The tribunal also rejected complaints that the employer should have continued to allow a non-workplace friend to attend meetings, and about how a manager reacted to his stammer. My comments are below.
2023, Employment Tribunal. Full decision (gov.uk).
Facts
The employer manufactured chemotherapy and pharmaceutical products, working within a strict regulatory regime.
It took on the claimant as a Quality Assurance Officer in March 2020, on a six-month probationary period which might be extended. His work was mainly (a) checking “worksheets”, which involved reviewing documents which were to have gone out with a product against a set list of criteria, and (b) “release” work, which required him to check physical products against their worksheets to ensure they were what they purported to be. The work was difficult and required a certain type of person. There was quite high loss of recruits in the first few months. (§5.8-5.9, 5.12)
The claimant described himself as black, of African origin. His line manager M was also black, of Jamaican descent. S, a white person, became a Quality Assurance Operations Manager in the same month as the claimant started, and shared responsibility for the claimant with M from that point on. (§5.11)
It seems to have been accepted that the claimant was disabled within the EqA, in that he had a “speech impediment or stammer”, and also type II diabetes. Regarding his stammer, the tribunal said: “He gave evidence for a number of hours before the Tribunal. We found the impediment to have been noticeable, but not particularly significant in terms of his speed of delivery of speech.” (§5.14-5.15)
The employer asserted that the claimant’s timekeeping began to become an issue in August 2020. In September he was placed on a Personal Improvement Plan (PIP). (§5.19-5.26)
Communication style
At the second review under the PIP, in late September 2020, the claimant was seen to have become more negative about his work and his team, and was reported as having been somewhat blunt and rude. “[His] attitude has changed of late and he seems very defensive and negative about his team. [He] needs to be aware of how to address and speak to his managers and other members of management of [the company]. Arguing as well as not taking feedback on board is not what we would expect of a [quality assurance] team member” (§5.27). The tribunal found at §5.28 that the rebuke in relation to his communication style did not arise from his speech impediment: see below 4.1.1: Communication skills.
In October 2020, S expressed concern about the pace of the claimant’s work, in that he was completing fewer worksheets per hour than was expected of him (§5.30). His performance continued to be an issue in later review meetings (§5.49-5.52)
At a review meeting in early November, issues addressed included his communication style in emails (at §7.17 the tribunal talks of “written abruptness”), and his defensiveness and negativity. (§5.32)
Diabetes
Around this time he told the employer that he was being treated for type II diabetes. The tribunal found that the employer made some adjustments for this and offered others. Given the medical picture, it was decided to move him from the PIP to a “more holistic” Development Plan. As explained by the employer, this Plan had targets but also incorporated discussion and understanding of needs arising from his disability. Some of his lateness could have been linked to his disability, ie diabetes (§5.35-5.39).
A friend of the claimant from his church attended two December meetings with managers/HR. The friend was permitted to attend with the claimant even though this was outside the employer’s policy, which only permitted trade union representatives and/or workplace colleagues. (§5.41, 5.48)
In late December, S fed back to the claimant ongoing concerns about his communication style: some colleagues had been “unhappy with the way you talk to them. For example; making comments about people’s relationships. Or taking jokes too far and unsettling people.” (§5.55)
2021 meetings, and dismissal
After discussion with the claimant, the Development Plan started in early January 2021, to run for 6 weeks (§5.53-5.61).
The claimant’s friend from church was not approved to attend a meeting on 5th January. The employer felt that her attendance at all meetings was not “workable”. The tribunal said it had no sense that the claimant “complained about that beyond his email at [232] and/or that he was unable (or only able with difficulty) to explain himself without her. The transcripts demonstrated his full and active participation./ At the meeting, he appeared to have been generally accepting of his slow pace. …” (§5.56-5.57)
At a review under his Development Plan on 1st February, his communication and attendance were seen to have improved, but his pace of work was still not consistently on track (§5.59). The final review under the Plan was due on 15th February. At this meeting, the claimant was told that he had not hit his performance target (pace of work) in the previous two weeks. There had been further communication problems too. He was dismissed with pay in lieu of notice (§5.62). The employer rejected an appeal against the dismissal, and also a grievance (§5.64-5.68).
The claimant made tribunal claims for race and disability discrimination.
Held: The employment tribunal dismissed all the claims.
Decision: Discrimination arising from disability (s.15), as to stammer
Discrimination arising from disability under s.15 EqA is where the employer treats a disabled person unfavourably “because of something arising in consequence of” the disability. The employer is liable if it has actual or constructive knowledge of the disability and cannot show that the unfavourable treatment was justified.
The tribunal dismissed seven alleged breaches of s.15 EqA in relation to the stammer, as follows (§7.6):
(The alleged breaches were set out in paragraphs 4.1.1 to 4.1.7 of the “Case Summary”, but not in the tribunal decision. Therefore one has to guess from the tribunal’s reasoning roughly what the alleged breaches were.)
4.1.1: Communication style
In September 2020 the employer had raised a requirement for the claimant to improve his communication skills not because of his speech impediment or stammer, said the tribunal, but because of his perceived rudeness and/or bluntness with managers and others. The issue was raised in early November in similar terms, and in January. It was not raised for reasons arising from his disability. (§7.6)
Similarly earlier in its decision, in the context of the late September meeting, the tribunal had rejected the claimant’s argument that the rebuke in relation to his communication style arose from his stammer. The tribunal found: “Having heard all of the evidence in relation to that meeting, we concluded that that was not the case. He was clearly perceived to have been rude and/or blunt both then and subsequently…”. (§5.28)
[Comment below: Comments: Communication style.]
4.1.2: Refusal to allow friend to attend January meeting
Employees were not ordinarily permitted to have representation from outside the employer’s workforce, unless a trade union representative. The claimant’s friend attended twice. However the employer’s refusal to allow her to continue to do so did not arise from the claimant’s disability, said the tribunal, nor did it cause him any detriment that the tribunal perceived. (§7.6)
4.1.3: How S responded to claimant’s stammer?
The tribunal said there was very little evidence to substantiate this complaint within the claimant’s witness statement. In oral evidence the claimant did say that S lost patience with his stammer and tended to tap her foot and/or appeared frustrated. Those allegations were wholly and strongly denied by S, and the tribunal preferred her account. The tribunal rejected the claimant’s allegation on the facts. (§7.6)
[Comment below: Comments: Manager’s response to the stammer.]
4.1.4: Development Plan and targets
There was no indication as to how the Development Plan was said by the claimant to have been “disproportionate”, and/or how the targets arose from his disability. The only way in which they were shown to have been different from those of his colleagues was because they were lower, said the tribunal, but for reasons potentially associated with his diabetes, not his stammer. (§7.6)
4.1.5-7 Dismissal etc
The seventh allegation was that of dismissal from the job. Taking those allegations together, however, there was no evidence to suggest that any of them occurred for reasons arising in consequence of the claimant’s speech impediment. (§7.6)
This was presumably partly based on the tribunal’s finding that the rebukes for his communication skills were not for reasons arising from his stammer: above 4.1.1: Communication skills.
Decision: Reasonable adjustments
Where any “provision, criterion or practice” (PCP) applied by or on behalf of an employer puts a disabled person at a substantial (ie more than minor or trivial) disadvantage in comparison with persons who are not disabled, the employer is obliged to take such steps as it is reasonable to have to take to avoid the disadvantage: Reasonable adjustment rules: employment. The employer has a defence if it did not have actual or constructive knowledge of the disability and disadvantage.
The tribunal cited adjustments the employer had made or offered in relation to the claimant’s diabetes. (§7.9)
The claimant alleged that various PCPs of the employer had put him at a substantial disadvantage compared with non-disabled staff, but the tribunal rejected all his claims (§7.10).
(Like with discrimination arising for disability, above, the tribunal does not set out what the alleged PCPs or disadvantages were. Therefore it is not clear which relate to stammering, as opposed to diabetes alone. One that does evidently relate to his stammer:)
6.2.2 Not allowing church friend to support him in January meeting
The PCP, not stated in the tribunal decision, probably was or related to the employer’s policy of only permitting trade union representatives and/or workplace colleagues to attend meetings to support and employee,
The tribunal said the PCP as stated by the claimant did not work. However even if one corrected the PCP, there was no evidence of any substantial disadvantage. The claimant demonstrated a good ability to represent and express himself in the meetings, and during his evidence. (§7.10)
[Comment below: Comments: Not allowing friend to attend January meeting.]
Decision: Harassment related to disability
The claimant alleged various acts or omissions were harassment, but again the tribunal does not say what. Of those acts or omissions it accepted as proved factually, however, the tribunal did not consider that any of them had been related to the claimant’s disabilities, speech and/or diabetes, “for the reasons already provided”. (§7.12-7.13)
Decision: Other claims dismissed
The tribunal rejected complaints of direct race discrimination (§7.1-7.2), harassment related to race (§7.3-7.5), discrimination arising from disability as regards diabetes (§7.7), and victimisation. (§7.14-7.15)
Decision: Tribunal’s concluding comments
The tribunal pointed out that there was a reasonably high turnover of staff in the first few months of employment, as it became clear to the employee or the employer whether individuals were well suited to the work. The claimant’s attendance was clearly an issue, and effectively served to launch the performance management process. During that PIP, his communication style was also perceived to have been an issue, both in terms of his written abruptness and his ability to argue and/or upset people. Then, the pace of his work became the main focus of concern. As an employee who had been in work for less than a year and was still under his probationary period, it was of no great surprise to the tribunal that he was not seen as a “good fit” for the job on non-discriminatory grounds. (§7.17)
My comment
So far as one can tell from the published tribunal decision, there were three main complaints relating to the stammer (apart from an unclear claim about the Development Plan and targets, above). I deal with these in turn below.
Comments: Communication style
The claimant argued that this criticism by the employer was related to his stammer. The tribunal decided it was not (above). So he had no claim under s.15 EqA.
There is some history of cases where ethnic minority claimants have argued (unsuccessfully) that behaviour perceived as shouting or threatening, which led to their dismissal, was a result of their stammer: see Losing one’s job>Misconduct, such as sounding “aggressive”. Whether there was any, or sufficient, link with the stammer in this case was a question for the tribunal to decide, on the evidence. The employer’s criticisms did include abruptness in writing.
The tribunal’s reasoning on how it applied s.15 to the facts of the case could perhaps have addressed the legal issues more clearly. In particular – as the tribunal says in more general terms at §6.15 – the stammer or other disability need not be the only effective cause of his perceived communication style (or other “something” under s.15): Discrimination arising from disability>The disability need not be the only effective cause of the “something”. The tribunal also says at §6.15 that the causal connection with the disability need only be loose, and there might be several links in the causative chain: Discrimination arising from disability>Something arising “in consequence of” the disability. The tribunal does not discuss these issues in relation to the facts of the case. Perhaps the tribunal felt that the claimant had not presented any evidence of a causal link which it could discuss.
If the claimant’s communication style, say, were found to have sufficient causal link with his stammer, it would be relevant that the communication style need not be the only reason for his dismissal: Discrimination arising from disability>“Because of…”: Need not be the only reason for the unfavourable treatment.
Comments: Not allowing friend to attend January meeting
A provision, criterion or practice (PCP) of only permitting trade union representatives and/or workplace colleagues to attend meetings to support an employee, might clearly put a worker who stammers at a substantial (ie more than minor or trivial) disadvantage compared with non-disabled workers. This could give rise to a duty to make reasonable adjustments, such as allowing a friend from outside the workplace to attend: see Grievance and disciplinary procedures>Right to be accompanied.
Whether the PCP did put the claimant at a substantial disadvantage compared with non-disabled people in this case was again for the tribunal to decide, on the evidence. The tribunal seems to have decided that the PCP did not (above), even though it talks of the claimant’s “slow pace” (§5.57). It is not clear what, if any, further evidence or arguments the claimant brought on this. A more obvious disadvantage might be if the claimant was not able to communicate everything he wanted, or perhaps was able to do so only with excessive difficulty. This is perhaps a reminder that often (if it is not obvious or admitted) a claimant will need evidence that there was actually a more than minor or trivial disadvantage, at least their own oral evidence. Sometimes expert evidence might be added.
If there were a substantial disadvantage, another issue would be whether the employer knew of it. The employer would have a defence to the reasonable adjustment duty if it did not know and could not reasonably be expected to know (of the disability and) that the PCP was likely to place the disabled person at the substantial disadvantage compared with non-disabled people: Knowledge of disability>Reasonable adjustment duty.
That is as regards the reasonable adjustment claim (s.20 EqA). It is wholly unsurprising that the tribunal rejected the s.15 claim (above) about the claimant’s friend not being allowed to attend. There was no unfavourable treatment motivated by something arising from his stammer (Discrimination arising from disability>”Because of…”). The employer treated the claimant in the same way as it would treat any other staff member, as to who it allowed him to bring to the meeting. That might give rise to other EqA claims such as failure to make reasonable adjustments but not normally a claim under s.15.
Comments: Manager’s response to the stammer
As to the claimant’s complaint of how one of the managers responded to his stammer (above), like other claims we don’t know from the tribunal decision the full complaint he made. However it seems to have been down to whose evidence the tribunal preferred, and it preferred the manager’s.
