Employment Tribunal, Case no. 2500138/00, 4344/115, December 2001.
Facts
The employee was a packaging technician. These technicians were responsible for overseeing the running of machines on the packaging line, and for arranging for an engineer to be called in if a fault occurred.
The employee had a stammer and claimed he was subject to “harassment, verbal bullying” by his line supervisor. After a period absent from work with back problems, he wrote to a senior manager complaining about his alleged treatment by his line supervisor and saying that he could not face going back to that at work. A union official represented him. The senior manager carried out an investigation and “found no evidence to substantiate your claim of verbal bullying”. The employee then resigned, giving as his reason the alleged problems with his line supervisor.
He took the matter to an employment tribunal saying he had had to resign “because of harassment, verbal bullying by my line manager, which highlighted my disability (speech impediment) (stammer) which I have had all my life…”
Decision
Legally he had two claims, on which the employment tribunal decided as follows:
- Disability discrimination under the DDA. The employer conceded that the employee had a disability within the DDA. However, the tribunal agreed with the employer that there had not been verbal bullying or harassment. The tribunal said that even if the claim had been on time the tribunal would have found on the facts that there had been no disability discrimination. In fact the claim was dismissed on the ground that it was out of time – it had been made over three months after the last alleged incident of discrimination. The three months could not run from when the employee left employment because, even if he had been constructively dismissed, the Tribunal considered that constructive dismissal is not “dismissal” within the DDA. (Note that constructive dismissal has since been established to be “dismissal” within the DDA.) The tribunal considered that it was not just and equitable to consider the complaint out of time.
- Unfair dismissal. The employee claimed constructive dismissal. The tribunal decided that the employer was not guilty of conduct which went to the root of the contract or which showed that the employer no longer intended to be bound by one or more of the essential terms of the contract. Accordingly, the employee was not entitled to treat his resignation as a constructive dismissal, and there could be no question of unfair dismissal.
The employee’s claims therefore failed on both counts.
The employee had founded his claims on various alleged incidents which he said were discrimination within the DDA and/or meant that he had been constructively and unfairly dismissed. These alleged incidents are summarised below. The tribunal’s decision takes many pages to consider them. Amongst other things the tribunal had regard to notes of interviews with witnesses taken by the senior manager in the course of his investigation.
Role play
The first alleged incident was on a Business Basics Course. These courses were aimed at increasing awareness of cost and quality issues and all production staff attended them. Part of the course involved participants reading out notes about themselves and taking part in a role play. The employee’s notes were read out by his line supervisor who was a facilitator, and he was allowed not to take part in the role play itself. That was fine. However, the employee said that he was required to give comments on issues arising from the role play, The employee had, he said, explained to his supervisor that he did not want to take any part in the role play exercise; he found such involvement an ordeal; it caused him excessive self-consciousness and embarrassment. The employee contrasted his treatment with another member of staff who, he said, had been allowed to leave the course. Also, he sensed this other member of staff had been smirking at him.
The employers said the other member of staff had in fact received a warning letter for his uncooperative attitude and had been required to complete the course another time. They said the employee had been quite happy to give his input voluntarily and seemed to quite enjoy this. The role play was in a separate room and very private. The sessions went well and he had contributed well. The evalution form completed by the employee had been almost wholly glowing in its approval of the course.
Discounting a letter from the person who had been excluded from the course for his negativism, the notes of interviews with two witnesses present did not indicate pressure or harrassment. According to the notes from one witness, the employee had explained that he would rather demonstrate with his hands and drawing, and the line supervisor had been fine with that.
The tribunal did not accept that anything that took place at the course amounted to discrimination. The employee was required and agreed to take part in an exercise limited to offering comments. He ranked the trainers as excellent. Also, it was in a very private setting, amongst colleagues he worked with every day. It was not very different from the kind of exchanges which would take place every day on the shop floor amongst the same or a similar group of people as were involved in the exercise.
Course evaluation form
There was a sequel to the role play. This related to one negative comment the employee had put in his course evaluation form: “To somebody like myself role play is a very embarrassing thing to do – I feel that one of the trainers could have sat in for me at this – I could have observed but still picked up the message and meaning of the exercise – I do not find things like this fun. Sorry.”
His line manager called him into her office. The employee said that she brought up his comment and that her tone (there was no objection to what she actually said) made him think he was going to get wrong as she was not happy about it. However, the tribunal was satisfied that she had called him into her office not to castigate or criticise him in any way. She wished only to assure him he had done well. There was nothing unreasonable or discriminatory done or said by the line supervisor.
The employee subsequently had some time off and alleged that it was after his return to work that things escalated and seemed to get much worse:
Alleged remarks
The employee alleged that on 27th July his line supervisor made a remark implying that problems arose particularly on his machines, and that she had not replied or apologised when it was pointed out to her that someone else had been working on the particular machine all shift. There were particular problems with machines under the employee’s charge, through no fault of the employee. The tribunal was satisfied that any comments by the line supervisor were about the machines rather than against him. Also the employee could not give specific examples of alleged sarcastic remarks (presumably apart from the 27th July remark, which the tribunal considered was not sarcastic against the employee).
Machine not being seen to
The employee said that a few days later, on 3rd August, he had been criticised by his line supervisor for a machine being off with no engineer working on it. The machine had been off for over twelve hours. Engineers had been working on it in the previous shift and the employee’s shift had started about half an hour before this incident. He said he had been explaining the situation and started struggling to speak even more, and that before he had finished she had come in with “no, no, always an excuse. I might as well go and do it myself” and walked away, to see about an engineer herself. He said the incident had left him in tears. The line supervisor had a different recollection of the incident. She said she may have been impatient and quite direct with him but not abusive, and she did not remember raising her voice; his account of the incident was grossly exaggerated. The tribunal found he had no complaint. It was appropriate for the line supervisor to question downtime, and he had done nothing about the machine. He had been doing something else, but his job entailed management of more than one task and prioritising. Also, one of the employer’s witnesses expressed the view that the job in itself was probably overstretching him.
Trouble saying fitter’s name
The employee alleged that later the same day his line supervisor had asked which fitter (engineer) had come to attend to the machine. Because of his stammer the employee had difficulty framing the fitter’s first name, Barry. The line supervisor had turned round and shouted “Harry, Harry we have no fitters in this factory called Harry”, to which in unison three or four of the employee’s colleagues had shouted out the fitter’s name to her. The employee said this humiliated and belittled him. The line supervisor had no recollection of the alleged incident, and according to the notes of interviews neither did other witnesses. The tribunal considered that at worst there was some innocuous misunderstanding on the part of the line supervisor.
The tribunal was not satisfied that any matter which took place on 27th July or 3rd August remotely amounted to unreasonable behaviour, a breach of the employment contract, or disability discrimination.
Back problems
The employee was absent from work from 5th August, 1999 with back problems. Apart from three days in September, he remained absent until his employment ended in May 2000. Over this period there were certain alleged incidents with his line supervisor, but the tribunal decided that here again there was nothing done or said to justify a complaint by the employee. The employee apparently suffered depression/anxiety which he attributed to his line supervisor. However, the tribunal was not satisfied there was any link between his treatment by her and either his alleged perception of the treatment or any stress or depression.
The tribunal’s overall conclusion from its consideration of these alleged incidents is summarised above. In particular, the tribunal concluded that the claim for disability discrimination would have failed even if the claim had been put in on time, which it had not.
My comments
- This is the first case I am aware of where it was acknowledged that a particular person who stammers had a disability within the meaning of the DDA. However, it is not judicial authority on how far a stammer is a disability. This is partly because the point was conceded by the employer and so did not have to be decided by the tribunal.
- In the Business Basics Course there are good examples of reasonable adjustments being made by the employer to cater for the employee’s stammer. (Only the position as regards the employee giving feedback on the role play was disputed.)
- The decision illustrates the value of being very specific in any allegations made and of seeking corroboration from independent witnesses wherever possible. In this particular case, it appears from the decision that witnesses trusted by the tribunal did not back up the employee’s allegations.
- Finally, the decision illustrates the importance of getting a tribunal claim in within the three month time limit (though the tribunal made clear that in this particular case it would not have allowed the claim even if it had been within the time limit).
BBC News article: Stammerer quits over role-play row (news.bbc.co.uk), 3rd July 2001.
