D v Nottingham Squash Rackets Club

The claimant had a stammer and other disabilities. He went off work with stress due to how he was treated (not related to his disabilities). While he was still off work, he and two other members of staff were made redundant due to the Covid-19 pandemic. His tribunal claims for unfair dismissal and disability discrimination failed. Among other things, redundancy of his job rather than his disabilities or his absence was genuinely the reason for his dismissal. The tribunal also considered how his communication would have been in a redundancy consultation via Zoom call had he been well enough to take part in one. My comments, below.

2022, Employment Tribunal. Full tribunal decision (gov.uk).

Unless other stated, paragraph references are to the main tribunal decision 17/6/22.

Facts

The employer conceded that the claimant was disabled by reason of the following conditions [7] and (later) that it had actual or constructive knowledge of them [8]:

• bilateral hearing loss.
• dyslexia.
• dyscalculia.
• a speech impediment; and
• learning difficulties.

The claimant went off sick with stress and anxiety after a committee member of the employer sent an email [85] suggesting he be suspended until a certain matter had been clarified [116]. The claimant submitted fit notes certifying stress at work, and in one case glandular fever [117].

He and the two other “casual staff” were then made redundant due to effects of the Covid pandemic. The pandemic had reduced the club’s membership, and therefore its income and its need for staff. Only the two managers were kept on. The tribunal accepted that this was genuinely the reason for the dismissal [125, 160], contrary to the claimant’s argument that his dismissal was really retaliation for grievances he had raised, a subject access request he had made, and his continued sickness absence [133].

There was a redundancy consultation in November 2020. However the claimant’s solicitor told the employer that the claimant would not be fit to attend any consultation meeting (which was to be by Zoom) or return to work until at least 22nd December 2020. The employer therefore proceeded to dismiss the claimant without a consultation meeting [136-137].

The claimant’s evidence was that whilst stress made his speech impediment worse, he would have been caused upset and been absent from work in any event because of how he was treated (particularly the email from the committee member) irrespective of his disabilities [117].

The claimant claimed unfair dismissal, and also discrimination under the Equality Act. In a preliminary decision (19/8/21) the tribunal decided the claimant was an “employee” so that his job fell within the scope of unfair dismissal and the Equality Act.

Held: The employment tribunal rejected his claims for unfair dismissal and under the Equality Act.

Unfair dismissal

The tribunal rejected the claimant’s unfair dismissal claim. Among other things, it was within the band of reasonable responses for the employer to seek to progress the redundancy consultation while the claimant was unwell, and to dismiss him before he was well enough to attend a meeting. The claimant’s role was genuinely no longer required, the employer also had two other members of staff who needed to be informed about the redundancy situation, and the employer would continue to incur unnecessary cost at a time that it could ill afford to do so. The employer had allowed the claimant to be accompanied at the consultation meeting [156, 159]. Also:

158. The difficulty that the Claimant would have potentially had had he attended a consultation meeting was with his speech impediment because stress made that worse. However, he did not of course attend a meeting but we have no reason to think if he had that the [employer] would not have dealt with matters sensitively. We do not therefore consider that any unfairness was caused to the Claimant in this regard nor was there any need for the [employer] to further adjust its processes.

Reasonable adjustments

The claimant argued that the employer’s approach to its grievance and redundancy process placed the claimant at a substantial disadvantage because of four things including (b) his problems with communicating and (c) the impact of stress on his speech impediment [7.8]. He argued that the following reasonable adjustments should have been made (but the tribunal disagreed as outlined further below):

• separating grievance and redundancy processes and not running them together
• dealing with the grievance process first before the redundancy process
• waiting until the claimant’s health recovered before continuing with either process
• obtaining an Occupational Health Report on the claimant [7.10].

Reasonable adjustments: Not PCPs

The claimant’s lawyer took issue with the following aspects of the redundancy process [182], which he argued should have been remedied by those reasonable adjustments:

• the speed of the process
• the employer dealing with the process while the claimant was off sick
• the grievance procedure and redundancy procedures happening together, making it difficult for the claimant to engage in either of them
• not waiting until the claimant’s health had recovered before proceeding with either process
• the employer proceeding with the processes without the benefit of an Occupational Health assessment.

However the tribunal said it was not satisfied these were provisions, criteria or practices (PCPs), as they were things that occurred personally to the claimant rather than being wider practices operated by the employer (see Reasonable adjustment rules: employment>Can a one-off decision be a PCP?) [183].

Reasonable adjustments: Not substantial disadvantage

Even if they were PCPs, the tribunal considered that the aspects of the process identified by the claimant’s lawyer did not happen and/or did not put the claimant at a substantial (ie more than minor or trivial) disadvantage [184-188]. For example:

• The claimant was not put at a substantial disadvantage by the grievance and redundancy processes taking place at the same time, because that did not occur. There were emails and the claimant was able to deal effectively with what his position was in correspondence, no doubt with assistance from his parents. Moreover, the claimant was able to attend a grievance meeting and participate without difficulty with the support of his mother who accompanied him at that time. This had happened whilst he was off sick with stress and anxiety. [186]
• The tribunal was not satisfied that proceeding while the claimant was off sick put him at a disability-related disadvantage. The claimant was not absent because of his disabilities, but because of work-related stress and anxiety (below Discrimination arising from disability). The claimant’s evidence was that that exacerbated his speech impediment but not that it made processing information or communicating more generally difficult for him. As mentioned above, he had also attended and participated in a grievance meeting whilst off sick with stress and anxiety without any apparent difficulty. [187]

Not reasonable adjustments anyway

Even if those were PCPs which put the claimant at a substantial disadvantage, the tribunal held the steps sought by the claimant would not be reasonable adjustments [189-192]. For example:

• As regards the proposed adjustment of delaying the redundancy process until his health had recovered, the stress of the process would have continued to affect the claimant and to impact upon his speech impediment. There was no evidence that delaying matters further would have improved that position. In any event the tribunal was not satisfied it was reasonable for the employer to delay a month further, during which the employer would continue to incur unnecessary costs for a genuinely redundant post. It would also have had to either delay the redundancies of the other two “casual” staff, or risk treating them differently. [191]
• As regards obtaining an Occupational Health Report on the claimant, obtaining such a report of itself would not amount to a reasonable adjustment. At most it may have identified any adjustments that did need to be made, but it would not of itself remove any disadvantages suffered. [Comment: This seems to be in the same way that assessments, consultation and trials are not seen as reasonable adjustments: Reasonable adjustment rules: employment>Assessment, consultation and trials.]

Discrimination arising from disability (s.15 EqA)

The tribunal rejected various claims under s.15, on the basis that the unfavourable treatment was not because of something arising from his disability. For example:

• Even if there had been unfavourable treatment due to his sick leave, the sick leave did not relate to his disabilities. He was absent from work with work-related stress and glandular fever, neither of which he pleaded as disabilities. The claimant argued that because of his disabilities he was more susceptible to suffering from stress, but there was no evidence to that effect. Indeed, the claimant’s evidence was that he would have had to take sick leave in any event because of the effect of the committee member’s email and what had gone before it, irrespective of whether he was disabled [169].
• The employer’s request to attend a meeting while he was signed off sick, and failing to offer a welfare meeting before requesting he attend a redundancy consultation, were not done because of anything arising from his disability [170-171].

Harassment and victimisation

The tribunal rejected arguments that it was harassment for the employer to attempt to engage the claimant in discussions and meetings, to consult on the redundancy situation [193-196]. The tribunal also rejected arguments that the employer had victimised the claimant, but it did criticise various aspects of how the claimant had been treated [197-211]

Adjustments in the hearing

Due to the claimant’s disabilities, adjustments were made in the hearing. These involved:

• asking short questions,
• allowing the claimant to begin his answers in cross-examination again if he stuttered or lost his train of thought and
• allowing his father to sit next to him to find the page numbers in the bundle that the claimant was referred to (on the understanding, imposed by the judge, that his father at no time spoke to the claimant while he was giving evidence).

(Para 3 of preliminary decision, 19/8/21, para 10 of main decision 17/6/22.)

My comments

I have included an account of this case because the tribunal talks quite a bit about the claimant’s stammer (or “speech impediment” as the tribunal calls it), and how the stress for which he was signed off work would have made the stammer more severe.

However ultimately the tribunal did not really see the stammer as relevant on the facts:

• The tribunal considered his stammer and other disabilities were not part of the reason he was off work. The claimant himself accepted that the email from the committee member was enough in itself to cause the stress for which he was signed off work.
• Nor were his disabilities (or his absence) part of the reason he was dismissed – there was genuinely a redundancy situation as regards the claimant and two other members of staff, due to the Covid pandemic.
• The tribunal also seems to have considered that if a redundancy consultation had gone ahead via Zoom call, the claimant would likely have been able to communicate with the help of adjustments such as allowing his mother to be present: Grievance and disciplinary procedures>Equality Act 2010 – being accompanied by friend or family member.
• Also it was reasonable to dismiss him without waiting for him to be able to take part in a redundancy consultation.

Comments: Technical points

There are some technical points on which the tribunal decision might perhaps be criticised, though it seems they would not have affected the outcome of the case:

• As regards whether there was a relevant PCP (above), it might be argued that conducting meetings orally, and especially by Zoom, was a PCP which put the claimant at a substantial disadvantage due to his stammer and perhaps other disabilities. However this does not seem to have been argued by the claimant. Also the tribunal was evidently happy that with appropriate adjustments (though see next point) the claimant could have communicated alright.
• The reasoning of the tribunal decision may not be consistent with case law that the PCP is the general practice etc before adjustments are made. For example if allowing the claimant’s mother to be present was an adjustment made for his disability rather than the type of thing the employer allowed its staff generally, the adjustment should be disregarded in deciding whether the PCP (such as an oral meeting by Zoom) put the claimant at a substantial disadvantage. However even if the claimant was therefore at a disadvantage, it should make no difference because the tribunal would evidently have accepted that allowing his mother to be there (and perhaps dealing with the claimant sensitively in the meeting) were sufficient reasonable adjustments to address the disadvantage.