A home care worker was dismissed after being off sick with depression (a disability). Her stammer was normally not apparent but did arise during bad periods of depression. She made EqA claims as regards allegedly not being able to attend a probationary review meeting because of her stammer, and the employer being unwilling to discuss sick pay with her wife without proper authorisation when the claimant herself said she couldn’t cope with a phone call. The claims failed, mainly because the employer could not reasonably be expected to know of her stammer. A lesson is that to have an EqA claim it is helpful to ensure the employer knows of the disability.
2022, Employment Tribunal. Full tribunal decision (gov.uk).
Facts
The claimant had a stammer since childhood, which (after speech therapy as a child) was not normally apparent unless she became overly tired or anxious.
She developed depression, for which she took medication. Her stammer did arise during bad periods of depression.
She was in her probationary period as a home care worker when she went off sick with depression. After failing to attend meetings requested by her employer, she was eventually dismissed.
The tribunal accepted that the effects of her depression (not mentioning effects of the stammer) and their duration meant she had a disability within the EqA (para 125-139).
So far as relevant to the stammer, she claimed breach of s.15 EqA and s.20 (reasonable adjustments).
Held: her Equality Act and other claims were dismissed.
Disability arising from discrimination (s.15)
She claimed breach of s.15 EqA in that her failure to attend a probationary review meeting (she said because of her stammer) was a factor leading to her dismissal, and/or in relation to the employer refusing to speak to her wife by phone (below) when the claimant said she felt unable to speak (para 150-152).
Her claim failed on the basis that the employer did not have actual or constructive knowledge of her stammer. She had not mentioned it to the employer. The employer had been told she had mental health issues, so the employer could reasonably be expected to make enquiry (para 157). However had the employer made enquiry, the tribunal said it still could not have reasonably been expected to know that the claimant had a stammer which was made worse by her depression (A Ltd v Z: see Knowledge of disability>Constructive knowledge: If claimant not willing to reveal disability). There was no medical evidence of the stammer in the medical records she produced (para 158).
Further her stammer was not advanced as a reason for the claimant not attending the meeting, in her email when she gave the employer fairly detailed reasons for not attending (para 159).
Nor was the tribunal satisfied it would have been apparent to the manager from speaking to the claimant that she had a stammer, or that the stammer was made worse by stress or anxiety. The tribunal’s own observation of the claimant giving evidence over an extended period, including lengthy cross-examination, was that she did it with great competency and fluency (para 160).
If the tribunal was wrong about the employer having knowledge of the disability, what would the position have been? The tribunal said there was no evidence to support the conclusion that the claimant did not attend the meeting because of her stammer; she sent the employer a detailed email explaining why she was not attending, which did not include that she had a stammer. Nor should it be concluded that the employer’s failure to speak to the claimant’s wife was in any way connected to the claimant’s stammer.
So her s.15 claim failed.
Reasonable adjustments (s.20)
For later pay periods when the claimant was off sick, the employer had not been paying the claimant because it had not received a fit note. The employer refused to discuss this by phone with the claimant’s wife without the claimant’s authority to do so (para 64-82).
The claimant argued this was a failure to make reasonable adjustments to a provision, criterion or practice (PCP). The PCP she relied on in her pleadings was that the employer adopted a practice of dealing only with the claimant in meetings and by telephone. She argued that a reasonable adjustment would have been, among other things, agreeing to discuss matters relating to the claimant’s pay with her wife by telephone (para 166-67).
The tribunal held that this pleaded PCP did not have the necessary element of repetition to be a PCP (Ishola: Reasonable adjustment rules: employment>Can a one-off decision be a PCP?). Only on one occasion did the employer refuse (para 173-174).
The tribunal said the employer did have a practice of refusing to give out information to non-employees about employees, because of data protection issues, unless the employer had authority to do so. However the tribunal considered it had to consider the PCP which had been pleaded, not one introduced on submission (para 169-171).
Even if the claimant had succeeded on that point, the claimant’s argument was that she was placed at a disadvantage because of her worsening stammer as a result of her depression, which made it difficult for her to articulate her position. However the employer would have been required to know that the claimant would have been likely to be placed at that disadvantage, by the application of the PCP. As set out by the tribunal above, the employer did not have the requisite knowledge (para 175-177).
The reasonable adjustments claim therefore failed.
My comments
Comments: Make sure employer knows of disability
The facts of the case are unusual. However a lesson is that to have an EqA claim it is best to ensure the employer knows of the stammer, and of any difficulties it causes for which one wants reasonable adjustments. See Knowledge of disability.
Comments: Disability and cumulative effect
The tribunal did not consider whether the stammer in itself was a disability within the EqA, nor did it consider (at least expressly) effects of the stammer in deciding she had a disability. The tribunal just considered her depression, saying rightly that it must look at adverse effects as they would be without medication. When not on medication she avoided busy places and avoided taking part in social gatherings (para 136-138).
Though the tribunal here did not necessarily consider adverse effects of the stammer, it should apparently be the cumulative effect of the various conditions that is relevant: Disability: Substantial effect>Cumulative effect. So it should be the effect of the depression and the stammer together, even if each on its own would not be a disability. That raises the interesting possibility that even if the stammer were not a disability in its own right (see next paragraph), perhaps it might be one when combined with another condition such as depression.
Her stammer may potentially have been a disability within the EqA even on its own, and even though she was perhaps hiding it in various ways: Disability: Hiding the stammer and Disability: Discounting speech techniques etc. She would have had to bring evidence to prove the more than minor or trivial effect on normal day-to-day activities (arguably including how the stammer would be without speech techniques). But in any event the employer would still need actual or constructive knowledge of her disability.
Comments: Other technical issues
There are various other technical aspects of the decision one could comment on:
- For example if the disability was seen as the depression, which resulted in the more severe stammer (this seems to have been the approach taken), under s.15 why was it necessary to know of the particular way in which the disability led to her eg not attending the meeting? See Knowledge of causal link with disability under s.15 EqA. Apparently the claimant argued the stammer was “something arising” from her depression under s.15 (para 152). Should it have been enough for the employer to have actual or constructive knowledge that she was disabled by depression?
- Or if the disability was actually her impairment from the cumulative effect (above) of her conditions, could it be argued the employer can know of that disability without knowing all of its effects, including without knowing stammering effects?
These are thorny issues. Also it is common for people off sick with depression generally to feel unable – at least without adjustments – to attend meetings to discuss their absence and possible dismissal, though she seems to have argued here it was specifically her stammer that kept her away from the meeting.
