The claimant had spinal issues and a stammer. Among other things she alleged that the store manager would not allow her to put her case to him, by speaking over her and completing her sentences. It was undisputed that she was disabled, and the tribunal held that as regards the stammer, the employer had sufficient knowledge of her disability to potentially enable her to claim (comments below). However her disability discrimination claims failed because the tribunal did not accept that the things she alleged happened.
2022, Employment Tribunal. Full tribunal decision (gov.uk).
Facts
The claimant worked in a shop until her resignation, stacking shelves and unloading cages of goods. She had spinal issues, and a stammer. The employer accepted she was disabled after hearing her evidence in an initial hearing. She said she had told the employer on various occasions about her back problem and stammer, but the employer denied this and the tribunal accepted the employer’s evidence that she had not told them.
At the start of June 2020 the claimant asked for time off the following Saturday for her son’s birthday. She became upset when the store manager was unwilling to let her have as much time off as she wanted (para 36).
The claimant said from the beginning of June the store manager pushed her to do work, told her she could not leave on time, and said she was slacking. She said the store manager would not allow her to put her case to him by speaking over her and completing her sentences. She also said he shouted at her on 2nd June (para 37).
The store manager denied all these allegations (para 37), and the tribunal accepted his evidence that this did not happen. On whether she had been allowed to put her case, the tribunal accepted that the claimant may have found the conversation on 2nd June difficult as she was not getting the time off she wanted, and that if she was stressed this may have made her stammer worse. Also the store manager accepted in cross-examination that it possibly could have been more professional to have the conversation in the office instead of on the shop floor. The tribunal accepted too that the claimant became upset after the conversation. However, the tribunal did not find that the store manager shouted at her or prevented her from speaking during the conversation (para 38-39).
The tribunal did accept that a friend of the claimant telephoned the area manager the next day on the claimant’s behalf to raise concerns about what had happened, having witnessed how upset the claimant was after work on the 2nd when her friend picked her up (para 41).
From 3rd June the claimant was signed off sick with stress and low mood. She did not return to work. She resigned on 20th August saying that due to her spinal problem she could not continue in that line of work.
Held: Her disability discrimination claims failed. The tribunal decided she had not told the employer about her stammer, but even so the employer had sufficient knowledge of it. However the tribunal said various things she alleged did not happen, and on her reasonable adjustments claim there was not a “provision criterion or practice” (PCP) of the store manager raising issues with employees generally in a particular way.
Knowledge of disability
Among other things, she claimed for failure to make reasonable adjustments and discrimination arising from disability. For both types of claim the employer had a defence if it did not have actual or constructive knowledge of her disability. (‘Constructive knowledge’ is if the employer could reasonably be expected to know of the disability.)
The claimant said she had told the employer on various occasions about her back problem and stammer, but the tribunal accepted the employer’s evidence that she had not told them. In relation to her spinal issues, the tribunal therefore found that the employer did not know and could not reasonably be expected to know of her disability. However the tribunal found the employer did have sufficient knowledge of her stammer, even though the claimant had not told the employer about it:
In relation to the stammer, we find that the [employer] could reasonably be expected to know that the claimant had the disability. In particular, we have found that her regular difficulty with saying some words would have been evident at interview, when she was stressed and speaking to someone she didn’t know. This would have been sufficient to put [the area manager] on notice that she had a stammer, even if he did not realise this met the legal test of a disability.
Para 64.
Evidence on her stammer included the following:
- Of her initial job interview with the area manager, the claimant said her stammer would have been more obvious at the interview because she was nervous and speaking to someone she didn’t know, which is when it tended to get worse (para 19). The area manager had said he could not remember the interview with the claimant (para 21). The tribunal said it had observed during the hearing that her stammer was affected by stress and speaking to people she didn’t know. The tribunal found that the claimant would sometimes struggle to get some words out during the interview, although it accepted the area manager did not remember this (para 22).
- The claimant also said the store manager would have noticed her stammer. The store manager said that he noticed the claimant on occasion struggled to say some words, with it occasionally taking her 2 or 3 attempts to say a word, but this was not a consistent problem. He said he was not aware that a stammer could be a disability (para 23).
Reasonable adjustment claim
Given that the employer had the required knowledge of her disability, as regards the stammer, the tribunal had to consider whether her claims for failure to make reasonable adjustments and discrimination arising from disability succeeded.
As regards the stammer, her reasonable adjustment complaint related to the store manager’s method of raising issues with employees. She argued this was a “provision, criterion or practice” (PCP) which put her at a disadvantage compared with non-disabled people, so that an adjustment should have been made. Her position was that the store manager should have raised issues with her with a more measured and understanding attitude.
The tribunal said it was unclear what normal “method” of raising issues the claimant was saying the store manager used:
“If this is him talking over her, finishing her sentences, and shouting, then we have found in the facts that this did not happen. We do not find that there was a PCP of [the store manager] raising issues with employees generally in a particular way.”
Discrimination arising from disability (s.15)
The claimant argued various things were discrimination arising from disability, including the store manager not giving her the opportunity to put her case to him.
The tribunal had found these things did not happen, so her claim failed (para 63.
Direct discrimination and harassment
These claims failed as the tribunal found the alleged things did not happen (para 61-62, 68-69).
My comments
I discuss the requirement to have actual or constructive knowledge of the disability at Knowledge of disability.
Comments: Fact-dependent, and telling the employer
Whether an employer who has not been told about a stammer has sufficient knowledge of the disability will depend on the facts. It may be sensible to make sure the employer does know about the disability. In the context of recruitment see Recruitment: Should I tell the employer I stammer?
The decision contrasts with the Industrial Tribunal (Northern Ireland) decision in S v Translink, where an interviewer was found not to have actual or constructive knowledge of the disability despite it being “clear from the evidence and the notes of [the interviewer] that the claimant’s speech impediment was notable.” The interviewer “had no way of knowing whether the stammer was as a result of nerves or a ‘disability’”. Also in that case, unlike the present one (below), knowledge of other staff that he had stammer was not seen as sufficient.
Comments: Constructive knowledge
The tribunal did not say the employer had ‘actual’ knowledge of the disability, but that the employer “could reasonably be expected to know that the claimant had the disability”. In other words the tribunal was apparently saying the employer had ‘constructive knowledge’ of the disability. As to why the tribunal may have put it this way, see Knowledge of disability>Facts of disability: Not necessarily enough to know of the stammer?
Comments: Knowledge of any employee
It does not seem to have mattered to the tribunal if it was the area manager who knew of the disability, even though the alleged discrimination was by the store manager. This is consistent with the EqA Employment Code which says that if an employee or agent of the employer knows, in that capacity, of a worker’s or applicant’s disability, the employer will not usually be able to claim that it does not know of the disability: Knowledge of any employee or agent will normally count.
