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ETZ4(WR)
EMPLOYMENT TRIBUNALS (SCOTLAND)
5 Case No: 4100441 /2020 (V) Held in Edinburgh by Cloud Video Platform (CVP) on 29, 30, 31 March 2021 and 1 April and 28 May 2021 (Deliberation Days) 10 Employment Judge J Young Tribunal Member Ms Lindsay Grime Tribunal Member Mr Adrian Atkinson 15 Mr Conor Adamson Claimant Represented by: Mr T Merck, Solicitor 20 Student Housing Company (Ops) Ltd Respondent Represented by: Mr L Harris of Counsel 25 JUDGMENT OF THE EMPLOYMENT TRIBUNAL 30 The unanimous Judgment of the Employment Tribunal is that the complaint presented to it under section 26 of the Equality Act 2010 is well founded and having considered but taking no action under sections 124(2) (a) and (c) of the Equality Act 2010 orders that the respondent shall pay to the claimant the sum of Nine thousand five hundred pounds (£9,500) as compensation. 35
REASONS
Introduction
- In this case the claimant presented a claim to the Employment Tribunal on 24 January 2020 making various complaints of unlawful discrimination under 5 sections 13; 15; 20/21; 26 and 27 of the Equality Act 2010. That discrimination was based on his disability having been diagnosed with Adult Attention Deficit Hyperactivity Disorder (“Adult ADHD”) on 27 June 2014 and with Autistic Spectrum Disorder (“ASD”) on 8 November 2019. Separately he pursued unlawful deduction of wages in respect of sick pay and holiday pay. 10 At the date of the hearing the claimant continued to be an employee of the respondent.
- In their response the respondent admitted that the claimant was at the relevant time for the purpose of these proceedings, disabled within the 15 meaning of section 6 of the Equality Act 2010 in respect of the diagnoses of Adult ADHD and ASD. All the claims made by the claimant were denied and the lengthy ET3 responded to each of the claims made in detail. That ET contained a plea of time bar. 20 3. Each party completed an Agenda in respect of a preliminary hearing held on 15 May 2020 with a Note of the matters discussed being sent to parties on 26 May 2020. At that time it was envisaged that the final hearing should be “In Person” with appropriate directions being made for the production of documents and the preparation and lodging of witness statements. The Note 25 confirmed that the plea of time bar would be reserved for the final hearing and that acts complained of by the claimant which took place prior to 26 September 2019 would be time barred unless either – (a) they formed part of conduct extending over a period, or 30 (b) the time limit is extended under section 123(1)(b) of the Equality Act 2010
Issues for the Tribunal
- On the morning of the final hearing the Tribunal received the adjusted List of Issues. A draft List of Issues had been provided by the respondent but only 5 adjusted for the claimant and seen by the respondent the day before the hearing. While the respondent indicated that they were grateful for the clarification made on the Issues to be determined by the Tribunal there was a dispute in respect of certain matters now narrated. 10 8. The List of Issues advised that the claimant withdrew (1) the claim of direct discrimination under section 13 of the Equality Act 2010; (2) the failure to make reasonable adjustments under section 20/21 of the Equality Act 2010; (3) the claim of victimisation under section 27 of the Equality Act 201 0 ; and (4) the claims of unlawful deduction of wages under section 13 of the 15 Employment Rights Act 1996.
- Accordingly the remaining issues identified were:- “ Jurisdiction/time bar: 20 (1) Were any acts of discrimination (if proven) that occurred prior to 26 September 2019 part of a continuing act of discrimination after that date? 25 (2) Would it be just and equitable to extend time in respect of any acts of discrimination (if proven) that occurred prior to 26 September 2019 which did not form part of a continuing act of discrimination after that date? 30 Harassment (s26 EqA): (1) Did R engage in unwanted conduct related to C’s disability or related to any developmental or intellectual or other disability that C may or may not have, which had the purpose or effect of
violating C’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for C? (2) C relies on the following acts of “unwanted conduct” 5 (a) Courtney Riley (“CR”) communicating with C by WhatsApp and email and ignoring C when in the office (b), (c), (d), (e) – withdrawn. 10 (f) On a Friday between 19 March and early April 2019 CR said to the claimant “Stop being a fucking idiot and let him in!” in an agitated manner. 15 (g) In mid-June 2019 CR became aggressive throwing his chair back and shouted repeatedly “Do you want beef” to the claimant in an angry and threatening manner. (h) In June to August 2019 CR deliberately allocated 20 plainly unsuitable tasks to the claimant on numerous occasions. (i) On approximately 19 July 2019 CR said of the claimant in his presence “He must be a mongo if he can’t even 25 understand basic text messages”, “pathetic he continues to apply that to administrative job but can’t understand messages”, and “what a fucking retard”. (j) On or shortly prior to 19 July 2019 CR discussed the 30 claimant’s disabilities with his friends he had brought to work. (k) On 12 September 2019, CR called the claimant “mongo” which is a word that disparages individuals
- After discussion on the List of Issues the Tribunal were advised that the claimant would no longer rely on failure to make reasonable adjustments under s20/21 of the Equality Act 2010. 5 Objection to certain issues
- Objection was taken by the respondent to the allegations of harassment made at 2(f) and (k) of the List. It was stated that these were allegations seen for the first time within the claimant’s witness statement received towards the end of the preceding week and within the List of Issues only now produced by 10 the claimant. It was submitted that this case had been proceeding for some considerable time; there had been a lengthy ET1 followed by specific allegations being made on harassment within the Agenda for the Preliminary Hearing; these allegations were not matters that were raised in a complaint by the claimant to the respondent about the behaviour of Courtney Riley (CR) 15 who had now left the employ of the respondent; there was prejudice to the respondent in not being able to investigate the matter; and on the face of it these allegations were out of time and the inability to investigate would undermine application to extend time. 20 12. Additionally the issue at 2(h) was also a difficulty for the respondent as there was no notice in this wide ranging allegation of allocation of any particular tasks which were unsuitable. On this issue Mr Merck advised that in terms of the complaint before the Tribunal reference had been made to the claimant being given tasks of “rotas and budgets” (paragraph 22 of the ET1) and those 25 were the tasks complained of.
- So far as 2(f) and (k) were concerned he referred to paragraph 26 of the ET (R8) which indicated certain occasions when the claimant had been called unpleasant names and this was simply “further particulars”. Also the claimant 30 would not be relying on a “just and equitable” extension of time but on a continuing course of conduct through to the dismissal of the claimant in October 2019 (which was overturned on appeal).
- The Tribunal adjourned to consider the position. They considered on a review of the papers that on the face of matters the allegations at 2(f) and 2(k) were not matters which had been apparently raised by the claimant in the various hearings by way of dismissal, appeal against dismissal and complaint to the 5 respondent regarding the behaviour of Courtney Rily. They had not appeared in the ET1; subsequent agenda prior to preliminary hearing; or made out at the hearing in October 2020. The incident at 2(f) referred to a time when there was simply no previous allegation of any harassment of the claimant. The incident referred to at 2(k) contained an allegation which was 10 particularly offensive and memorable. The Tribunal considered there was prejudice in making these allegations at this very late stage. However they were not so confident to be able to exclude the possibility that there had been notice given to the respondent of these allegations in the course of the various hearings and discussions with the claimant through to October 2019. 15 The paperwork was voluminous and accordingly the Tribunal were not prepared to refuse these matters at 2(f) and (k) as issues but to allow them to remain on the basis that it would be necessary for the claimant to be able to point to an occasion or occasions when these allegations had been made known to the respondent prior to the production of his witness statement and 20 List of Issues.
- So far as 2(h) was concerned there was notice given of tasks on budget and rotas being asked of the claimant. If the evidence strayed beyond those matters and objection raised then such objection could be dealt with at the 25 time. Documentation
- The documentation lodged for the parties consisted of productions entitled 30 “Joint Evidence Bundle” made up of productions for the claimant and productions for the respondent. The claimant’s productions were paginated C1-250 and the productions for the respondents paginated R1-315. Many of these productions were duplicates. Reference to productions in the Judgment
extending to 7 pages. She also answered supplementary questions and questions in cross examination. (5) Joe Stoic, Residence Manager with the respondent based in 5 Newcastle under the brand name Uninest. He adopted as true and accurate his witness statement dated 15 March 2021 extending to 4 pages. He also answered supplementary questions and questions in cross examination. 10 (6) Lynda O’Kelly, Cluster Manager with Uninest Dublin based in Cork. She adopted as true and accurate her witness statement dated 15 March 2021 extending to 2 pages. She also answered supplementary questions and questions in cross examination. 15 (7) Niamh Banks, Cluster Manager with Uninest based in Dublin. She adopted as true and accurate her witness statement dated 15 March 2021 extending to 6 pages. She also answered questions in cross examination. 20 18. From the relevant evidence led, documents produced and admissions made the Tribunal were able to make findings. Given the nature of the proceedings it is necessary to rehearse the evidence to some extent for that purpose. Findings 25
- The respondent manages purpose built student accommodation. It is part of a group of companies within a holding company trading as Global Student Accommodation which operates in the UK and beyond. The respondent trades under the brands of Student Housing Accommodation and Uninest 30 Student Residences. The respondent manages three student accommodation residences in Edinburgh including Brae House which comprises about 422 bedrooms of varying sizes and common areas.
The claimant’s disability
- The claimant was diagnosed on 27 June 2014 with Adult ADHD and then ASD on 8 November 2019 (which condition was suspected prior to that date). It was accepted that at the relevant time for these proceedings the claimant 5 was disabled within the meaning of s6 of the Equality Act 2010. He advised that his condition has the potential to “cause difficulties in attention span, impulsive behaviours and irritability” which can be triggered by stressful or confrontational situations. Additionally the condition could affect an understanding of text/email/typing in that material being misinterpreted or in 10 “not getting the correct meaning”. The agreed list of issues also specified symptoms associated with the condition of ADHD. A letter from Dr Wheeldon, Consultant Psychiatrist of 5 May 2020 (C105) advises that:- “Adult ADHD can have an impact on individuals in terms of effects on 15 their concentration and attention, difficulties with maintaining focus and completing tasks, impulse control and time management. Autistic Spectrum Disorders are typically characterised by difficulties with aspects of language and social interaction, coping with unpredictability and change and understanding non-verbal 20 communication. Both of these disorders would entitle an individual to “reasonable adjustments in the workplace” and typically individuals can perform well with appropriate adjustments in place. During his contact with 25 the services here Mr Adamson had input from occupational therapy to help him develop appropriate skills particularly around communication within social and work situations. Mr Adamson throughout his contact with us highlighted difficulties with mood, anxiety and self-confidence, some of which appear to be in relation to 30 adverse experiences within his workplace”.
“verbal handover” with the Day Facilities Assistant when he arrived for his night shift. Courtney Riley worked day shift and there was little communication between them as the claimant commenced duties. Most communications (unless there was an emergency) were between the 5 claimant and other Facilities Assistants.
- Toward the end on April 2019 the claimant was again interviewed by Courtney Riley and Lyndsay Symmons for the role of Administrative Assistant which had again become available. He was unsuccessful. It was agreed then 10 that he would get support by way of exposure to administrative and finance tasks and systems to develop his skill set.
- Towards the end of May 2019 the claimant covered on a temporary basis for a colleague employed as a Day Facilities Assistant but who was absent due 15 to ill health. The claimant was then due to return to Night Facilities Assistant but subsequently covered for another colleague who was absent on extended bereavement leave. His position as Day Facilities Assistant was not made permanent as he always covered on a temporary basis. That continued until the claimant became absent from work from 11 October 2019 in 20 circumstances later described.
- The claimant requested face to face meetings with his Managers as a preference to communicating by text/WhatsApp and the like. He found that non-verbal communication more difficult given his condition. However he 25 acknowledged that he required to be around the building in his role as a Facilities Assistant which would affect the preference for in person meetings. He also advised that he liked routine and having a structure to his day. Courtney Riley communicating with claimant by WhatsApp and email and ignoring 30 claimant when in the office (2a of issues)
- The claimant required to work around the Brae House building. Around 1 July 2019 a “slack group” was put in place to allow staff to communicate in Brae House which had poor mobile phone reception. A phone was provided
to the claimant to enable him to communicate clearly with others within the group which included Courtney Riley, manager and Lindsay Symmons, area manager. It messaged in a way similar to “Whatsapp”. There was no complaint from the claimant that he did not regard that as a suitable way of 5 communication given his condition.
- If the claimant instigated communication with his manager by text (for example (R104/105) then that was because he or his manager would not be on duty and it would not be possible to get in touch by other means. An 10 example of the claimant being in touch with Courtney Riley by email was when he emailed on 11 July 2019 to advise that he had forgotten about an outpatient appointment arranged and that he would be “in straight after” to which Mr Riley responded “No worries about the appointment. See you when you get in” (R98). 15
- On 12 July 2019 Lindsay Symmons along with Courtney Riley and the claimant held a “60 day check in” being a meeting to review the claimant’s progress. It was noted on the form completed (R99) that the claimant was achieving the required standards. Lindsay Symmon’s considered that the 20 claimant had performed well and was quick at completing tasks. In answer to that section which asked “How is the progress on your objectives? Can you share your highlights? Can you share your challenges? (if any challenges: discuss further/coach on how to overcome these challenges)” it was stated:- 25 “More communication between team members. Happy with support from team members”.
- Approximately 10 days prior to this meeting Lindsay Symmons had a meeting with the claimant when he raised issues concerning Courtney Riley. At that 30 time the claimant had raised various concerns but not that he had been ignored by Courtney Riley. On her visits to Brae House she had spoken to the claimant on a number of occasions but he had not raised any concern of being ignored. Her evidence was that she could “see him (the claimant) communicating – not see Courtney Riley ignore Conor intentionally”. She
Incident on a Friday between 19 March and early April 2019 (2f of issues)
- Not long after the claimant had commenced night shift duties the claimant advised that a friend of Courtney Riley arrived around 1.30am asking for 5 entrance to the building. The claimant refused entry. The individual said that he wished to collect “Courtney’s bag and a birthday cake that had been left in a fridge in the staff office in the kitchen”. The claimant continued to refuse entry and shortly after received a call from Courtney Riley. He could not recall if this was on the facilities phone or his personal number. The claimant 10 advised that Mr Riley had been attending a birthday party for his daughter and was agitated and said words “to the effect of” “stop being a fucking idiot and let him in”. The claimant allowed the friend access to the building and upon collection of the items the friend left. 15 36. The claimant’s position was that he took this to be belittling treatment related to his disabilities. As matters were explored before the Tribunal it became clear that the claimant had never raised this incident until it appeared in his witness statement issued to the respondents around 25 March 2021 and the List of Issues under allegations of harassment sent to the respondent on 20 Sunday 28 March 2021, the day before the final hearing commenced. There was no evidence that the claimant had in the course of his complaint against Courtney Riley ever suggested (as he did in his witness statement) the comment made was directed at him on his disabilities and was “treatment of belittling me” which “became a pattern” in time all related to his disabilities. 25
- It was claimed by the claimant that he had raised this issue with Lindsay Symmons when he met her in early June to complain about the behaviour of Courtney Rily. She denied there was any reference to this incident. 30 38. There was no reference to this incident within the very lengthy ET1 which had been lodged for the claimant at which time he had legal advice. His position was that his disability meant that he had to be asked a direct question before he would narrate such an event. He did not set out this matter in the list of
incidents of harassment within the Agenda for the Preliminary Hearing when had some assistance from a Trade Union advisor.
- On 26 October 2019 the claimant made a written grievance against Courtney 5 Riley making 7 particular allegations. This was not one of them either in the written document or in the interview conducted with him on these complaints (R169 and R195/200).
- This was an issue to which objection was taken. The Tribunal were satisfied it 10 had never been raised and that it was an issue which was raised too late in the day for it to be properly part of the claimant’s case. This was an issue which affected fair disposal of the proceedings given the lack of any notice of this complaint until just before the Hearing commenced. 15 41. In any event the Tribunal did not consider that this allegation was made out as being an issue of harassment. The claimant’s position was that this incident related to his disabilities in being called an “idiot”.
- The Tribunal were not able to assess the evidence of Courtney Riley who did 20 not appear. The claimant indicated in his statement that Courtney Riley had said words “to the effect of” and so was not being definitive about the words spoken. There was then some doubt about the word being used but even if it was the Tribunal did not consider that the claimant took it to be a reference to his disability at the time or thereafter. Given the number of opportunities he 25 had to raise this as an issue and which he never took the Tribunal did not consider that even if the comment was made it was not made with the purpose of violating the claimant’s dignity or had that effect from the claimant’s point of view. The Tribunal considered that the lack of reference to this incident was confirmation that as at March/April 2019 and thereafter the 30 claimant never considered this was an issue that had any effect of violating his dignity or creating an offensive atmosphere. If he had considered it set the scene for belittling treatment of him the Tribunal considered it would have been raised earlier than 2 years from the incident
want beef”. His recollection was that it was “something to do with Conor’s overtime”. His view was it was a disagreement over the issue of overtime which escalated into an argument and at one point Mr Burns had indicated that he didn’t want to be there. 5
- Mr Burns had also given a statement to Mr John Law in his capacity as Trade Union representative for the claimant in the complaint which had been raised against Courtney Riley. In that statement (C84/91) Mr Burns indicated that the incident arose out of “something to do with Conor’s wages or his overtime 10 or something that hadn’t been, it was in the process of being processed. It hadn’t been figured out. Conor was having to reiterate to Courtney to quantify his overtime correctly. To put it into context this was a situation that had happened before in terms of Conor having to repeatedly clarify his overtime with Courtney and several times he had overtime missed from the 15 payroll and had to chase it up afterwards. He was already a little bit frustrated I imagine and with good reason”. The discussion escalated into an argument with Courtney Rily stating to the claimant “Do you want beef”. At this point Mr Burns spoke up loudly to indicate he didn’t want to be involved in this matter and immediately after that the claimant left the room. 20
- In his witness statement Craig Burns referred to 2 occasions when he and the claimant were called in by Courtney Riley to discuss the “claimant’s payroll situation and administrative matters”. On one of these occasions he recalled Courtney Riley challenging “Conor on the points that Conor made about 25 overtime” resulting in an argument and that Courtney Riley “thrust his chest out and then leaned forward across most of the width of the desk pushing his face towards Conor’s face then shouted to Conor “Do you want beef” in a highly aggressive and threatening tone, manner and body language. This was very memorable to me”. Mr Burns then raised his voice “demanding to 30 be excused” and both he and the claimant left.
- The claimant’s position was that he had been asked to do the “rotas and budgets” as “part of a course of conduct by Courtney Rily to get a reaction out of him” and to “bully him” in relation to his ADHD. The balance of the
evidence was that this argument arose out of the treatment of overtime and the processes involved. It was accepted that in the course of this matter Courtney Riley had stood up and in a loud angry way said to the claimant “Do you want beef” The genesis of the argument was more difficult to establish as 5 there were conflicting recollections. On consideration the Tribunal favoured the account given by Mr Burns. They did so because he had on three occasions given an account of the genesis being overtime. Also the evidence from Lyndsay Symmons was that overtime and payment could lead to friction. She confirmed that Courtney Riley was very much “last minute” and that she 10 could understand there being issues on overtime. She also indicated that there were certain differences between the way in which that operated between night shift/day shift and that could well have led to arguments ensuing. It was always frustrating for individuals not to have been included in a payroll run and albeit not always the case that might have been caused by 15 late returns from Mr Riley. Additionally the evidence of the claimant in the complaint raised in October 2019 and interview on that complaint was that he was not sure of the tasks he was being asked to do when this incident occurred. 20 49. The behaviour of Courtney Riley was not in keeping with that of a manager. However the Tribunal did not consider it could be an incident where, as the claimant claimed, he was being deliberately picked on by Courtney Riley to get a reaction out of him and bully him in relation to his ADHD. The Tribunal’s view was that this was an incident on overtime payments which escalated 25 and became heated between the claimant and Courtney Riley but was not related to his ADHD. The Tribunal did not consider it an incident where the claimant was being picked on by Courtney Riley to get a reaction out of him. There was an argument and both became angry. 30 In June/August 2019 Courtney Riley deliberately allocated plainly unsuitable tasks to the claimant on numerous occasions (2g of issues)
- While the Tribunal considered that the incident above did not arise as a result of the claimant being asked to do “rotas and budgets” it accepted that the
