Claimant v Medway Council

The claimant's claim was based on the respondent not satisfactorily responding to her health and safety grievance raised on 23 March 2022. The tribunal found the respondent's response was proportionate and reasonable as the issues were being addressed in the ongoing probationary process. No evidence was adduced that a person without the claimant's disabilities would have been treated differently. The tribunal found no primary facts from which disability discrimination could be inferred.

The claimant bore the burden of proving her claim but adduced no evidence (oral or written) that her race was in any way relevant to or a factor in the treatment she complained of. In closing submissions the claimant conceded that the tribunal had heard no evidence that any of the actions complained about were related to her race. There were no primary facts from which race discrimination could be inferred.

The tribunal found the claimant was given extensive support through supervisions, guidance, action plans, and feedback. The tribunal did not accept several of the claimant's factual allegations, including that she was questioned about her university degree, denied the ability to work from home, or prevented from meeting other ASYE colleagues. Even if treatment had occurred as alleged, the tribunal would have found it was a proportionate means of achieving the respondent's legitimate aims, namely ensuring competent social workers capable of meeting the demands of an important role.

The tribunal found the respondent had implemented virtually all adjustments recommended by professional specialists, including: additional protected time for ASYE work, more frequent supervisions, reduced caseload, periods with no new case allocations, Dragon dictation software and training, specialist equipment, hybrid working, adjusted hours, dedicated quiet workspace, and two formal ASYE extensions totalling 22 months instead of the standard 12. The tribunal was unable to identify any adjustments that would have been reasonable for the respondent to make but which it did not take at an appropriate point.

The tribunal found no evidence that the claimant's disability was questioned at the probationary meeting in May 2022, nor that she was told to complete the work stress risk assessment herself. The tribunal accepted that Marcus Castell's ASYE reports included negative comments about the claimant's progress, but found these were honest, objectively justified assessments balanced with positive feedback. While unwelcome and upsetting to the claimant, it was not reasonable for genuine, evidence-based feedback to have the purpose or effect of violating dignity or creating an intimidating environment.

The claimant adduced no evidence (oral or written) that her race was in any way relevant to or a factor in any unwanted conduct. In closing submissions the claimant conceded that the tribunal had heard no evidence that any of the actions complained about were related to her race.

The respondent accepted the claimant had done protected acts by raising grievances. The tribunal found termination of employment and wage reductions during sick leave were detriments, but found no causative link between these and the protected acts. There was no evidence that whoever was responsible for reducing pay during sickness absence knew of the grievances. Kelly Cogger, who dismissed the claimant, did not know the claimant had raised any grievance. The tribunal found no evidence to support a belief that the conduct occurred because of the protected acts.

The claimant's claim for holiday pay was based on emails at pages 245 and 249. However, when the full email chain was considered, it showed that a period of unauthorised absence between 4-11 July 2022 had been treated as annual leave despite not being authorised. The tribunal found the claimant had been overpaid for outstanding holiday entitlement at termination, which the respondent did not seek to recover. The tribunal was not satisfied the claimant had any untaken annual leave that was not paid in lieu.

The claimant withdrew this claim in final submissions. She explained it was a claim for the difference between what she was actually paid under her final payslip and the amount the respondent reported to Universal Credit. The tribunal found this derived from the claimant's misunderstanding of her Universal Credit award letter.