Disability Discrimination Aspects of the Ruling

Extracts from the ruling

Original paragraph numbers in [square brackets]

JUDGMENT having been sent to the parties on 17 March 2011 and reasons having been requested by the respondent in accordance with Rule 30(5) of the Rules of Procedure 2004.

REASONS

The parties

[1] The claimant, Genevieve Bove (known as Genny Bove), claims disability discrimination and unfair (constructive) dismissal. The respondent is the Association of Voluntary Organisations in Wrexham (known by its acronym AVOW); it is a charity and a company limited by guarantee that is run by a combination of unpaid trustees and salaried officers. Its chief officer since June 2000 has been Mr John Gallanders. The case arises from a relatively short period of time – seven months – during which the claimant worked for the respondent.

The issues

[5.2] She presented her second ET1 claim (2902546/2008) on 30 November 2008, against AVOW only. At that time, she was still employed by the respondent. She alleged disability discrimination. As the facts of this case predate the coming into force of the Equality Act 2010, the relevant law is found in the Disability Discrimination Act 1995 (DDA). On 11 March 2009, following her resignation, she applied to amend her second claim to include a complaint of unfair constructive dismissal. The amendment was granted.

[6] In the disability discrimination claim:

[6.1] The claimant contends that she was (and remains) a disabled person as defined by Section 1(1) DDA. She places reliance for this purpose on the fact that she suffers from migraines. The claimant says that it is a particular feature of her condition that such migraines can be triggered by exposure to fluorescent lighting. While accepting that the claimant suffers from migraines and that they constitute a physical impairment, the respondent does not accept that that they have a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. We are therefore required to determine whether the claimant qualifies under the DDA for protection at all.

[6.2] If the claimant qualifies for protection, the thrust of her claim is that, contrary to Section 4(2)(d) DDA, the respondent failed to make reasonable adjustments because it did not install appropriate lighting. The scope of the duty to adjust is set out in Section 4A DDA and a failure to comply with that duty is defined by Section 3A(2) DDA as a form of discrimination. For its part, the respondent contends that it made such adjustments as were reasonable and that, in any event, the claimant did not properly give those adjustments a chance to work before resigning.

[6.3] The claimant additionally contends that the respondent handled her grievances about the lighting in a manner that constituted direct discrimination (Sections 3A(5) and 4(2)(b) DDA) and victimisation (Sections 4(2)(b) and 55 DDA). The respondent resists those contentions.

[6.4] Finally, the claimant contends that the respondent’s failure to adjust and the other alleged discrimination amounted to conduct entitling her to treat her contract of employment as terminated (Sections 4(2)(d) and 4(5)(b) DDA).

[7] In the unfair (constructive) dismissal claim:

[7.1] This is brought under Sections 94(1), 95(1)(c) and 98 of the Employment Rights Act 1996.

[7.2] The claimant contends that the respondent repudiated her contract of employment by acting in breach of the implied term of mutual trust and confidence. Her eight-page resignation letter catalogued numerous complaints. These included the respondent’s alleged failure to adjust, the manner in which it dealt with her grievances about the TUPE and lighting issues, its alleged inappropriate request for enhanced CRB disclosure and its failure to deal with her complaint against the respondent’s chief officer brought under the “whistleblowing” policy. She has not, however, pursued a separate “whistleblowing” claim under Section 103A ERA.

[7.3] The respondent denies that it committed any fundamental breach. It contends that the claimant voluntarily resigned and that there was no dismissal.

[8] The matters about which the claimant complains also predated the repeal of the statutory procedures on 6 April 2009. However, both parties have proceeded on the basis that no question arises of compliance with those procedures.

The case management history

[36] The document at C1(3) contained a request by Mr Gallanders for advice from Ms Egan about medical reports and whether the claimant could be asked to undergo a Criminal Records Bureau (CRB) check. By this time, the claimant had appealed the rejection of her TUPE grievance and had presented a further grievance about the lack of reasonable adjustments to the lighting arrangements (page 319). She had also sent a statutory DDA questionnaire on the lighting arrangements (pages 95 to 105). As Section 56(2) DDA makes clear, a questionnaire is served “with a view to helping the person aggrieved decide whether to institute proceedings”; it is not a prerequisite to Tribunal proceedings and it does not follow from its service that Tribunal proceedings are more likely. In our industrial experience, questionnaires, like grievances, often lead to the resolution or avoidance of disputes. The important point is that, by this time, the claimant had still made no express threat of litigation. Even taking the statutory questionnaire into account, we do not consider that she made an implied threat of litigation. To the contrary, a proper reading of her correspondence at the time underlines that the claimant was seeking a resolution to her grievance so that she could return to work.

[37] We therefore concluded that the documents at C1(1), C1(2) and C1(3) were not protected by litigation privilege. They were not created for the dominant purpose of litigation that was reasonably contemplated.

Fifth preliminary matter: was the claimant a disabled person?

[48] We deal next with the discrete question of whether, at the material time, the claimant was a disabled person qualifying for protection from discrimination. The material time for purpose is the period during which the alleged discrimination occurred (between 1 August 2008 and 3 March 2009) and not the date of the Hearing; see McDougall v. Richmond Adult Community College [2008] IRLR 227 CA. The claimant bears the burden of proving that she meets that definition; the standard of proof is the balance of probabilities. We will state at the outset that we have been easily persuaded that she was (and, indeed, remains) a disabled person.

[49] Section 1(1) DDA provides that a person has a disability if she has a “physical or mental impairment which has a substantial and long-term adverse effect on [her] ability to carry out normal day-to-day activities”. This definition is subject to supplementary provisions in Schedule 1 DDA, with further assistance found in the Code of Practice issued by the Disability Rights Commission and the Guidance issued by the Secretary of State on “matters to be taken into account in determining questions relation to the definition of disability” (the Guidance).

[50] The words of Section 1(1) DDA require a Tribunal to examine four matters (see Goodwin v. Patent Office [1999] ICR 302 EAT). They are: (1) whether the claimant has an impairment (physical or mental); (2) if she does, whether it adversely affects her ability to carry out normal day-to-day activities; and, if it does, whether that adverse effect is both (3) substantial and (4) long-term (in broad terms, lasting more than 12 months). Underhill P recently confirmed in J v. DLA Piper UK LLP [2010] IRLR 936 EAT that this remains good practice (albeit that it is not always necessary to proceed by rigid consecutive stages).

[51] On these questions, the claimant has adduced the following evidence:

[51.1] Numerous letters and reports from her GP (pages 119, 129, 130 to 131, 138, 139, 296 and 395);

[51.2] Letters from her counsellor (pages 116 to 118 and 132 to 133);

[51.3] Letters and emails from a specialist orthoptist at the Shrewsbury and Telford Hospital (pages 125 to 128 and 134);

[51.4] Copy “sick notes” (examples at pages 135 and 268);

[51.5] Personal accounts of the impact of migraines on her daily life (pages 136 and 137);

[51.6] A document entitled “An introduction to migraine” prepared by the charity “Migraine Action” (pages 142 to 145);

[51.7] An article entitled “Headache Disorders and Public Health” published following a meeting of various medics under the auspices of the World Health Organisation (pages 146 to 156);

[51.8] An article entitled “Migraines: Myth v Reality” produced by the “Migraine Awareness Group” (pages 157 to 164);

[51.9] An article in a medical journal entitled “Prevention of Visual Stress and Migraine with Precision Spectral Filters” (pages 165 to 172);

[51.10] An NHS patient information sheet on Chronic Migraines (pages 173 to 178); and

[51.11] Various articles on fluorescent lighting and its relationship with migraines (pages 179 to 215).

[52] The respondent had instructed an optometrist to examine the claimant and the lighting at its office during her employment. The optometrist had then produced a report (at pages 216 and 217). However, this did not take any further the question of whether the claimant was a disabled person. At the Hearing, the respondent did not adduce any medical evidence of its own and did not challenge the medical evidence adduced by the claimant.

[53] We shall deal in turn with the four matters identified in the Goodwin case.

Impairment

[54] From the evidence before us, we conclude that migraine is a neurological condition involving expansion of the blood vessels in the brain and inflammation of the surrounding tissue. Different people experience different symptoms, but the most common symptoms are nausea, vomiting, numbness, head pain, auras and heightened sensory perception (with increased sensitivity to light, sound, smell, taste and touch). To characterise a migraine simply as a “bad headache” both trivialises the condition and confuses it with one its symptoms. The condition affects people with different levels of frequency and severity, with some suffering chronically. Sufferers are symptom-free between attacks. According to the charity Migraine Action, it affects over six million people in the UK and is more prevalent than asthma, epilepsy and diabetes combined (page 143). Two-thirds of sufferers are women. Yet the condition remains poorly understood; its cause is unknown.

[55] There has been a great deal of research on factors that may trigger a migraine. From the literature we have been invited to read, these appear to include uncontrollable triggers (such as atmospheric pressure, weather patterns and menstruation) and controllable triggers (bright light, chemical smells, secondary smoke and particular types of food and alcohol). The triggers can work in combination and a migraineur will usually seek to manage the condition by avoiding controllable triggers.

[56] The diagnostic evidence from claimant’s GP is unequivocal in confirming both that she suffers from migraines and that, in her particular case, they can be triggered by fluorescent lighting. In a medical report dated 11 January 2010, her GP wrote: “There is a definite link between migraine and fluorescent strip lights and there is evidence available to substantiate this”. The respondent has not challenged this assertion or adduced any evidence to contradict it, and we do not need to see the evidence to which the claimant’s GP refers in order to defer to his medical view. We accept it entirely.

[57] We also accept the claimant’s evidence that she has suffered with migraines (but not chronic migraines) since puberty and that she has sought medical and orthoptic advice since 2005 when she first suspected that fluorescent lighting and bright spotlights acted as a particular trigger in her case. We also accept her evidence that she suffers a migraine on average once every couple of months, although it is variable. Her symptoms are usually headache, neck pain, nausea, light and sound sensitivity, aura and, in a bad attack, uncontrollable shivering and diarrhoea. Furthermore, we accept her evidence that she can tolerate fluorescent lighting better when she is facing a window with good natural light. Her much preferred internal lighting, if natural light is not feasible, comes from incandescent bulbs.

[58] The technology involved in fluorescent lighting has developed over the years, away from older strip versions omitting a hum and flicker towards modern “friendlier” versions which better replicate daylight and come in both strip and bulb form. For some migraineurs, the impact of fluorescent lighting can also be reduced by custom-made tinted spectacles. The claimant’s experience has been that the more modern daylight tubes can still trigger a migraine and that tinted spectacles delay rather than prevent the onset of an attack. We take what she has told us at face value. In circumstances where the causes and triggers of migraine remain poorly understood even by neurologists, it would be unreasonable to expect the claimant to adduce medical evidence demonstrating that the friendlier tubes and tinted glasses can still trigger a migraine attack. It is enough for us to note that her hospital orthoptist recognises that they “do not give complete relief from her symptoms” (page 125).

Adverse effect on normal day-to-day activities

[59] We have read carefully the claimant’s “impact statement” at pages 136 to 137. In our judgment, in her case, a migraine affects three of the capacities listed at paragraph 4(1) of Schedule 1 DDA:

[59.1] First, mobility (paragraph 4(1)(a)). The claimant gave unchallenged evidence that, when she experiences a migraine in circumstances where a “point of no return” has passed, she will need to go to bed in a quiet, darkened room, the purpose being to ameliorate her heightened sensitivity to light and sound. Depending upon the severity of the attack, this may last for several hours or a couple of days. For obvious reasons, the claimant is immobile during these episodes; as just two examples, she would be unable to go out shopping or engage in social activities.

[59.2] Secondly, hearing and eyesight (paragraph 4(1)(f)). The claimant gave unchallenged evidence that migraines cause her to experience heightened sensitivity to light and sound and visual aura.

[59.3] Thirdly, the ability to concentrate (paragraph 4(1)(g)). The claimant gave unchallenged evidence that, during an attack, she cannot undertake activities that would require a degree of concentration. This includes internal activities such as reading, holding a normal conversation or listening to music and external activities such as shopping, driving and working.

[60] We were easily persuaded that the claimant’s condition impacts upon her ability to carry out normal day-to-day activities. Clearly, during an attack, that ability is greatly restricted.

Substantial

[61] Having accepted that the claimant had a physical impairment which adversely affected her ability to carry out normal day-to-day activities, we next addressed whether that effect was substantial. In this context, “substantial” bears the meaning “more than minor or trivial”.

[62] Ms Bibi asked the claimant some questions about her general ability to undertake tasks such as shopping under strip lighting and driving at night. However, we do not assess the impact of the claimant’s condition only during the periods between attacks when she is symptom-free; we must look at how it affects her life as a whole, including during the attacks themselves. Taking that approach, we were easily persuaded that the effect of having migraines is more than minor or trivial. They are very painful and highly disabling.

Long-term

[63] Paragraph 2(1) of Schedule 1 DDA sets out the approach we must take when assessing whether the adverse effects of the claimant’s condition are or were long-term: specifically, in her case, we assess whether, at the material time, her migraines had lasted at least 12 months or were likely to last at least 12 months. We have accepted her evidence that she has experienced migraines since puberty. Her GP has helped her to manage the condition since 2005. In those circumstances, we were easily persuaded that the claimant’s condition could be classified as long-term.

[64] Before leaving the issue, we wish to point out paragraph 14 of the order of Employment Judge Reed following the CMD on 2 March 2009. He wrote this:

Provided the Claimant can satisfy the Tribunal that she does indeed have migraines (and it is difficult to see what expert opinion can assist on the determination of that question although of course the Respondents are entitled to access the Claimant’s GP records to satisfy themselves that she has brought this to the attention of her doctor) then on the face of it the only issue for the Tribunal will be the effect of her condition on her ability to undertake day-to-day activities. On the face of it, that is a matter that can only sensibly be addressed on the oral testimony of the Claimant herself.

[65] The claimant had in fact volunteered that testimony by preparing an “impact statement”, dated 16 October 2009, which she sent to the respondent. It contained her evidence regarding the effect of migraines on her ability to carry out normal day-to-day activities. The respondent maintained that the claimant was not a disabled person yet did not challenge what she said her in impact statement, either prior to the Hearing or during cross-examination. If it was not going to challenge her in this respect, it should have conceded the point. It was unreasonable not to do so. It added unnecessarily to the issues in dispute, the size of the bundle and the length of the Hearing.

Findings of fact

Claimant’s employment by DVSC

[68] The claimant’s manager for most of this time was Carys Williams. Ms Williams gave us unchallenged evidence that DVSC was fully aware that the claimant suffered from migraines and had no difficulty making “informal” arrangements by which the fluorescent strip lighting in the office was simply replaced with desk lamps and a standard lamp using incandescent lighting. She recalled that the entire cost of the arrangements came to £20, which she met from petty cash. Given the limited steps that were involved, this sum seemed about right to us.

Brief period of employment by the respondent in July 2007

[69] On 7 May 2007, while working for DVSC, the claimant applied to the respondent for a part-time job as a Direct Payments Support Worker. “Direct payments” are sums of money paid by local authorities to people receiving social care services (instead of the local authority providing the service directly).

[70] The claimant’s application was successful. On 4 June 2007, she completed a pre-employment medical questionnaire for the AVOW job (pages 140-141). In answer to the question “Do you consider yourself to have a disability?” she wrote “Not sure” and volunteered the following information:

I suffer from migraines, the main trigger for which is exposure to fluorescent lighting. I can generally tolerate fluorescent lights fairly well provided that I’m facing a window with good natural light. Bright spotlights can also cause me problems.

[71] Prior to starting, the claimant had a number of telephone conversations with Becky Davies, an administrator for the respondent who had offered her the role. The claimant gave unchallenged evidence that she sought and received from Ms Davies reassurances that the lighting situation would be “sorted out” and a number of solutions were discussed.

[72] The claimant duly started the role on 2 July 2007. It was not a happy experience. She arrived to find all the fluorescent lights were switched on and that her workstation was not by a window. For any other person who did not suffer with migraines as the claimant, these physical arrangements would have involved no disadvantage. For the claimant, they did. When she tried to negotiate turning off the lights, another employee complained. (Not without justification – that other employee had Seasonal Adjustment Disorder and wanted the lights kept on; such are the practical difficulties that employers may encounter from time to time when balancing the needs of one employee with the needs of another.) The claimant left work at lunchtime, with nausea and head pain. It developed into her first full migraine for some time.

[73] Two days later, the claimant attended a meeting with Mr Gallanders and Ms Ross where they discussed the respondent’s dress code and the lighting arrangements for the office. During this meeting, Mr Gallanders said “But what did you expect in an office? All offices have fluorescent lights. I don’t see how we can ensure that you don’t get exposed to them”. The claimant was not challenged about her recollection of this remark and indeed Mr Gallanders accepted saying something along those lines. It was an insensitive thing to say and it demonstrated a lack of understanding of the claimant’s condition.

[74] After the meeting, Ms Ross wrote to the claimant in the following terms (page 242):

As I agreed with you this morning I can arrange for the tubes in the lights at your end of the office to be changed for those which are regarded as daylight tubes. I hope this will help the situation. However, as discussed, you work in a shared office where other members of staff have other lighting requirements. You said that you appreciate the difficulties of this situation. AVOW will not be able to control the lighting arrangements in many of the rooms in which you will have to work. These will include people’s homes and meeting rooms.

… while AVOW is prepared to change the lighting tubes in your work area it is difficult for us to control lighting in other areas. You have been unable to come up with any suggestions for how we may be able to accommodate your needs while remaining fair to others with whom you are working.

[75] It was clear from this letter that Ms Ross thought it was the claimant’s responsibility to come up with suggested adjustments rather than the respondent’s obligation, where reasonable, to make them. The simplest solution was to use incandescent lighting but this was considered “difficult”.

[76] The claimant replied the following day and resigned with immediate effect (pages 243-245). It would be fair to describe the claimant as someone who prefers to make her points in correspondence: her letters are intelligent and articulate but often very long. This was the first of many such letters in the bundle. Her reply dealt with both the dress code and, at greater length, the lighting issue. There are two points in particular we drew from this letter: first, the claimant repeated that only incandescent or low energy bulbs would offer a “guaranteed solution which would totally solve the problem in the office and meet everyone’s need for light”; secondly, she would have been prepared to look at daylight tubes as an “interim solution” but not in circumstances where only the ones above her desk were changed. She made clear that one of the reasons for her resignation was the lack of “any commitment by senior management to take responsibility for resolving the lighting issue” and in particular Mr Gallanders’ insensitive remark.

[77] Ms Ross wished to treat the claimant’s resignation letter as a formal grievance (page 247). This was followed by protracted correspondence, the thrust of which was that the claimant did not wish to pursue a grievance or an Employment Tribunal claim but wanted the respondent to “understand its responsibilities under the Disability Discrimination Act”. Eventually, Mr Peter Webber (then chair of trustees) said that he had “closed the matter” in view of the claimant’s desire not to pursue a grievance (page 262). We have included the incident in our judgment by way of background; it tells us quite a bit about the characters of both the claimant and Mr Gallanders and offers an explanation for why, as we shall see, Mr Gallanders took against the claimant at an early stage.

Confusion over claimant’s status (and first example of bad faith)

[81] Mr Gallanders was unhappy about the claimant transferring to the respondent’s employment. Irrespective of the shifting advice over whether or not her employment was protected by TUPE, he simply did not want to take her on. This is shown most clearly in his note to his advisers on 29 July 2008 (document C1(1), which we found not to be covered by litigation privilege):

Having had difficulties with employing Genevieve Bove in the past, and having received complaints about poor performance in her current role from Carers accessing the service, we do not feel that she has the skills and qualification to effectively carry out a Carer Support Worker role. Through an open recruitment process it is unlikely that she would be offered an interview.

[82] Mr Gallanders accepted that he wrote this note at the time and he gave evidence to us on what he meant by it. His evidence was unsatisfactory. He was unable to give a single example of a complaint about the claimant’s “poor performance”. He could not recollect whether the complaints to which he had referred came from carers or the Council. When pressed by the claimant to specify the skills she lacked, he was vague. He could offer no criticism of her qualifications. He at first suggested that his remarks reflected a “subjective assessment done at the time, based on comments in the general context of Wrexham Council”. When asked to clarify his remark, he said it was “more to do with interpersonal skills. I can’t say precisely why it was written in that way”.

[83] We find as a fact that the real issue playing on Mr Gallanders’ mind – and his real reason for not wanting to work with the claimant – was his previous experience of “difficulties” in employing her. We are clear that this is a reference to her previous grievance, which was in large measure about alleged disability discrimination. The reference to her lack of skills and qualifications was a smokescreen.

[84] It is tempting to construct, at this stage at least, a narrative sympathetic to Mr Gallanders. His last experience of the claimant had involved a few days’ work, in return for which he faced a complaint about discriminatory lighting and quite a bit of hassle. And here she was again: her name had appeared as a transferring employee and she had not even joined his workforce before bringing another grievance. However, such a narrative would be unfair and overlook the point that both of the claimant’s grievances had been brought in good faith and were legitimate: the respondent had failed to make proper adjustments in July 2007 and, more recently, it had caused her unnecessary confusion over the application of TUPE.

[85] In any event, upon advice, Mr Gallanders accepted that the claimant’s employment did have to transfer to the respondent under TUPE. We are clear that he took her on only because he was advised that he had to do so, despite his preferences to the contrary. We are also clear that, from this point on, he acted towards the claimant in bad faith.

Risk assessment

[86] On 12 July 2008, around the same time, Mr Gallanders conducted a risk assessment (pages 274 to 275), due to be reviewed in September 2008. The person(s) at risk were said to be “General Staff”. Mr Gallanders had not discussed the claimant’s needs with her directly. On the subject of lighting, he wrote: “All fluorescent light tubes have been replaced with a daylight colour to create a more natural colour. All tubes are operational with no noticeable flicker”.

[87] On the face of it, this might have seemed an appropriate adjustment to make. Our industrial experience is that, in many offices up and down the country, fluorescent light tubes have been replaced with a “friendlier” variety that better simulates natural light and neither “flickers” nor emits the “hum” of old.

[88] However, that would overlook the point that it was not an appropriate adjustment for the claimant. As we noted above, her particular experience was that these modern “daylight” tubes could still trigger a migraine; indeed, she had also found that wearing tinted spectacles delayed rather than prevented the onset of an attack. This was why she wished to work by a window with natural light and, failing that, in a room with incandescent lighting. Despite dealing with a condition that was poorly understood, Mr Gallanders did not consult the claimant about the matter and did not seek expert input. Instead, he became entrenched in his view that the installation of daylight tubes was all that was needed and that his assessment of risk was therefore suitable and sufficient.

Claimant goes off sick

[89] On 28 July 2008, the claimant was signed off work sick for a week with a stress-related illness (page 286). By letter dated 1 August 2008, she maintained her grievance over the manner in which the TUPE issue had been handled (page 294). On 4 August 2008, she informed the respondent that she had been signed off sick for another month (page 297). The sick note said “stress” (page 298). In her accompanying letter to Mr Gallanders, she said the following:

I enclose a letter from my GP about my migraines and exposure to fluorescent lighting.

Because of this condition, I do not believe that I will be able to work for extended periods in an office with no natural light, even if ‘daylight’ fluorescent lighting has been installed. To date, I have found no fluorescent strip lighting – including that which is supposed to be better for people with fluorescent light sensitivity – which has not caused me to suffer with migraines. Very bright spot lighting can also trigger attacks.

I would like to suggest as a possible solution that I have a desk in the second, smaller office/meeting room to be used by the Carers service, which has large windows and good natural light. I believe that this room is not currently used in the mornings.

[90] Importantly, accompanying her letter was a separate note dated 1 August 2008 from Dr Willis, her GP, saying this (page 296):

[The claimant] suffers with migraine, which at times is triggered by fluorescent lighting. Consequently in her case, it is advisable to reduce exposure to this form as lighting as much as possible to reduce risk of her developing further episodes of migraine. Any measures that can be undertaken to achieve this would clearly be of significant benefit.

Further discussion about lighting arrangements

[93] It is material to note that, after this grievance meeting, the claimant had a discussion afterwards with Rachel Ross, the respondent’s deputy chief officer. Ms Ross’ notes of that discussion (at pages 313 to 314) record this:

[The claimant] said that because of lighting in the , she doesn’t think it will be suitable – there is no natural daylight. If she is out and about it may be ok.

[The claimant] asked [Ms Ross] if she had any suggestions; [Ms Ross] said that if improved lighting helps we would look into that; also that [the claimant] should manage her time so that she is not based in the office for long periods of time.

[The claimant] stated that daily fluorescent bulbs which are in use now – if she has an induction for two or more hours, will probably end up in a migraine. She is aware from past experience that poor lighting will be a major contribution to migraine. It is not a huge problem and can be managed but not with the room as it is. Incandescent lights are ok, very bright lights cause a problem. [The claimant] says that she does not want to be in a situation where she knows she will get a migraine. [Ms Ross] said that we need to manage the office time, and that there is no other office space available. It is not practical to use the little office next door. [The claimant] felt that replacing the lights with low energy or others which do not disagree with her will be the only suitable option. [Ms Ross] said that we will look into that but the room has just been refurbished [at] significant cost so we will need to look into that issue.

[94] There was also a discussion about the prospect of the claimant returning to work the following week. Ms Ross noted that claimant stated that she did not think it would be possible for her “to come in and not get a migraine” (page 314).

[95] The claimant followed up her meeting with Ms Ross with an email in which she said the following (page 315):

I am sorry to hear that the small meeting room is now very booked up, as I understood from our meeting on 16 July that it was generally available every morning and would be used as a place to meet with Carers who call in at the office. As I explained earlier, this would be an ideal place for me to work for the hours that I am in the office, as it has good natural light. I would not envisage any problems working in the main office allocated for the Carers service if standard domestic low energy light bulbs are installed. In the [DVSC] NEWCIS office, we used a couple of standard lamps fitted with low energy light bulbs, although the lack of windows in the AVOW office might mean that more would be needed to give sufficient illumination. As I said in the meeting, I would be prepared to work mainly from home until suitable lighting arrangements can be made.

[96] She also wrote (page 317):

I was very disappointed that the only suggestion made by yourselves at our meeting yesterday was that no adjustments would need to be made as I would not be in the office very much. Having worked for the Carers Information Service at NEWCIS [DVSC], I know that a certain amount of time will be spent in the office, taking phone calls, meeting Carers and dealing with inquiries for instance. If I am exposed to fluorescent lights in a windowless office during this time, then I will be at a substantial disadvantage compared with my colleagues, and will not be able to carry out my work effectively.

[97] As can be seen, the claimant could not have been clearer in specifying the physical feature of the working environment that placed her at a substantial disadvantage in comparison with her colleagues (and, in particular, the unsuitability of “daylight” tubes), the nature of that disadvantage (her susceptibility to migraines) and the adjustment she was seeking from the respondent to alleviate it (a mixture of natural and incandescent lighting – an adjustment that her previous employer, prior to the TUPE transfer, had made at a cost of only £20). Pending the adjustment being made, she remained off sick.

[98] The claimant asked for a response by Friday 5 September 2008, so that she could discuss it with her GP during her next appointment on Monday 8 September 2008. She set a rather tight (but not unreasonable) deadline for a response.

The DDA grievance

[99] The claimant received no acknowledgment. Accordingly, on 9 September 2008, she raised the issue about lighting as a formal grievance (page 319). This became known in due course as the “DDA grievance”. The thrust of her complaint was set out in an accompanying DDA questionnaire (pages 95 to 105, especially 102 to 104): in essence, she contended that the lack of any TUPE consultation meant that she had not been asked specifically about the lighting arrangements in the office and that the respondent had failed to comply with its duty to make reasonable adjustments.

[100] On behalf of the respondent, Mr Gallanders replied to the questionnaire (pages 106 to 115). His reply underlined the respondent’s position that it already had made a reasonable adjustment after installing “daylight” tubes following the experience of employing her in July 2007.

[101] In parts, Mr Gallanders’ reading of the medical evidence (as set out in the reply to the questionnaire) revealed a rather pernickety approach. For example, in his letter to the respondent dated 1 August 2008, Dr Willis had observed that the claimant’s migraines were “at times … triggered by fluorescent lighting”. Mr Gallanders’ observation was that “it does not say at all times” (page 113); this reply spoke volumes of his lack of understanding of migraines, seeing it wrongly as an “all or nothing” condition.

The TUPE grievance: the response and the claimant’s appeal

[103] In a letter to Mr John Davies (chair of trustees) dated 16 September 2008, the claimant appealed Ms Ross’ decision (pages 321 to 322). She did so because, in her view, it did not deal with all the concerns she had raised; she wanted “to understand why things happened as they did” rather than receive a “blanket apology”. She also confirmed that she was still awaiting a reply about her concerns with the lighting after Ms Ross had confirmed that she would be “look into the issue”.

Disclosure of the C1(1) document

[110] We have introduced this issue at this stage because the true explanation for the respondent’s actions [request for CRB check] is revealed by an email that Mr Gallanders sent his adviser at RBS Mentor, Ms Egan, on 19 September 2008 (and copied to Ms Ross). The email was at page C1(3) of the C1 bundle; this, it may be recalled, was a document we found not to be covered by litigation privilege (or, alternatively, a document for which any such privilege had been waived). In this email, Mr Gallanders wrote (with our emphasis):

Following on from your discussion re [the claimant] and access to her medical records – if her issue about migraines – she says it is lighting but there has never been any indication that this could actually be to do with the use of a computer. We have a policy here that anyone working on a computer is offered eye testing. If we are trying to now be awkward to her by asking for the medical reports can we actually insist on her going for a VDU workplace eye test whilst she is still on the sick.

We would also require a CRB for the position she is supposed to be doing. – are we ok to start this process of getting the correct id etc from her. It might be a long shot but there may be something that shows up in this which may indicate she is unstable for the job.

[112] We reject his evidence. The reality, we find, was simply that Mr Gallanders was fed up of the claimant and wanted to find a reason to get rid of her, whether that came through medical reports casting doubt upon the truth of her migraines or, worse, by trying to dig up dirt with a belated enhanced CRB check. We know that the respondent categorised the claimant in its pleadings as something of an “eco-warrior” (its term, not ours, at page 85); local police cautions and so on arising from her protest activity would only have shown up in an enhanced CRB check. That is the material the respondent was looking for and it had nothing to do with the claimant’s ability to do her job. If we had not concluded earlier that he was acting towards the claimant in bad faith, we would have concluded it from this point. In frank terms, this email lets the cat out of the bag; it demonstrates that, from this point, Mr Gallanders was not looking for a solution to the problem that involved retaining the claimant as an employee, but was instead looking for a solution that involved losing her as an employee.

The TUPE grievance: further letter (and third example of bad faith)

[114] On 26 September 2008, a letter was sent to the claimant in the name of John Davies; he had now taken over as chair of the respondent’s board of trustees (pages 334 to 336). The ostensible purpose of the letter was to respond to her appeal against the rejection of her TUPE grievance. There had been no further appeal meeting as such; Mr Davies wrote that he was answering questions that Ms Ross had not answered in her earlier letter. He then gave the claimant an opportunity to request an appeal hearing if she chose. It was certainly a fuller response and Mr Davies repeated the apology Ms Ross had given, although he added: “we are at a loss to [know] what you are now looking for”. In the same letter, he sought permission to contact the claimant’s GP in order to obtain medical information relevant to what was now being described as “the DDA grievance”.

[115] However, there was a major problem with this letter. Mr Davies had not written it. He had not even seen it. He told us so himself at the Hearing and we accept his evidence. He explained that the first time he had seen this letter was when it was shown to him on 17 January 2011. This was when he learned for the first time that the claimant had brought Tribunal proceedings. He was asked to sign a witness statement referring to this letter and he refused, signing an amended version instead. The true author of the letter is revealed by the signature it bears: Mr Gallanders.

[116] We regret to say that this demonstrates the extent to which Mr Gallanders was manipulating the organisation of which he was the chief officer. The role of the trustees of a charity is to take ultimate responsibility for its management and administration. The respondent was also incorporated (as a company limited by guarantee) and so, presumably, its trustees held office as directors and had fiduciary duties to the respondent. A chair of trustees such as Mr Davies would have great authority to speak on its behalf. The members of the Tribunal, who have all had personal experience as trustees of charitable organisations, think it was reprehensible for Mr Gallanders (who was not himself a trustee) to write a letter in Mr Davies’ name, without his consent, giving the deliberate impression that the chair of trustees was “at a loss” to know what the claimant was looking for. It was a further act of bad faith on his part and reflected his desire that the claimant should not work for the respondent. It was also an abuse of his position as chief officer.

Further request for reasonable adjustment

[119] By letter dated 1 October 2008, the claimant gave the respondent permission to request a medical report from her GP (pages 342 and 344). She wrote that her stress-related sickness resulted from the respondent’s handling of the TUPE issue and matters connected with her father’s recent stroke. Importantly, however, she added:

Another major contributor to the stress I am currently suffering is the ongoing unresolved situation re lighting in the office. I am finding it hard to understand why this cannot be quickly and easily resolved, as it has not presented insurmountable difficulties in my last three places of work … Although cost has been cited as an obstacle to changing the light fittings in the office used by the Carers service, I note that you are now considering planning cover for my continued absence, which will surely be very costly. As I explained in 2007, and again on 3 September, funding is available to assist employers to make ‘reasonable adjustments’.

The DDA grievance: first meeting (and fourth example of bad faith)

[120] There is a document in the bundle bearing the print date of 27 April 2009 but which the parties agree was created on 1 October 2008. It is a briefing note from Mr Gallanders to Ms Barbara Roxburgh and Mr Ken Jones, two further trustees selected to hear the claimant’s DDA grievance on the respondent’s premises in a week’s time (pages 349 to 350). The claimant had not (at this stage) brought a grievance directly against Mr Gallanders, so there was nothing wrong in principle with his preparation of a briefing note to Ms Roxburgh and Mr Jones.

[121] Since his last experience with the claimant in 2007, Mr Gallanders had arranged for the respondent’s office to use “daylight” fluorescent tubes rather than the older variety about which the claimant had previously complained. He had also arranged for the tubes directly above the claimant’s desk to be removed. As we discussed above in the context of his reply to the claimant’s DDA questionnaire, he held the view that the respondent had made a reasonable adjustment. He had not appreciated, however, that the claimant also had a problem with the “daylight” variety. Indeed, he became rather fixated on the fact that the claimant had not even tried out the “daylight” tubes before going off sick, entirely missing the point that she had fully discussed her problems with this alternative form of fluorescent lighting at her meeting with Ms Ross on 3 September 2008. In his briefing note to Ms Roxburgh and Mr Jones, Mr Gallanders told them that the claimant “would not have been aware that we had made the ‘reasonable adjustments’ re the lighting in the room” until having received his reply to her questionnaire a few days earlier.

[122] Mr Gallanders’ next step was to set up a little experiment: without the claimant’s consent, he decided to use the forthcoming DDA grievance meeting as a test of how she would react to the “daylight” tubes. In the fourth paragraph of his briefing note to Ms Roxburgh and Mr Jones, he wrote:

Can I suggest that the meeting is conduced [sic] in the Carers room with Barbara and Ken sitting behind the table, which is located in the area where the fluorescent lights have been turned off? This will mean that [the claimant] is facing the wall, which is likely to be her working space. This is to give her adequate time to actually ‘experience’ the adjusted lighting in the room. If she requests that the meeting is stopped due to the lighting she should be asked ‘How long will it be before she feels she can resume?’ if she cannot resume could you clarify with her what additional information she would like to provide before the meeting is terminated. (This will be a vital bit of information for us to log precisely what time the meeting started and what time it ended as we are aware that she does go into various meetings which are lit only be [sic] fluorescent lighting).

[123] The note ended with a specific request to a colleague “to vacate the office” and for Darren Tomkins, another employee, “to move the tables and chairs to arrange as appropriate”. We should also point out that the carers’ room had no external window; its only window was in the door leading to the internal corridor.

[124] To underline the point: Mr Gallanders deliberately decided to hold the DDA grievance meeting in circumstances that the claimant had previously said would risk triggering a migraine, and he did not tell her that he was doing so. All three members of the Tribunal found this shocking, not a word we use lightly. As we repeat in our conclusions, it was an experiment carried out without the claimant’s knowledge or consent and which exposed her to the risk of pain. When asked by the Tribunal why he took this step, he told us that it was “a chance to assess the lighting in the room”. We firmly reject this explanation. If that were his intention, he could easily have discussed it in advance with the claimant. But instead of being upfront about it, he went about it in a way designed to catch her by surprise. What, then, was his motivation? We have already concluded that, by this stage, Mr Gallanders was looking for an opportunity to get rid of the claimant; also, in his own words, he was “trying to be awkward”. Against that background, we consider that the likeliest explanation is that he was trying to engineer a situation where he could say that the claimant had acted unreasonably by refusing even to try out the new lighting arrangements. We reject the even less generous interpretation that he was deliberately trying to cause injury to the claimant, but we still consider it a further example of his bad faith.

[125] On 3 October 2008, Mr Gallanders wrote to Dr Willis, the claimant’s GP (pages 354 to 355). His letter sought information on adjustments that might be made and, in circumstances where we had not already concluded that he was acting in bad faith, its contents would have otherwise appeared perfectly reasonable (although his question “What is wrong with Genevieve Bove?” might have benefited from more sensitive drafting).

[126] The DDA grievance meeting took place on 7 October 2008. The claimant was accompanied by Ms Helen Webster. The claimant took minutes of the meeting (pages 365 to 367) as did the trustees (pages 368 to 374). The claimant subsequently amended the trustees’ minutes and we accept that the amended version is the more accurate reflection of what was discussed.

[127] The minutes record that, “[o]n entering the office, it became apparent that the only available lighting was the overhead fluorescent lights which [the claimant] had already made clear were problematic for her and which were, in fact, the subject of this grievance meeting” (page 368). We accept the claimant’s evidence, corroborated by Ms Webster, that she asked Ms Roxburgh and Mr Jones if there was another meeting room available with different lighting and was told that there was none. We also accept her evidence that she then explained that she had brought some desk lamps with her and could plug these in so that the meeting could go ahead with the fluorescent lights switched off. Finally, we accept her evidence that Ms Roxburgh and Mr Jones then told her, without checking, that another room was available after all. They then moved to an adjacent meeting room with the lights turned off. Neither Ms Roxburgh nor Mr Jones attended the Tribunal to give evidence, but we consider that the likeliest explanation for their initial reluctance to change the lighting environment for the meeting was that they were seeking to comply with Mr Gallanders’ instructions.

[128] The meeting duly went ahead and there was a full discussion of the claimant’s concerns. The minutes conclude with the following remark from Mr Jones (page 374):

Ken Jones concluded that daylight bulbs still seemed unhelpful to [the claimant], and the use of ordinary light fittings with incandescent bulbs were in her opinion the solution to the problem. Ken stated that, effectively, although AVOW had made efforts, obviously this still does not meet with what [the claimant] needs to do the job.

[129] On 8 October 2008, the claimant sent an email to Ms Ross and Mr Gallanders in which she complained about the unsuitable room chosen for the grievance meeting (page 375). She wrote:

You had not consulted me before making the adjustment (of removing two of the six fluorescent strips in the room) to see if this would be suitable. Fluorescent strips, even the ‘daylight’ ones, are not suitable. This is even more of a problem where there is no, or hardly any, natural light available in the room …

There was no additional lighting available in that room yesterday, but even if there had been, to plan a grievance meeting in a room lit in a manner which you know causes me problems and which is the subject of the same unresolved grievance, is totally unacceptable. It is akin to holding a meeting for a mobility impaired person, who has been having trouble with stairs at work, in an upstairs room with no lift access.

For our part, we consider that the claimant’s analogy is accurate.

[130] On 13 October 2008, Ms Ross wrote to the claimant regarding the arrangements for her TUPE appeal meeting. The same day, the claimant replied: “I don’t mind where the appeal meeting is held, so long as the lighting is suitable” (page 379).

The DDA grievance: the response and the claimant’s appeal

[131] On 14 October 2008, the claimant received a response to her DDA grievance (pages 381 to 382). Once again, it is noteworthy that the letter did not bear the name of the two trustees who ostensibly heard her grievance. It was written and signed by Ms Ross in the first person. She had not even been at the grievance meeting. It further supports our interpretation that Mr Gallanders and Ms Ross were usurping the role of the trustees. It is also noteworthy that the letter was composed before the respondent had heard back from Dr Willis.

[132] As for the lighting arrangements for the meeting, Ms Ross wrote: “It was considered a reasonable investigative measure to have part of the meeting in room 16a to allow you the opportunity to experience the new lighting. You were unwilling to try to hold even part of the meeting in the office.” As to the grievance as a whole, she wrote: “I have come to the outcome that AVOW has done everything reasonable at this stage in respect of the lighting in the office”.

[133] On the claimant’s specific request for incandescent lighting, Ms Ross wrote: “you have suggested that use of ordinary light fittings with energy saving light bulbs, however, due to the unknown success of this, we do not consider it reasonable at this stage”. This answer made little sense. Ms Ross did not explain in her letter why she had decided that such alternative lighting arrangements would have “unknown success”. She did not explain why such lighting could not at least be tried; after all, in our industrial experience, “reasonable adjustments” often involve an element of trial and error. In our view, the true position was that Mr Gallanders and Ms Ross had become fixated on the adjustments already made and they stubbornly refused to adjust further, despite the fact that it would meet the claimant’s needs and be both cheap and straightforward.

[134] Ms Ross told us that she and Mr Gallanders would have looked at this letter together before sending it. She could not recall whether it had been shown to the trustees who had heard the grievance, but she accepted that they would not have written it. When asked by the Tribunal why she had written such a letter when she had not been present at the grievance meeting, she replied “I honestly don’t know”. She accepted that she did not have the authority to make the decision set out in the letter and thought it likely that Mr Gallanders would have liaised with the trustees and the respondent’s legal advisers before it was sent.

[135] On 15 October 2008, the claimant appealed against the rejection of her DDA grievance (page 383).

[136] Dr Willis replied to the respondent on 17 October 2008 (page 395). He wrote:

[The claimant] has intermittent cycles of migraine and these are triggered by fluorescent lighting. Previously she has managed to stop the effects of this by a change to the lighting and use of natural light … I believe that her current stress symptoms are likely to improve significantly when the unresolved issues relating to her work environment are resolved. At present she is keen to return to work but would be unable to do so if her immediate environment precipitated migraine … I am hopeful that if some solution can be implemented there is a very real prospect of [the claimant] returning to employment in the very near future.

[137] For completeness, we note that Dr Willis later wrote of the lighting arrangements at the time: “I could not see how under these circumstances [the claimant] would be in a position to return to work” (11 January 2010, pages 130 to 131).

The DDA grievance: appeal hearing

[149] Two further trustees were lined up to her the claimant’s DDA appeal: Ms Kathryn Uche and Ms Margaret Brydon. The appeal hearing rook place on 28 October 2010. The claimant again prepared notes in advance (pages 419 to 423). The claimant was accompanied by Ms Janet Tyrell, who took minutes (pages 424 and 425). Kate Davies took minutes for the respondent (pages 440 to 449).

[150] It is not necessary to go through the minutes in detail. Insofar as the appeal was concerned, the focus should have been on the suitability of the lighting arrangements in the office and the feasibility of using an incandescent alternative by way of reasonable adjustment. Two key points arose:

[150.1] The first was that the claimant maintained that the lighting arrangements in the respondent’s office were inadequate and that it had also been entirely inappropriate to hold a previous grievance meeting (on 7 October 2008) in a way designed to test how she would react. On this issue, Ms Uche and Ms Brydon gave no decision at the meeting.

[150.2] The second was that the claimant again sought a private discussion with Ms Uche and Ms Brydon with Ms Davies, as minute-taker, absent. This was to address her concerns that Mr Gallanders had taken against her from the start, as shown by the C1(1) document. In particular, she wanted to know how the trustees would deal with her complaint that Mr Gallanders had acted unethically now that he had withdrawn the whistleblowing policy. We accept the claimant’s evidence that this discussion took place. Ms Tyrell corroborated it. Ms Uche did not give evidence but Ms Brydon confirmed to us that she recalled the claimant raising the issue. The claimant received no answer at the time. When questioned by the claimant at the Tribunal Hearing, Ms Brydon told us that the claimant’s concerns about Mr Gallanders were to be resolved “by discussion with the trustees”. When asked if any such discussion between the trustees ever took place, she could not recall if it had.

The DDA grievance: occupational health referral

[151] Mr Gallanders was not present at the meeting. Nonetheless, on 31 October 2008, he wrote to the claimant to say that he would be referring her for an “Occupational Health Assessment carried out by an Ophthalmic specialist to assess what practical options may be available to assist you with your condition” (page 426). The claimant in due course provided her consent (page 450).

[152] In isolation, this was a reasonable step for the respondent to take. However, we cannot look at it in isolation in circumstances where we have already concluded that Mr Gallanders was acting in bad faith towards the claimant. Put another way: we do not think that this incident demonstrates that he was acting in good faith, since we have concluded that he was looking for a way to get rid of the claimant.

[153] Mr Gallanders had referred in his letter to an “Ophthalmic specialist”. The Tribunal is aware that ophthalmology is a branch of medicine dealing with the eye and that an ophthalmologist is a medical doctor specialising in the diagnosis and treatment of eye disease. The claimant was already under the care of a specialist orthoptist at her local NHS hospital [actually, the claimant was not under the orthoptist’s care during her period of employment at AVOW]; an orthoptist is an eye care specialist normally working in a hospital environment allied to a medical team. To the extent that migraine is a neurological condition involving head pain, heightened sensory perception and visual triggers, the potential value of input from an ophthalmologist or orthoptist is obvious.

[154] Mr Gallanders in fact referred the claimant to Mr Seys Llewellyn, who was an optometrist (i.e. an ophthalmic optician). We mean no disrespect to the profession of optometry when we say that we were surprised that the respondent referred the claimant to such a person. We would not ordinarily have expected an optometrist to be in a position to provide the sort of expert guidance on the relationship between migraines and visual triggers that an employer, acting reasonably, would have needed in this situation. That said, it is an inconsequential matter and we will not dwell on the point.

[158] On 30 November 2008, the claimant presented her second ET1 claim form to the Tribunal, alleging disability discrimination. Shortly afterwards, the respondent filed its ET3 response form with the Tribunal, in which it resisted the claim on its merits and, as a preliminary point, resisted the contention that the claimant was a disabled person under the DDA. A series of letters exchanged in early December 2008 revealed that the parties were getting nowhere: the claimant wrote at length about her concerns and Mr Davies replied with letters based on advice from Mr Gallanders.

[159] On 22 December 2008, the claimant met Mr Llewellyn, the optometrist, for a discussion. It did not get very far because he had not received confirmation that the respondent would meet the cost of the consultation and seemed to be under the impression that the claimant was attending for an eye test. There was evidently a great deal of discussion about the claimant’s employment by the trustees at this time, because Mr Davies prepared a confidential report about her for discussion at a meeting on 13 January 2009 (page 506). The respondent has failed to disclose it.

Further meeting

[160] On 21 January 2009, the claimant met Mr Davies. Two other trustees, Margaret Brydon (who was still in the process of dealing with the claimant’s DDA appeal) and Marjorie Dykins, were also in attendance. The minutes of the meeting (pages 514 to 523) show that seven broad items were discussed: the reduction in her sick pay; the status of the ophthalmic assessment; the enhanced CRB checks; the respondent’s manner for handling staff grievances; risk assessments; the claimant’s stress levels; and the whistleblowing issue.

[161] Nothing specific was decided about the issues with which we are concerned; the thrust of the trustees’ position was either “We are where we are” or “We will get back to you”. Mr Gallanders did not attend but he annotated the minutes afterwards in a manner that shows he was still directing the process. In relation to the claimant’s proposed amendments to the minutes, which emphasised the lack of response from the trustees to her complaints about him, Mr Gallanders refused to accept them even though he had not been present. He told the claimant that “the notes … [did] not reflect accurately all of the issues and it is AVOW’s intention that these will be dealt with thoroughly through the Employment Tribunal legal process” (page 562). Beyond this letter from Mr Gallanders, the claimant received no further outcome to the meeting on 21 January 2009.

The optometrist’s report

[162] The claimant met with Mr Llewellyn again on 30 January 2009. By letter dated 5 February 2009, Mr Llewellyn wrote his report (pages 552 to 553). It was just over a page in length. He commented that the type and standard of lighting used at the respondent’s office was excellent and that the claimant was the first person in 30 years to be troubled by high frequency lighting that he had encountered. He commented that some tinted lenses he had tried on her did not alleviate her concerns caused by the light from the older strip lights in his consulting rooms. In our view, this report was patently inadequate: first, it said nothing about whether incandescent lighting would be of assistance to the claimant; and, secondly, it did not mention the word “migraine” even once.

[163] As an aside, it is unfortunate that Mr Llewellyn failed to obtain the claimant’s consent before sending his report to the respondent, as the conditions of his engagement had stipulated; indeed, this later resulted in him receiving a warning from the General Optical Council (page 628).

[164] On 11 February 2009, the claimant wrote to Mr Llewellyn to seek changes to aspects of his report (pages 560 to 561). In particular, she pointed out that there was a wealth of scientific data showing a connection between migraines and fluorescent lighting and that she was yet to find any type that did not act as a migraine trigger. He replied simply to confirm that his “instructions were to examine your eyes and provide an impartial professional opinion” (page 565). The fact that Mr Llewellyn thought he was merely carrying out an eye examination further demonstrates that his report was not fit for the purpose of being the “Occupational Health Assessment carried out by an Ophthalmic specialist” that Mr Gallanders had promised in response to the claimant’s worries about the lighting in the respondent’s office.

The DDA grievance: respondent’s rejection of appeal

[169] It will be recalled that, when originally rejecting the claimant’s DDA grievance, Ms Ross had written a rather puzzling sentence: “you have suggested that use of ordinary light fittings with energy saving light bulbs, however, due to the unknown success of this, we do not consider it reasonable at this stage”. It will also be recalled that Kathryn Uche and Margaret Brydon had heard the claimant’s appeal against Ms Ross’s rejection of her DDA grievance on 28 October 2010. A key issue for discussion was whether “ordinary light fittings with energy saving light bulbs” would constitute a reasonable adjustment. The matter had then been adjourned to enable the respondent to obtain an occupational health assessment.

[170] We would have expected the respondent to reconvene the appeal so that the claimant could discuss Dr Llewellyn’s report with the trustees. That did not happen. Instead, on 24 February 2009, Mr Gallanders simply wrote to the claimant to say that her appeal had been rejected (pages 569 to 570). We accept Ms Brydon’s evidence that she did not see the letter before it was sent. Once again, Mr Gallanders was usurping the role of the trustees.

[171] In his letter, Mr Gallanders said that Mr Llewellyn had “carried out research into the issues surrounding migraines which were induced due to fluorescent lighting”; if so, this research was reflected nowhere in his report. Mr Gallanders indicated that the claimant’s second meeting with Mr Llewellyn had been arranged to enable his research to be conducted when, in reality, the first consultation had led nowhere only because Mr Llewellyn was unsure that he would be paid. Mr Gallanders placed his own gloss on what had happened with the tinted spectacles. He concluded that the respondent had “fully researched the issue over fluorescent induced migraine”, that reasonable adjustments had been made and had “no case to answer”.

[172] We found his reply to be disingenuous: in our view, it was clear to us that, all along, Mr Gallanders had wanted the claimant’s appeal to fail and had been looking for a basis on which to reject it. This explains why he wrote his decision without the input of the trustees who had been chosen to hear the appeal. His conclusion was also perverse: the only solid medical evidence before him (from the claimant’s GP and hospital orthoptist [actually, the claimant was not under orthoptist care at this time]) supported the claimant’s contention that the “friendlier” variety of fluorescent lighting did not give complete relief from her symptoms, yet he ignored it in favour of a report from an optician which did not mention the word “migraine” and upon which he put his own gloss.

[175] By a lengthy eight-page letter to Dr Rosenberg dated 3 March 2009, the claimant resigned (pages 575 to 582). Her reasons were many and varied but related to all the matters that had occurred during her employment. They included: the respondent’s ongoing failure to adjust; the manner in which it dealt with her grievances about the TUPE and lighting issues; the alleged inappropriate request for enhanced CRB disclosure; its failure to deal with her complaint against Mr Gallanders and his adverse comments about her in the C1(1) document; his subsequent decision to withdraw the “whistleblowing” policy; and so on and so forth. The claimant did not expressly indentify a “final straw” in her letter, but the last act named in the resignation letter was the letter dated 25 February 2009 from Mr Gallanders. We accept her evidence that this was, in her mind, the last straw, since it provided final confirmation that the claimant could seek no redress from the respondent’s trustees.

[176] On 11 March 2009, the claimant applied for permission to amend her second claim to include a complaint of unfair (constructive) dismissal and that amendment was granted.

The law: disability discrimination

[184] Sections 4(2)(a) and 4(2)(d) DDA provide that it is unlawful for an employer to discriminate against a disabled person by dismissing her or subjecting her to a detriment. A dismissal for this purpose includes a constructive dismissal; see Section 4(5)(b) DDA.

[185] Such discrimination may be in the form of direct discrimination (Section 3A(5) DDA), a failure to comply with the duty to make reasonable adjustments (Section 3A(2) DDA) or discrimination by way of victimisation (Section 55 DDA). An employer is also liable for anything done by its employees in the course of their employment (Section 58(1) DDA) or its agents (Section 58(2) DDA). The respondent in this case does not seek to rely on the so-called “statutory defence” insofar as its employees are concerned (Section 58(5) DDA). We therefore proceed on the assumption that it is liable both for the acts of Mr Gallanders and Ms Ross as its employees and, to the extent appropriate, the trustees as its agents.

The Tribunal’s full analysis of the disability discrimination law relevant in this case can be read here.

Conclusions

[204] Having already decided that the claimant was a disabled person, we turn first to our conclusions on her discrimination claim. The respondent denies such discrimination. The claimant’s position is simply that, having presented the facts to us as she sees them, it is for us to decide if and to what extent the respondent has acted unlawfully.

[205] In this case, there can be no disputing that the respondent knew that the claimant suffered from migraines. Moreover, it ought to have known, had it taken the medical evidence before it at face value, that she suffered from a substantial disadvantage as a result in comparison with persons without that particular disability; this took the form of a susceptibility to a migraine attack triggered by the fluorescent lighting in its office (even the “friendlier” type installed) and the lack of compensatory daylight. This was more than minor or trivial.

[206] We accept the claimant’s evidence that fluorescent lighting is a migraine trigger and that, for whatever reason, neither daylight tubes nor tinted spectacles provide her with complete relief from her symptoms. The respondent made assumptions about the working conditions that the claimant could or could not tolerate, tainted in our view by an inappropriate degree of scepticism about whether she was being truthful. But the medical evidence was clear. The respondent ought to have accepted what the claimant’s GP and hospital orthoptist [orthoptist advice was not available during claimant’s employment] said at face value about her lack of tolerance to daylight tubes and the limited assistance of tinted spectacles [tinted spectacle advice only came later]. To have expected more from her was to overlook the important point that there is poor understanding within the medical community of the causes of migraine and the varying factors that may trigger an attack and how they differ from person to person. It also suggests that underlying the respondent’s approach was the operation of a stereotype as to the needs of a “typical” migraineur; but there was no basis on which to assume that the claimant was a “typical” migraineur.

[207] Accordingly, the duty to adjust arose; the issue is whether the respondent complied with it.

[208] The adjustment proposed was, in essence, the installation of incandescent lighting. This sort of adjustment is envisaged by the DDA, which refers to “acquiring or modifying equipment”. We know from the evidence of Carys Williams that it would have cost the respondent in the region of £20 to make this adjustment. It would have ameliorated the disadvantage in question; it would have been practicable; it was well within the respondent’s ability to pay; and it would not have disrupted its activities in any way. There was no good reason why the adjustment could not have been made.

[209] So why did the respondent refuse it? The real reason is that it thought it had already made a sufficient adjustment in installing the “friendlier” fluorescent lighting. As Ms Ross said in her follow-up meeting with the claimant on 3 September 2008, “the room [had] just been refurbished [at] significant cost”. It thereafter closed its mind and stubbornly refused to revisit the issue. The scope of the legal duty was not to take reasonable steps to minimise the disadvantage, but to take reasonable steps to prevent it. The claimant had made clear from the outset, both during her brief period of employment in July 2007 and again after the TUPE transfer, that the way to prevent the disadvantage was either for her to work in an office with large windows and good natural light or, that not being feasible, to install incandescent lighting.

[210] We therefore conclude that, throughout the claimant’s employment and up until the moment she resigned, the respondent failed in its duty to make reasonable adjustments. This extended not simply to the initial lighting arrangements in the office but the arrangements at the subsequent meetings she attended.

[211] We also conclude that the respondent victimised the claimant for her protected act of complaining about what had happened during her very brief period of employment in July 2007. She made clear at the time that she considered that the respondent had failed to comply with its duty to make reasonable adjustments and had therefore acted in a manner that contravened the DDA. That victimisation took various forms: the initial reluctance of Mr Gallanders to accept the claimant from DVSC under TUPE; his expressed desire to be “awkward” with her on the issue of medical evidence; his stubborn refusal thereafter to make reasonable adjustments, continuing until the date of her resignation; his control of the respondent’s internal procedures so as to deprive her of a meaningful resolution to her grievances; his subsequent refusal to allow her access to the trustees for redress; his unilateral withdrawal of the whistleblowing policy once she activated it; and, worst of all, his “long shot” of trying to show her instability by seeking an unnecessary enhanced CRB disclosure about her. This last step was reprehensible (a word we do not use lightly) and an abuse of his position; it was also a manifest breach of the implied term of mutual trust and confidence.

[212] The claimant has established a prima facie case that he took such steps because of her previous grievance; in particular, the C1(1) document referred to his “difficulties employing the claimant in the past”. This reverses the burden of proof. The respondent has been unable to show that the actions of Mr Gallanders were “in no sense whatsoever” to do with her previous grievance. The claim of victimisation is well-founded.

[213] As we said above in our factual narrative, the members of the Tribunal were shocked (again, a word we do not use lightly) at the manner in which the respondent conducted the DDA grievance meeting on 7 October 2008. It was used as a mechanism to test the claimant’s ability to withstand the daylight tubes in the office, notwithstanding her clear assertions that such lighting was unsuitable. We note of course that the meeting was held in another room once the claimant requested it. But that is not the point; the point is that it was an experiment carried out without her knowledge or consent and which could have resulted in pain. The claimant’s analogy of a meeting being held upstairs to test whether a person has impaired mobility was a sound one. The fact that the respondent has sought to the last to defend its approach to this meeting in the Hearing before us demonstrates that it still has no appreciation of the nature of migraine and the mechanism of warning signs and delayed response. No explanation was given for why the respondent did not discuss the arrangements for the meeting in advance with the claimant. The only reason the meeting was held in this way was because the claimant suffered from migraines. The respondent would not have treated a person without migraines in this way. It was a clear act of direct disability discrimination.

[214] These matters were also all capable of contributing to a breakdown in mutual trust and confidence. However, there were further matters that contributed to that breakdown:

[214.1] This is a conclusion that we reach in only exceptional cases, but we have reached it in this case without hesitation: from start to finish, the grievance processes were a sham. They did not resemble a fair attempt to deal with the claimant’s concerns. The process was controlled by Mr Gallanders (and, to a lesser extent, Ms Ross). The trustees merely listened to what the claimant said and took no proper decisions in response. They deferred all such decisions to the officers. They failed in their duties to oversee the conduct of the officers. The fact that they are unpaid volunteers is no excuse.

[214.2] This criticism applies equally to the DDA grievance, the TUPE grievance and the third formal grievance. There were outstanding matters in all three. The first involved a misunderstanding and stereotyping of the claimant’s condition. The second never dealt with the claimant’s concerns about why Mr Gallanders had been reluctant to accept her under TUPE. Most serious of all was the lack of any proper attempt to deal with the claimant’s grievance against Mr Gallanders. This included the highly inappropriate remarks he made about her in the C1(1) document as well as her (ultimately correct) assertion that he had sought an enhanced CRB check for improper reasons and his unilateral withdrawal of the respondent’s whistleblowing policy from the moment she sought to rely on it. In those circumstances, it was understandable that the claimant should look to the trustees for redress. The final straw was Mr Gallanders’ refusal in his letter dated 25 February 2009 to allow the claimant even to write to them, closing down for good that final avenue of redress.

[215] We therefore conclude that the respondent acted in fundamental breach of the implied term of mutual trust and confidence. The claimant was entitled to accept that breach and resign; she did so in consequence and without waiving it. She was therefore constructively and unfairly dismissed.

Employment Judge B J Clarke
Dated: 19 August 2011

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