In the case of Coulton v Bewbush Community Nursery ET/2301541/2017, the Employment Tribunal (ET) found that the claimant was disabled in relation to her conditions of Obsessive Compulsive Disorder (OCD) and anxiety but there was insufficient evidence to conclude that she was disabled by reason of her learning difficulties. The respondent had failed to make reasonable adjustments which placed her at a disadvantage because of her OCD and anxiety and she was subjected to harassment related to her anxiety and OCD when the respondent told her that she ought to stand on her own two feet as opposed to rely on her parents. Her claim that she was victimised because she brought tribunal proceedings or threatened to take tribunal proceedings was not upheld. The ET also referred to the manner in which her father, Dr Coulton, had represented her interests both at the hearing and beforehand noting that whilst ostensibly trying to assist his daughter who clearly required support, he had managed to sour the relationship between the claimant and the respondent because he thought he knew what the respondent ought to be doing and when.
The facts in Coulton v Bewbush Community Nursery
The claimant was employed as a childcare practitioner by the respondent from 6 April 2016 until 26 May 2017. The claimant had been diagnosed with OCD, anxiety and various learning difficulties. The respondent stated that it was unaware of the disability conditions relied upon by the claimant at the relevant time. During her employment the claimant was off sick for a substantial period of time and on returning from her most recent period of sickness absence (of one week), was called into a meeting without notice and refused the right to be accompanied. At the meeting she was given a written warning for her sickness absence levels. As a result the claimant looked for another job and was offered another role at a different nursery, subject to references. However, the new job offer was subsequently rescinded after the respondent provided a reference stating that the claimant had a written warning. The respondent refused to have the claimant back after her notice period. During the claimant’s notice period a child escaped from the nursery premises. Following an investigation the respondent concluded that the claimant was probably responsible for the child escaping and referred the claimant to the DBS (the DBS subsequently found that there was no further case for the claimant to answer and no further action was taken). The claimant brought claims of failure to make reasonable adjustments contrary to sections 20 and 21 of the Equality 2010 Act (EqA 2010), harassment contrary to section 26 of EqA 2010 and victimisation contrary to section 27 EqA 2010.
The decision of the Employment Tribunal
The ET found that there was evidence submitted by the claimant that her OCD and anxiety were conditions that affected her day to day activities but such an impact was not evidenced from her learning difficulties even though she had been diagnosed with them at school and college. Although the claimant had not clearly and expressly explained that her OCD and anxiety were disabilities to her employer, the ET found that the respondent ought reasonably to have known as she had told her supervisors that she got anxious and that she took medication but the employer had failed to make further enquiries. The respondent had also received a letter from the local authority confirming that the claimant suffered from anxiety and yet had not made enquiries as it should have done. The ET therefore found that the claimant was disabled with OCD and anxiety at the relevant time.
The ET also found that the respondent did act in breach of its own policies as it ought to have given the claimant notice of the meeting she was invited to attend on returning to work and it ought to have given her the right to be accompanied at that meeting. The practice of holding such meetings without notice and therefore without giving the claimant the opportunity to be accompanied therefore amounted to a provision, criterion or practice (PCP) and placed the claimant at a substantial disadvantage compared to someone without anxiety and OCD. The ET noted that many employees find meetings where disciplinary action is taken very stressful and there was no doubt this was compounded when it happened without notice or without the right to be accompanied; a condition of anxiety and OCD would only have made the situation worse. The ET considered that it would have been reasonable adjustments to make particularly given that it was in the respondent’s own policy that employees should be given notice and could be accompanied and ought to have been what happened in any event. The adjustments would have alleviated the disadvantage.
In terms of the victimisation claim, the ET did not find in the claimant’s favour – that is that in threatening legal action, the nursery had deliberately given her a negative reference for the nursery job she subsequently applied for. This was because the respondent had provided a factual only reference and so was obliged to state that the claimant had a written warning. The Employment Tribunal, however, found that the claimant should not have been provided with a written warning if the respondent had followed its policies properly. The Tribunal also found that it was the ‘industry norm’ to provide fuller references, and that the claimant was provided with a standard factual reference because a DBS investigation was ongoing (which, as detailed above, found that the claimant had no case to answer).
In terms of her harassment claim, the ET did find in part, that at her disciplinary/return to work meeting, the respondent had made references to the claimant that she should stand on her own two feet and do things for herself. The claimant clearly needed additional support and guidance from her parents because of her disabilities and by inferring that she was being ‘pathetic’ for needing this help could amount to hostile or degrading treatment or have that effect. However not all the respondent’s behaviour amounted to harassment related to her disability, for example, when the claimant was chided for being on her mobile phone while on her shift (outside the nursery premises), as any other employee without a disability would have been reprimanded in the same way.
Our solicitors’ views on the case of Coulton v Bewbush Community Nursery
Caroline Lewis, Senior Associate in the employment department at Redmans, made the following comment on the case: “This case provides good guidance on a claim for disability discrimination. It shows that if there is any potential evidence raised by an employee or worker that they have a disability, then the employer would be advised to make further enquiries in order to discern whether reasonable adjustments should or could be made. In addition, the case exemplifies that an employer should ensure that its workforce especially supervisors, are briefed on its own policies in order to protect itself against any claim that it did not follow its own procedure”
This article is an abbreviated analysis of the judgment of the Employment Tribunal, which contains a more detailed assessment of the facts and law relevant to this case. Should you wish to read further into this case then links to the relevant judgments have been included below
The liability decision of the Employment Tribunal in Coulton v Bewbush Community Nursery ET/2301541/2017 can be found here.
The remedy decision of the Employment Tribunal in Coulton v Bewbush Community Nursery ET/2301541/2017 can be found here.
Reconsideration decisions of the Employment Tribunal in Coulton v Bewbush Community Nursery ET/2301541/2017 can be found here and here. Both of the Claimant’s application for reconsideration were refused by the Employment Tribunal.
The Claimant’s representative was approached for a comment on this case.