Hartley v Foreign and Commonwealth Office Services

For harassment under section 26 of the Equality Act 2010, whether conduct is related to disability requires an evaluation of the evidence as a whole. The alleged harasser’s knowledge or perception may be relevant, but is not conclusive.

In reasonable-adjustment claims, the claimant must identify the adjustment relied upon with sufficient particularity. An Employment Tribunal should determine the case defined by the list of issues, unless that list is properly amended. Where an issue concerns written communication, the Tribunal must address the disadvantage as a whole and should not impose an artificial distinction between writing and organising written content.

The Employment Tribunal dismissed Ms Hartley’s disability-discrimination claims against the Foreign and Commonwealth Office Services following the termination of her employment during an extended probationary period. Her appeal concerned two alleged harassment remarks made at a performance-improvement meeting and three alleged failures to make reasonable adjustments.

The appeal challenged the Tribunal’s approach to whether the remarks were related to disability, the identification of a communication-support adjustment, the alleged practice concerning time off in lieu for sickness absence, and written-communication training. The central questions were whether the Tribunal had applied the correct statutory tests and whether it had determined the issues actually advanced by the parties.

1. Appeal partly allowed. The harassment issues concerning remarks by Mr Fleet and Ms Brigden, and the written-communications reasonable-adjustment issue, were remitted to an Employment Tribunal.
2. Under section 26(1) of the Equality Act 2010, whether conduct is related to a protected characteristic is a broad question requiring evaluation of the evidence in the round. The perpetrator’s knowledge and perception are relevant, but neither is conclusive. The Tribunal had concentrated on the perceptions of Mr Fleet and Ms Brigden and had not properly assessed the overall evidence, including its findings about the effects of Asperger’s syndrome.
3. The Employment Appeal Tribunal could not substitute its own factual evaluation. Applying Jafri v Lincoln College, where more than one factual conclusion was possible and the Tribunal had not addressed all the requirements of section 26, remission was required.
4. On the communication-support issue, the Tribunal was entitled to reject the claim because the adjustment relied upon had not been identified with sufficient practical clarity. A claimant need not prove that a particular step was legally incumbent upon the employer, but must identify the step or steps for determination. This reflected Project Management Institute v Latif and HM Prison Service v Johnson.
5. The Tribunal properly rejected the TOIL issue as pleaded. The list of issues was directed to a PCP of general application to probationary employees, and the Tribunal was neither required nor entitled to decide a different case based on the particular decision made in Hartley’s case. A list of issues is a case-management tool, capable of amendment with permission and subject to the overriding objective.
6. For written communication, the Tribunal had drawn an impermissible distinction between the process of writing and the content or organisation of writing. It should first have considered the alleged disadvantage as a whole. If disadvantage was established, it had to consider knowledge under Schedule 8, paragraph 20, the reasonable steps required and their timing, and any consequential compensation.
7. Remission was to the same Tribunal if available. Applying the criteria in Sinclair Roche & Temperley v Heard, the original Tribunal had approached the case carefully, could consider the issues afresh, and had the practical advantage of familiarity with the evidence.

• Employment Appeal Tribunal: allowed the appeal in part against the Employment Tribunal’s judgment dated 14 October 2014. Two harassment issues and the written-communications reasonable-adjustment issue were remitted to the same Employment Tribunal if available.
• Employment Tribunal: dismissed the disability-discrimination claims.