Sheikholeslami v The University of Edinburgh (Reasonable adjustments : Sex Discrimination : Victimisation Discrimination), Court of Appeal - United Kingdom Employment Appeal Tribunal, October 05, 2018,  UKEAT 0014_17_0510
|Resolution Date:||October 05, 2018|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Sheikholeslami v The University of Edinburgh (Reasonable adjustments : Sex Discrimination : Victimisation Discrimination)|
Appeal No. UKEATS/0014/17/JW
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF
At the Tribunal
On 10,11 & 12 July 2018
Handed down 5 October 2018
THE HONOURABLE MRS JUSTICE SIMLER DBE
PROFESSOR ROYA SHEIKHOLESLAMI APPELLANT
THE UNIVERSITY OF EDINBURGH RESPONDENT
Transcript of Proceedings
The Employment Tribunal erred in its approach to both the reasonable adjustment and discrimination arising from disability claims for the reasons set out at paragraphs 48-54 and 65-66 below.
There were other errors by the Tribunal which failed to deal with a number of aspects of the Claimant's claims of unlawful sex discrimination and victimisation.
THE HONOURABLE MRS JUSTICE SIMLER DBE
Until her dismissal with effect from 12 April 2012, the Appellant (referred to as the Claimant for ease of reference) was Professor and Chair of Chemical Process Engineering employed by the Respondent from 1 May 2007. She brought claims of unfair dismissal and unlawful sex and disability discrimination, together with claims for notice pay and unpaid holiday pay. It was her case that having been employed on the basis that she would work until retirement in an academic position of prestige and profile, she was dismissed by the Respondent, without any process (still less a fair process). She claimed her dismissal on the asserted basis that her work permit was due to expire was effected simply to avoid the problem of her continued and sustained complaints that she was the victim of unlawful gender and disability discrimination leading to serious depression from 2011 onwards.
There was a multi-day discontinuous hearing (before Employment Judge Porter and members, Mr Nisbet and Ms Stewart) extending over the period from 14 September 2015 to 29 April 2016. The Claimant largely represented herself in the proceedings but was assisted by counsel at the September 2015 sitting and again for the concluding sitting in April 2016 when the Respondent's witnesses were cross-examined. There was then a significant delay between the last day of the substantive hearing and judgment being sent to the parties because Employment Judge Porter was unexpectedly taken ill. Before that illness EJ Porter drafted the factual findings and observations on the evidence, but her ongoing incapacity meant that she could not draft the remainder of the judgment (ultimately drafted by the Vice President assisted by the lay members). The judgment promulgated on 16 March 2017 (``the Judgment'') was approved by EJ Porter, and unanimously dismissed the claims of unlawful sex and disability discrimination save to the extent that certain claims of victimisation succeeded. The claims of unfair dismissal and for outstanding holiday pay also succeeded. The Tribunal refused to reconsider an earlier refusal to permit an amendment to include a new claim for notice pay.
This appeal seeks to challenge the Employment Tribunal's dismissal of the unlawful disability, sex and victimisation claims and its approach to the notice pay claim in refusing to permit an amendment to include it. There are five broad areas of challenge advanced in the Revised Grounds on the Claimant's behalf by Mr Simon Gorton QC (who appeared for the Claimant from time to time below). These raise the following issues:
(i) whether, having made clear findings of fact about what occurred in the material period, the Employment Tribunal failed (in relation to the claims of unlawful disability and sex discrimination, and victimisation) properly to apply (or misapplied) its own clear factual findings and/or erred in its approach to the burden of proof in relation to them, in reaching conclusions on the reasons for detrimental treatment by the Respondent;
(ii) whether the Employment Tribunal reached conclusions on the reasonable adjustments and discrimination arising from disability claims that are inconsistent with the earlier primary factual findings;
(iii) whether there was a material misdirection or error of law in relation to the reasonable adjustment and discrimination arising from disability claims;
(iv) whether the Employment Tribunal failed to deal with material parts of the case set out in the schedule of claims attached to the Claimant's written Closing Submissions (referred to below as the `Closing Schedule');
(v) whether the refusal to reconsider the application to amend the notice pay claim was an error of law or perverse.
The appeal is resisted by the Respondent, represented by Mr David Reade QC (who did not appear below). In essence he contends that the Tribunal grappled carefully with the issues raised by these claims in what were difficult circumstances: there was no agreed list of issues; there were two rival bundles; the hearing took place over a protracted period; and there were as many as 16 preliminary hearings in advance of the full merits hearing. Having done so, the Tribunal reached conclusions on all issues it was required to address. The conclusions were open to it on the evidence and in light of its findings and absent perversity, the EAT cannot interfere with the Judgment. He submits that the only identifiable legal error raised by the Revised Grounds concerns the question of causation/comparison in relation to the reasonable adjustments claim. On that issue, the Tribunal made no error of law. Rather it was entitled to find that the single PCP identified by the Claimant did not give rise to substantial disadvantage.
I am grateful to both counsel for their assistance, both orally and in writing.
Given the nature of the appeal it is necessary to conduct a closer analysis of the primary findings of fact made by the Employment Tribunal than might ordinarily be the case.
The Claimant was recruited following an interview in 2006. The remuneration package offered to her by the Respondent included a shared equity scheme (and the Tribunal found an intention on both sides that the Claimant should maintain her position until retirement) and the use of a laboratory which would be brought up to the required specification. She commenced employment on 1 May 2007. The laboratory took longer than anticipated to be refurbished and was not completed until November 2009. The Claimant did not therefore have access to a working laboratory between May 2007 and October 2009. The Tribunal found that she raised the lack of technical support, the delay in construction of the laboratory and other matters on numerous occasions, comparing her position to that of Professor Brandani (a man) who she contended was given laboratory space and a technician from the outset of his employment. The Tribunal found that the handling of these issues reflected the miscommunication that existed between the Claimant and the Respondents at the time. It also accepted evidence that Professor Brandani was given laboratory space at the outset of his employment within an established laboratory which he shared with others. There was not therefore any need to have a ``start-up'' laboratory like that which the Respondent ultimately provided for the Claimant. The Tribunal did not accept that there was any evidence to support the proposition that the Claimant was not provided with technical support from the commencement of her employment. Moreover, in relation to the Claimant's further complaint that Professor Brandani was selected as Chair of the Board of Examiners in preference to her, although the Tribunal was critical of the lack of transparency in the criteria for selection, it accepted that these had nothing whatsoever to do with the Claimant's sex.
In January 2010 the Claimant was diagnosed with work-related stress and depression, and was absent from then onwards. She did not return to her employment with the Respondent. Her salary was reduced to half pay in April 2010 and then to nil pay in accordance with the Respondent's sick pay policy. Between January 2010 and the termination of her employment, the Claimant took medication for anxiety, stress and depression. The Tribunal accepted her evidence that throughout this period she had no social life and was unable to do activities she previously did, such as exercise and shopping. She was frequently tearful due to symptoms of her illness (). In the same period, the Tribunal found that the Claimant attended conferences, sometimes abroad, and on occasion gave lectures, but these activities did not take place on a weekly or even a monthly basis, and the Tribunal accepted the Claimant's evidence that this ``sporadic engagement was her `salvation' from her profound mental health issues'' (see ).
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The Respondent instigated a diversity review of the School of Engineering in June 2010. The review commenced in August 2010 and was conducted by Professor Jo Shaw, a professor in the faculty of law. She published her review report in December 2010. In it she referred to an anonymous communication from within the School of Engineering seeking to deflect the review away from systemic issues to focus on personal and personnel issues, which she ignored. She also referred to earlier findings made by Dr Wendy Faulkner in 2006 including that in a
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