Claimant v Sim v Department for Work and Pensions — 2020

Miss V Sim worked for the Department for Work and Pensions and had endometriosis. The Tribunal found that the respondent knew of her condition throughout the relevant period and that there was a local arrangement allowing her to take toilet breaks as needed. It accepted that from 7 June 2018 a Workplace Adjustment Passport and related support were put in place, including recognition that her smart card removed time would be higher than other employees because of her condition.

The Tribunal rejected the claimant's case that she was marked down in her 2017-2018 performance rating because of toilet-break-related smart card removed time. It found that the box 2 rating given by Jane Collier in May 2018, and the grievance and appeal decisions that upheld it, were based on the claimant not producing evidence sufficient to justify a box 1 rating. The Tribunal found that the SCR discussions in 2017 were about non-toilet time, such as chatting and making drinks, and that the alleged meeting in spring 2018 in which intimate detail of toileting was sought did not happen.

The reasonable adjustments claim also failed. The Tribunal found that the respondent's practice of monitoring SCR time at a higher threshold for this claimant did not place her at a substantial disadvantage, because the consequence was only routine management discussion. It found no individual calls target and no PCP requiring colleagues to make the same or similar numbers of outgoing calls. It further held that the later reporting of SCR data and the comparisons shown to the claimant did not breach the adjustment in place.

The harassment and victimisation claims failed for different reasons. The Tribunal found that the alleged remarks by Mrs Collier, Mrs Murphy, Mrs Whitely and Mrs Gardiner either did not happen or were not related to disability. It held that the 15 June 2018 'be mindful' comment was about staffing levels and breaks, not toilet time, and was out of time with no just and equitable extension. The 7 November 2018 email alleging discrimination was a protected act for victimisation purposes, but the Tribunal found no detriment because the alleged remark that the emails could be seen as harassment was not made, and the later comments were not because of the protected act. No remedy arose because all claims were dismissed.