Dr Turton v Mid Kent College
Dr Turton v Mid Kent College 2302747/2022
Facts
Dr Turton (the Claimant) was employed by Mid Kent College (the Respondent) as a Psychology Lecturer from 26 August 2014 until 31 August 2022, when she took voluntary redundancy. Dr Turton has diagnoses of Asperger’s Syndrome (Autism Spectrum Disorder), Severe Complex Post Traumatic Stress Disorder, and ADHD. The claim concerned allegations of disability discrimination she experienced between September 2021 and her resignation.
The Employment Tribunal hearing, held at London South (hybrid) from 21-30 October 2024 (with deliberations on 31 October - 1 November 2024), addressed complaints of harassment related to disability, direct disability discrimination, failure to make reasonable adjustments, and discrimination arising from disability. During the hearing, Dr Turton was accompanied by a family member for welfare support as a reasonable adjustment, and information from her ADHD Diagnosis Report was considered.
Key events and allegations included:
Ms Woodman's conduct: Ms Woodman, another lecturer, joined the Access Team in September 2021.
Mocking disabilities: In November/December 2021, Ms Woodman would mock Dr Turton's disabilities by tapping her head to indicate "mental problems". Students also reported Ms Woodman saying, "she'll forget anyway" with laughter.
Fabricated racist remarks: On 20 January 2022, a student (Student C) complained that Ms Woodman had told her Dr Turton disliked her due to her "family background" and stated that "all Gypsies should not be allowed to have an education". This allegation was found to be false and fabricated by Ms Woodman. These false remarks led to a formal investigation against Dr Turton and the circulation of rumours that she was a racist.
Forcing communication: On 20 and 21 April 2022, Ms Woodman and Ms Peet (another lecturer) repeatedly tried to force Dr Turton to communicate with them in the staffroom, despite Dr Turton clearly indicating she wished to minimise social interaction (e.g., wearing large headphones). On 21 April, Ms Woodman and Ms Peet shouted "hello Sharon" at Dr Turton, with Ms Peet approaching Dr Turton aggressively. Mr Coyle, Dr Turton's Curriculum Manager, was present but did not intervene.
Respondent's actions regarding policies and support
Response to complaints: Mr Coyle and Mr Cotton (Head of Department) were informed of Ms Woodman's conduct. Mr Cotton initially suggested Ms Woodman's conduct might be "unintentional" and that the student's version of events was "open to interpretation," stating there would be management intervention but no further investigation was conducted into the harassment.
Work-from-home requests: Dr Turton requested to work from home to avoid Ms Woodman, which was initially agreed to during the investigation into Student C's complaint. However, Mr Coyle later messaged Dr Turton about Ms Peet being at the Maidstone campus on a day Dr Turton had agreed to work there, which Dr Turton perceived as being "tricked" into contact.
Redundancy procedure: On 24 June 2022, Dr Turton, Ms Woodman, and Ms Peet were all notified that they were at risk of redundancy due to reduced student numbers. Ms Bateman, a specialist biology lecturer, was ring-fenced and not included in the redundancy pool. Dr Turton challenged her inclusion, arguing she was a specialist lecturer like Ms Bateman and her role was not redundant.
Voluntary Redundancy and Dismissal: Dr Turton ultimately requested and took voluntary redundancy on 14 July 2022. She stated this was due to her health and the "utterly traumatising" year, feeling she had no option but to leave, linking it to the ongoing bullying, harassment, and discrimination, as well as the failure to implement grievance recommendations.
Procedurally, the Tribunal also dealt with a strike-out application by the Claimant against the Respondent's response due to non-compliance with orders and lack of active pursuit, which was dismissed. A Restricted Reporting Order was made to anonymise students' identities.
Held
The Employment Tribunal (Employment Judge Hart, Mr Dixon, and Ms Forecast) issued a unanimous judgment, finding several of Dr Turton's complaints to be well-founded and succeeding, while dismissing others.
The Tribunal upheld the following complaints:
Harassment related to Disability
In December 2021 (found by the Tribunal to be November 2021), Ms Woodman mocked Dr Turton’s disabilities by tapping her head to indicate "mental problems". The Tribunal found this was unwanted conduct with the purpose or effect of creating a hostile environment, related to Dr Turton's disability.
Ms Woodman spread fabricated information about false racist remarks concerning Dr Turton, which led to a student complaining and rumours circulating. This was found to be a deliberate act by Ms Woodman with the purpose of creating a hostile environment, related to Dr Turton's disability.
On 21 April 2022, Ms Woodman and Ms Peet shouted at Dr Turton and tried to force her to communicate with them. The Tribunal found this was unwanted, aggressive, and confrontational conduct intended to humiliate Dr Turton and create a hostile environment, related to her disability.
Direct Disability Discrimination
The Respondent subjected Dr Turton to a redundancy procedure. The Tribunal found Dr Turton was treated less favourably than a comparator (Ms Bateman, a specialist lecturer who was ring-fenced) and that this was because of Dr Turton's disabilities .
Dr Turton was dismissed by way of voluntary redundancy. The Tribunal considered this a dismissal by the employer, directly linked to the prior discrimination and the Respondent's failures, including the failure to implement grievance recommendations .
Failure to Make Reasonable Adjustments:
The Respondent failed to make reasonable adjustments for disability [5.1]. The Tribunal found that the practice of requiring staff to meet and interact with each other put Dr Turton at a substantial disadvantage.
Specifically, it was found to be a reasonable step that the Respondent should have taken to allow and organise for Dr Turton to work separately from Ms Woodman and Ms Peet as much as possible, particularly during the investigation and until mediation/training was implemented.
It was also a reasonable adjustment to arrange a different method of communication (e.g., email, text) between Dr Turton and Ms Woodman/Ms Peet to avoid face-to-face contact when her conditions were exacerbated. The Respondent failed to take these steps.
The Tribunal dismissed the following complaints:
Remaining complaints of harassment related to disability.
Remaining complaints of direct disability discrimination.
The complaint of discrimination arising from disability.
The Tribunal found that certain allegations of harassment (e.g., Ms Woodman telling students Dr Turton was greedy, or discussing her disabilities with students) were not proven due to lack of direct evidence. Complaints regarding the Respondent stopping Dr Turton from marking students' work or barring students from asking questions were not sufficiently serious to constitute harassment or direct discrimination. The claim that Mr Coyle "tricked" Dr Turton into contact with Ms Peet was also dismissed, as the Tribunal found no deliberate planning.
Regarding time limits, the Tribunal found that the head-tapping incident and the false racism allegation were part of a continuous course of harassment extending over a period, connected to the in-time act of harassment on 21 April 2022. Alternatively, it was found just and equitable to extend time for these complaints, given the relatively short delay, lack of prejudice to the Respondent, and Dr Turton's "nervous breakdown" and reliance on ACAS advice to pursue grievance first.
Comment
This case provides a detailed illustration of how Employment Tribunals assess various forms of disability discrimination under the Equality Act 2010, particularly in the context of Autism Spectrum Disorder, PTSD, and ADHD.
Key insights from the judgment:
Disability Status - The Respondent admitted Dr Turton's disability status, which streamlined this aspect of the case. This is a crucial starting point for any discrimination claim.
Harassment - The Tribunal demonstrated a robust approach to harassment, clearly defining "unwanted conduct" and "purpose or effect" of violating dignity or creating a hostile environment. It highlighted that a series of negative comments or actions, even if seemingly minor individually (like repeatedly saying "hello" when avoidance is requested), can collectively meet the "high bar" for harassment when they are intentional and cause distress, especially to a person with disabilities that make social interaction difficult. The finding that Ms Woodman's head-tapping was done "to generate laughter at Dr Turton's expense" underscores the Tribunal's focus on intent and impact.
Direct Discrimination and Comparators - The Tribunal's analysis of direct discrimination in the redundancy process is particularly insightful. It carefully identified the correct comparator as Ms Bateman (a specialist lecturer), rather than the generalist lecturers (Ms Woodman and Ms Peet), to determine less favourable treatment . Crucially, it stated that Ms Bateman also having a disability (PTSD and COPD) was not fatal to Dr Turton's claim, as her disabilities (ASD, ADHD, PTSD) were "qualitatively different" and the Respondent's policy acknowledged autism specifically . This highlights that simply having a disability does not preclude being a valid comparator for discrimination claims related to other specific disabilities.
Voluntary Redundancy as Dismissal - The Tribunal's finding that Dr Turton's decision to take voluntary redundancy constituted a dismissal by the employer is significant . This determination was based on a series of events, including the Respondent's failure to implement prior recommendations (mediation, hidden disability training) and the ongoing harassment and discriminatory acts, culminating in the "at risk" of redundancy notice. This demonstrates how a claimant's decision to leave, even by "voluntary" means, can be attributed to the employer's discriminatory conduct.
Reasonable Adjustments - The case reaffirms the employer's positive duty to make reasonable adjustments. The Tribunal found that steps like allowing Dr Turton to work separately from certain colleagues and arranging alternative communication methods were reasonable and would have alleviated her disadvantage. The Respondent's failure to implement these, despite being feasible and requested, constituted a breach of duty.
Burden of Proof and Adverse Inferences - A critical aspect of the judgment is the Tribunal's application of the burden of proof under Section 136 of the Equality Act 2010. The Tribunal repeatedly drew adverse inferences against the Respondent due to its failure to disclose key documents (e.g., Mr Lampard's investigation report) and, more importantly, its failure to call key witnesses (Mr Cotton, Ms Le Poidevin, and Ms Peet) who were involved in the decisions and alleged discriminatory acts. The Tribunal noted that such failures, when no explanation is provided, are sufficient to shift the burden of proof to the Respondent, especially when combined with other circumstantial evidence. This serves as a strong reminder to employers about the importance of full disclosure and presenting all relevant witnesses in discrimination cases.
Distinguishing "Because of" and "Arising in Consequence" - While Dr Turton succeeded on direct discrimination and harassment, her discrimination arising from disability claim was dismissed. The Tribunal meticulously analyzed the causal link required for Section 15, finding that the unfavourable treatment (the Facebook investigation) was a proportionate response to a breach of policy, even if the underlying "thing" (her distress and need for information) arose from her disability. This highlights the nuanced distinctions between different forms of discrimination claims.
