Mrs Donnelly worked for the Environment Agency from 1992. She was on a flexitime contract. Towards the end of her time there she was disabled by osteoarthritis of the knees and spondylitis, which affected her back and her hip. As a result she found it difficult to walk far. This meant she had to change roles. In January 2010 she was offered a temporary role as an alternative, but she only did it for two weeks before going off sick with stress. She had a number of concerns about that change in role and her employment, but at the heart of a long running tribunal claim were the trouble she had getting a parking space close to her office, an email she alleged was harassment, and her ultimate dismissal in 2011 for lack of capability. She was successful in all those claims before Employment Judge Reed sitting at the Employment Tribunals in Liverpool. The Agency appealed: (The Environment Agency v Donnelly).
Mrs Donnelly argued that her employer had imposed a “provision criterion or practice” (PCP) that she must walk to the office from an overflow car park when she got into work at half past nine, and that in refusing to earmark a parking space in the main car park for her, they had failed to make a reasonable adjustment. The Agency argued that she could have come into work at nine, when there were plenty of spaces, and so there was no PCP. they also proposed that she could be “shuttled in” from a more distant car park, in the sense that she could ring the office and someone would come and fetch her and, at the end of a shift, return her. Controversially, it was also suggested that she could use a disabled person’s parking space, but on the understanding that she would have to remove her car if the space was required by a blue badge holder. The Employment Appeal Tribunal disagreed with such arrangements. Mrs Donnelly was contractually entitled to come into work at the later time, and it was for her employer to make reasonable adjustments, not for her.
Turning to the email said to have been harassment, this was written to her during her final episode of sickness. In it a Mr Hopwood referred to her “negativity” and cast doubts on her capability or willingness to fulfil any role with the Agency at all. The Employment Tribunal described the email as “less than supportive or helpful” but, according to the Employment Appeal Tribunal, that fell far short of harassment. The email could not reasonably have been read as falling within the statutory definition of harassment – and so that finding was set aside, on the basis that the finding made by the Judge was perverse:
Having considered both the words in the email and what the Tribunal have said about them, we are unanimously and firmly of the view that the email in question could not reasonably have been found to have had the purpose or effect of violating the Claimant’s dignity or creating an environment qualified by any of the adjectives set out in section 3B(1)(b) of the 1995 Act. The email was sent in a situation in which, after the Claimant had herself been off work for months and efforts to find her an alternative post had failed, she had been found work and yet had left it after some two weeks. The situation was plainly one in which the sender of the email, Mr Hopwood, had to manage. In that context, if the email is read as a whole, while some of the expressions used may well have been – and the Tribunal found that they were – less than supportive and helpful, that is far from falling within the definition of harassment; and we have come to the conclusion – a very rare conclusion for this appellate Tribunal to reach – that in this respect the Tribunal reached a conclusion which was perverse. The email could not reasonably, in our judgment, by any reasonable Tribunal have been read as amounting to falling within the statutory definition of harassment; that has, in our judgment, been overwhelmingly demonstrated.
Finally, the EAT considered that the tribunal had failed to consider whether dismissal had fallen within the range of reasonable responses available to the employer in the circumstances, and so the case was sent back to the same Tribunal to reconsider the fairness of the dismissal. In making this order, the EAT took the opportunity to give this guidance:
We wonder whether the parties really want to go back to the Tribunal and have another battle over two or three days. We recommend to the parties – and we have no power to do anything more than that – that they should seriously consider whether the time has not come – which, for all we know, may already have taken place, and what we say may be considered to be impractical and wholly out of place, but, never mind, we want to say it – for the parties to find a way in which they can avoid the expense and the trauma of further public hearings.