“(12) I clarified the issues with the parties at the hearing. The claimant had produced a two documents recently called “statement against The Chestnut Group” and “My claim against the Chestnut Group” as well as responding to an application by the respondent, dated14 January 2022 to strike out his claim. This proliferation of documentation tended to obscure, rather than highlight the issues in the ET1. The claimant said that he had sent other emails that were not included in the preliminary hearing bundle, and these documents may contain what are properly to be treated as applications to amend his claim, but since I did not have those documents, and given the limited duration of the hearing, I did not consider that I could determine any applications to amend today. (13) I clarified the issues in the claim with the assistance of the claimant.”
“(15) The issues may need to be reconsidered, but the issues which appeared to arise from the claim: (i) Was the claimant a disabled person by virtue of IBD and/or a burn to his left hand between December 2020 and January 2021? (ii) If disabled by IBD, was the claimant required in January 2021to shield as a result of the covid pandemic? (iii) Was the claimant’s partial attendance at work in January 2021 because he was shielding? (iv) Was the claimant’s dismissal because of something arising in consequence of his disabilities, namely a need to shield and therefore not attend work during his normal working hours in January 2021? (v) If so, does the respondent show either that it did not know and could not reasonably be expected to know that the claimant was a disabled person, or that the claimant’s dismissal was a proportionate means of achieving a legitimate aim. Any such aim will need to be clarified in due course. (vi) While I identified the claimant’s burn injury to his hand as an impairment on which he seeks to rely for the purposes of his complaint of disability discrimination, it was not clear why that was said to be (or be part of) a disability where it had affected the claimant for about two months (he said that he had been signed off between January and February 2021, and the respondent said that this certification had been retrospective), nor how the claimant said that his dismissal had been because of the burn to his hand. The claimant may have been saying that the respondent’s approach to health and safety was inconsistent as between its response to his burn and the conduct on which it relied in dismissing him, but I was not clear how this was said to amount to disability discrimination, and this is something the claimant may need to be prepared to address by the time of the next hearing. (vii) The claimant also said that as a result of the respondent’s conduct towards him he had developed PTSD and he believed that he had undiagnosed PTSD prior to January 2021. I expressed the provisional view that any mental illness that developed after and in response to the claimant’s treatment was unlikely to be a relevant protected characteristic for the purposes of the claimant’s claim but might well be relevant to issues of remedy, and in any event the claimant did not link the reasons for his dismissal with PTSD. Again, if the claimant seeks to amend his claim in any such way, he would need to explain how he is saying that his treatment related to PTSD (and questions of knowledge may also arise).”
“I would like to clarify an issue I have been struggling to explain I was under the impression that my I.b.d was the reason for my high risk status I have now been informed it was not the contribute reason (as shielding correspondent do not stipulate reason) it was due to my having a seizure in 2019 to witch the respondent has the medical clarification on this already. I would there for like to amend my et1 form and put in place the correct reason for my high risk status and as it is a physiological disorder it would be protected under the equality’s act 2010 under disability there for an impairment I would also like to add whilst working at chestnut limited I was prescribed medicine that can brings on this condition I would also like to add in if I have not already my adjustments claim for my post traumatic stress disorder, breach of contract and whistle blowing all relevant information has been sent to the respondent.”
“The discrimination claim was clarified by EJ Brown on20 January 2022 as one of discrimination arising from disability (EqA section 15) with respect to dismissal. For being a disabled person the Claimant relied upon the physical impairments of IBD and a burn to the hand, along with the mental impairment of PTSD. The something arising from disability was his inability to attend for work because he was shielding from Covid.”
“Both prior to and after the case management hearing on20 January 2022 , the Claimant has written to the Respondent and/or the Tribunal endeavouring to set out his claim. Unfortunately, each time the Claimant writes, he describes his complaints in a somewhat different way. This has made it difficult to understand the legal claims he wishes to pursue and what impairments he is relying upon for being a disabled person. I sought to clarify these matters with him during this hearing.”
“The central factual complaint made by the Claimant can be stated simply. He was Head Chef in the kitchen at the Respondent’s Rupert Brooke pub. On17 December 2020 he suffered a burn to his hand as a result of a workplace accident. This burn became infected and required antibiotic treatment. His GP advised he was unfit for work. Notwithstanding he made his employer aware of this state of affairs, he was pressurised into carrying on at work over a number of busy days. Shortly thereafter, the Claimant was advised to shield and isolate because of covid. Following that point, the Respondent discovered what it believed were a number of serious breaches of procedure, including with respect to hygiene or health and safety in the kitchen at which the Claimant was Head Chef. Disciplinary proceedings were commenced and the Claimant dismissed. The Claimant says that his absence from work whilst shielding contributed to the kitchen issues for which he was dismissed. For the purpose of a claim under EqA section 15, the something arising was the Claimant’s absence from work.”
“24. On17 December 2021 , the Claimant suffered a nasty burn to his hand as a result of an accident at work. He continued to work, although he believes this was only because he was pressurised to do so. Mr Roberts put to the Claimant that when he attended to the disciplinary hearing on11 February 2021 , he was wearing no bandage or dressing and the burn appeared to have healed. In answer he said “That was two months after, of course it appeared nearly to be healed”
“32. Whilst the impact statement may accurately describe the Claimant’s current position now, I do not accept it reflects the position when he was employed by the Respondent. According to the impact statement the Claimant is extremely limited in being able to walk, cannot use his hands properly, needs help with bathing and dressing and has difficulty being around people. This description is not only very different from the medical questionnaire he completed but also inconsistent with the substantive role he carried out for the Respondent, being head chef at the Rupert Brooke pub. More likely, the impact statement reflects a subsequent deterioration in the Claimant’s health. The Claimant told me that his “career” as a head chef was “over” because of the way in which he had been treated by the Respondent, which strongly suggests a worsening of his health thereafter. I am also reinforced in this conclusion by the observations of the Claimant’s psychologist in her November letter about the “re-triggering”.”
“As above, I find the Claimant received a nasty burn to the hand on17 December 2020 , which had substantially healed by the point of 9 weeks later.”
“whilst the burn to the Claimant’s hand was a physical impairment and must have had an adverse effect in terms of pain and reduced function when healing, this had not lasted for 12 months at the material time and nor could it be said to have been likely to do so; rather substantial healing would have been anticipated with a few weeks at most;”
“40. I do not find the Claimant was suffering with PTSD and the time of his employment. 41. The Claimant has suffered with depression in the past, although I cannot make any finding about the nature and extent of that on the evidence before me. It does not, however, appear the Claimant was receiving any treatment for depression (either talking therapies or medication) during his employment by the Respondent. Unfortunately, following the Claimant’s dismissal his mental health deteriorated and as at February 2022, he was being prescribed Venlafaxine for this.”
“The various impairments now relied upon emerged at different times in the Claimant’s various attempts to set out his complaints in writing. The Claimant explained this pattern in two ways: firstly, his PTSD made him forgetful (i.e. he forgot to mention some of these matters when preparing his documents) and secondly, he did not know which conditions had been taken into account when he was told to shield or isolate. This latter point is of some importance. The Claimant has sought to work backward from the fact that he received advice to shield or go into isolation, as indicating that it must follow that he had one or more serious health concerns amounting to a disability. I cannot, however, proceed in this way. There is no evidence of why the Claimant was advised to shield or isolate. The Claimant says he was contacted by Track and Trace. Whilst this might suggest he was a close contact of someone who had tested positive for covid, the Claimant says it was to tell him he needed to shield. There is a letter from the Claimant’s GP about receiving the vaccination saying he was in a high risk category but not why. I note that the Claimant’s witness, Mr Goldsack, says the Claimant’s partner was pregnant at the time and at higher risk.”
“the Claimant was not suffering with PTSD at the material time (whilst he had a prior history of depression, I could not find this was active at the time or that it had a substantial adverse effect when it had been previously).”
“Please see attached the start of my appeal on your decision regarding my case I will be submitting my medical evidence on my left for arm and hand that will prove I am disabled and have been for years I would request the tribunal to review there decision as I feel it has been made in haste and I would request that medical evidence I have already submitted be read more closely with the burn evidence to my disabled hand…”
“As I was only given 15 minutes to state my case and this section wasn’t subject to conversation I would like to clarify the parts of judge browns question as to how my burn impairment links to disability. In 2007 I severed my left arm and had to have reconstructive plastic micro surgery on it and physio therapy for a number of years after also I had to undergo another major surgery in my left hand a muscle transplant from my ring finger to my palm all of the surgery put me as a disabled impaired person for life in my left hand and for arm. I will submit hospital record on this as well as detailed proof of my being impaired/disabled permanently from 2007. I can not see how judge maxwell would say I was not a disabled person at the material time.”
“I can not understand how my disabled hand that was burn badly and then contracted a major infection witch could not be contained this would not allow me to be in a restaurant (e.h.o.own rules) but would be ok for a company to dismiss me for gross misconduct for an incident that took place on the 27/12/20 during a u.k lockdown it is true no health and safety process was followed to keep myself and other safe (I was classed as high risk as well as having a infection that would spread as it could not be contained) Also I will have my doctor confirm as I have a disabled left for arm and hand due to the severities of that injury I heal at a fraction of time then a normal person in that arm and hand due to nerve muscle arteries etc damage. The respondent did dismiss me for nonattendance to the rupert brook on the the closedown on 27/12/20 how could I attend whilst shielding and whilst signed off sick for 2 months how could I attend on the 13/14/18/01/2021 whilst having an infection that could not be contain an as well as recovering from a burn on my disabled hand clearly no care for health and safety and the fact I partly attended due to there pressure breaches employment rights act 1996.”
“1. The need for a preliminary hearing and the issues to be determined were explained to the Claimant at a case management preliminary hearing before EJ Brown on20 January 2022 . Orders were made for the Claimant to provide the evidence he wished to rely upon in advance of the preliminary hearing. He made no application for a postponement, nor did he challenge the time allocated for this matter. 2. The hearing to determine the preliminary issues took place on29 April 2022 . The issues were explained at the beginning as was the process to be followed. The Claimant’s witness evidence lasted for about an hour, the Respondent’s witness evidence for a little less than an hour. Closing submissions took just over half an hour, with both sides speaking for about half of that time. The Respondent sought to reply to the Claimant and having allowed this briefly, I then reverted back to the Claimant so he could have the final word. At the end I asked the Claimant whether there was anything more he wished to say and he replied “That’s it”
“37. Fourthly, however, the ET's role is arbitral not inquisitorial or investigative. It must perform its functions impartially, fairly and justly, in accordance with the overriding objective, the law, and the evidence in the case. It may consider it appropriate to explore the scope of a party's case by way of clarification. That may, in particular, be considered appropriate in the case of an unrepresented party. Whether to do so is however a matter of judgment and discretion which will rarely qualify as an error of law such that the EAT can interfere. The ET has no general duty to take pro-active steps to prompt some expansion or modification of the case advanced by a party where that might be to their advantage. These propositions emerge clearly from a series of decisions of this court and the EAT. 38. We have been referred to the decisions of this court in Mensah (above) at [28] and [36] and Muschett v HM Prison Service[2010] EWCA Civ 25 ;[2010] IRLR 451 [31]. I do not consider it necessary to review those two cases in further detail. That was done in Drysdale v Department of Transport[2014] EWCA Civ 1083 ;[2014] IRLR 892 where the court subjected the relevant authorities to a detailed analysis from which Barling J (with whom Arden and Christopher Clarke LJJ agreed) derived the following general principles: (1) It is a long-established and obviously desirable practice of courts generally, and employment tribunals in particular, that they will provide such assistance to litigants as may be appropriate in the formulation and presentation of their case. (2) What level of assistance or intervention is "appropriate" depends upon the circumstances of each particular case. (3) Such circumstances are too numerous to list exhaustively, but are likely to include: whether the litigant is representing himself or is represented; if represented, whether the representative is legally qualified or not; and in any case, the apparent level of competence and understanding of the litigant and/or his representative. (4) The appropriate level of assistance or intervention is constrained by the overriding requirement that the tribunal must at all times be, and be seen to be, impartial as between the parties, and that injustice to either side must be avoided. (5) The determination of the appropriate level of assistance or intervention is properly a matter for the judgment of the tribunal hearing the case, and the creation of rigid obligations or rules of law in this regard is to be avoided, as much will depend on the tribunal's assessment and "feel" for what is fair in all the circumstances of the specific case. (6) There is, therefore, a wide margin of appreciation available to a tribunal in assessing such matters, and an appeal court will not normally interfere with the tribunal's exercise of its judgment in the absence of an act or omission on the part of the tribunal which no reasonable tribunal, properly directing itself on the basis of the overriding objective, would have done/omitted to do, and which amounts to unfair treatment of a litigant. 39. The following analysis seems to me correct in principle and consistent with the case law. The starting point is to consider what claims emerge from an objective analysis of the statements of case. A failure by the tribunal to identify and address those claims is liable to amount to a breach of its core duty and hence an error of law. A failure to identify and determine a claim that does not emerge from such an analysis can amount to an error of law but only in rare or exceptional circumstances of the kind outlined in Drysdale. It is in this overall context that the role of an agreed list of issues falls for consideration.”
“…the EAT held that the ET had erred in law by overlooking a claim that discrimination during employment had contributed to the employee's constructive dismissal. At [63] HHJ Auerbach identified as his starting point the question of "whether the claim form, read or not with other relevant documents, should have been treated as advancing a claim of constructive dismissal pursuant to section 39 EqA." He found that although such a claim was not expressly identified it was "plainly being asserted" and "shouted out" from the particulars of claim which "should have been treated as including" such a claim. In my view the ratio decidendi of the case is that on an objective reading of the statements of case in their proper context the employee was claiming that her constructive dismissal flowed from acts of discrimination. The judge did say, further and alternatively, that the issue "should at least have been raised and clarified by the tribunal at the initial case management hearing". In reaching that conclusion the judge referred to Drysdale and made clear that he regarded his conclusions as consistent with the principles there identified. I therefore read this alternative ground of decision as a finding that if (contrary to the judge's primary conclusion) the discrimination claim was not clearly pleaded then, on the facts of the case, the claim was so obvious that it was perverse of the tribunal not to identify it.”