Employment Judge BattisbyIn person for claimantMr D Brown (instructed by counsel) for respondentDate 4 September 2023
JUDGMENT
Upon the withdrawal by the claimant, his claims of discrimination on the grounds of race and/or religion or belief are dismissed. JUDGMENT In the case of Mr Akif Hussain v John Lewis plc 1302004/2022 , the unanimous judgment of the Tribunal is that:[1]The claimant is a disabled person during the relevant time by reason of migraines. The claimant is not a disabled person during the relevant time by reason of Post Traumatic Stress Disorder (PTSD).[2]The claimant’s claim for unfair dismissal is not well well-founded and is dismissed.[3]The claimant’s claim for direct disability discrimination (s 13 Equality Act 2010) is not well founded and is dismissed.[4]The claimant’s claim for discrimination arising from disability (s 15 Equality Act 2010) is not well founded and is dismissed.[5]The claimant’s claim for failure to make reasonable adjustments (s21 Equality Act 2010) is not well founded and is dismissed.
REASONS
The Claimant wrote to the Tribunal and requested written reasons on 5 August 2023. Claims and Issues[1]The claimant presented a claim with Midland West Employment Tribunal on 12 April 2022 . The claimant had earlier made contact with ACAS on 2 April 2022 and an Early Conciliation Certificate was issued on 4 April 2022.[2]In his ET1 the claimant originally brought the following claims:a. Unfair dismissalb. Disability discriminationc. Race discriminationd. Religion or belief discrimination[3]The respondent lodged an ET3 on 12 May 2022 denying all the claims .[4]At the Case Management hearing held on 10 October 2022 , the claimant clarified his claims. With the assistance of the Equality and Employment Law Centre, he amended his claim. His claims for race and religion or belief discrimination were dismissed on withdrawal. He confirmed he was not pursing a separate health and safety detriment claim.[5]Pleadings were amended by both parties following this Case Management hearing on 10 October 2022.[6]The case was well prepared with a joint agreed bundle, a supplemental bundle from the claimant and witness statements prepared for the respondent’s witnesses and the claimant.[7]In terms of the issues these are set out below.
List of Issues
[8]What was the reason or principal reason for dismissal? The respondent says it is conduct[9]Was it a potentially fair reason?[10]The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct.[11]If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whethera. there were reasonable grounds for that belief;b. at the time the belief was formed the respondent had carried out a reasonable investigation;c. the respondent otherwise acted in a procedurally fair manner;d. dismissal was within the range of reasonable responses[12]Did the claimant contribute to his own dismissal?[13]Did the claimant contribute to his dismissal?[14]If there is found to be any procedural unfairness, what is the percentage likelihood that notwithstanding any such unfairness, the claimant would have been dismissed anyway (Polkey reduction)? Disability discrimination[15]The respondent accepts that the claimant was a disabled person by reason of the condition of migraines at the relevant time.[16]Was the claimant disabled by reason of the condition of PTSD at the relevant time? a. Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide: i. Did he have a physical or mental impairment? ii. Did it have a substantial adverse effect on his ability to carry out day-to-day activities? iii. If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? iv. Would the impairment have had a substantial adverse effect on his ability to carry out day-to-day activities without the treatment or other measures? v. Were the effects of the impairment long-term? The Tribunal will decide: 1. did they last at least 12 months, or were they likely to last at least 12 months? 2. if not, were they likely to recur? Direct Discrimination – s13 Equality Act 2010[17]Did the respondent subject the claimant to the following less favourable treatment?a. Dismissing him on 4 February 2022?b. Not giving him sufficient training in October 2020 in handling hostile situations?[18]If so, was the claimant treated less favourably than someone who did not suffer from the claimant’s disability? Specifically: c. Are there facts from which the Tribunal could conclude that such treatment was because of the claimant’s disability? d. If so, does the respondent prove a non-discriminatory reason for the treatment?[19]If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated.[20]The claimant has named David Bonnell as a comparator and is also relying on upon a hypothetical comparator. Discrimination Arising from Disability – s15 Equality Act 2010[21]Did the respondent subject the claimant to the following unfavourable treatment? a. Dismissing him on 4 February 2022?[22]If so, was this treatment because of something arising inconsequence of the claimant’s disability?[23]The claimant says the something arising in consequence of his disability was:a. Because of migraine and PTSD he would become confused and have little control over his actions.b. He would become angry and irritable.[24]If so, was any such treatment a proportionate means of achieving a legitimate aim?[25]The respondent says that its aims were:a. ensuring a safe and appropriate working environment for its employees, customers, members of the public and third parties;b. protecting employees, customers, members of the public and third parties from violence or threats of violence;c. ensuring employees achieve and maintain acceptable standards of conduct;d. protecting its reputation, brand and/or business interests; ande. ensuring those in managerial roles set an appropriate example to other employees.[26]The Tribunal will decide in particular:a. was the treatment an appropriate and reasonably necessary way to achieve those aims?b. could something less discriminatory have been done instead?c. how should the needs of the claimant and the respondent be balanced?[27]Did the respondent know, or could it reasonably have been expected to know that the claimant had the disability? From what date? Failure to make Reasonable Adjustments – ss20-21 Equality Act 2010[28]Did the respondent know or could it have reasonably been expected to know that the claimant was disabled? If so by what date?[29]Did the respondent have the following provision, criterion or practice:a. Dismissing employees who are violent whilst at work, without considering any reasonable alternatives?b. Having periods of the day in which security guards are not on shift due to cutback within the organisation?[30]Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in thata. The claimant was dismissed on the grounds of serious misconduct, resulting in unemploymentb. The claimant had to step in to deal with hostile situations with customers which triggered his PTSD?[31]Did the respondent know, or could it reasonably have been expected to know that the claimant was likely to be placed at a substantial disadvantage as a result of the disability?[32]What steps could have been taken to avoid the disadvantage? The claimant suggests:a. Whilst the claimant was suffering with the effects of his PTSD, placing him in an alternative role which was not customer facingb. Providing the claimant with adequate training as to how to deal with hostile situationsc. Always have a security guard on shift[33]Was it reasonable for the respondent to have to take those steps and when?[34]Did the respondent fail to take those steps?[35]Did any PCP put a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled? Procedure Documents and Evidence[36]We heard evidence from the claimant and Mr Daniel Treacher. The claimant produced a digitally signed witness statement from a Ms Ranu Mall. Unfortunately she did not attend to give evidence. As there was no address, or signature on the document we explained to the claimant that we could only give very limited weight to this statement.[37]Whilst we believe the claimant was trying on many occasions to assist the Tribunal (and taking into account he was presenting his case alone with no assistance), we found that the claimant was not an entirely credible witness. At times, we found that the evidence he gave lacked credibility or was inconsistent. Whilst we do not believe the claimant was being dishonest, we find that at times he appeared to be giving answers that he thought suited his case rather than be truthful. We have identified these areas during our fact finding below. We found that Mr Treacher was not a particularly helpful witness – putting aside that it can be stressful giving evidence (Mr Treacher denied he was stressed when it was put to him), he was surly and at times rude. We did not find his evidence at the Tribunal particularly helpful to us when reaching our conclusions.[38]We also heard from the Respondent witness: Mr David Bonnell, Mr David Smith and Mr Nigel Towse. We found all three to be honest and credible witnesses who admitted if they had made mistakes but assisted the Tribunal by giving full answers – even where a yes or no would do.[39]We were given a large bundle totalling 1217 pages, together with a supplemental bundle of 514 pages from the claimant . There were issues with both bundles being different depending on hard copy or electronic – it has caused some problems in identifying documents in witness statements and is something for the respondent to consider for another hearing. For this reason we have not identified pages numbers in the judgment but referred to the date of any documents we refer to.[40]As the claimant was suffering from PTSD and migraines during the hearing, and applying advice from the Equal Treatment Bench Book, we made the following adjustments during the hearinga. We have regular breaks – particularly when the claimant was showing signs of experiencing difficulties;b. Allowing the claimant to go home early on Tuesday afternoon to take medication and lie down;c. Limiting cross-examination from the respondent on the areas of cross examination which were causing the claimant the most distress (particularly the incident on 7 November 2023).[41]At the start of the hearing, the respondent conceded that the claimant was disabled by reason of migraines. The respondent did not concede the claimant was disabled by reason of PTSD.[42]At the conclusion of the evidence each party made an oral submissions. Both parties also submitted written submissions which included their oral submissions. We will not repeat them here. We thank for parties for these oral and written submissions which we have carefully considered. Fact Finding After a careful consideration of all the evidence before the Tribunal during the hearing, we make the following findings of fact.[43]The claimant’s employment with the respondent (a national retailing chain with department stores and supermarkets) commenced on 6 September 2013 and he worked in various roles and was promoted during his time at their Hall Green branch in Birmingham.[44]By November 2021, the claimant had become an assistant team manager and a duty manager .He was subject to a contract of employment dated 6 September 2013 and to a number of rules polices and procedures. This included a disciplinary policy which included examples of gross misconduct including physical assault.[45]The claimant had no previous disciplinary or performance warnings. He received a warning for his absence from work in 2017 and at this stage he reduced his hours from 5 to 4 days per week.[46]The claimant was diagnosed with PTSD in 1998. On the claimant’s evidence, the claimant did not need to take medication or see his doctor again about this condition until November 2021 (23 years later) after the incidents that formed the disciplinary proceedings. The first fit note from his GP that mentioned PTSD was on 9 February 2022 after the claimant was dismissed. We do not accept that this was a formal diagnosis of PTSD at this time.[47]The claimant started suffering with migraines in 2006 but did not experience issues in the workplace with migraine until around 2016.[48]The claimant has numerous recorded absences with migraine given as the reason from 2016 onwards. The fact that he suffered from migraine was well know by his colleagues and his manager, Mr David Bonnell.[49]At his request, the claimant’s working hours were reduced to 4 days on 6 October 2017. Adjustments were made to his hours to make up his time when he was late for work.[50]A picture emerges that in the main, the claimant’s condition was managed well by a supportive employer. There were no reported incidents of the claimant losing control or becoming angry at work. The claimant pointed to an email describing him as being ‘pissed off’’. We do find that this amounts to a demonstration of the claimant being angry.[51]The claimant produce an impact statement and lengthy parts of his witness statement describes issues with migraines. There is very little about PTSD.[52]The respondent takes training seriously and has an extensive training programme available to its employees who are called Partners. The claimant had attended many courses during his employment with the respondent including “protecting yourself at work” in November 2019.[53]On the claimant’s evidence he also observed his colleagues regularly dealing with either shoplifters or members of the public who were causing issues. Whilst the claimant says he did not actually complete the training (even though the training record in the bundle says it was completed), we find that it would have been his responsibility to ensure he was kept up to date. The respondent would not have been alerted to this issue, and Mr Bonnell’s evidence was that the claimant was known to keep up with training. In any event, on the claimant’s case, training would have made no difference here as the claimant says he lost control due to his disability.[54]The claimant was promoted to duty manager in October 2020 As duty manager, he could expect to be called to assist by Partners where they found a situation difficult.[55]During his promotion to duty manager, Mr Bonnell put the claimant through a duty manager exercise where he tested the claimant on important aspect of the role including health and safety, dealing with external inspections, shoplifting and dishonesty in employees. He gave the claimant scenarios. We accepted Mr Bonnell’s evidence that the claimant passed this test and gave him no cause for concern that he wouldn’t be able to deal with a number of situations that might come his way as Duty Manager. We make a specific finding that the claimant was given every opportunity to undertake training during his time as an employee of R.[56]We make the finding that the claimant never expressed any reservation about being a duty manager, bearing in mind the situations he could possibly be asked to deal with.[57]Sadly there are regular issues of shoplifters and beggars at the branch – we heard no evidence that any previous incidents had caused a problem with the claimant.[58]On 7 November 2021 it was reported to Mr Daniel Treacher and Louie Young that there was a member of the public causing problems and upsetting customers in the car park. Mr Treacher and Mr Young went outside to see if they could deal with it. As the member of the public wouldn’t leave the premises, they radioed for assistance from a senior manager.[59]The claimant answered the call. He says he had already had interactions with the member of the public on that same day. Mr Treacher’s said in evidence said he didn’t know this particular member of the public.[60]By the time the claimant attended the scene the member of the public was not on the respondent’s property but was hanging around close by. The claimant says the member of the public started spitting at this and being abusive. He said . there were witnesses to this incident.[61]A second incident took place on 8 November 2021. This happened inside the Hall Green store. He said that a shoplifter in the store was becoming aggressive. He came at the claimant who said “back” repeatedly and then pushed the claimant who fell to the floor. There were witnesses to the incident.[62]The claimant attended work as normal following these incidents. He completed a PIMS report on 9 November 2021. In it, he made no mention of either the member of the public on 7 November 2021 carrying a needle or stabbing him.[63]The claimant’s evidence on these events was confusing. At times he has said that he was acting in self-defence – at other times he has said that he was not acting in self-defence, but was taken over by his PTSD which had flared up that day and a migraine that had started developing during the morning.[64]We viewed the CCTV footage and we observed that the claimant did not appear to be defending himself but rather he was the aggressor in both incidents.[65]The claimant says he was stabbed by the member of the public during the incident on 7 November 2021. The claimant gave contradictory evidence about this point during the investigation, disciplinary and appeal process. His evidence at Tribunal was that he was stabbed at this time by the man with a small knitting needle but that he did not become aware that this had happened until 15 November 2021 when he was in the shower. He explained that the effects of his migraines and PTSD meant he couldn’t feel the pain or notice it for over a week. In evidence he stated that migraine symptoms came and went during the week.[66]We find that it is not credible for the claimant to claim that he didn’t notice he was stabbed for over a week. We find that in fact the claimant was not stabbed and that his original version of events was correct and that he added this at a later date in order to justify his action . Whilst the member of the public might have threated he had a needle, the claimant had spotted early on that he did not have actually have a needle.[67]On the second incident which occurred the following day, 8 November 2021, the claimant was approached by a shoplifter and the claimant’s response was to push him away. We have observed the CCTV footage and find that the claimant gave the person such a push that he fell on the floor.[68]It was not until 10 or 11 November 2021 that Mr Bonnell was informed by a colleague Ranu Mall that the incidents on 7 and 8 November 2021 had taken place and that a colleague, Sue Holley, had reason to be concerned about the incident on 7 November 2021.[69]Mr Bonnell took statements from Ms Holley and Ms Mall and reviewed CCTV footage. Following this he decided to conduct an investigation.[70]He spoke regarding the incident on 8 November 2021 with:a. Gill Shortb. Bridget Masonc. Jane Milesd. Karent Butler[71]He spoke regarding the incident on 7 November 2021 with:a. Dan Treacherb. Louie Young[72]He met with the claimant and interviewed him on 15 November 2021. By the time of this interview the claimant already knew that Mr Bonnell was undertaking an investigation.[73]Mr Bonnell checked with the claimant his undertaking of safety techniques based on his prior training. He asked him about the duty training that Mr Bonnell had conducted with the claimant.[74]The claimant’s first account was that he was asked to attend the scene by Mr Treacher and Mr Young as the man would not leave, and when he arrived, the man had become agitated and threatened the claimant with a needle, spat at him and made fists. He said he had to grapple with him for his personal safety and tried to get him to the ground. He said he realised there was no needle and backed off. He then reported the incident to the police.[75]The claimant’s version of events changes after this; we find it startling that if claimant had been in the state as he described it later, that he would simply have gone back to work. This doesn’t seem credible. We would have expected the claimant to seek urgent assistance. He did not. None of the immediate witnesses report the claimant complaining that he had ‘lost control’ or had difficult seeing.[76]We note that after seeing CCTV, the claimant first mentioned his migraines, but not how they affected him in this incident. He makes no mention of PTSD. He said he was acting in self-defence.[77]During his meeting with Mr Bonnell on 15 November 2021, the claimant accepted that CCTV didn’t look good and that what happened didn’t feel right. He said he would like a referral for his migraines.[78]Based on evidence to date, Mr Bonnell decided to suspend the claimant in order to complete his investigation and this happened on 15 November 2021.[79]The claimant signed the notes of this meeting. In evidence the claimant said he didn’t read them and trusted Mr Bonnell. Even if the claimant didn’t read the notes he had many opportunities through the disciplinary process to challenge them if he didn’t think they contained all the relevant information.[80]Mr Bonnell concluded, following taking further witness statements from Richard Barker, Mark Pratt and James Harris, that there was case to answer in relation to the two incidents.[81]Mr Bonnell felt however that the incident on 7 November 2021 was by far the more serious. This was because it involved the claimant pushing a member of the public to the floor, grabbing his neck, kicking him whilst at the time being in company uniform.[82]Mr Bonnell passed his investigation to Mr. David Smith a branch manager at Waitrose and partners in Solihull. Mr. Smith reviewed the investigation and asked Mr Bonnell to consider a few further points. Specifically he asked Mr Bonnell to investigate whether the claimant’s migraines may have had any impact on his conduct on either the 7 or 8 November 2021 and to find out more about the training the claimant had received.[83]Mr Bonnell met with the claimant again on 22 November 2021. Mr Bonnell asked the claimant to describe his symptoms at the time of the incidents. The claimant said for the first time that he had experienced blurred vision and the shakes. Mr Bonnell also asked the claimant about his training particularly in relation to “protecting yourself from violence” and the four golden rules.[84]Mr Bonnell spoke briefly with the claimant again on the 24 November 2021 as he wanted to understand from him why it was that the claimant responded to the incidents particularly on the 7 of November 2021 when he wasn't feeling well at the time. The claimant’s response was that everything happened quickly and that as no one responded he felt duty bound to do so.[85]Mr Bonnell arranged for the claimant to be referred to the partnership health services ( PHS ) which is the Waitrose in-house occupational health team for assessment and to understand what impact the claimant’s migraines might have had on him from a medical perspective and what adjustments should be considered.[86]Following receipt of the occupational health report, Mr Bonnell reviewed it together with his notes of his further meetings with the claimant on the 22 and 24 November 2021. He concluded that there remained a case to answer and that Mr Smith should continue with the disciplinary process.[87]Mr. Smith reviewed all the evidence he received from Mr Bonnell. This included all the witness statements taken by Mr Bonnell, a copy of the PIMS report that the claimant had made of the two incidents, and he reviewed the CCTV footage of the two incidents.[88]At the time, he sent a disciplinary invitation letter to the claimant dated 22 November 2021, but also asked Mr Bonnell to complete some further investigations. On this basis the original disciplinary hearing that the claimant was invited to did not take place and a further disciplinary invitation letter was sent to the claimant on 13 December 2021 for a disciplinary hearing to take place on 17 December 2021.[89]The disciplinary hearing took place on 17 December 2021. In the disciplinary invitation letter the claimant was reminded that he could bring a companion with him to the meeting but he chose not to do so. The CCTV footage was reviewed and then Mr. Smith asked the claimant to tell him what happened on the incidents of the 7 and 8 November 2021. It was during this meeting that the claimant said he suffered from PTSD and mini strokes. This was the first time this had been raised during any part of the investigation. As this was new information, Mr. Smith adjourned the hearing and asked that the claimant be referred for a further occupational health referral.[90]Mr Bonnell was involved in an incident himself in store on 16 December 2021 We heard his evidence and viewed some selected images from CCTV of this incident. We are satisfied that Mr Bonnell used appropriate and reasonable force here when he held the arm of shoplifter in order to deter him from leaving the store without paying for goods. We find that this incident was in no way comparable to the incident with the claimant on either 7 or 8 November 2021.[91]Mr Bonnell was involved one further time in the matter. Following the disciplinary hearing between the claimant and Mr. Smith, Mr Bonnell was asked to arrange a further occupational health referral because the claimant mentioned that he suffered from PTSD. Whilst in evidence the claimant confirmed he had mentioned flashbacks he accepted that he had not specifically mentioned PTSD during the investigation process. The claimant was referred again to occupational health. He did not give consent to the report being released and therefore Mr. Smith was not able to use it during the disciplinary process.[92]On 25 January 2022 Mr. Smith invited the claimant to attend a reconvened disciplinary hearing which took place on 28 January 2022. The claimant received all relevant documentary evidence before each meeting. At the claimant’s request and due to his health this reconvened disciplinary hearing was adjourned further until 4 February 2022.[93]At this hearing on 4 February 2022 Mr. Smith put further questions to the claimant. It was at this point that the claimant mentioned a puncture wound following the incident of the 7 of November 2021. This was the first time that the claimant had mentioned this. At this hearing the claimant challenged the evidence of Sue Holley but was not able to give any reason why he believed her evidence was not accurate.[94]Mr. Smith adjourned the meeting to consider all the evidence before him based on the information he'd seen from the witness evidence including from the claimant and the CCTV capture. He was satisfied that the claimant had committed an act of serious misconduct In relation to both incidents. In coming to his decision he took into account the fact that he didn't believe the claimant had taken any responsibility for what had happened. He took into account his length of service and also considered in terms of mitigation whether there was anything relating to the claimant’s migraine and PTSD that might explain his behaviour. Ultimately Mr smith concluded that if the claimant had been feeling so unwell at the time why did he not let someone else deal with the incidents. Mr Smith was also concerned that if a similar type of scenario happened again that the claimant might respond in the same way again.[95]Mr. Smith reconvened the hearing and gave the claimant his decision which was to dismiss the claimant for gross misconduct.[96]The decision to dismiss the claimant was confirmed in writing and sent to the claimant on 4 February 2022. The claimant’s employment with the respondent terminated with immediate effect on 4 February 2022. The claimant was dismissed for gross misconduct. The claimant was given a right of appeal.[97]The claimant appealed against his dismissal on 8 February 2022.[98]Mr Nigel Towes was appointed as appeal manager and he received:a. Appeal letter from the claimant;b. the dismissal letter;c. notes of the disciplinary meetings on 17 December 2021 and 4 February 2022;d. notes from the investigation meeting conducted by Mr. David Bonnell including all the witness statements taken;e. CCTV footage from 7 and 8 November 2021.[99]During the appeal hearing the claimant stated that the difficulty he was facing on the 7 November 2021 during the incident was that his vision wasn't 100% and that it was blurry. During evidence before the tribunal the claimant's stated that the issue his migraine caused was anger and irritability. He has not sought to rely on blurred vision.[100]Following the meeting with the claimant, Mr Towes conducted his own investigation into the appeal. He met with Mr. Smith the disciplinary manager, Mr Bonnell the investigation manager. He also spoke with Roisin Fitzgerald the occupational health manager. He also reviewed the PIMS report and the claimant’s training records.[101]Mr Towse sent the claimant an appeal outcome letter dated 12 April 202. The letter sets out in detail his investigations and findings. In the letter he summarised the investigation that being carried out and why the decision had been taken to dismiss the claimant summarily. The claimant had admitted that his behaviour on the 7 and 8 of November was not appropriate but said his actions were due to a medical condition. Mr Towse rejected the claimant’s appeal and the dismissal of 4 February 2022 stood. We have applied the following LAW to these facts[102]Section 94 of the Employment Rights Act 1996 (ERA 1996) confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111 ERA 1996. The employee must show that he was dismissed by the Respondent under section 95.[103]In this case the respondent admits that it dismissed the claimant (within section 95(1)(a) of ERA 1996) and this is not in dispute[104]Section 98 of ERA 1996 deals with the fairness of dismissals. There are two stages within section 98.[105]First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2) ERA 1996. Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.[106]Conduct is a potentially fair reason for dismissal under section 98(2) ERA 1996..[107]Section 98(4) ERA 1996 then deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.[108]In misconduct dismissals, there is well-established guidance for Tribunals on fairness within section 98(4) in the decisions in BHS v Burchell 1980 ICR 303 and Post Office v Foley 2000 IRLR 827. The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the Tribunal must decide whether there was a reasonable investigation. The exercise required depends on what the employer reasonably believes, on the basis of what it reasonably knows, about the relevant matters. It requires a broad assessment of all the relevant circumstances. The correct approach is for the Tribunal to consider whether dismissal was an option that a reasonable employer could have adopted in the circumstances. The Tribunal cannot substitute its own opinion for that of the employer as to whether certain conduct is reasonable or not. See British Home Stores Ltd v Burchell [1978] IRLR 379 and Tayeh v Barchester Healthcare Ltd [2013] EWCA Civ 29. 103.[109]In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, in deciding whether the employer acted reasonably or unreasonably within section 98(4), the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances.[110]It is immaterial how the Tribunal would have handled the events or what decision it would have made, and the Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones 1982 IRLR 439).[111]In respect of gross misconduct dismissals, Brito – Babapulle v Ealing Hospital NHS Trust (2013) IRLR 854 requires the tribunal to consider(1) was it reasonable for the respondent to characterize the conduct as gross misconduct and(2) was it reasonable to dismiss without notice, taking into account length of service and previous behaviour of the employee. Tayeh and Barchester Healthcare Ltd (2013) EWCA Civ 29 states it is for the employer to judge the severity of the offence it has concluded the employee is guilty of, it is not for the tribunal to substitute its own subjective view.[112]In the case of British Leyland UK v Swift (1981) IRLR 91, if the employee has committed an act of gross misconduct, it would be unusual for the tribunal to conclude the mitigating circumstances were so powerful that dismissal fell outside the band of reasonable responses. Discrimination law Disability s6 Equality Act 2010[113]Did the claimant have a disability as defined in s6 of the Equality Act 2010 at the time of the events the claim is about namely 7 November 2021 to 4 February 2022?[114]The Tribunal will decide:a. Did he have PTSD (a mental impairment)?b. Did that impairment have a substantial adverse effect on his ability to carry out day-to-day activities?c. If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?d. Would the impairment have had a substantial adverse effect on his ability to carry out day-to-day activities without the treatment or other measures?e. Were the effects of the impairment long-term? The Tribunal will decide: i. did they last at least 12 months, or were they likely to last at least 12 months? ii. if not, were they likely to recur? Direct Discrimination under s13 Equality Act 2010[115]Under s13(1) of the Equality Act 2010 read with s9, direct discrimination takes place where a person treats the claimant less favourably because of [a protected characteristic] than that person treats or would treat others.[116]Under s23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case.[117]In many direct discrimination cases, it is appropriate for a tribunal to consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of the protected characteristics. However in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the claimant was treated as they were. (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] IRLR 285)[118]Decisions are frequently reached for more than one reason. Provided the protected characteristic or, in a victimisation claim, the protected act, had a significant influence on the outcome, discrimination is made out. (Nagarajan v London Regional Transport [1999] IRLR 572, HL)[119]The case law recognises that very little discrimination today is overt or even deliberate. Witnesses can even be unconsciously prejudiced.[120]Section 136 of the Equality Act 2010 sets out the burden of proof. The burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another. (Hewage v Grampian Health Board [2012] IRLR 870, SC.)[121]Under s136, if there are facts from which a tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless that person can show that he or she did not contravene the provision..[122]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142; [2005] IRLR 258. Once the burden of proof has shifted, it is then for the respondents to prove that they did not commit the act of discrimination. To discharge that burden it is necessary for the respondents to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive. Since the facts necessary to prove an explanation would normally be in the possession of the respondents, a tribunal would normally expect cogent evidence to discharge that burden of proof.[123]The Court of Appeal in Madarassy, a case brought under the then Sex Discrimination Act 1975, states: ‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.[124]For example - false explanation for the less favourable treatment added to a difference in treatment and a difference in sex can constitute the ‘something more’ required to shift the burden of proof. (The Solicitors Regulation Authority v Mitchell UKEAT/0497/12. Discrimination arising from disability s15 Equality Act 2010[125]Section 15 of the Equality Act 2010 provides: - Discrimination arising from disability. (1) A person (A) discriminates against a disabled person (B) ifa. A treats B unfavourably because of something arising in consequence of B’s disability, andb. A cannot show that the treatment is a proportionate means of achieving a legitimate aim.[126]In Secretary of State for Justice and Anor v Dunn EAT0234/16 the EAT set out the elements that must be established in a S.15 claim:(i) there must be unfavourable treatment.(ii) there must be something that arises in consequence of the claimant’s disability.(iii) the unfavourable treatment must be because of (i.e., caused by) the something that arises in consequence of the disability, and(iv) the alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.[127]Each of these elements, together with the separate requirement in S.15(2) that the alleged discriminator must (or should) have known of the claimant’s disability, must be proven.[128]It is conceded by the R that they knew of the claimant’s disability of migraine.[129]It has been established that what must be shown is that the disability is 'a significant influence … or a cause which is not the main or sole cause but is nonetheless an effective cause of the unfavourable treatment as established in Hall v Chief Constable of West Yorkshire Police [2015] IRLR893, EAT and also in Pnaiser v NHS England [2016] IRLR170, EAT. 7. 177) In Pnaiser v NHS England [2016] IRLR70, EAT, Simler P at [31] gives further succinct guidance on the general approach to be taken by a tribunal under s 15, in order to distinguish it from direct discrimination. The steps set out in that judgement can be divided as follows: -(1) Was there unfavourable treatment?(2) What caused the unfavourable treatment?(3) Was the cause 'something' arising in consequence of the claimant's disability?(4) There can be more than one link in the causation chain, but the more there are the more difficult it may be to establish causation.(5) The causation test is an objective one. Reasonable adjustments S 20 Equality Act 2010[130]Section 20 of the Equality Act 2010 defines the duty to make adjustments as follows: The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.[131]The reasonable adjustments duty is contained in Section 20 of the EqA 2010 and is further amplified in Schedule 8. In short, the duty comprises of three requirements. If any of the three requirements applies, they impose a duty to make reasonable adjustments.[132]Section 21 provides that a failure to comply with one of the three requirements is a failure to comply with the duty to make reasonable adjustments by A (A being the employer or other responsible person) and amounts to discrimination, Section 21(1) and (2).[133]The approach that a Tribunal should take was set out in the judgment of HHJ Serota QC in Environment Agency v Rowan [2008] IRLR 20. We are required to identify:(a) the relevant arrangements (PCP) made by the employer,(b) the identity of non-disabled comparators (where appropriate), and(c) the nature and extent of the substantial disadvantage suffered by the Claimant (as a result of the arrangements). After determining the above we then must consider whether any proposed adjustment is reasonable; in particular, to determine what adjustments were reasonable to prevent the PCP placing the Claimant at a substantial disadvantage.[134]A substantial disadvantage is one that is more than minor or trivial. Whether or not such a disadvantage exists in a particular case is a question of fact. It is the PCP that must place the claimant at the disadvantage (Nottingham City Transport Ltd v Harvey UKEAT/0032/12, and the 2011 Code paragraph 16.) Using a comparator may help with this exercise as the purpose of the comparator is to establish whether it is because of disability that a particular PCP disadvantages the disabled person in question, as set out in paragraph 6.16 of the 2011 Code of Practice on Employment.[135]The substantial disadvantage should be identified by considering what it is about the disability which gives rise to the problems and effects which put the claimant at the substantial disadvantage identified, Chief Constable of West Midlands Police v Gardner UKEAT/0174/11. In Griffiths v Secretary of State for Work and Pensions [2014] UKEAT/0372/13, a case concerning the management of sickness absence, it was also explained that the fact that the disabled and non-disabled were treated equally and may both be subject to the same disadvantage when absent in the same period of time does not eliminate the disadvantage if the PCP bites harder on the disabled or category of them than it does on the able-bodied. Conclusions Was the claimant disabled by reason of PTSD?
Conclusions
[136]We find that the relevant period where the claimant complains of disability discrimination is between 7 November 2021 and 4 February 2022. We remind ourselves the burden of proof is on the claimant to establish they are disabled.[137]Did the clamant have a physical or mental impairment in relation to PTSD? We have found that there was very little evidence of a mental impairment. The claimant pointed to one line in a doctor’s letter identifying PTSD in 1998.[138]On this own case the claimant did not need to visit a doctor or take any medication for the condition of PTSD during the following 24 years. The first evidence is a fit note on 9 Feb 2022 outside the relevant period Whilst this lack of evidence goes to the question as to whether he actually had a mental impairment it also goes to the question of whether there was a substantial effect of day to day activities, which we consider below.[139]Based on the lack of evidence we do not find that the claimant had a mental impairment at this time.[140]If we are wrong, we also considered if any impairment had a substantial effect on the claimant’s day to day activities . Again, we find there is simply no evidence to support a finding that there was any impact at all of the claimant’s day to day activities at the material time by reason of PTSD. The claimant had reported no issues with PTSD until reference is made to it on a doctor’s note after he is dismissed.[141]We conclude that claimant was not suffering from PTSD at the relevant time and is therefore not a disabled person by reason of PTSD.[142]Even if the claimant was disabled by reason of PTSD at time of appeal in April 2022, he was not disabled by reason of PTSD at the time of the incidents that led to the dismissal.[143]The respondent accept that the claimant was a disabled person by reason of migraines at the relevant time and that they had knowledge of them. Direct Disability Discrimination s13 Equality Act 2010[144]The claimant complains of two acts of disability discrimination:a. his dismissal on 4 February 2022 andb. the failure to provide him with safety training in October 2020.[145]Whilst dismissal can amount to a detriment for the purpose of discrimination law, we have found that there was no denial of training opportunities to the claimant during his employment with the respondent and therefore the claimant suffered no detriment in respect of this part of his claim.[146]In relation to the dismissal, we must still consider if the claimant has established on the balance of probabilities that the reason for treatment was his disability. He points to a comparator (Mr Bonnell) regarding an incident in December 2021) and also a hypothetical comparator.[147]If under s136 Equality Act 2010, there are facts from which a tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless that person can show that he or she did not contravene the provision. We remind ourselves of the Madarrasy principle here – that there must be “something more” than just a protected characteristics and a difference in treatment.[148]The claimant says he was treated differently to Mr Bonnell – Mr Bonnell does not have the same disability but we note that he confirmed in evidence he is totally deaf in one ear.[149]We find that the incident involving Mr Bonnell on 16 December 2021 were in no way comparable to the incidents that involved the claimant on 7 and 8 November 2021.[150]For the reasons we set out below under unfair dismissal – we find that the claimant was dismissed because of his conduct on 7 and 8 November 2021.[151]We accept the evidence of Mr Towse ,an experienced appeal manager, that the claimant was treated in similar way to other partners in similar circumstances and therefore that the claimant was treated consistently.[152]We find that the claimant has not established the “something more” here. There is simply no evidence of disability discrimination. The claimant could not point to anything to suggest that he had been discriminated against during his employment that would lead the respondent to fabricate a reason for dismissal. In fact, we have found that the respondent has been a thoroughly supportive employer and made several adjustments and accommodations for the claimant due to his migraines.[153]We find that there are no facts from which the Tribunal could reasonably and properly conclude that the claimant was dismissed because of his disability as opposed to the conduct reason advanced by the respondent.[154]Even if we are wrong, and burden of proof shifts, the respondent has provided a clear and cogent reason for dismissal – namely the claimant’s serious breach of its code of conduct.[155]For these reasons, this claim fails. Discrimination arising from disability s15 Equality Act 2010[156]Using the case law above we first identify the unfavourable treatment. We accept that dismissal can be unfavourable treatment[157]We must then consider the ‘something arising’. The claimant has advanced that the something arising is that he would become confused and have no control over his actions. Before the tribunal he also said that in relation to migraine, that these made him angry. At other times, the claimant talks about loss of vision. We have no doubt that severe migraines can have some adverse affect on a person’s mood, and vision and did so for the claimant at times.[158]However, we find that it is quite a stretch to say that this led to the claimant being angry or out of control. There is no evidence, including medical evidence, to suggest that this is something arising out of the disability of migraine. The medical evidence refers to the claimant possibly feeling vulnerable, but that is not the same as being out of control, or angry.[159]We looked at the evidence captured of 7 and 8 November 2021. We have observed the claimant in the CCTV footage. There is no evidence that the claimant was suffering vision problems at these times. He did not report this issue to his colleagues as you would expect him to straight after the events. He was able to describe the incident well when asked by Mr Bonnell during the investigation. There was no referenced to loss of control or being angry or vision problems during his first interview with Mr Bonnell on 15 November 2021.[160]We accept the respondent’s submission here that this is no cogent evidence to support the proposition that lack of control or anger caused the claimant to act in the way he did on 7 and 8 November 2021. If this had been something arising we would have expected some evidence of this happening prior to 7 November 2021. There was no such evidence. The highest the claimant could say was that he was sometime irritable due to a migraine. Feeling irritable is a common problem faced by many people and not necessarily linked to migraine.[161]Therefore, we do not find that there was something arising from the disability of migraines that cause the claimant to be dismissed. He was dismissed because he seriously breached the respondent’s code of conduct.[162]Even if we are wrong on this, we accept the respondent’s submission that if the claimant was ‘out of control’ due to his disability then it would not be safe to continue to employ him as any role would mean he had daily contact with either members of the public or other partners.[163]For these reasons, this claim fails. Failure to make reasonable adjustments s 20/21 Equality Act 2010[164]We looked at the PCP’s advanced first.[165]We do not find that respondent had a PCP of always dismissing employees who are violent at work without considering alternatives. The respondent’s policy says that violence at work could amount to gross misconduct – however the policy says you may be dismissed, not you will be dismissed. We heard evidence that if the form of violence had been self defence, this would not give rise to a gross misconduct dismissal. On the basis that no there was PCP here – we do not have to consider this further.[166]The respondent accepts that its arrangements for security guards amounts to a PCP.[167]Therefore in this respect we must consider whether the claimant was placed at substantial disadvantage as compared to non-disabled colleagues.[168]As we have found no evidence that the claimant had ‘limited control’ over his actions, there is no obvious reason (and nothing put forward by the claimant) as to why someone suffering from migraines would be substantially disadvantaged by a store not have 24/7 security guards as opposed to any other employee.[169]All incidents relating to shoplifters or difficult members of the public must be stressful for any employee and there is nothing about the claimant’s disability that would make him more susceptible to this than other colleagues.[170]Therefore we do not find any particular disadvantage to the claimant here. If we are wrong, we do not find any substantial disadvantage here. The chances of the claimant have a migraine at the same time as a difficult incident are remote. Therefore, on a day-to-day basis, there is nothing about the claimant’s condition of migraine that places him at a substantial disadvantage to nondisabled colleagues as regards security arrangements.[171]If we are wrong, we need to consider if there were adjustments the respondent could reasonably have made. We find that the respondent was entitled to arrange its security arrangements based on risk assessments and via training of store members. There were in fact security guards on both days (7 and 8 November 2023) and this made no difference because they were on a break. In any event, it is quite possible they could have been dealing with another incident. If is simply not reasonable for the respondent to provide full cover that would mean no employee ever has to deal with a difficult episode.[172]For these reasons, this claim fails.[173]Has respondent shown on balance of probabilities a potentially fair reason for dismissal exists?[174]The burden of proof on the employer at this stage is not a heavy one. It requires a ‘set of facts known to the employer or beliefs held by him which cause him to dismiss the employee'. Based on the CCTV evidence and the witness evidence available alone we find on the balance of probabilities that the respondent has shown a potentially fair reason for dismissal exists, namely conduct.[175]Did the respondent act reasonably / unreasonably in treating that as sufficient reason to dismiss the claimant / Was that in the band of reasonable responses?[176]We have considered the three stage test in BHS v Burchell.[177]Did the respondent genuinely believe the claimant was guilty of misconduct? We find the respondent did believe the claimant was guilty of misconduct. The CCTV showed the C pushing a member of the public, grabbing their neck, kicking them on 7 November 2021 and using force so strong on 8 November 2021 that a member of the public was pushed to the floor.[178]Was the respondent's belief based on reasonable grounds? We find that the CCTV footage was clear and witness evidence showed that the claimant was responsible for the incidents. The claimant admitted it was him in both incidents and that on the face of it they were serious breaches of policy.[179]Did the respondent conduct a reasonable investigation? We have taken into account the size and administrative resources of the respondent. The respondent is a large company with a high level of resources, It is reasonable to expect them to have detailed conduct policies and procedures, including a disciplinary policy. We have found that they do.[180]The main thrust of the claimant’s case is as follows:a. The claimant reacted to a threat;b. He did not have sufficient training;c. He was not allowed to cross-examine witnesses during the disciplinary process;d. There was Inconsistency in approach and that others who had done similar to the claimant were not dismissed;e. There was an unreasonable delay with the claimant’s suspension being so long it would have been impossible to return to work.[181]The respondent conducted a detailed investigation with Mr Bonnell ,an experience investigator, taking a variety of witness statements. He asked all witnesses open questions during his interviews. He spoke with the claimant on three occasions to understand his version of events. He checked training records and took medical advice when health related reasons were raised by the claimant.[182]On deciding there was a case to answer he passed the matter to Mr Smith, another experienced manager. Mr Smith conducted an active investigation, seeking new evidence where necessary and adjourning the disciplinary hearing when the claimant raised the new issue of PTSD.[183]The claimant fully participated in all the meetings and was able to challenge evidence. The length of time it took from the incident to eventual dismissal was over three months but we are satisfied this was not unreasonable in the circumstances as it was in response to new information from the claimant that needed to be investigated and after requests from the claimant for adjournments. It is not usual for employees to cross-examine witnesses and therefore we do not find it unfair that the claimant was not permitted to crossexamine witnesses at his disciplinary. The appeals officer was able to give evidence and confirm that the claimant had been treated consistently with others in similar circumstances.[184]Was the sanction within the band of reasonable responses In accordance with Brito – Babapulle v Ealing Hospital NHS Trust, the first question we have to consider is whether it was reasonable for the respondent to characterise the conduct as gross misconduct We find that the respondent’s policies made this clear. It is significant in our view, that the respondent’s conduct policy for examples of gross misconduct specifically refers to physical assault. This was an obvious case of gross misconduct.[185]In the circumstances we find it was reasonable for the respondent to characterise the conduct as gross misconduct.[186]We have taken into account the British Leyland v Swift case, that it would be unusual if there is an act of gross misconduct, for the tribunal to find dismissal to be outside the band of reasonable responses.[187]We remind ourselves that it is not for the Tribunal to determine if the allegations are true but rather if employer acted reasonably, We find that the sheer weight of evidence from the investigation and disciplinary process, including the appeal and the admissions from the claimant, that respondent acted reasonably in dismissing the claimant for gross misconduct.[188]For all the above reasons we find that the dismissal in these circumstances was within the band of reasonable responses, and we dismiss the complaint of unfair dismissal.[189]For all the above reasons this claim fails.