A Pinches v Brierly Hill Tyre Services Ltd T/a BTS Garage: 1303054/2024

EMPLOYMENT TRIBUNALS

Case No 1303054/2024

Between

Arthur PinchesClaimant

Brierly Hill Tyre Services Ltd t/a BTS GarageRespondent

Before

Employment Judge Gidney

Mr Skudra (instructed by Representative) for claimant

Ms Akers (instructed by Counsel) for respondent

Date 23 January 2025

JUDGMENT

[1]The Claimant’s claim of direct disability discrimination, pursuant to s13 Equality Act 2010 (‘EqA’) is dismissed.

[2]The Claimant’s claim of a failure to make reasonable adjustments, pursuant to s20-21 EqA, is dismissed.

[3]The Claimant’s claim of discrimination arising from disability, pursuant to s15 EqA is dismissed.

[4]The Claimant’s claim of victimisation, pursuant to s27 EqA is dismissed. Page 1 of 23

REASONS

[1]The Claimant commenced employed with the Respondent, in the role of Mechanic on 17th January 2022. On 9th May 2023 the Claimant commenced a period of sickness absence from which he did not return, prior to his dismissal given on notice on 1st December 2023 [117]1 on the purported ground of capability, effective 1 week later, on 8th December 2023. The Claimant had accrued 1 year and 9 months continuous service with the Respondent.

[2]On 5th January 2024 the Claimant notified ACAS of a dispute with the Respondent. He received his Early Conciliation Certificate from ACAS on 2nd February 2024 [1]. By a Claim Form dated 28th February 2024 [2] the Claimant presented the following claims: 2.1. Direct disability discrimination (s13 EqA); 2.2. A failure to make reasonable adjustments, pursuant to s20-21 EqA; 2.3. Discrimination arising from disability, pursuant to s15 EqA; and, 2.4. Victimisation, pursuant to s27 EqA.

[3]For the purposes of calculating whether a claim has been presented in time, incidents that occurred prior to 6th October 2023 will be out of time. The Claimant’s effective date of termination was 8th December 2023. The Respondent rightly confirmed that it was not taking any time point and accordingly we determined that the Claimant’s claims (all of which relate to the dismissal and/or would be part of a continuing act that would include the dismissal) had been presented in time. 1 All references are to pages within the agreed Trial Bundle Page 2 of 23

[4]The Claimant’s Particulars of Claim asserted that he was, at all material times, suffering from the mental impairments of anxiety, depression, attention deficit hyperactivity disorder (ADHD) and post-traumatic stress disorder (PTSD) [14]. The Respondent’s ET3 [18] and Grounds of Resistance [27] denied all of the Claimant’s claims.

[5]The claim was case managed by Employment Judge Gaskill on 24th July 2024 [37]. At that hearing the Respondent accepted that the Claimant was, at all material times, disabled by the mental impairments of anxiety and depression [118]. The Claimant withdrew his assertions that he was disabled by reason of ADHD and PTSD. Before us it was common ground that the Claimant was disabled by reason of the mental impairments of anxiety and depression only. The agreed List of Issues [41] was updated to reflect the agreed position at the commencement of the hearing before us (some matters originally posed as questions were now accepted). The Final List of Issues was as follows: [2] The List of Issues Direct Disability Discrimination (s13 EqA) 5.1. The Respondent accepts that it dismissed the Claimant on the 8th of December 2023 and that the dismissal amounted to unfavourable treatment. 5.2. Did the Respondent treat the Claimant less favourably than it treated or would have treated a comparator? The Claimant relies on a hypothetical comparator who is a non-disabled employee able to work throughout a full working day. 5.3. If so can the Claimant prove primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of his disability? 5.4. If so, what is the Respondent’s explanation? Can it give a nondiscriminatory reason for the Claimant's dismissal? Page 3 of 23 Failure to make Reasonable Adjustments (s20-21 EqA) 5.5. The Respondent accepts knowledge of the Claimant’s anxiety and depression from 16th May 2023. 5.6. The Respondent did require its employees to work a full working day with little flexibility as to their hours (the PCP)? 5.7. Did that requirement put the Claimant at a substantial disadvantage compared to someone without the Claimants disability? Claimant contends that the disadvantage was a difficulty in raising himself in the morning or concentrating on work throughout the day. 5.8. Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage? 5.9. What adjustments could have been taken to avoid the disadvantage. The Claimant suggests(i) a phased return;

(ii) supervision or other support,

(iii) a risk assessment,

(iv) a meaningful discussion with the Claimant as regards when he would return to work;

(v) shorter adjusted or flexible hours; and

(vi) an investigation of the likely time it would take the claimant to return to work. 5.10. Was it reasonable for the Respondent to have taken those steps and when? 5.11. Did the Respondent failed to take those steps? Discrimination Arising From Disability (s15 EqA) 5.12. The Claimant's dismissal on 8th December 2023 was because of something arising inconsequence of the Claimant’s disability, namely his ongoing absence from work. 5.13. If so was the dismissal a proportionate means of achieving a legitimate aim? The Respondent relies on ensuring it has adequate resources (mechanics) to meet the operation demands of the business. 5.14. In all of the circumstances was the Claimant’s dismissal a proportionate means of achieving that aim. Page 4 of 23 Victimisation (s27 EqA) 5.15. The Claimant’s grievance dated 8th November 2023 constitutes a protected act for the purposes of section 27(2) EqA. 5.16. Was the Claimant's dismissal on 8th December 2023 done on the ground that the Claimant had carried out a protected act? [3] The Evidence

[6]We were provided with an agreed trial bundle (133 pages) and the following witness statements: 6.1. The Claimant’s witness statement (6 pages); 6.2. Helen Thursfield’s witness statement (7 pages) the Respondent’s CoOwner and Front of House Manager. 6.3. Lawson Thursfield’s witness statement (6 pages) the Respondent’s CoOwner and Diagnostic Technician.

[7]All witnesses gave oral evidence and were cross examined on that evidence. [4] Findings of Fact

[8]We have not recited every fact in this case or sought to resolve every dispute between the parties. We have limited our analysis to the facts that were relevant to the Issues that we were tasked to resolve. We made the following findings of fact on the basis of the material before us, taking into account contemporaneous documents, where they exist and the conduct of those concerned at the time. Page 5 of 23

[9]The Tribunal resolved such conflicts of evidence as arose on the balance of probabilities, taking into account its assessment of the credibility of the witnesses and the consistency of their evidence with the surrounding facts. Findings of fact related to a specific issue that we have been tasked to resolve are set out in our Conclusions section below.

[10]The Claimant commenced his first period of employment with the Respondent on 11th December 2013, shortly out of school. The Respondent is a small motor repair garage owned and operated by Helen and Lawson Thursfield [HT2]2. It has three full time employees and one part-time member of staff.

[11]In September 2018 the Claimant suffered a very traumatic event. He was in road traffic accident in which his girlfriend died. He had been speeding and was over the drink-drive limit. In May 2019 he was imprisoned for causing death by dangerous driving and his first period of employment with the Respondent came to end. He remained incarcerated until November 2021. The Claimant’s mental health has been adversely impacted by that experience.

[12]The Respondent stood by the Claimant and offered him his job back on his release. He commenced a second period of employment with the Respondent, again in the role of Mechanic, on 17th January 2022. On 9th May 2023 the Claimant commenced a period of sickness absence following what he described as a mental health breakdown [AP3]3. He did not return. This was caused by his continuing anxiety and depression. The whole of his absence was covered by Fitness covering the period 15th May 2023 until 21st January 2024 [59-68]. The Claimant’s last Fitnote signed him off work until approximately 6 weeks after his effective date of termination. The first Fitnote, covering the period between 25th and 29th May 2023 assessed the Claimant as unfit to work due to ‘stress at work’ [59]. The Respondent accepts that the Claimant was disabled, as defined by s6 Equality Act 2010, by the mental 2 Paragraph 2 of Helen Thursfield’s witness statement. 3 Paragraph 3 of Arthur Pinches witness statement. Page 6 of 23 impairment of stress and depression from 15th May 2023 and that it had actual knowledge of his disability from that date.

[13]The Claimant had a welfare meeting with the Respondents on 14th June 2023 [92]. The Claimant raised a concern over a perceived demotion, in which it had been suggested that he move from the diagnostic bay to the tyre fitting bay, which was considered to be less stressful work. The Claimant told us during his cross examination that he found working in the diagnostic bay more of a challenge, and that he was struggling to do it all of the time as there was a lot of pressure on him4. By an email dated 15th June 2023 he also raised concerns about whether he was being replaced and/or would have a job to return to, once he was better [92] as he had seen a Facebook post which suggested the Respondent was looking to recruit a mechanic [AP6]. Lawson and Helen Thursfield replied in writing, stating [93]: ‘We accept your job is secure we will remain willing to make any reasonable adjustments to assist you on your return. However we do have to manage workloads and we accept we have looked to employ another mechanic as cover at this time. This is simply due to workloads, as you can appreciate, we need to ensure that there are enough mechanics to do the work. At the moment this person will cover any additional work and any work accrued by absence. There is no intention at this stage to replace you, your job remains present. The current workload has to be covered and this will have no impact on our obligations to you and our willingness to make adjustments appropriately.’

[14]A further meeting took place between Lawson and Helen Thursfield and the Claimant on 21st June 2023 [HT17]. The duties that the Claimant would do on his return to work were discussed. The Claimant underwent an Occupational Health assessment on 2nd August 2023 [53]. The report stated: ‘Arthur informed me that his mental health has deteriorated. He is diagnosed with anxiety depression and post-traumatic stress disorder. … Arthur said he is prescribed and taking medication for a mental ill health which has recently been increased. … He explained having anger issues with outbursts and is 4 Claimant’s evidence, circa 12.15pm, day 1 Page 7 of 23 fearful of doing harm to another person. Arthur declared this as the reason for being off sick from work. … Arthur disclosed having suicidal thoughts’.

[15]The report made the following conclusions [54]: 15.1. Low motivation and energy and emotional outbursts are the reasons he is not fit to return to work; 15.2. I cannot give a precise time scale of when it will improve to enable him return to work; 15.3. Upon his return to work, the following adjustments were recommended [55]: 15.3.1. A phrased return, starting on 25% of normal hours; 15.3.2. Allow for time out during the working day, to be taken at the first sign of an emotional trigger; 15.3.3. Provide lots of feedback and support.

[16]Helen Thursfield told us, and we accept, that she would have been prepared to implement these had the Claimant been well enough to return to work [HT19]. In addition, in evidence she told us5 ‘we didn't offer reasonable judgments until we knew that the Claimant was going to return to work’. On 17th August 2023 the Claimant emailed the Respondent to say that he ‘would like to update you on my mental health. I still have bad days and am on a waiting list for therapy’ [95].

[17]Whilst the Respondent had the Occupational Health report, it asked the Claimant for a report from his GP. This was not immediately forthcoming. On 29th August 2023 Helen Thursfield wrote to the Claimant and asked, ‘we would like to have an idea as to when you are likely to be fit to return to work we are therefore requesting for the second time you complete the form to allow us permission to get a report from your GP. If we do not have any idea 5 Helen Thursfield statement, Day 1, circa 4pm Page 8 of 23 when you're likely to come back to work and you don't give us permission to access your medical records we may well be compelled to end your employment’ [100].

[18]On 22nd September 2023 the Claimant emailed the Respondent to complain that they had not been checking in on him to see if he was getting on [99]. On the issue of the Respondent keeping in touch, on 28th September 2023 Helen Thursfield said: ‘On the one hand we would like to know you're doing OK and on the other hand that can't seem like chasing. It isn't an easy balance, at times we found your behaviour challenging to say the least and that gives us concerns. We're running a business and at the time of writing we have no idea if you're ever going to be well enough to return to this role. We have a duty to make sure you are safe at work which is why we've spoken to our insurers about whether our cover is affected. We both send you our best wishes’ [101].

[19]On 24th October 2023 the Claimant’s GP prepared a report [67]. It said: ‘On 15th May 2023 he is reviewed again reporting ongoing issues with struggling with his mood and anger. He presented again on the 17th of July reporting symptoms were getting worse. Our last contact with him was on 1st August 2023 when he reported that his partner had kicked out of the house. Arthur remains on sick leave present. Arthur reports his main symptoms are that of irritability and anger and these are affecting interactions with people inside and outside of work. Unfortunately, I am unable to provide you a time scale of this and comment on prognosis until he is engaged with the services and see what response he has to intervention. It is impossible at this point to advise as to whether Arthur is likely returned to his previous duties until further investigations have been made by the specialist services’ Page 9 of 23

[20]By 30th October 2023 the Respondent still had not had the GP report. Helen wrote that day: ‘there is balance that has to be met between contacting someone off sick and being a bother. Unfortunately, we have not been in touch because in the past it seems to have been counterproductive we are still awaiting the GP report I will contact you when it arrives’ [102].

[21]On 6th November 2023 the Claimant attended at work. He arrived whilst off sick and without warning. We accept that his manner and behaviour that day (in which he had said that ‘he had been acting like a c*nt’ and ‘had been working the system’) had intimidated Helen Thursfield. She told us (and we accept) that [HT29]: ‘I was left physically shaking and uncontrollably upset by my encounter with Arthur and I genuinely feared for my safety due to Arthur's volatile anger on the fact that Lawson was not present on the premises at the time’. She emailed him that day [105] stating: ‘it was a surprise seeing you today and I would prefer if in future you tell us you want to visit rather than without notice just so we can set some time aside. … We cannot overrule the GP fit note which says you are unfit until January and we're still waiting for the medical report. … Without the report we are left having to make a decision without the benefit of the medical knowledge the GP has’.

[22]On 8th November 2023 the Claimant submitted a grievance [106]. He said he was writing it due to his feelings and the way he believed the Respondent was discriminating and harassing him. The Respondent rightly accepted that this grievance contained a complaint about disability discrimination and qualified as a protected act, as defined by s27(2) EqA. A grievance meeting was held on 20th November 2023, with Miriam Kerbache, an independent consultant. She an outcome delivered on 28th November 2023 [112] dismissing the Claimant’s grievance. Helen Thursfield told us in evidence6 that she ‘felt the grievance was unfair to us we tried to get the right advice and to do the right thing we made a mistake I'm sorry I'm not perfect we're trying to do our best in 6 Helen Thursfield’s evidence, Day 2, circa 10.45am Page 10 of 23 the circumstances I wasn't angry I was upset we had done so much for Arthur it was very upsetting’.

[23]The Claimant’s GP report (dated 24th October and recited at paragraph above 18 above) was finally received by the Respondent on 16th November 2023 [HT34]. It provided no timescale on when the Claimant might be able to return. On 1st December 2023 the Respondent dismissed the Claimant, effective from 8th December 2023 [117]. The letter said: ‘We regret to inform you that we are ending your contract and providing you with one weeks’ notice. You have been unfit to work since May of this year. On 2nd August 2023 we obtained an Occupational Health report. It said that you are not fit to return to work. No date was given. We then obtained a GP report dated 24th October which also said they were unable to provide a timescale of when you are likely to be fit to return. Again, we had a professionally qualified person saying they do not know when you will be fit to return if at all. We are left with no information to enable us to make an informed decision about the likelihood of you returning in the foreseeable future. Your sicknote expires from January and we suspect this will be extended further. It is for these reasons we've taken the decision to end your contract with notice. Lawson and I genuinely regret having to make this decision we have a business to maintain and sadly we do not feel that you are likely to be back to work for many months, if ever. We've both found dealing with this quite draining on both of us as I'm sure you have but this is the decision that we have made’.

[24]Lawson Thursfield explained the rationale behind the decision in his witness statement [LT33] stating: ‘I did not believe that BTS garage could have continued to operate with Arthur out of work on long term sickness without any reasonable prospect of a return to work in the near future, given our limited resources and workforce’. In cross examination the Claimant accepted that there was no medical evidence on the question of his return to work; no medical advice saying when he could return7 and that he did not obtain an up- 7 Claimant’s evidence, day 1, circa 12.30pm Page 11 of 23 to-date Fitnote with that information8. In evidence Lawson Thursfield told us9 ‘there is no evidence of any return to work date. It was unlikely. I couldn't see anything changing. We have to go on what the medical profession says. We have got to be safe for the Claimant in the workplace, there are cars and customers. It must be safe for the Claimant to return’.

[25]The Claimant did not appeal against the decision to terminate his employment.

[26]We now turn to the relevant law: [5] The Relevant Law

[27]Direct Disability Discrimination. The EqA defines direct discrimination as: 13. Direct discrimination (1)A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.

[28]The comparison in direct discrimination cases must be a comparison focussing on the individual claiming to have been discriminated against (Her Majesty’s Chief Inspector of Education, Children’s Services and skills v Interim Executive Board of C School

[2017] EWCA Civ 1426

). The Claimant bears the initial burden of proof (Ayodele v Citylink Limited

[2017] EWCA Civ. 1913

). If the burden of proof moves to the Respondent, it is then for it to prove that it did not commit, or as the case may be, is not to be treated as having committed, the allegedly discriminatory act. To discharge that burden, it is necessary for the Respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the prohibited ground. That would require that the explanation is adequate to discharge 8 Claimant’s evidence, day 1, circa 12.55pm 9 Lawson Thursfield’s evidence, Day 1, circa 2.30pm Page 12 of 23 the burden of proof on the balance of probabilities, for which a tribunal would normally expect cogent evidence. For direct disability discrimination, the comparator must have the same abilities as the disabled person (Watts v High Quality Lifestyles limited

[2006] IRLR 850

[29]Discrimination arising from disability. An employer discriminates against an employee if:(i) the employer treats them unfavourably because of something arising in consequence of their disability; and

(ii) the employer cannot show the treatment to be a proportionate means of achieving a legitimate aim: see EqA ss. 15 and 39(2).

[30]The test in s15 requires the Tribunal to make specific findings as to:(i) what unfavourable treatment, if any, the employee was subjected to;

(ii) why the employee was treated unfavourably (in other words, what the “something” in section 15 was); and

(iii) whether that reason was “something” that arose in consequence of their disability: see Pnaiser v NHS England [2016] IRLR per Simler J at [31] and York City Council v Grosset

[2018] ICR 1492

per Sales LJ at [36]. Issue (iii) above is an objective matter, namely whether there is a sufficient causal link between the employee’s disability and the “something”.

[31]An employer has a defence to claim under section 15 of the EqA if it can show the treatment in question to be a proportionate means of achieving a legitimate aim. The treatment must correspond to a real need, be appropriate with a view to achieving the objectives pursued and be reasonably necessary to that end. (ii) this involves a balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. It is for the Tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to assess whether the former outweigh the latter: see Powell v University of Portsmouth

[2024] EAT 56

per Eady J at [55]. Page 13 of 23

[32]Failure to make Reasonable adjustments. The Act provides as far as relevant: “20(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A 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. 21(1) A failure to comply with the first, second or third requirement is a failure to comply with the duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person”. 33. ‘Substantial’ in this context means ‘more than minor or trivial’. The Tribunal’s task is to set out the nature, effects and extent of the alleged substantial disadvantage and assess it objectively. In other words, it must consider why the PCP puts the Claimant at the alleged disadvantage and ask itself what specific thing is it about the PCP that puts the Claimant at the alleged disadvantage. The comparator is merely someone who was not disabled. They need not be in a like for like situation, but should be identified by reference to the PCP, so as to test whether the PCP puts the Claimant at the substantial disadvantage (Griffiths v Secretary of State for Work and Pensions

[2016] IRLR 216

[34]The next question is whether there were any reasonable steps which the Respondent could have taken to avoid the disadvantage which were not taken. What is required of a Respondent is the taking of practical steps to remove or lessen any disadvantage. There must be a real prospect the step would have made a difference. The purpose of the act is to level the playing field and give disabled people a fair chance.

[35]Victimisation. Section 27 EqA says: Page 14 of 23 ‘27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because (a) B does a protected act,

(2) Each of the following is a protected act … (d)making an allegation (whether or not express) that A or another person has contravened this Act.

[36]There must be a clear allegation amounting to a protected act. The employee must be subjected to a detriment. Detriment is established if treatment is of a kind that a reasonable worker would or might take the view that in all the circumstances it was to their detriment: (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

HL). Therefore, for detriment to be proven, it is for the Claimant to show that they were or would have been, in their subjective view, placed at a disadvantage and that it was objectively reasonable for them to have held that view. The detriment relied upon by the Claimant, must be linked to the protected act. The same test for causation in direct discrimination, is therefore relevant to victimisation because the statutory wording is the same.

[37]Burden of proof under the EqA Section 136 of the EqA provides as follows:(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

[38]Mummery LJ gave guidance on the operation of the burden of proof provisions in the context of direct discrimination in Madarassy v Nomura International plc

[2007] ICR 867

at [54]-[79]. Page 15 of 23 [5] Our Conclusions

[39]We turn now to our conclusions on each of the Issues that exist between the parties.

[40]S13 Direct Discrimination. The starting point in our analysis is the proposed definition of the hypothetical comparator that the Claimant has invited us to use. It is: ‘a hypothetical comparator who is a non-disabled employee able to work throughout a full working day’. We reject this definition, on the grounds that it is misconceived. The comparison exercise is not between the Claimant and a non-disabled employee able to work throughout a full working day. Any such employee, able to work throughout a full working day, would not be dismissed for long term absence from work on capability grounds. Such an individual is not in the same circumstances as the Claimant. The correct comparison is between the Claimant and a non-disabled mechanic who had the same absence from work as the Claimant. Such an individual would, but for the disability, be in the same circumstances as the Claimant.

[41]The Claimant has failed to adduce any facts, from which we could decide that a non-disabled mechanic, with the same length of absence, would not have been treated in exactly the same way. We accept Lawson Thursfield’s evidence that he did not believe ‘that BTS garage could have continued to operate with Arthur out of work on long term sickness without any reasonable prospect of a return to work in the near future, given our limited resources and workforce’. We conclude on the balance of probabilities that the Respondent would have acted in the same way to a non-disabled mechanic who had had the same period of absence.

[42]In the circumstances the Claimant’s claim of direct disability discrimination fails and is dismissed. Page 16 of 23

[43]S15 Discrimination Arising from Disability. There are certain core factual findings that we have made that are important in our analysis of this claim, namely: 43.1. The Claimant was disabled by anxiety and depression at all material times; 43.2. The Claimant’s absence from work between May and December 2023 was something that arose out of his disability of anxiety and depression; 43.3. The Claimant was dismissed on the grounds of his absence from work between May and December 2023.

[44]The Claimant has established all that he needs to, to succeed in this claim. We now have to focus on the legitimate aim relied on by the Respondent. The Respondent states that it’s legitimate aim was the need to ensure adequate resource to manage its operational and customer demands cost effectively. We consider that this is a legitimate aim for the Respondent to have, particularly given that it is a busy motor garage with a small number of employees. We have to ask whether dismissing the Claimant was a proportionate means of achieving the legitimate aim of ensuring adequate resource to manage its operational and customer demands cost effectively. Could something less discriminatory have been done? The Respondent told the Claimant on 15th June 2023 that it needed to secure a new mechanic, but that his job was secure [92]. The occupational health report in August then advised that the Claimant’s condition had got worse and that he had anger issues and was fearful of harming other people [55]. Thereafter the Respondent attempted to obtain a GP report, which was delayed as the Claimant delayed in giving his consent for the report to be released.

[45]The Claimant attended at the premises unannounced on 6th November and his behaviour on that occasion intimidated Helen Thursfield and put her in fear of her safety, when Lawson was not on site. This was a dynamic Page 17 of 23 demonstration of why the Claimant was signed off work (anger issues and being fearful of harming other people). The Claimant was still under a Fitnote preventing a return to work until 21st January 2024 [68] and the GP report, seen by the Respondent during the week of 5th November 2023 confirmed that it was impossible to advise as to whether Arthur was likely to return [71]. The Respondent had no reason not to think that the Fitnote ending on 21st January 2024 [68] would not be extended again.

[46]There was no final meeting arranged between the Thursfields and the Claimant between the receipt by the Respondent of the GP report (in or around 5th November) and the letter dismissing the Claimant, sent on 1st December. We would start from the proposition that a final meeting would be a proportionate step to take, such that not having a final meeting might make dismissal a disproportionate means of achieving its legitimate aim of managing the availability of its mechanics to meet the needs of the business. However, in the particular facts of this case we find that dismissal without a final meeting was a proportionate step to take, for the following reasons: 46.1. The Claimant had behaved in aggressive way when he attended unannounced on 5th November and had intimidated Helen Thursfield, with his language used and his manner. The Claimant’s Counsel asked Helen Thursfield why she felt intimidated. Having been asked the question by Counsel, Mrs Thursfield was entitled to answer it (and it was important that she did). I allowed her to do so, despite objection from the Claimant and his partner who were both in Court. This led me to have to the warn the Claimant’s partner not to interrupt proceedings. Mrs Thursfield said that the Claimant’s behaviour on the day was compounded by her knowledge that the Claimant had physically attacked his current partner, which she was aware had happened. At or about that time Mrs Thursfield had read the GP report which said [70]: ‘Our last contact with him was on the 1st August 2023 when he reported that his partner had kicked him out of the house and he was staying with relatives’. All of these matters confirmed the available Page 18 of 23 medical evidence that the reason for the Claimant’s continued absence from work was his anger outbursts and the fear that he would harm others when they occurred. 46.2. There was nothing to suggest that had a final meeting occurred that the position would have improved or new information made available that it would be safe for the Claimant to return to work. We consider that there was a real possibility that Lawson and Helen Thursfield might have been subject to expressions or outbursts of anger from the Claimant, had they attempted to meet with him in person.

[47]Thus, we conclude, in the specific circumstances of this case, that dismissing the Claimant without a final meeting was a proportionate step to take in order to achieve its legitimate aims. This claim fails and is dismissed.

[48]S20-21 Failure to make reasonable adjustments. Whilst noting that there was some flexibility (Helen Thursfield told us that the Claimant was given time off to attend probation appointments, for example) we accept that the Respondent did have a requirement (PCP) that its mechanics should work a full working day with little flexibility. As we have found the business was a small operation, but busy. It needed its mechanics to be available for work.

[49]We also accept, and find as a fact, that the Claimant found it harder to get up in the mornings and harder to concentrate. As such the PCP did place him at a disadvantage, or had the capacity to, if, at the material time, he was in work, but either arriving late or making mistakes due to a lack of concentration and he was dismissed for those reasons. However, in this case the Claimant was signed off work and was not attending work at all. Whilst signed off work, the features of his anxiety and depression, namely being late to rise and not being able to concentrate, did not place him at any disadvantage, substantial or otherwise, as whilst recuperating at home, his inability to get up in the Page 19 of 23 mornings and his inability to concentrate had no consequences for him at all. This fact becomes more apparent when the proposed adjustments are considered. They are: 49.1. A phased return: this would be a reasonable adjustment, but only at the point that the Claimant had a GP certified return to work date identified, as the proposal was an adjustment made to ensure a successful return once the Claimant was well enough to return. It could have included a later start time. It is speculation however as there was no point that a return to work date had been identified. In the circumstances this adjustment fails as it would not have removed any disadvantage posed by a long-term absence from work. 49.2. Supervision or other support: this would be a possible adjustment, but only at the point that the Claimant had a GP certified return to work date. The proposal may have reduced the risk of mistake due to a lack of concentration or a concentration lapse, but it also may not have done. The Respondent already had an apprentice who required supervision and we were told that it would not have been a reasonable adjustment to impose the obligation to provide supervision and support to more than one mechanic, given the small size of the business. We doubt that this adjustment would have been reasonable given the challenges imposed on the business in setting it up and the real possibility that concentration lapses could have continued despite supervision. We accept the general proposition that the workplace, a working garage, has potential injury risk given the moving parts and equipment used, and that there was a risk to the general public if a vehicle was driven after a substandard service. This adjustment could only be considered once the Claimant was back in work and would have done nothing to remove any disadvantage imposed by the Claimant’s long-term absence. It could have included a later start time. This is speculation however as there was no point that a return to work date had been identified. In the circumstances this adjustment would Page 20 of 23 not have removed any disadvantage posed by a long term and continuing absence from work. It fails and is rejected. 49.3. A risk assessment: this is an investigation into whether adjustments need to be made to accommodate a disabled employee on his return to work. It identifies risks posed by the condition and proposes adjustments to remove that risk. An exploration into what adjustments may be needed cannot, of itself, be an adjustment (G4S Cash Solutions (UK) Ltd v Powell [2015]

UKEAT/0243/15

). It would also, once again, only be engaged once the Claimant had a return to work date identified. This allegation fails and is dismissed. 49.4. A meaningful discussion with the Claimant as regards when he would return to work: in all practical senses this is effectively a rephrasing of the risk assessment adjustment proposed above. It is not an adjustment to any requirement or PCP imposed by the Respondent. It is a discussion about the future possibility of making adjustments. When the Claimant is fit enough to return is completely outside the Respondent’s control. No meaningful discussion can be had until the Claimant and his GP consider that a return to work is likely. This adjustment fails and is dismissed. 49.5. Shorter adjusted or flexible hours: This adjustment, like (49.1) and (49.2) above only applies once a GP certified return to work date had been identified. It may well have removed or reduced the disadvantage of finding it harder to get up in the mornings, but this disadvantage did not apply whist the Claimant was signed off work. The Claimant told us that his GP had told him that he could return to work early, whilst signed off sick, without issuing a new Fitnote. We reject that evidence. If a GP has formed the view that a patient is to ill to work, it is not for the patient or the workplace (or indeed the Tribunal) to gainsay that. We regularly see Fitnotes in which GPs have signed an individual as fit Page 21 of 23 to work, subject to adjustments, which in this case might have include shorter or flexible hours. This never happened in this case. This proposed adjustment fails and is dismissed. 49.6. An investigation of the likely time it would take the claimant to return to work: This, like (49.4) is a discussion about a possible future date that adjustments could be considered. It will not remove any disadvantage posed by the requirement to work a full working day. It is also outside the Respondent’s control. Further the Respondent obtained both an Occupational Health report and a GP’s report, with the later provided (stating the Claimant’s current health position) as late as 16th November 2023, just two weeks prior to the notice of dismissal. As such we find that the Respondent had conducted an investigation of the likely time it would take the Claimant to return to work and been told that no date could be provided. This proposed adjustment fails and is dismissed.

[50]S27 Victimisation. The Claimant’s grievance dated 8th November 2023 [106] raised a clear complaint of disability discrimination and it qualified for the protection offered by s27(2) of the Equality Act 2010. We have to determine whether the reason for the Claimant’s dismissal, made on notice on 28th November, effective from 8th December, was because the Claimant had raised that complaint. The Respondent appointed an independent investigator to determine the grievance and allowed the investigator to complete it.

[51]Having considered all of the evidence, and assessed the demeanour of all of the witnesses, we conclude on the balance of probabilities, that both Helen and Lawson Thursfield were trying to do their best to manage their business and help the Claimant. They had supported him by giving him a second chance after this release from prison, despite having staff resign in protest to his return. They had known him for many years and, we find, would have stood by him, had it been possible to do so. We find that the actual reason for Page 22 of 23 the dismissal was the medical evidence that the Claimant had become prone to anger outburst and the recognised fear that people could be harmed when he did, coupled with the fact that that the Claimant’s GP could not say when the Claimant would be fit enough to return. As such this claim fails and is dismissed. [6] Concluding Summary

[52]In drawing all of the above together, it is our Judgment that: 52.1. The Claimant’s claim of direct disability discrimination, pursuant to s13 EqA is dismissed. 52.2. The Claimant’s claim of a failure to make reasonable adjustments, pursuant to s20-21 EqA, is dismissed. 52.3. The Claimant’s claim of discrimination arising from disability, pursuant to s15 EqA is dismissed. 52.4. The Claimant’s claim of victimisation, pursuant to s27 EqA is dismissed. Approved by