Mr E Rogers v Hereford and Worcester Fire Authority: 1304229/2023
EMPLOYMENT TRIBUNALS
Case No 1304229/2023
Between
Mr. E RogersClaimantHEREFORD AND WORCESTER FIRE AUTHORITY HELD AT: BIRMINGHAM REMOTELY BY CVPRespondent
Before
Employment Judge ManleyIn person for claimantDate 15 January 2025
JUDGMENT
RECITAL UPON the Tribunal hearing from the Claimant and counsel for the respondent and conducting a preliminary hearing on the issue of whether the Claimant’s is disabled within the meaning of the Equality Act 2010 due to his condition of ADHD (Attention Deficit Hyperactivity Disorder); The judgment of the Tribunal is that:[1]The Claimant was disabled within the meaning of section 6 of the Equality Act 2010 at the material time, namely from 25 January 2022 to 25 April 2023, being the date of the last discriminatory act complained of, by virtue of his ADHD. Employment Judge MANLEY 18/07/24 Case No. 1304229/2023 Note Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision.
REASONS
[2]The issue before me is whether the Claimant was disabled at the material time. By the Case Management Order of Employment Judge Brewer of 27th of October 2023 the issue was set down for a one day preliminary hearing in order to determine whether or not the Claimant met the statutory definition in Section 6 of the Equality Act.[3]The Claimant appeared in person, but has also been assisted by a Mr Marsh, a friend who I am told has a law degree and has been a great assistance and I thank both the Claimant and Mr Marsh for their assistance during the course of proceedings.[4]Ms Garner appeared as counsel for Respondent, and I also thank her for her helpful and useful submissions.[5]The case was originally listed before me on the 5th of July of 2024 and unfortunately, we were unable to complete the case in that day, so it went part heard, and I heard submissions on the 16th of July from both sides and I then adjourned to consider judgment, which was given orally on 16 July 2024. At the conclusion of my oral reasons Ms. Garner asked for written reasons to be provided.[6]The bundle in this case as I understand was agreed, and it runs to 446 pages. Any reference to page numbers I make here are to page numbers of that bundle.
Background
[7]The Claimant brings claims of direct disability discrimination, indirect discrimination, a failure to make reasonable adjustments and victimisation by his ET1 dated 29th of May 2023.[8]That is met by an ET3 from the 27th of June 2023, which essentially denies all those claims and puts the Claimant to proof on whether or not he is disabled within the meaning of the act at the relevant time. I should say here that there is an awful lot of evidence from both the Claimant and Respondent that goes to the issue of knowledge and the substance of the claim and of course, that does not concern this Tribunal today.
Preliminary Matters
[9]As the outset of the hearing on 5th July 2024 the Respondent confirmed that it conceded that the Claimant, does in fact have a condition, which is ADHD in this case and that it potentially qualified as a disability under section 6 of the Equality Act 2010 and that the only issue in dispute was whether that impact was ‘substantial’.[10]In light of the Claimant’s condition, I explored with the Claimant as to whether or not he required any adjustments for the hearing, and I note that Employment Judge Brewer, at page 44 being the case management order in the bundle, indicated that time for reading and time for questions or considering responses to questions for regular breaks would be sufficient by way of adjustments. I am satisfied that having offered those breaks on day one that the Claimant has been able to understand everything and take his time to deal with matters and participate fully in the proceedings.
The Evidence
[11]I heard oral evidence from the Claimant and Commander Pink who both affirmed.[12]The Claimant first gave evidence in accordance with his witness statement and then I heard from a Commander Pink who had been a previous line manager of the Claimant. There was a witness statement submitted on behalf of the Claimant by Ms. Kate Colemen, who is the Claimant’s partner, but she did not attend to give evidence before me.[13]What follows is a brief summary of the oral evidence I heard. The Claimant confirmed that the only impairment he relied upon was that of ADHD, albeit he had been suffering from anxiety during the course of the relevant period in this case. He explained that he felt that he had actually had this condition since childhood, and that he had first told his employer about the condition in January 2022 via an email. He had not ever gone to the GP about it because he considered there would be a significant waiting list, and that over the years he felt that on the whole, his symptoms of ADHD often assisted him in his role as an Incident Commander for the Respondent. He explained in quite vivid terms about the fact that in his old role, in a different Fire Authority, prior to moving with the Respondent in the March of 2021, that he had grown up with that system and that administrative systems that were in place at the old authority, meant that he felt like he was able to play the piano without looking at the keys. However, when he moved with the current Respondent, all of those systems were completely new and different and that he had struggled significantly to get up to speed with those systems and it was very much ‘now he was having to look at the keys’ as he described.[14]The Claimant stated that, in his view, anxiety is often a very clearly linked with ADHD and those people who have ADHD tend to also have significant issues to do with anxiety. He explained that he takes much longer doing any written tasks. He says that a new form that was introduced by the Fire Authority to be sent to Health and Safety after major incidents was now a 40-page long form and that caused him considerable problems and that overall, his main problem at work was with issues of administration and reading.[15]He accepted in cross examination that he didn’t need any extra time for his Alevels or his GCSEs, but described his work as being rushed and scruffy. He was then asked an awful lot of questions, which in my view largely went to issues that are going to be for the substantive hearing, surrounding the extent to which he had raised concerns or issues in respect of his ADHD with the Respondent during the material time. He explained that once he had raised the issue of ADHD with the Respondent, that he was told that he would have to wait for a formal, a proper assessment and a clear diagnosis of ADHD before any sort of reasonable adjustments could be made. This was the Claimant’s explanation as to why he was not a little more forthcoming when it was being put to him that he could have been more forceful about requesting adjustments had it been an important issue for him. He said that he could not get the HR 7 Form, which was the Respondent’s internal form for reasonable adjustments. He was told that he would have to wait for it.[16]The Claimant was asked questions about the extent to which he had raised issues of his ADHD in the processes that followed, including the disciplinary processes, the appeal hearing and grievance hearing that all took place during the time that we are concerned with.[17]In answer to some questions from myself, the Claimant stated that if there was any document over one page long he would avoid reading it, that he had to make a huge amount of effort in order to maintain the standards that he had managed to hitherto maintain with the Respondent, and that would entail working late at night, working at weekends in order to compensate for the extra effort it took in concentration to complete the necessary work. He explained he couldn’t sit in any quiet location, that he wouldn’t be able to concentrate and overall, it was simply a lot more work to maintain the standard that he needed to.[18]I then heard evidence from Commander Pink, she confirmed in her oral evidence that, having adopted her statement, she was the Claimant’s line manager from March 2021 when he first joined the Respondent through to the December of 2021. She explained that he was one of the best of the three Station Commanders that she managed. She said she had not had much exposure to his written work but that they had done an exam together and that overall, he did very well when under her management. She said she wasn’t aware that he had been doing any excessively long hours, and she couldn’t recall when asked by the Claimant at the end of the questioning whether or not she had responded to a suggestion that she would have dealt with the Claimant more vigorously than Anna Davidson had during the disciplinary processes.[19]I have considered the written witness statement from Kate Coleman, and I have taken that into account its contents, although I of course cannot attach as much weight to that statement because she has not been here to be cross-examined upon the contents. By way of brief summary, she says that the Claimant started to struggle in around the summer of 2021, being around the time that the Claimant moved to the new role on the 1st of March 2021. She observed a significant deterioration in his mental state and his anxiety, obsessing and distracted by day-to-day tasks that he was trying to do, increased difficulties in sleeping, reference to the fact that he was seeking help through GP and even a hospital visit.[20]I have considered all of the evidence summarised above, but also the documentary evidence contained in the bundle when making the findings of fact set out below. Submissions[21]Following the oral evidence I then heard submissions, firstly from the Claimant and the Claimant’s Representative Mr Marsh and then Ms. Garner on behalf of the Respondent. The submissions can be summarised as follows.[22]Mr. Marsh referred me to the letter from Mr. Artesh, the Claimant’s treating therapist, a counsellor that had been arranged through the Respondent. This was at page 211 of the bundle, and I was asked to read this when considering my final decision on matters. I was also referred to the Respondent’s ET3 at paragraph 50, in support of the suggestion that in justifying the Respondent’s decision to put the Claimant through a further period of qualification, because of their concerns about whether he is able to take in, or retain information in the written form, that this amounted to recognition by the Respondent that the Claimant did have significant difficulties in the workplace. I was also asked to carefully consider the contents of the Lexxic assessment report, which is the ADHD assessment that both parties have obtained for the purposes of this case. This is at page 376 of the bundle. I was also referred to the Fire Regulation Authority form and an email at page 104 where the Claimant is being criticised for using the wrong form as further evidence of the impact of his condition on his work.[23]Overall Mr Marsh submitted that the impact upon the Claimant was substantial, and I should find that he is disabled within the meaning of Section 6.[24]Ms Garner then made her submissions. I should say that she had, in advance of the hearing submitted very helpful written submissions, which I have also taken into account, dated the 5th of July, which run to 11 pages. But in addition to those written submissions, she drew my attention to the Claimant’s own self report in the documentary evidence throughout the case. Firstly, Ms Garner referred to the disciplinary interview at page 175, and the fact that the Claimant was reporting that he had had various personal difficulties around this time, which perhaps were more the cause of the anxiety and mental health conditions as opposed to anything to do with the ADHD. A similar point was made in respect to the occupational health report at page 207 which was drawn to my attention, which referred to a relatively recent divorce, and again at page 293 in the disciplinary referring to a new house, new job, relatively recent divorce as well. Further reference was made to the fact of the disciplinary proceedings themselves, and that this was the real reason why the Claimant was experiencing difficulties as opposed to the underlying ADHD condition.[25]I was taken to page 204 which was an email of the 4th of January 2023 where the Claimant sets out the sort of impact on him, in what was submitted to be very generic terms. I was also referred to page 245, and that was reference to the fact that the Claimant was explaining in his disciplinary again about the difficulties that he had with complex policies, but also had referred to the fact that everyone was finding these complex policies difficult to apply. Essentially, highlighting that was not the sort of day-to-day task that could be relied upon to establish disability as it was too complex and therefore fell in the latter part of the appendix in the guidance of matters to take into account.[26]I was referred to page 255, the Claimant’s letter which listed the adjustments that would be helpful, and then in respect of the Lexxic report which I’ve already referred to on page 392, criticism was made that the report itself was rather generic and didn’t specifically assist when considering the effect of the condition on the Claimant himself, as opposed to individuals more generally.[27]I was also referred to an additional case which was Herry v. Dudley Metropolitan Borough Council [2017] ICR 610 and in particular paragraph 47.[28]The Claimant then wished to add some further submissions, which I permitted and referred me to the original email when he first raised his difficulties with ADHD or the possibility he might have ADHD on the 25th of January 2022. He also referred to the fact that he had been told to wait and that this is shown in the occupational health report on pages 96 and 97 of the bundle. Finally, I was taken to an email from the Respondent’s Human Resources Department to the Claimant, telling him that they were going to close down the referral at that point.
Applicable Law
[29]In terms of the law that applies to this situation, is for the Claimant to prove on the balance of probabilities that he was disabled at the relevant time. The relevant time is the period in which he complains of the discriminatory acts themselves. This guidance comes from the Court of Appeal in McDougell v. Richmond Adult Community College [2008] ICR 431.[30]The issue to be decided is whether or not he is disabled within the meaning of Section 6 of the Equality Act, 2010. Section 6 provides: (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.[31]Section 212 of the Equality Act, defines what substantial means as “substantial” means more than minor or trivial”;[32]Both parties referred me to the case of Goodwin v Patent Office [1999] ICR 302 and what are often called the Goodwin questions, and those should be read in here, namely:(1) did the Claimant have a mental and or physical impairment.(2) did the impairment affect the Claimant’s ability to carry out normal day-today activities.(3) was the adverse effect substantial.(4) was the adverse condition long-term. In this case, it is conceded on behalf of the Respondent that essentially 3 out of 4 of those questions are answered in the affirmative in the Claimant’s favour, one that he does have a mental impairment, 2, that it did affect his ability to carry out day-to-day-tasks, and 4, that the effect was likely to be long-term. The only issue in this case is whether or not that effect was in fact substantial.[33]So, in deciding whether or not something and the effect of something is substantial or as defined, more than minor or trivial, I should not consider this with the benefit of hindsight at the date of the hearing, I can only decide this issue upon the basis of the evidence or the circumstances that would have existed in the material time. The material time in this case is the period of time during which discriminatory acts are alleged, which in this case is 25th January 2022, through to 26th of April of 2023.[34]Whilst I can consider evidence outside of that time frame, I am only able to do so to the extent that it can inform on my assessment of the impairment during that material time that I’ve just referred to above. So, it’s important to make that distinction in the sense that if I’m looking at a report, as I will be, that is dated some months after that material time, I have to decide whether or not that’s going to be of any assistance to me in deciding whether or not that impairment did in fact exist during the material time frame.[35]I’ve also been referred to the Aderemi v. London and South Eastern Railway Ltd [2013] ICR 591. That case refers to the fact that when it comes to trying to distinguish between something that is more than minor or substantial, there is no sliding scale that goes from one to the other, but rather unless a particular impairment or effect on a day-to-day activity can be classed as trivial or insubstantial, that necessarily that means that it is substantial, so it essentially flicks the switch from one extreme to the other.[36]In Elliott v. Dorset County Council [2021] IRLR 880 some further assistance was provided by the EAT that sometimes a comparison between someone that is in the same position without that impairment as compared to the Claimant who is in that position with the impairment can be a useful means of measuring whether the effect is substantial effect.[37]I was also referred to by both parties to the case of Paterson v. Commissioner of Police of the Metropolis [2007] ICR 1522, which deals with the extent to which a Tribunal is entitled to take into account the abilities of a Claimant doing the job that they are employed to do. This is particularly relevant in this case, because one of the primary submissions is that there were no issues raised about the Claimant’s ability to carry out his job and no significant issues raised about the Claimant’s performance of what was a very demanding role. I am able to take this into account in my assessment and I have done so.[38]The case of Herry and Dudley Metropolitan Borough Council and in particular, at paragraphs 47 and 48, to which I was referred, was a case involving a man with dyslexia where the EAT upheld the decision of the first Tribunal that there was no disability despite evidence of long periods off work with stress and in so doing made the distinction between evidence which showed that the impairment itself impacted on the ability to carry out day to day task and evidence which merely showed an adverse reaction to stressful events at work.[39]Moving on to other legal considerations is the guidance, which I have already mentioned in passing. This is the Government guidance which is published in order to assist people having to interpret the Equality Act and it is known as the ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’, the most recent version of which is published online and is dated February 2022 having been first published in May 2011. I have taken that guidance into account, and in particular section B, which deals with the meaning of substantial. It is necessary to briefly summarise some of the relevant parts of this guidance which are important to this case.[40]Section B-1 refers to the requirement of that an adverse effect on normal dayto-day activities should be a substantial one reflects the understanding of disability as a limitation which goes beyond the normal differences in ability which may exist in other people. The substantial effect is one that is more than minor or trivial.[41]Section D deals with what is meant by normal day-to-day activities. It says that regard should be had at B-2 to the time taken by a person impaired to carry out normal daily activities and should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity. Examples are given underneath.[42]Section B-3, deals with the way in which the activity is carried out, and states that this should also be considered when assessing the effect, is the way that person with the impairment carries out a normal day-to-day activity. And again, it refers to the comparison to someone that doesn’t have that impairment.[43]I am also reminded at section B-4 of the cumulative effects of an impairment. Impairment might not have a substantial adverse effect on a person’s ability to undertake particular day-to-day activity in isolation so it is important to consider whether its effects on more than one activity when taken together could result in an overall substantial adverse effect.[44]Section B-6 relates to people with more than one impairment, and that the combination of those could lead to a substantial effect, in that it’s necessary to look at the effect of cases where there are two impairments, cumulatively. The effect of behaviour, and this is potentially important because it’s about coping strategies at section B-7.[45]This section considers how far a person could be reasonably expected to modify his or her behaviour, for example by use of coping or avoidance strategies to prevent or reduce the effect of impairment on day-to-day activities. In some instances, the coping or avoidance strategy might ultimately affect the impairment to the extent it is no longer substantial, and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy there is still an adverse effect in the carrying out of normal day-to-day activities.[46]Section B-8 deals with the extent to which it is reasonable to expect someone to avoid or to engage in various avoidance strategies, and that is something which does apply in the current case. Section B-11 is the effect of the environment, and section B-12 is the effect of treatment, which is cross-referred to above from the way in which activities are carried out with coping strategies, that refers to section B-12 and the effect of treatment.[47]So those are the important parts of the guidance, which I have had particular regard to in this case. I’ve also, and my attention has specifically been drawn to the appendix, which sets out two sections as follows.[48]The first section is an illustrative and non-exhaustive list of factors which if they are experienced by a person, it would be reasonable to regard as having substantial adverse effect on normal day-to-day activities. I’m not going to read all of those out, but the sort of factors that might be relevant in this case concern the inability to converse or give instructions normally in a person’s native spoken language. Difficulty in understanding or following simple verbal instructions, hearing and understanding over the voice of the telephone, persistent and significant difficulty in reading or understanding written material when this is the person’s native written language, for example, because of a mental impairment or learning disability or visual impairment. Frequent confused behaviour, intrusive thoughts, feelings of being controlled or delusions or persistently wanting to avoid people or significant difficulty in taking part in normal social interactions or forming social relationships because of a mental health condition or disorder.[49]Then ‘persistent distractibility or difficulty concentrating’ which is obviously of significance in the current case and also compulsive activities or behavioural difficulty in adapting after a reasonable period to minor changes in their team. Those are examples of effects that would be reasonable to regard as substantial. Of course, the list is not exhaustive.[50]The next list section is a list of factors which it would not be reasonable to regard as being substantial and adverse effects on normal day-to-day activities, and again I do not need to refer to all of them but just those that might be relevant to my consideration. Inability to fill in a long, detailed technical document, which is in the person’s native language without assistance. The inability to hold a conversation in a busy place such as the factory floor. Inability to concentrate on a task requiring application over several hours. Some of these factors are plainly in tension with the with the distractibility guidance above and demonstrates the room for interpretation when deciding this issue.
Findings of Fact
[51]I have taken into account all of the evidence contained in the bundle, the witness statements, oral evidence and submissions in making my findings of fact.[52]I start by making findings about the condition itself and in particular, the condition of ADHD which of course, I accept have to be applied to the Claimant, the general evidence that I have before me as to ADHD as a condition can be found in the Lexxic report is useful background to set against the evidence I have heard about how this condition presents in the Claimant.[53]I have had particular regard to the therapist’s letter and the Claimant’s disability impact statement, but also I have also found the current Edition of the Equal Treatment Bench book of some assistance in terms of general background on the nature of the condition since it contains a useful glossary of what ADHD is, and it refers to it being a ‘hyper-kinetic disorder based on three main behaviours which are typically present before the age of 7 and they continue to adulthood. These are inattentiveness, compulsiveness and hyperactivity’. The symptoms that are typical are listed there as carelessness, a lack of attention to detail, continually starting new tasks before completing old ones, poor organization skills, inability to focus, forgetfulness, continually mis-placing things, restlessness and edginess, difficulty keeping quiet, speaking out of turn, blurting out responses, mood swings, irritability, quick temper, extreme impatience, inability to deal with stress, and those are generic as I’ve said.[54]The Lexxic report at page 389, refers to the fact that mental health difficulties are more common in people with ADHD and goes on to set out that adjusting to environments and coping strategies, learning and practicing strategies of this sort, and suggests that the therapist deliver this therapeutic support. The headline point there is that those with ADHD are more likely to have mental health difficulties.[55]These are generic findings that I make about ADHD as a condition, which of course may support the findings that I make about the Claimant himself, if having considered all of the evidence I heard from the Claimant as to his experience of the condition I can decide whether it is consistent with the same.[56]As for the Claimant’s evidence both written and oral, I have found this to be compelling and consistent with the written or documentary evidence that was drawn to my attention, and accordingly I find him to be a reliable witness.[57]I find that the Claimant was employed as a Firefighter by the Respondent and its predecessors since 12th of May 2005. The Claimant transferred to the Respondent on the 1st of March 2021. By the time of the relevant period which I have already defined above, he was a station commander managing up to 100 Firefighters across 2 Fire Stations and was responsible for managing large scale incidents that occurred during the course of their duties.[58]I find that following his move to the current Respondent in March 2021 that he found it increasingly difficult to manage his ADHD symptoms as he was struggling to get to grips with the new systems, processes and policies as he explained to me in his evidence.[59]The email that he sent on the 25th of January 2022, which is at page 72 of the bundle makes it clear that he is finding it “..exhausting to concentrate and not be distracted”, and therefore in my judgment it was plain that he was starting to struggle significantly with his work around that time. There was also an appraisal at page 71 of the bundle in August 2021, where Commander Pink, who on the whole found the Claimant’s work to be of a high standard, did identify from her very short period of managing the Claimant that his area of stretch, quoted from the page 71, is “detail and analysis”, which of course is likely to be quite important in a more senior role.[60]I also find on the 9th of April 2022 that the Claimant, (I accept along with some others) filled out the wrong form and this is at page 104 of the bundle. It related to the Fire Regulatory Authority form, and it was picked up in quite clear terms by Adrian Elliot. In the email of the 9th of April 2022, he talks about the FRA’s fuel stations. The email is also written to Simon Cusack as well as the Claimant and Adrian Farmer, (as I understand Adrian Farmer was the other individual who used the wrong form), Mr. Elliot says “I am a little confused and to be honest frustrated in the situation I now find myself. Your two stations are the only ones that have provided an incorrect format, following repeated requests and the new template being issued by Health and Safety. Whilst you’ve explained you used the form our protection team used; I think that is incorrect”. The email goes on to ask as a matter of urgency for the correct form to be filled out. The Claimant gave evidence which I accept that he had considerable difficulty in trying to fill out the form again but in a different format and recalls struggling with it to a significant degree.[61]Matters then moved on, in that having raised the issue on 25th of January 2022, the Claimant was assessed by occupational health on the 1st of March 2022 for issues of ADHD and the conclusion was that he may very well have ADHD. The Claimant had submitted some self-test questions that had been provided to him in advance. I also note that on the 16th of April 2022, the Claimant by this point was considering himself to have ADHD having stated this on a job application that he was making for a promotion at that time.[62]The important thing about all of those findings is that they pre-date the allegation of misconduct on the 19th of October 2022, which was an allegation regarding a sexist remark made and also a data breach, which is not relevant for todays’ purposes but it is the Respondent’s case that the only reason why the Claimant was bringing up the ADHD difficulties was due to the disciplinary process and was done as a reaction to the same. However, this does not appear to be the case on analysis of the documentary evidence that I have seen. It is clear that the Claimant had raised the issue of ADHD and his difficulties in respect of the same before the disciplinary.[63]The Claimant, and I accept this was post disciplinary, did seek help from his GP. The first occasion was the 21st of October 2022, and that is at page 167 of the bundle, and the Claimant accepts that this is the first occasion that we see any reference to ADHD in his medical records. Following the disciplinary being raised, the Claimant went off on sick leave due to deterioration in his mental health on the 5th of December 2022. Thereafter there was an occupational health review, which found that he would be fit to return to work by the 1st of April of 2023 and then the Claimant did in fact return to work on the 4th of April 2023 and he remains employed by the Respondent.[64]The above findings are of course relevant for context however do not directly go to whether or not the Claimant’s ability to carry out day to day tasks was substantially impaired. The following findings that I now go on to make relate to the Claimant’s abilities to carry out day-to-day tasks and in particular any difficulties he had in carrying out those tasks, and in making my findings on this issue, I’ve taken into account the counselling letter which is at page 211, which I was referred to, and this was dated from the 10th of January 2023, so it’s somewhere in the middle of our period that we’re concerned with, I am careful not to conflate the issues of anxiety, which are not relied on as an impairment to those of his ADHD.[65]At page 211, it says the Claimant is struggling with low self-esteem with regards to his constant effort to maintain the levels of focus required for his job. This is linking both the anxiety and the ADHD together there but does make in clear in my judgment that he is struggling with a constant effort to maintain his levels of focus required for his work. In the second paragraph it states that he is now struggling to maintain relationships with his partner and friends and that he had started to avoid social events and activities. It refers to the fact that the Claimant has chosen to isolate himself away from work-colleagues, that he lacks motivation to go shopping in the town centre to avoid bumping into people and is restless and agitated. This is a useful summary of the state he was in at that time that he was having his counselling sessions with Judy Marshall Watkin, the Counsellor and psychotherapist and I accept that evidence.[66]Ms. Watkin went on to screen his anxiety as being at the upper end of severe, talks about social communication and it explains that the Claimant becomes exhausted by efforts that he puts into processing his administration, communication with others. He worries about his communication, says it’s becoming limited, he only turns up due to the cost of living, and finds it frustrating having to deal with the struggles that he has, and he sort of disengages and shuts down.[67]I find that these are all difficulties that he’s having with simple communication on a day-to-day basis, and they are caused by his ADHD. The Claimant reported that he has cognitive difficulties, his brain races under pressure, people thinking he is rude which links in back with the communication difficulties, and then also referred to intrusive fidgeting behaviour that interrupts and impacts on his time management skills, resulting in him condensing his deadlines to accomplish set work achievements.[68]The Claimant explained about the extra concentration required for administration tasks, his compulsive desire to keep busy even at home, and then sensory issues at page 214 talks about the fact that the Claimant’s experience in people talking is that words seem to merge together. It states that the Claimant needs to work very hard to stop himself fidgeting, refers to extremely hot showers that he needs to have, loud noises, flickering of the desktop computer and the having to walk around rather than fiddling in order to maintain focus.[69]At page 382 of the Lexxic report it states that the Claimant zones out of conversations and will be worried that he, or people will simply think that he’s not listening. The struggle for him to read books and then retain the information that he has read. It states that the Claimant struggles with time management and also the fact that he had lost his wallet 3 times in that month. This later evidence comes from the Lexxic from the 7th of June 2023, so I do remind myself this is after the period that we’re concerned about. It states that the Claimant has had issues of hyperactivity and impulsivity, both as a child and as an adult, and struggles with conversations and not saying the first thing that comes into his head and managing his impulses. It then goes on to record at page 283, that based on the current child-hood information provided during the DIVA 5 interview, there’s evidence of the following; significant difficulties in attention in childhood and adulthood which met 8 out of the 9 indicators in the attention deficit domain DSM-5, and significant difficulties in hyperactivity and impulsivity in childhood and adulthood, which met 8 of the 9 indicators in the hyperactivity and impulsivity domain DSM-5. The assessment outcome is at page 384, and it identifies “that you provided a clear history of ADHD symptoms in childhood, adolescence, and adulthood. The symptoms described appear to have a functional impairment to your education, social and home life. There are clear symptoms present in 5 or more domains in attention, hyperactivity, impulsivity, with evidence of these symptoms before the age of 12. We did not feel another condition could have better accounted for patterns of behaviour you described, and your presentation appears neuro-developmental and pervasive”.[70]So, I make those findings, and I adopt the conclusions of those reports and observations as to the impact of the Claimant’s condition on his abilities. In so doing, I am well-aware of, and I have taken into account a number of points which counter the argument that he is disabled, such as the Claimant’s comparative good results in his A-levels and GCSEs without extra time, and also the ability to carry out his role and indeed the relative lack of evidence contained within the Respondent’s documents as to the problems that he faced at work, and I set those against those observations and findings made by the those two professionals referred to above, and I also consider the Claimant’s evidence and that of his partner.
Conclusions
[71]Overall, I find on the balance of probabilities that the impact of the Claimant having to work late at night in order to make up for being unable to complete tasks in the working day and the fact that he is having to spend considerably longer on his tasks is established. I note that there is very little to counter this evidence, and I observe that he was not challenged on the same by the Respondent in cross-examination. Indeed, there was no direct challenge to the Claimant’s disability impact statement as to the tasks he could not do or those he could only do with difficulty, whatsoever. Accordingly, in light of the fact that this evidence was consistent and is not contradicted by other documentary evidence I find that it accurately sets out the Claimant’s difficulties with day to day tasks.[72]For the avoidance of doubt, I am satisfied that the Claimant’s descriptions in his disability impact statement are established on the balance of probabilities and particularly I find that he struggles with communication in the way that I have summarised in these reports above and includes difficulties with sleeping, with reading and writing and reading in particular and reading anything that comes to more than one page or so, and that as a result of all of that he was at the material time working late into the night and the weekends. I find this impact as described by the Claimant to be more than minor or trivial.[73]In light of the evidence that he was coping better with the condition before he moved pre-2021, I did consider the possibility that he may have a fluctuating condition in that, at various times of stress, or perhaps because he has an anxiety condition that maybe this is the real reason for the impact on his daily activities as opposed to the underlying ADHD, as was found to be the case in the Herry case. However, I am satisfied that what has happened here was as the Claimant described to me, namely that he was able to have a coping mechanism pre-2021 prior to his move to the current Respondent, which was working well but that this broke down after his move and the impact became thereafter became substantial. Indeed, in that period of time before the Claimant’s move, I may have come to a different judgment that he was subthreshold in terms of substantial impact and thus would not have met the definition of disability in that period.[74]However, the period that I am concerned with is January 2022 up to April of 2023, and in that period, I am satisfied that the impact on his ability to carry out those day to day tasks, namely sleeping, concentrating, reading, writing, communicating, which I find are day to day tasks, was more than minor or trivial and thus was substantial. Accordingly, I am satisfied that the Claimant meets the statutory definition and was disabled during that relevant time.
Findings of Fact
[75]The respondents state they do not routinely pay for personal diagnostic ADHD assessments. The respondents say that Jay Bancroft understood that the claimant may have decided to go through his own GP for an assessment but that he was unsure of the dates relating to this. On the 24th March Charlotte Graham emailed Kathryn Berry to say the claimant was happy for the OH report to be shared with her and then to follow up with the claimant about whether there might be any adjustments the respondents could support him with. She was to keep Kathryn Berry updated with regard to the next steps with OH.[76]On the 30th March 2022 KB (Kathryn Berry) emailed CG (Charlotte Graham) and JB (Jay Bancroft) to inform them she had been in touch with a school in Bromsgrove that supported adults with ADHD. A meeting took place between the claimant and KB on the 20th April 2022. This was to discuss some ideas she had around coping mechanisms. As a result of this meeting KB sent to the claimant an email setting out what they had discussed and what mechanisms he might try including KB obtaining a quote for a mentoring session with a professional who understands ADHD. The claimant has stated that during the meeting KB said she did not know much about ADHD and that he was the first person to come forward with the condition in the service. In her statement Anna Davidson (AD) at para 12 states that KB has supported a large number of staff to access dyslexia assessments and support for ADHD. We have not heard from KB on whether she said that she didn’t know much about ADHD. Given the claimant has a good grasp of the facts and there is nothing to gainsay this we find its more likely than not that KB said this. However, it is difficult to put this into context. We do not know what she means by ‘she doesn’t know much about ADHD’ and to what level of knowledge she is referring too? She clearly has some knowledge of the condition given what she proposes with the claimant and the fact she had contacted the Bromsgrove School and had suggested a quote for mentoring with an ADHD professional.[77]On the 24th June 2022 the OH providers contacted HR asking for an update. If there were no further updates, then they would close the file. CG confirmed with OH that the file could be closed as internal support was being provided by KB and the respondents thought the claimant was pursuing an ADHD assessment via his GP. KB thought the claimant had spoken to his GP and was therefore on the waiting list for an assessment.[78]On the 11th July 2022 KB emailed CG and JB to let them know she had spoken to the claimant again at Evesham Fire Station. She had encouraged the claimant to have an occupational health referral in the hope they could provide some interim adjustments which could then be detailed on the HR7 form whilst waiting on an NHS diagnostic waiting list. On the 15th July 2022 CG and JB met with OH and OH agreed to provide an update on whether they could provide a full ADHD assessment and pricing.[79]We do not accept that the respondents made a management decision based on cost not to arrange the ADHD assessment as suggested in the OH report. There is no evidence to suggest this. The claimant ‘assumes’ that this was a management decision based on cost but also accepts there are no further emails qualifying this assumption post the email providing the quote. It is difficult to understand and pinpoint when and why the respondents thought the claimant was on the NHS waiting list. It seems to be an assumption from JB and then KB but we do not think there was anything sinister in this or that this was an attempt to absolve themselves from responsibility. CG shared the OH report with KB and suggested a follow up to consider reasonable adjustments. The Bromsgrove School were contacted, and the respondents were happy to make a referral for mentoring from an ADHD professional. We know from the claimants’ email to KB on the 21st April 2022 that he had downloaded the to do list and had tried text to speech and it had ‘…actually sort of helped’ (Page 216) We also know that the claimant emailed CG on the 4.1.23 and stated that he had been told verbally that HWFRS is not prepared to spend money on ADHD testing and that he should go to his GP for testing and an official diagnosis.[80]As pleaded at para 41 1.1.1 of the case management order the respondents required the claimant to requalify in incident assessment in April 2023. The claimant sets out the AIM criteria at para 118 of his statement. This is where a level 3 incident commander observes the claimant’s performance at an incident and records, against set criteria, areas of strength or potential areas of development for incident commanders. The claimant says that he had 2 in date AIMs at the time that Mr Palmer stated that he had concerns regarding incident performance. Both had zero areas for concern. The claimant states that Guy Palmer wrote an email on the 6.2.23 enquiring how ADHD may impact the operational rota. The claimant states that this in effect meant will the ADHD status affect ability as an incident commander. Mr Palmer stated that a risk based approach would be required for the claimants return to work. The claimant says that this shows that Mr Palmer knew about the ADHD and that Mr Palmer links the disability to concerns about the operational rota. Hence ADHD was the motivation that led to Mr Palmer requiring the claimant to re-qualify as an incident commander. The claimant says in his statement at para 127 that “I believe Mr Palmer had a stereotypical view of someone with ADHD and that view was that someone with ADHD must be a less capable incident commander”[81]On the 27th of March 2023 the OH report of Dr Sharples noted the following “if the employee has ADHD it is probable that he has had this condition for many years, perhaps dating back to childhood. I am unable to comment on the employee’s ability to safely perform their role. If the fire service is concerned, then I would suggest appropriate risk assessments are conducted”[82]Mr Palmer (Deputy Chief Fire Officer ‘GP’) role is to ensure the respondents have enough fire engines and competently trained staff on duty to respond to all emergency calls for assistance from across 2 counties. Every operational officer who works for the respondent, including the claimant, holds the responsibility for the health, safety, and the welfare of operational employees and they must be able to demonstrate they have the right skills and abilities to discharge their duties safely.[83]Incident commanders are responsible for developing tactical plans and enacting them in a safe manner. They must deliver the overall strategy to resolve any emergency. The incident commander must demonstrate the necessary skills to manage an emergency or incident. This could be a fire, RTA or a water rescue and envisages situations where the lives of the public could be in danger.[84]The incident commander needs to ascertain the situation and receive information from numerous sources such as the police, ambulance crews and members of the public whilst at the same time receive information over the radio from fire control. An incident situation can be highly stressful, and the incident commander must be able to take control of the situation, retain information from numerous sources and make decisions in a fast and efficient way.[85]GP also refers to the OH report after the visit on the 23.3.23 as per para 81 aforesaid. As a result of this GP asked area Commander Jon Butlin to ensure that the claimants return to work plan included a review of his operational duties and competency. GP sets out the rationale behind this at page 14 of his statement para 76 (a)-(d)(a) All operational officers are responsible for the health and safety of the operational workforce and must be competent to attend and deal with emergency incidents.(b) All operational officers need to process multiple streams of information, identify hazards and risks, create tactical plans that contain control measures, and apply these to ensure the safety of staff under their supervision in a quick fashion. The claimant had informed the respondent that he was struggling to deal with information and to recall the information at his recent disciplinary hearing.(c) I needed to know if the claimant required reasonable adjustments to carry out the operational aspect of his role, and if reasonable adjustments were required, what would this entail.(d) The claimant had been away from the workplace/ operational environment for several months and had therefore not been able to maintain any continual professional development linked to his incident command skills or competencies when responding to, and dealing with, emergency incidents.[86]GP felt there was new information concerning the cognitive ability of the claimant to process information, and that this could potentially have affected his ability to safely perform the role of an incident commander. GP states that this was an approach that he has previously instructed other officers to undertake where the circumstances have been similar.[87]GP holds ultimate responsibility for the operational side of matters. Testing and re-testing provides the respondent with a good level of assurance that those who hold responsibility for the safety of other employees, firefighters and members of the public should at any point be able to demonstrate that they can do their job to the required standard. The consequences of making poor decisions at emergency incidents can ultimately lead to catastrophic incidents.[88]The incident commander assessment was duly arranged and the claimant passed this without the need for reasonable adjustments.[89]Andy Kirk was called by the claimant to give evidence. The respondents took issue with his evidence at the outset of the hearing as his statement seemed to suggest he was an expert (see para 9) the contention was, based on supporting authorities, that the claimant should not be permitted to rely on this evidence. It was effectively agreed that the Tribunal would attach such weight to the statement as it sort fit. Nobody took issue with this approach.[90]Mr Kirk’s evidence focused on the possible alternatives to the Incident Command Re-Assessment and the way it was carried out. One such view was that such assessments are stressful and underperformance can lead to discussions amongst peers. This in turn undermines authority. The suggestion to undertake another AIM would not be as robust as the actual re-assessment.[91]We were struck by the compelling evidence that GP gave considering the pressing need to ensure operational officers must be competent to deal with emergency incidents. As GP said in his oral evidence catastrophic results can be played out in public. The ultimate question for GP would have been ‘how did you assess yourself he was safe’ if something had gone wrong. We remind ourselves that the claimant passed the re-assessment.[92]The claimant was required by GP to undertake a level 2 incident command assessment before returning to operational duties (page 595 of the bundle). The comparators cited are Mr Dewar and Mr Andrews. The comparators should be the same position in all material respects as the victim save only that he, or she, is not a member of the protected class. GP noted in his evidence that Mr Dewar had elected to take an assessment after a period of absence in January 2022 and therefore was treated the same as the claimant hence there was no less favourable treatment. Mr Andrews had no re-assessment but there was no cognitive impairment, and he was retuning at a level below that which he was qualified for. The decision to request a re-assessment was disability neutral in our view. It was an operational decision based on perceived risk because of the request for certain adjustments. This wasn’t a decision because the claimant had ADHD it was about organisational risk. The treatment wasn’t because the claimant has ADHD.[93]In relation to S.15 of the Equality Act 2010 given the findings above we do not find that the claimant has been treated unfavourably given the pleaded case at 2.1.1 at page 44 of the case management order. The claimant has pleaded that the something arising was the claimant ‘in certain circumstances struggles to understand and retain information’ GP was able to articulate the legitimate aim regarding the decision-making process. “To ensure that so far as possible, all Incident Commanders, who hold responsibility for the safety of other employees, firefighters and members of the public, are able to fulfil the requirements of the Incident Commander role such that, at any emergency incidents the respondent is called to attend, they will correctly make all and any decisions required to achieve the best possible outcom”.[94]The alternatives suggested by Mr Kirk would not have met the same standard of assessment necessary to test the claimant under the correct conditions and to satisfy any external enquiry. An AIM test would still have been unfavourable. The claimant believes the unfavourable treatment was that the re-assessment was commissioned due to the stereotypical view of ADHD. We accept the evidence from GP shows that this was not the case and the decision he took was reasonable in achieving the legitimate aim. The Respondent’s actions in this case – i.e. requiring the Claimant to undertake the Incident Commander assessment was a reasonable means of achieving this aim.[95]The requirement to comply with complex policies namely the grievance policy, disciplinary policy and promotion policy must be considered against the background advanced by the claimant that the respondents failed to deal with the ADHD appropriately. Was the claimant placed at a disadvantage? Was there sufficient evidence that the respondent knew or ought to have known that the claimant was placed at a substantial disadvantage? The claimant in closing submissions advances the case that he wasa. Claimant made Respondent aware of ADHD symptoms and request for assistance on 25th Jan 2022 in an email to KB from HR.b. Claimant asked for an occupational health appointment to seek help with ADHDc. Occupational Health report dated 24th February 2022 states that they suspect ADHD is present and will promptly refer for an assessment.d. The Respondent was aware of the potential disadvantage as his line manager AF was copied into emails that arose from the issues above.e. KB writes emails in April 2022 and July 2022 and September 2022 that confirm that she feels the claimant would benefit from mentoring and adjustmentsf. Occupational Health reports that are shared with managers and HR exist from February 2022, September 2022, January 2023 and March 2023. They all offer advice regarding ADHD and offer solutions that may assist with difficulties at work.g. The Claimant had told KB from HR about difficulties that he was facing in his initial email in January 2022 and in conversations with her in April, July, and October.h. KB shares the events of her meetings with the claimant with her Manager CG in emails.i. 08/08/23 Lexxic (ADHD experts and diagnostic assessment company) write an email to JB in HR detailing the potential benefits of one to one coachingj. The respondent failed 3 promotion processes in April 2021, April 2022 and August 2023. He never got past the application stage of these processes.[96]The respondents state the claimant successfully managed to navigate three group commander applications asking for either no or minimal adjustments. Assistant Chief Officer Anna Davidson contends the following in her statement at para 140 in the alternative(i) The EDI Officer, KB, responded to the Claimant’s initial email the next day providing information about an online test to provide an initial indication along with recommending a referral to OH, as they may be able to advise on adjustments.(ii) A referral to OH was made and the appointment was on 24 February 2022. The OH report came back to say they suspected the presence of ADHD and suggested that an assessment for ADHD would be useful. They would liaise with their central team to establish the arrangements in place to refer the Claimant for “an appropriate assessment - this may need to cover other neurodiverse conditions such as dyslexia”. The report went on to say, “We will progress the referral for an assessment as stated above to identify the most appropriate referral. ” Once the assessment was completed, OH could “make recommendations on adjustments that would support him in the workplace” .(iii) They confirmed the Claimant was fit to perform his job. At this point they did not recommend any reasonable adjustments.(iv) The Claimant’s line manager GC Farmer discussed and offered support once he was aware that the Claimant may have ADHD.(v) On 20 April 2022 KB met with the Claimant for 2.5 hours to offer suggestions as to what he could try. (vii) On 21 April 2022 the Claimant emailed KB to say thank you for meeting with him the day before. He had downloaded the ‘to-do’ list and tried the text to speech and ‘it actually sort of helped’ (viii) HR followed up on other OH reports, seeking advice and also explored specific neurodiverse mentoring. (ix) During the Group Commander promotion process in April 2022, the Claimant statedthat there were no adjustments required, saying, “Currently consulting with Occ Health and Kathryn Berry regarding ADHD. I do not consider myself to need any adjustments at this stage. Areas such as punctuation and small grammatical errors in writing are difficult for me to see... tools like spell-check assist but do not pick up on all mistakes” (x) During the Group Commander promotion process in August 2022 the Claimant did not tick the box to indicate that he had a medical condition or needed reasonable adjustments. (xi) The Claimant spoke with his line manager AF, during which AF had asked what reasonable adjustments were required, to which the Claimant replied “he didn’t know”. Based upon this KB encouraged the Claimant to have a referral to Occupational Health to provide some interim ideas for reasonable adjustments whilst he awaited the NHS diagnostic assessment. (xii) The Claimant had regular one to one meeting with his line manager and separate coaching and development sessions. (xiii) I understood the Claimant was seeking a diagnosis via the NHS independently. (xiv) The Claimant met with the staff welfare team and had six appointments with a therapist funded by the Respondent. (xv) There was follow up correspondence about a possible mentor in September 2022. AfurtherA further referral was sent to Occupational Health, stating “We have asked the employee what adjustments they require, but they do not currently know” (xvi) The Claimant was invited to attend the Neurodiverse Staff Network Group in October 2022. (xvii) The Claimant was asked if he required any adjustments during his investigatory meeting on 02 November 2022 but replied “no (xviii) The first time the Claimant suggested reasonable adjustments was when he submitted a grievance in December 2022, linked to the disciplinary process he was involved in. (xix) Provision of audio recording and transcripts of meetings relating to disciplinary hearing and grievance meetings was made as a reasonable adjustment. (xx) Support and adjustments have been offered and provided throughout the process of disciplinary investigation, disciplinary hearing and grievance meetings, whilst an official diagnosis was pending. (xxi) A decision was made that the Respondent would take the unusual step of funding an ADHD assessment. The Claimant was informed this may take around 12 weeks from he date of referral, with the report following around 6 weeks after the final appointment. (xxii) Prior to 6 April 2023, at no point had the Claimant made a complaint or raised grievance about the way his ADHD concerns or diagnosis had progressed (see pages631 - 636).[97]The respondent contends that its decision to require the claimant to have knowledge of, and or be able to apply those policies was a reasonable means of achieving its legitimate aim. We agree with this. The legitimate aim in relation to indirect discrimination was To require adherence to the respondent’s policies where possible2, so as to ensure consistent and fair treatment of staff, and in particular to ensure: that staff and managers are aware of the expectations on them in terms of behaviour and conduct, and were fully informed of what would happen if they failed to meet those expectations; that staff are aware that they have the right to make complaints about the conduct of other employees or the treatment of themselves by others if necessary; and that staff are aware of how applications for promotion are considered.[98]The claimant was able to manage the grievance and disciplinary procedures. He had trades Union representation and a knowledge of such procedures from previous employment. He asked for adjustments where necessary. We find no evidence that he struggled with the policies.[99]There is no doubt that during the period of 2022 KB and others from HR were actively trying to assist the claimant with his ADHD and were trying to ascertain what adjustments were needed. The discussions that the claimant had with KB and others about his ADHD and the adjustments provided by the respondents over the period seemed to be sufficient to deal with any impact the ADHD was having on the claimant whilst at work.[100]The respondents submitted that they were dealing with the issue of ADHD in a manner that was commensurate with the way in which the claimant was approaching the issue himself. We accept that submission. From June 2022 onwards the claimant had not requested any adjustments as far as policies and procedures were concerned. The respondents were dealing with the issue of the claimants ADHD appropriately on the facts of the case.[101]There is no evidence that the claimant asked for adjustments concerning the computer system or issues with training save that KB failed to pass over the HR7 form to the trainer. We have commented earlier in this judgment regarding the confusion over the need for the diagnostic report and whether the claimant was to be seen again after 4 months. The report is/was not conditional on the adjustments being made and OH reports were obtained when they were required over the period. Post the first OH report the claimant did not speak to KB again until April 2022. The claimant continued with application for the group commander role and asked for no adjustments. The evidence suggests the respondents thought the claimant was seeking the ADHD assessment through his GP. There is nothing to suggest that he was suffering a substantial disadvantage at work due to his ADHD. The claimant was aware that the respondents did not pay for ADHD testing.[102]The claimant started the process of asking for adjustments post his absence for illness. The adjustments were considered by the claimant and composed via consultation with the internet. If the claimant had wanted to do so he could have compiled the adjustments he needed at any time. All the claimants’ 2 It is noted that the policies referred to are accompanied by Equality Impact Assessments (at [1111-1114], [1077-1080] and [1145-1149] respectively) adjustments were accommodated. At any point the respondents were made aware of any substantial disadvantage reasonable adjustments were made. The Tribunal has focused on the pleaded case at pages 43-45 of the case management order dated the 27.10.23.[103]There was no evidence that the claimant was put at a substantial disadvantage compared to someone without the claimant’s disability in that he was less able to use the computer system, less able to successfully utilise the policies or the training was less accessible.
Conclusions
[104]Given the above findings we accept that GP was entitled to request the claimant to undergo requalification in incident command in April 2023. This was not less favourable treatment. The claimant was not treated worse than Messrs Dewer and Andrews (the comparators pleaded). The decision to request a reassessment was disability neutral. The treatment was not because the claimant had ADHD it was treatment based on operational risk. We do not find from the facts that the respondent has committed, or is treated as having committed, an unlawful act of discrimination. The respondent has proved on the balance of probability that its conduct had nothing to do with the claimant’s disability. Consequently, the claimants claim pursuant to S.13 of the Equality Act 2010 Direct Disability Discrimination Fails.[105]We have found that the respondent did not treat the claimant unfavourably by requesting him to re-qualify in incident assessment. The treatment was a proportionate means of achieving a legitimate aim. “To ensure that so far as possible, all Incident Commanders, who hold responsibility for the safety of other employees, firefighters and members of the public, are able to fulfil the requirements of the Incident Commander role such that, at any emergency incidents the respondent is called to attend, they will correctly make all and any decisions required to achieve the best possible outcom”.[106]We do not find that something less discriminatory could have been done instead. The decision to re-qualify in incident assessment in the way it was carried out and the consequences for failing the assessment to operational risk was a balanced decision. The claimant passed the assessment. The treatment did not arise from the disability. In considering the requirement Therefore, the claim pursuant to S.15 of the Equality Act 2010 Discrimination arising from Disability Fails.[107]In relation to the alleged disadvantage caused to the claimant by being requested to comply with complex policies, we do not find that the PCP puts or would put persons with whom the claimant shares the characteristic at a particular disadvantage when compared with persons with whom the claimant does not share the disadvantage with. The claimant was not at a disadvantage. The respondents dealt with the claimant’s disability appropriately. The respondents PCP was a proportionate means of achieving a legitimate aim. Therefore, the claim pursuant to S.19 Equality Act 2010 Indirect Disability Discrimination Fails.[108]We considered what PCP the claimant claimed placed him at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.[109]We do not find that the respondents failed to make reasonable adjustments. The PCP as pleaded at 4.2 of the case management order dated the 27.10.23 did not put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. We do not accept that the respondent knew or could reasonably be expected to have known that the claimant would be placed at the alleged substantial disadvantage. The respondents, regardless of their state of knowledge of the disadvantage took such steps to avoid the disadvantage. As we do not find that the respondents failed in the requirement set out at S.20 (3) of the Equality Act 2010 then they did not fail to comply with the duty at S.21(1)(2) of the Equality Act 2010. Therefore, the claim pursuant to S.20 and S.21 of the Equality Act 2010 Reasonable Adjustments fails.
Conclusions
[1]By application dated 18 April 2024 the claimant made an application for reconsideration of the Reconsideration Judgment dated 15 April 2024.
The Law
[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”).[3]Under Rule 70 of the Rules, the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision may be confirmed, varied or revoked.[4]Rule 71 provides that an application for reconsideration under Rule 70 must be made in writing (and copied to all other parties) within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties.[5]The process by which the Tribunal considers an application for reconsideration is set out in Rule 72. Rule 72(1) provides that where an Employment Judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application shall be refused and the Tribunal shall inform the parties of the refusal.Case No:3310152/2022[6]Guidance for Tribunals on how to approach applications for reconsideration was given by Simler P in the case of Liddington v 2Gether NHS Foundation Trust UKEAT/0002/16/DA. Paragraphs 34 and 35 provide as follows: “34. […] a request for reconsideration is not an opportunity for a party to seek to relitigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration. Where […] a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.”[7]The claimant’s application was received within the relevant time limit in accordance with Rule 71. The application has also been copied to the respondent.[8]The application for reconsideration appears to be made on the following Grounds, namely(i) the reconsideration is made in the interests of justice based on new evidence and procedural error(ii) that the findings of EJ Manley contradict the judgment in that the Respondents must have known the Claimant suffered from a substantial disadvantage(iii) that the respondents didn’t take steps to avoid the disadvantage(iv) that there was a procedural error[9]In relation to point(i) and generally the claimant is a disappointed litigant and is seeking to have a further attempt to re-argue his position having had a full opportunity at the previous hearings. It is not the purpose of reconsideration to allow a party to the opportunity to rehearse the arguments that have already been made and explored. It is a fundamental requirement of litigation there is certainty and finality.(ii) EJ Manley had to determine the issue of Disability pursuant to S.6 of the Equality Act 2010. The claimant refers to substantial disadvantage which is a reference to S.20 and S.21 of the Equality Act 2010 and the legal test and factors to be considered are different from S.6 of the Equality Act 2010. The application of the disability to S.20 and S.21 is different to the consideration of whether the claimant had a disability per se. The law in this area was considered fully at paras 66-71 of the judgment and the consideration of the facts to the law from para 95 onwards.(iii) the issue of the steps the respondents took to avoid the disadvantage have been thoroughly evaluated during the final hearing and reflected in the judgment and nothing the claimant raises changes the conclusions the tribunal made on this issue(iv) At no time during the final hearing of the matter were any procedural issues raised by the claimant and no reference was made to any attempt to change or amend the nature of the claim. The issues in the case were set out in the case management order of EJ Brewer on the 27th October 2023 and these were the issues that were determined. No application was made to amend these issues after the 27th October 2023 upto and including the final hearing 12 months later. Consideration was given to the comparators pleaded namely messrs. Dewer and Andrews. The issue of an auxiliary aid was not pleaded and no application was made at the final hearing to revisit this issue. As stated in the judgment at para 102 the tribunal focused on the pleaded case at pages 43-45 of the case management order dated the 27th October 2023.[10]If there was an error of law, this is a matter for appeal and not reconsideration. The claimant has not argued or identified an error of law.[11]This application does not raise any new information or which he could not have raised at the hearing which would make reconsideration necessary in the interests of justice.[12]In the circumstances the application for reconsideration is rejected on the basis there is no reasonable prospect of the judgment being varied or revoked. Accordingly, the application for reconsideration is therefore refused.