[1]The complaint of discrimination arising from disability contrary to Equality Act 2010 section 15 is well-founded and so succeeds.[2]The complaints of direct disability discrimination contrary to Equality Act 2010 section 13 are not well-founded and so are dismissed.[3]The Tribunal orders the Respondent to pay the Claimant compensation for discrimination arising from disability amounting to £7,914.41, comprising of:(1) an award for injury to feelings in the sum of £7,000.00;(2) interest on the award for injury to feelings in the sum of £914.41 (calculated at 8% per annum from 28 September 2022 to 17 May 2024).
REASONS
JUDGMENT and oral reasons having been given at the hearing on 11 January and 17 May 2024, with Judgment having been sent to the parties on 28 May 2024, and written reasons having been requested on 29 May 2024 in accordance with rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided. Judgment[1]The Judgment of the Tribunal was that:(1) the complaint of discrimination arising from disability contrary to Equality Act 2010 section 15 is well-founded and so succeeds;(2) the complaints of direct disability discrimination contrary to Equality Act 2010 section 13 are not well-founded and so are dismissed; and(3) the Tribunal orders the Respondent to pay the Claimant compensation for discrimination arising from disability amounting to £7,914.41, comprising of: (i) an award for injury to feelings in the sum of £7,000.00; (ii) interest on the award for injury to feelings in the sum of £914.41 (calculated at 8% per annum from 28 September 2022 to 17 May 2024). - 1 -[2]The written Judgment dated 17 May 2024 was sent to the parties on 28 May 2024. The Respondent e-mailed a request for written reasons on 29 May 2024. Unfortunately, the e-mail requesting written reasons was only forwarded to the Employment Judge on 16 July 2024.[3]I apologise for the delay thereafter in providing these written reasons, which has been caused by pressure of work. Background and proceedings[4]The Respondent is a large company which provides logistics support to various customers including Jaguar Land Rover (“JLR”) under a commercial contract at several sites operated and owned by JLR. The Claimant was employed at the Solihull site. The ET1 Form of Clam gives his start date as 12 May 2012. The Respondent gives his start date as 1 January 2014. Certainly, this is the date of appointment referred to in the letter of appointment and contract of employment which makes it clear that no other period of employment will count as continuous service. However, nothing appears to turn on the precise date of commencement of employment. As at the date that proceedings were commenced, the Claimant remained employed as a warehouse operative. However, his employment came to an end shortly before the Remedy Hearing in May 2024. Clearly, the circumstances in which his employment ended are outside the scope of this Judgment.[5]It was accepted that the Claimant has a relevant disability for the purposes of the Equality Act 2010. This was by reason of depression and anxiety. It was also accepted that the Claimant has a young daughter who also has a relevant disability. The Respondent has a policy which enables employees to take unpaid dependency leave. The Claimant took a total of nine days’ dependency leave in the period between June and September 2022. The Respondent was concerned that he was taking dependency leave in circumstances where he was not entitled to such leave and / or that the amount being taken was not reasonable. The Claimant claims that his treatment by the Respondent in dealing with this issue amounted to discrimination.[6]Early conciliation commenced through notification being given to ACAS on 24 November 2022. The early conciliation certificate was issued on 14 July 2022. The ET1 Form of Claim was received by the Tribunal on 28 November 2022.[7]In his ET1 Form of Claim the Claimant simply completed section8.1 to indicate that he was complaining of discrimination. He provided details of his complaint at section8.2 as set out below. “I suffer from mental health been off work sick at present the claim is discrimination against well I feel more against my daughter she has been in - 2 - and out of hospital for a while work has had all paperwork involving my daughter I've had to take dependency for her as she is not well work is taking me to a disciplinary because of my daughter’s health I've provided all paperwork necessary involving my daughter. DHL basically have taken nothing into account they are stating I'm not allowed to take time off for my sick daughter to look after her they have discriminated my daughter and myself knowing full well she is ill and I'm being punished in work for dependency basically they are saying DHL are not letting me have dependency for my sick daughter”.[8]The original Grounds of Resistance set out a brief history of the matter and denied discrimination.[9]The issues to be determined were identified and determined at a Preliminary Hearing on 19 May 2023 and were subsequently set out in the List of Issues at the end of the resultant Case Management Order.[10]As a result, the List of Issues identified that the Claimant was complaining that his treatment by the Respondent in dealing with this issue of dependency leave amounted to direct discrimination (contrary to Equality Act 2010 section[13]on the grounds of both his disability and that of his youngest daughter, in respect of whom he says that he was taking the dependency leave. The treatment complained of as direct discrimination was that of:(1) subjecting him to a disciplinary investigation;(2) requiring him to attend a disciplinary hearing;(3) failing to uphold his grievance when he complained about these steps being taken; and(4) ignoring the medical information which he provided, both in relation to his disability and that of his daughter, in subjecting him to these internal processes;(5) initially having his sick pay stopped for a period of time between September and December 2022. 11. The List of Issues also identified a complaint of discrimination arising from disability contrary to Equality Act 2010 section 15 on the basis that the Respondent treated him unfavourably by not paying him sick pay between September and December 2022. For these purposes, the Claimant claimed that the unfavourable treatment arose from his absence between September and December, and this absence had arisen in consequence of his disability. 12. In defending the complaint of discrimination arising from disability, the Respondent sought to rely upon a justification defence by contending that the treatment of the Claimant was a proportionate means of achieving the legitimate aims of managing employee performance and absence, - 3 - maintaining standards of behaviour and conduct, and running an efficient service. 13. Following the Case Management Order being sent to the parties, the Respondent filed amended Grounds of Resistance to deal more fully with the complaints identified in the List of Issues.[14]The Final Hearing had been listed for four days from 8 January 2024 on the basis that both liability and, if appropriate, remedy would be dealt with on those dates. At the beginning of the hearing, it was decided to deal with the issue of liability first and then, if necessary, deal with the issue of remedy.[15]The Tribunal announced its decision as to liability on 11 January 2024 when detailed oral reasons were also provided. The Tribunal held that the Claimant’s complaint of discrimination arising from disability contrary to Equality Act 2010 section 15 on the basis that the Respondent treated him unfavourably by not paying him sick pay between September and December 2022 was well-founded (in that the Claimant was not paid sick pay from October 2022 to December 2022) and so succeeded. The Tribunal held that the Claimant’s other complaints, which were complaints of direct discrimination contrary to Equality Act 2010 section 13, were not well-founded and so would be dismissed. It was indicated that the written Judgment would be sent to the parties following any remedy hearing.[16]A Remedy Hearing was to be arranged to determine any compensation or other remedy which the Claimant should be awarded in respect of the complaint for which the Respondent had been found liable. However, it did not initially prove possible to identify a suitable date for the Remedy Hearing. Instead, the parties were directed to send their dates to avoid to the Tribunal, which resulted in the Remedy Hearing being listed for 17 May 2024.[17]The Tribunal gave directions as to the further steps to be taken by the parties in preparation for the Remedy Hearing, as confirmed in the Case Management Orders dated 15 January 2024.[18]In particular, the Claimant was directed to prepare a Statement of Evidence for use at the Remedy Hearing, the contents of which was to be limited to setting out his description of the effect and impact on him of having his company sick pay stopped for the period from October and December 2022. The Claimant was also to disclose to the Respondent copies of any documents relevant to the issue of the effect and impact on him of having his company sick pay stopped for the period from October and December 2022. It was indicated that the Claimant’s GP records, at least for the period from when he was signed off work in September 2022, may be relevant to the issue of the effect and impact on him of having his company sick pay stopped for the period from October to December 2022. The Respondent was also directed to disclose any Statement of Evidence upon which it wished to rely - 4 - for the Remedy Hearing as well as disclosing any documents relevant to the issue of the effect and impact on the Claimant of having his company sick pay stopped for the period from October and December 2022. Directions were also given for the preparation of a supplemental Bundle of documents to be used at the Remedy Hearing.[19]Judgment as to remedy was given at the end of the Remedy Hearing on 17 May 2024 together with detailed oral reasons. The claimant was awarded the sum of £7.000.00 for injury to feelings together with interest of £914.41.
Evidence
[20]In terms of documentary evidence, the Tribunal was originally provided with a Bundle of 329 pages, into which further pages had then been inserted.[21]The Tribunal was also provided with a number of witness statements. The witness statements included a Statement of Evidence from the Claimant. The Claimant appended a GP report dated 14 June 2023, and an occupational health report dated 22 September 2022 to his Statement of Evidence. The Claimant also relied upon written Statements of Evidence from his trade union representative, Robert Brophy, who had accompanied him to various of the meetings in issue. He also provided a written Statement of Evidence from Claire Hoye, an acting Deputy Head Teacher, who was able to confirm the Claimant’s family circumstances in caring for his daughters.[22]Mr Brophy did not attend the hearing as he had been unable to obtain paid leave from the Respondent although the Respondent had agreed to him having unpaid time off to attend the hearing. In the event, Mr Stenson confirmed that he was not seeking to challenge any of the content of the statement of Mr Brophy and the Tribunal accepted his Statement of Evidence as read. Similarly, Ms Hoye did not attend to give oral evidence, but there was no relevant dispute regarding the factual content of her Statement.[23]The Respondent relied upon written Statements of Evidence from Mr Sean McDermott, the Respondent’s Operations Manager (subsequently promoted to the position of Senior Operations Manager) who had made the decision to investigate the Claimant’s use of dependency leave and stop his sick pay, and from Mr Paul Bartlam, the Senior Operations Manager who dealt with and rejected the Claimant’s grievance regarding being subjected to an investigation and referred for a disciplinary hearing.[24]At the end of the first day, after the Claimant had been cross-examined and questions asked by the members of the Tribunal, the Claimant was given the opportunity to clarify any aspects of his evidence which he felt he needed to clarify (instead of being re-examined as he would have been had he been represented). It was made clear that this was not an opportunity to introduce new evidence which had not previously been disclosed or included in his - 5 - witness evidence. The Claimant asked to deal with this part of his evidence at the beginning of the second day. In the event, the Claimant attended at the beginning of the second day and sought to submit, by way of providing clarification as to his evidence, a significant number of additional documents, most of which did not appear to be particularly relevant to the issues in the case. Ultimately, the Tribunal dealt with this application to introduce further evidence by getting the Claimant to confirm in evidence the factual matters which he considered to be demonstrated by the documents, whilst giving Mr Stenson an opportunity to cross-examine the Claimant on this further evidence. The Tribunal gave oral reasons at the time for the approach which it adopted, and those reasons are now set out in writing in the paragraph below.[25]The Tribunal was conscious of the overriding objective in dealing with this application of the Claimant and took account of the fact that the Claimant was a litigant in person and that his ability to litigate the matter on his own behalf was restricted to some extent by the fact that he had mental health issues and had described himself as being overwhelmed in the course of dealing with the issues which he was effectively having to handle. This had meant that a number of documents to which he had wanted to refer had only been produced at the beginning of the second day of the Final Hearing when he was in the middle of his evidence and was effectively seeking to provide further evidence by way of re-examination. Nevertheless, the Tribunal had gone through the additional documents with both the Respondent’s counsel, Mr Stenson, and with the Claimant, to establish the extent of their potential relevance. It seemed clear to the Tribunal that most of the documents were of marginal relevance, if any relevance at all, bearing in mind that they related to issues that had not been raised by the Claimant in either the ET1 Form of Claim or in his Statement of Evidence. As such, the Tribunal did not think that it was necessary for the Tribunal, at this stage, to read all of the additional documents having regard to the observations already made in relation to their limited, if any, relevance. Nevertheless, since the Claimant was seeking to make points arising out of these documents in terms of possible significance in relation to the complaints that he was bringing and had outlined the points that he would make if he was permitted to give additional evidence, the Tribunal had decided that the most appropriate way forward was to enable the Claimant to confirm those points in evidence and then to provide Mr Stenson with an opportunity to ask questions arising out of those points in so far as those were matters which amounted to evidence and / or points which had not previously been dealt with through any questioning of the Claimant.[26]At the beginning of the third day, when Paul Bartlam was giving evidence, the Respondent sought to introduce a new document which was its Noncontractual Leave Policy, which had been in place in 2022. This set out further provisions in respect of dependency leave which seemed to exist alongside - 6 - similar provisions in the Respondent’s Sickness Absence Management Policy which also dealt with dependency leave under a heading in respect of personal and domestic leave. The Non-contractual Leave Policy was being introduced into evidence on the basis that it was the source for Sean McDermott’s understanding that dependency leave will usually be for no more than a period of up to 48 hours. The Tribunal concluded that this document should be admitted as relevant evidence provided the Claimant was able to give further evidence regarding the extent of his knowledge and understanding as to the provisions in the document regarding dependency leave, and the Claimant was then cross-examined on this further evidence.[27]For the Remedy Hearing, the Tribunal had a further Bundle of some 40 pages in length which included a further Statement from the Claimant as well as a Statement from his father, Colin Kent, regarding having loaned the Claimant £5,000.00 because his paid been suspended. Colin Kent was unable to attend the Remedy Hearing due to serious ill-health, but it was agreed that his Statement should be taken into account. The Bundle also contained GP records in the form of attendance notes covering the period between September 2022 and January 2023. In addition, there was a short report from the Claimant’s GP, Dr Smith, summarising the Claimant’s health issues in the period between September 2022 and January 2023. The Bundle also contained occupational health reports which were dated 28 February 2024 and 18 March 2024 as well as the notes of a health review meeting which had taken place between the Claimant and the Respondent on 16 February 2024.
Findings of fact
[28]The Respondent provides logistics support to a variety of different customers. One of the Respondent’s customers is JLR. The Claimant had been employed by the Respondent since about 2014 in the role of Warehouse Operative.[29]The Respondent has a Sickness Absence Management Policy (the “Policy”) which has a heading in respect of personal and domestic leave which states that a reasonable amount of unpaid time off may be allowed at the discretion of management in the following circumstances, upon notification:(1) to help out or make arrangements when a dependant falls ill or is injured or gives birth;(2) to cope when arrangements for caring for a dependant break down unexpectedly and to deal with an unexpected incident to a child during school hours;(3) a domestic emergency (with the example given of a house flood).[30]The Policy says that such leave has to be notified directly to a line manager at least one hour before the shift start time in the same way as sickness absence and that such leave will not be retrospectively authorised. In fact, - 7 - this seemed to be the opposite of what happened in that the system in place involved the Claimant providing notification of taking such leave by telephoning an absence line which would then result in a call-back from a manager. Often, for various reasons, such contact would not be made between the manager and the employee, so that the reasons for the leave being taken were not given further consideration until the point in time when a return to work meeting took place.[31]The Non-contractual Leave Policy had a heading in respect of emergency dependant leave. This section of the Policy stated that all employees are entitled to take a reasonable amount of time off work to deal with family emergencies. It stated that emergency dependant leave will usually be for one or two days so as to deal with a short-term emergency or to make arrangements for a longer-term solution. The right to such time off to care for a dependant was conditional upon the employee informing the company of the reason for the absence as soon as reasonably practicable. The employee would also normally be required to indicate the likely duration of the absence where it was practical to do so. It can be seen that the policy does not rule out the possibility of dependency leave being for more than two days.[32]The Sickness Absence Management Policy also contained provisions in respect of the payment of company sick pay when an employee was absent during an investigation or disciplinary process, as set out below. “Company sick pay will not be paid to individuals if the absence is immediately before or during a disciplinary procedure or notice of attendance to a hearing / investigation etc. At the end of the disciplinary procedure, withheld company sick pay may be reimbursed”.[33]An occupational health report dated 1 April 2021 described the Claimant having a long-standing history of depression and anxiety throughout his adult life for which he was being prescribed regular medication (Fluoxetine). The occupational health appointment had come about as a result of the Claimant’s absence from work since February 2021 having been medically suspended in the context of concern for his mental health after an incident in which he had reportedly sent photographs of deliberate self-harm to his colleagues. This seems to have arisen as a result of the Claimant having heightened low mood and anxiety in the context of work-related stressors including a compulsory redundancy process. The report also stated that there were ongoing personal stressors relating to his children’s health issues.[34]The Claimant’s absence record shows that, in addition to sickness absences for other reasons, there were a number of significant absences from work with the reason given as anxiety / stress / depression. This included an absence between 19 October 2021 and 6 December 2021. - 8 -[35]The absence record also records unpaid dependency leave being taken by the Claimant on 13 June 2022, 20 June 2022, 6 July 2022, 7 September 2022 and for five working days between 22 August 2022 and 30 August 2022.[36]The Claimant’s sickness absences resulted in an absence review meeting taking place on 10 June 2022 which was conducted by Sean McDermott who was the Operations Manager for the team in which the Claimant worked (so was a level of management above the Claimant’s line manager). The meeting had been triggered as a result of the Claimant having had four sickness absences amounting to 46 days in a rolling 12-month period. The meeting resulted in a decision to issue the Claimant with a first written warning at stage 2I of the Respondent’s Absence Policy. The letter confirming the decision set out the improvement required which was that “with immediate effect you must have no further absence during the live period of the above warning” which was a period of 12 months.[37]There were further absences on Monday 13 June 2022, Monday 20 June 2022 and Wednesday 6 July 2022, but these were recorded as dependency leave. The Claimant was also absent for five working days between Monday, 22 August 2022 and 30 August 2022 with the return to work interview form recording the reason for absence as dependency “due to ongoing daughter illness”.[38]By September 2022, Sean McDermott had become concerned about the Claimant’s level of dependency leave. One area of concern was as to a possible pattern having developed with the Claimant’s use of dependency leave, insofar as such leave mainly fell on a Monday. On three days dependency leave had been requested for a Monday.[39]Sean McDermott also had suspicions that the Claimant was not using his dependency leave for emergency situations with his dependants but for other reasons.[40]On one of the occasions when the Claimant had taken dependency leave, Sean McDermott had been informed by one of the Claimant’s colleagues that the Claimant had rung him the night before and had asked as to whether he could borrow his car, as the Claimant’s car had broken down, with his colleague having informed Sean McDermott that he believed that the Claimant had not attended work because of the issues with his car rather than having an emergency with his dependant. The Tribunal notes that no evidence of this was obtained as part of the subsequent investigation due to the unwillingness of the colleague concerned to provide a statement.[41]In relation to the dependency leave which had commenced on 22 August 2022 and was for five working days, the understanding of Sean McDermott was that the Claimant had rung into work and informed his employer that he had lost his wallets and car keys. Sean McDermott also understood that the - 9 - Claimant then also later said that he had a gas leak and his mother-in- law had fallen down the stairs. Sean McDermott was concerned that it was not appropriate to take dependency leave for losing keys and a wallet. In relation to any possible gas leak, the Claimant should have requested emergency leave or holiday for this or had a conversation with his manager to alter his shift times. Sean McDermott was also not aware that the Claimant’s motherin-law lived with him or was a dependant of his. As such, Sean McDermott had concerns as to whether the use of dependency leave had been appropriate.[42]The concerns of Sean McDermott regarding the possible misuse of dependency leave also reflected the strict approach which the Respondent considered it necessary to take in dealing with absences. Short-term and last-minute absences were considered particularly problematic for the Respondent’s business and the client contract with JLR. JLR had very strict key performance indicators line in place under the contract which only allowed for a low level of absence. If the Respondent was unable to provide the services which it was contracted to provide under the contract with JLR then it was at risk of tough financial penalties under the contract.[43]On 5 September 2022, Sean McDermott wrote to the Claimant to advise him “that a disciplinary investigation is currently being conducted into allegations against you”. Specifically, it was “alleged that a pattern has emerged in regard to your dependencies over the last 12 months” and that these “allegations constitute a breach of conduct whereby you are not fulfilling your contractual obligations”. Seran McDermott had been appointed as the investigating manager and the Claimant was invited to an investigation meeting which had been arranged for 8 September 2022.[44]On or around 6 September 2022, the Claimant provided Sean McDermott with a copy of the letter from that date which had been written by a Nurse Specialist at Birmingham Children’s Hospital. The letter described the medical issues faced by the Claimant’s daughter (and the involvement of her parents in seeking to deal with the medical issues involved).[45]On 8 September 2022, the Claimant and his representative attended an investigation meeting with Sean McDermott. The meeting was adjourned on the basis that Sean McDermott was going to undertake further investigation and discuss the situation further with HR.[46]The Claimant was subsequently signed off work by his GP from work from 13 September 2022 with the reason recorded as anxiety / stress / depression.[47]An occupational health appointment took place on 20 September 2022. The resultant report confirmed that the Claimant was currently unfit for work and expressed the opinion that he “is likely to remain unfit for work until he has been established on adequate treatment for his mental health, which may - 10 - take weeks to months”. In relation to a specific question as to whether the Claimant was “fit to attend meetings or participate in dialogue with the employer”, the advice given was that “he is likely to be fit for meetings, however I understand that this process may cause distress”. Moreover, it was further advised that given “Mr Kent’s current low mood, you may wish to postpone any such meeting for 6-8 weeks to allow time for treatment to be established so that he can better represent himself”.[48]On 28 September 2022, Sean McDermott wrote to the Claimant in the terms set out below. “Further to your recent absence from work, which commenced 12th September 2022 in relation to 'Mixed Anxiety and depressive disorder', I am writing to advise you that we have exercised our discretion to withhold Company Sick Pay. You will therefore receive statutory sick pay only for this period of absence. The reason for this decision is that it is a part of the absence policy applicable to you. I have included the extract from the absence policy below for reference and also enclosed a copy of said absence policy. "Company sick pay will not be paid to individuals if the absence is immediately before or during a disciplinary procedure or notice of attendance to a hearing / investigation etc. At the end of the disciplinary procedure, withheld company sick pay may be reimbursed" I will be sending you a date and time to reconvene the current outstanding investigation in a separate (sic). All further details will be enclosed in the letter…. You have attended an Occupational Health Meeting on 21st September 2022 we will now require … a follow up review with you. Once the scheduled appointment is confirmed we will send you a(n) invite letter of date, time & location”.[49]However, a further occupational health appointment did not take place at this stage.[50]On 18 October 2022, Sean McDermott wrote to the Claimant stating that “I am now in a position to reconvene the meeting to be able to fully consider allegations” with the reconvened investigation meeting being arranged for 20 October 2022. The letter contained no details other than those in respect of the arrangements for the meeting.[51]The Claimant duly attended the meeting with his representative. The meeting involved a discussion of the Claimant’s reasons for having taken dependency leave. At the end of the meeting Sean McDermott stated that “I will be passing this forward to a disciplinary hearing”. The notes of the meeting record the reason given as “I am concerned about the amount that is reasonable”, with - 11 - this suggesting that the issue related the to the amount of dependency leave taken by the Claimant.[52]On 21 October 2022, the Claimant submitted a grievance complaining of discrimination over the way in which he was being treated regarding having taken dependency leave.[53]Paul Bartlam, a senior operations manager, was appointed as the Grievance Hearing Manager. The Claimant attended a grievance hearing on 4 November 2022 whilst he was still signed off work as sick. The grievance hearing was adjourned until 23 November 2022 in order for Paul Bartlam to carry out further investigations.[54]At the beginning of the reconvened the meeting on 23 November 2022, Paul Bartlam announced that he was ready to give the outcome of the grievance which was that the grievance would not be upheld. Essentially, he regarded the Claimant as complaining about a process, namely the disciplinary process, which were still ongoing, so that he regarded the grievance as premature as “no stance has been issued”.[55]On 30 November 2022, Paul Bartlam wrote to the Claimant to confirm the outcome of his grievance.[56]The Claimant continued to be signed off work with a further sickness certificate being issued on 30 November 2022 for another four weeks with the reason given as depression and anxiety.[57]On or about 12 December 2022, the Claimant wrote to Sean McDermott stating that he wanted to raise a grievance against the decision withholding his pay. Sean McDermott replied on 15 December 2022 to state that he had been appointed the grievance hearing manager who would conduct the hearing in relation to this grievance.[58]The Claimant also sought to appeal the decision of Paul Bartlam. Paul Cook, General Manager, wrote to the Claimant on 13 December 2022 making arrangements for an appeal hearing to take place on 20 December 2022. In fact, due to “unforeseen circumstances”, Paul Cook wrote to the Claimant to postpone the appeal hearing, which was eventually re-arranged for 25 January 2023. On this date, the appeal hearing was adjourned and subsequently reconvened on 2 February 2023.[59]By this time, the Claimant had returned to work on 9 January 2023. A return to work meeting was conducted by a manager, Paul Kelly. The completed return to work form contained the Claimant’s answer to the question as to whether he had fully recovered from his illness which was “I have been put in a financial situation by having my wages stopped, and have struggled with money I feel I’ve been forced back into work”. - 12 -[60]The Claimant’s wage slip dated 25 January 2023 showed a payment being made to the Claimant in respect of the company sick pay which previously been stopped.[61]Sean McDermott conducted a further absence review meeting on 8 February 2023 as the requirement for such a meeting had been triggered by the Claimant’s further absence. During the course of this meeting, the Claimant made it clear that he had returned to work, even though he was not 100%, due to the ongoing disciplinary process. He described the Respondent as having “bullied me to come back to work”. The outcome of the meeting was that the Claimant was given final written warning (under the Absence Policy) to last twelve months. This was confirmed by letter of the same date[62]The Claimant appealed against this decision of Sean McDermott by letter dated 9 February 2023 which also alleged discrimination.[63]On 24 February 2023, Paul Cook wrote to the Claimant with the outcome of the grievance appeal which he had heard. Paul Cook upheld the grievance appeal stating that whilst “I consider the decision to investigate your absence due to the amount and frequency of dependency leave you have taken to be the correct route; I do not consider the outcome of that investigation to be appropriate”.[64]Accordingly, no further disciplinary action would be taken in relation to the investigation undertaken by Sean McDermott. Relevant law as to liability Burden of proof in discrimination cases[65]Equality Act 2010 section 136 provides for a shifting burden of proof, as set out below. “(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. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”[66]Guidance on the burden of proof was given by the Court of Appeal in Igen v Wong [2005] ICR 931. This guidance has subsequently been approved by the Court of Appeal in Madarassy v Nomura International plc [2007] ICR 867, and by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054 (at paragraphs 25-32). In Efobi v Royal Mail Group Limited [2021] 1 WLR 3863, SC, at paragraph 26, Lord Leggatt made it clear that Equality Act 2010 section 136 had not made any substantive change to the previous law. - 13 -[67]The burden of proof starts with the Claimant. It is for the Claimant to prove facts from which the Tribunal could infer, in the absence of any other explanation, that the treatment was at least in part the result of her disability. At the first stage, when considering what inferences can be drawn from the primary facts, the Tribunal must ignore any explanation for those facts given by the Respondent and assume that there is no explanation for them. It can, however, take into account evidence adduced by the Respondent insofar as it is relevant in deciding whether the burden of proof has moved to the Respondent. If such facts are established, then the burden of proof transfers to the Respondent to establish on the balance of probabilities that the protected characteristic formed no part of the reasoning for the impugned decisions or treatment. 68. in Madarassy v Nomura International plc, the Court of Appeal emphasised that there must be something more than simply a difference in protected characteristic and a difference in treatment for the burden of proof to shift to the Respondent. This was approved by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054, where Lord Hope stated that it was important not to make too much of the role of the burden of proof provisions, as set out below. “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other” (paragraph 32). Direct discrimination[69]Equality Act 2010 section 13 provides that 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”.[70]Thus, direct discrimination takes place where a Claimant is treated less favourably, because of the relevant protected characteristic, than the employer treats or would treat others. This can involve comparing the treatment of a Claimant with that or perceived by an actual comparator, comparing the Claimant’s treatment with that which would have been received by a hypothetical comparator.[71]Section 23(1) of the Equality Act 2010 provides that on a comparison for the purpose of establishing direct discrimination there must be “no material difference between the circumstances relating to each case”. In the case of Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337, HL, Lord Scott explained that this means that “the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class”. - 14 -[72]In Gould v St John’s Downshire Hill [2021] ICR 1, EAT, Linden J made it clear that the Tribunal must consider the reason for the actions of the alleged discriminator, as set out below. “The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision… [and] the influence of the protected characteristic may be conscious or subconscious”.[73]In cases of discrimination by association, the critical issue is whether, in the mind of the putative discriminator, the third party’s protected characteristic was the reason for the Claimant’s treatment (see Thompson v London Central Bus Co Limited [2016] IRLR 9). Discrimination arising from disability (Equality Act 2010 section 15)[74]Discrimination arising from disability is defined by Equality Act 2010 section 15(1) on the basis that “person(a) (A) discriminates against another(b) (B) if, A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim”.[75]Accordingly, the Claimant must have been treated unfavourably. Moreover, the unfavourable treatment must also be “because of something arising as a consequence of” the Claimant’s disability”.[76]In Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305, EAT, Langstaff P explained that this involved considering causation at two different stages, as set out below. “The current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The Tribunal has first to focus upon the words “because of something”, and therefore has to identify “something” — and second upon the fact that that “something” must be “something arising in consequence of B's disability”, which constitutes a second causative (consequential) link. These are two separate stages. In addition, the statute requires the Tribunal to conclude that it is A's treatment of B that is because of something arising, and that it is unfavourable to B”.[77]In Sheikholeslami v University of Edinburgh [2018] IRLR 1090, EAT, Simler P gave guidance as to the approach to Equality Act 2010 section 15 as set out below. - 15 - “In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? and(ii) did that something arise in consequence of B's disability? The first issue involves an examination of the putative discriminator's state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence”.[78]In the case of Pnaiser v NHS England [2016] IRLR 170, EAT, which was a case where an employee had a significant amount of disability-related sickness absence and was seeking to link the treatment complained of to that absence, Simler P gave further guidance as to the correct approach to such a case. Simler P explained that the expression “arising in consequence of” could describe a range of causal links. It will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.[79]The guidance of Simler P goes on to state that motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and the alleged discriminator’s motive in acting as he or she did is simply irrelevant (following Nagarajan v London Regional Transport [1999] IRLR 572). A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises.[80]In Hall v Chief Constable Yorkshire Police [2015] IRLR 893, EAT, the Employment Appeal Tribunal dealt with the issues of causation and motivation at paragraph 42, in a passage set out in the Respondent’s Closing Submissions, as set out below. “It seems to me that the Tribunal made three errors. Firstly, it appeared to consider that it was necessary for the Claimant's disability to be the cause of the Respondent's action in order for her claim to succeed. Secondly, it made a contrast between the cause of the action and a background circumstance. This leaves out of account a third logical possibility, which, it seems to me, is present on the looser language of section 15(1); i.e. a significant influence on the unfavourable treatment, or a cause which is not the main or the sole cause, but is nonetheless an effective cause of the unfavourable treatment. The third error, in my judgment, in the ET's approach, as evident from paragraph 7.8 of its Decision, is its reference to the motivation for the unfavourable treatment. It is clear from the authorities which I have cited at some length that to inquire into the motivation for unfavourable treatment is to ask the wrong question”. - 16 -[81]In Charlesworth v Dransfields Engineering Services Limited [2017] UKEAT 0197/16, Simler J made it clear that any connection that is not an operative cause or influence on the mind of the putative discriminator will not be sufficient to satisfy the causation. Thus, it would not be sufficient where absence caused by a disability was merely part of the context and not an effective cause of the unfavourable treatment.[82]If the unfavourable treatment was because of something arising as a consequence of the Claimant’s disability, the question then becomes that of whether it was justified as a proportionate means of achieving a legitimate aim.[83]In Chief Constable of Gwent Police v Parsons and Roberts (2020) UKEAT/0143/18 (unreported), the EAT summarised the applicable principles in considering a justification defence. Once a prima facie case of discrimination arising from disability is shown the onus is on the employer to establish justification. This involves showing that the unfavourable treatment was a reasonably necessary and proportionate means of achieving a “legitimate aim”. Saving money is not in itself a legitimate aim but preventing a "windfall" could in principle be one.[84]To be proportionate, the unfavourable treatment has to be both an appropriate means of achieving the legitimate aim and a reasonably necessary means of doing so (see Homer v Chief Constable of West Yorkshire [2012] UKSC 15).[85]In Hensman v Ministry of Defence [2014] EqLR 670, EAT, Singh J held that when assessing proportionality, while a Tribunal must reach its own judgment, that must in turn be based on a fair and detailed analysis of the working practices and business considerations involved, having particular regard to the business needs of the employer.[86]Thus, it is for the Tribunal to balance the reasonable needs of the business against the discriminatory effect of the employer's actions on the employee (see Land Registry v Houghton [2015] UKEAT/0149/14). Conclusions as to liability[87]The Tribunal turns to consider the complaints of direct discrimination contrary to Equality Act 2010 section 13. Put simply, the Tribunal was not satisfied that any facts had been proved, on the balance of probabilities, from which the Tribunal could conclude, in the absence of any other adequate explanation, that an unlawful act of discrimination had been committed, namely that the Claimant was treated less favourably, because of either his disability, or that of his youngest daughter, than an actual or hypothetical comparator.[88]In the first place, the Claimant had not really put any evidence before the Tribunal from which the Tribunal could draw any conclusions to the effect that another employee had been or might have been treated more favourably. - 17 -[89]However, the Tribunal nevertheless sought to construct a relevant hypothetical comparator for the purposes of considering whether there was any arguable case in respect of less favourable treatment.[90]A relevant hypothetical comparator (for the purposes of the complaints of direct discrimination on the grounds of the Claimant’s disability) would have been that of a non-disabled employee in circumstances which were otherwise the same as the Claimant’s circumstances including having a disabled daughter with the same needs as the Claimant’s youngest daughter. A relevant hypothetical comparator (for the purposes of the complaints of direct discrimination on the grounds of the Claimant’s association with his disabled youngest daughter) would have been that of an employee in circumstances which were the same as the Claimant’s circumstances, but with a daughter who was not disabled but nevertheless, at the material time, had the same level of care needs as the Claimant’s youngest daughter, for example as a result of a condition or injury which had seriously incapacitated the child, but from which the child was likely to make a full recovery within less than a year.[91]On the evidence before the Tribunal, the Tribunal was satisfied that there was no basis for finding that any such hypothetical comparator would have been treated any differently.[92]Indeed, the limited evidence that the Tribunal had, as given by Paul Bartlam, was that another employee, who was not disabled, had also been subjected to a similar investigation regarding that employee’s use of dependency leave to look after a child (although Mr Bartlam was not able to confirm whether the child had a relevant disability).[93]In any event, the Tribunal was satisfied that the explanation of the Respondent for the treatment of subjecting the Claimant to a disciplinary investigation, requiring him to attend a disciplinary hearing, and failing to uphold his grievance when he complained about these steps being taken, whilst not particularly satisfactory, nevertheless amounted a nondiscriminatory reason for the treatment. This was that the Respondent was concerned that the Claimant was taking dependency leave in circumstances where he was not entitled to such leave and / or that the amount being taken was not reasonable, and that the Claimant’s actions should be scrutinised through an investigatory and disciplinary process. As far as the grievance was concerned, this was viewed by Paul Bartlam as premature because no decision had been reached other than that the concerns should be scrutinised by way of a disciplinary hearing. There might have been better ways of dealing with these concerns, but that is not the issue that the Tribunal has to decide, although the Tribunal notes that the Respondent itself eventually decided, through its grievance appeal decision, that the referral to a disciplinary hearing had not been appropriate. - 18 -[94]The complaint that the Respondent ignored medical evidence is an understandable complaint but probably misplaced. The Respondent did not act in a way which was inconsistent with the Claimant and / or his youngest daughter having a disability. The issue for the Respondent was whether, on each occasion that the Claimant took dependency leave, the circumstances causing him to do so came within the scope of the applicable provisions as to dependency leave. Any medical evidence provided by the Claimant was evidence from which it might be deduced that there may be occasions when the Claimant needed leave which came within the scope of the provisions as to dependency leave, but did not specifically demonstrate that, on the occasions that he took such leave, such a need had arisen. In any event, the Tribunal was not persuaded that a hypothetical comparator would have been treated any differently in circumstances where dependency leave was being sought to provide care and assistance to a child. Moreover, the Tribunal accepted the explanation put forward by the Respondent that the Claimant was subjected to the internal processes which were followed because, notwithstanding any medical condition of the Claimant and his daughter which amounted to a disability and which might have given rise to circumstances in which it was appropriate to take dependency leave, the Respondent’s managers were concerned that such leave had been taken when it was not appropriate and / or to an extent that was not appropriate.[95]The Tribunal was also not satisfied that the treatment by the Respondent in having the Claimant’s sick pay stopped for a period of time between September and December 2022 amounted to direct discrimination contrary to Equality Act 2010 section 13. There was no evidence from which the Tribunal could conclude that a hypothetical comparator who was not disabled and / or who was seeking dependency leave in respect of a daughter who was not disabled, would have been treated more favourably if such an employee was being investigated for inappropriate use of the provisions in respect of dependency leave.[96]The Tribunal then turned to consider the complaint of discrimination arising from disability contrary to Equality Act 2010 section 15. The single complaint was that the Claimant had been treated unfavourably by not being paid sick pay between September and December 2022.[97]A Tribunal must first identify whether there was unfavourable treatment and, if so, by whom. No question of comparison arises. In the Claimant’s case, we are satisfied that there was unfavourable treatment. The unfavourable treatment was by Mr McDermott in the sense that he was the manager responsible for the decision and the author of the letter which communicated the decision, albeit he used the first person plural in making reference to the decision, which he described as an exercise of “our” discretion to withhold company sick pay. - 19 -[98]It is not in dispute that the Respondent did not pay the Claimant’s sick pay for a period. In this sense, his sick pay was stopped, notwithstanding the fact that, at a later point in time, he was reimbursed the sick pay which had been stopped. Effectively, he was informed on 28 September 2022 that he would not be paid company sick pay in respect of the period of absence which commenced on 12 September 2022. In fact, it appears that retrospective effect was not given to this decision in that he did receive company sick pay for September 2022, but his sick pay was thereafter stopped as a result of the decision communicated in the letter. It was only reinstated in January 2023 when he returned to work. Properly analysed, the complaint concerns not being paid, until January 2023, the sick pay which was otherwise due for October, November and December 2022. Only being paid after a substantial delay amounts to unfavourable treatment.[99]The issue becomes whether or not the unfavourable treatment was because of something arising in consequence of his disability.[100]This requires an investigation of two distinct causative issues.[101]The first is whether the Respondent treated the Claimant unfavourably because of an (identified) something. The first issue involves an examination of the alleged discriminator's state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment, then the first stage is satisfied. The second issue is whether that something arose in consequence of the Claimant’s disability (or that of his daughter). The second issue is a question of objective fact for an Employment Tribunal to decide in light of the evidence, namely whether the something arose in consequence of the Claimant’s disability.[102]In the Claimant’s case, the something being relied upon was his absence between September and December 2022. During this period, he was signed off work with mixed anxiety and depressive disorder. In other words, the GP sickness certificates give the reason for his absence as his disability. Unsurprisingly, it was not seriously disputed that this absence between September and December 2022 arose in consequence of his disability. The Tribunal finds that this absence did arise in consequence of his disability.[103]What then needs to be appreciated is that the causal connection between the something that causes unfavourable treatment and the disability for these purposes may involve several links depending on the facts of a particular case.[104]The Tribunal must determine what caused the impugned treatment, or what was the reason for it. An examination of the conscious or unconscious thought processes of the alleged discriminator is likely to be required, just as it is in a direct discrimination case. The focus at this stage is on the reason in the mind - 20 - of Mr McDermott. The Respondent’s argument was that the reason in his mind was that this is what the Policy required and / or the reason the Policy required sick pay to be stopped was because of the investigation. In this context, it was being suggested that the Claimant’s absence was simply the background against which the decision was being made.[105]However, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in an Equality Act 2010 section 15 case. The “something” that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason or cause of it.[106]As stated above, the guidance of the EAT in Pnaiser v NHS England [2016] IRLR 170, EAT, is that motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and the alleged discriminator’s motive in acting as he or she did is simply irrelevant. A discriminatory motive is not a core consideration before any prima facie case of discrimination arises.[107]For what it is worth, the Tribunal is satisfied that Mr McDermott did not have a discriminatory motive. Mr McDermott’s evidence was effectively that he believed that he had no choice, and that he had to stop the Claimant’s company sick pay, because this was the effect of the Policy, which requires sick pay to be stopped where there is an investigation.[108]In so far as Mr McDermott’s position was that he was simply applying the company’s Policy, and effectively adopting the approach required by the Policy, it is arguable that the reason for the company as an organisation, through its Policy, stopping sick pay, may become part of the relevant area of enquiry. In this regard, the evidence of Mr McDermott accepted that the Policy was designed to stop investigatory and disciplinary processes being delayed by employees getting themselves signed off work when such processes were commenced or ongoing. In other words, the purpose of the Policy and the reason for implementing it is inextricably linked up with the employee’s absence. It is to stop the absence delaying the internal processes. The Policy applies when the employee is absent.[109]The Tribunal is satisfied that the Claimant’s absence had at least a significant (or more than trivial) influence on the unfavourable treatment, so as to amount to an effective reason for, or cause, of it. The Tribunal notes that the letter sent by Mr McDermott, which was drafted by him, albeit using an earlier letter as a template, specifically begins with the words “further to your recent absence from work which commenced 12 September 2022”. It then specifically states that the reason for the decision is that it is part of the absence Policy “applicable to you”. If the Claimant was not absent, his pay - 21 - would not have been stopped. An employee who was in work would not have had his or her pay stopped. The Tribunal was satisfied that the Claimant’s absence was part of the reason for Mr McDermott sending the letter and stopping his sick pay. It was more than simply background.[110]It follows that the Tribunal was satisfied that the Claimant’s pay was stopped because of something arising in consequence of his disability.[111]Whether this treatment amounts to unlawful discrimination depends on whether the treatment can be justified applying the test of justification set out in Equality Act 2010 section 15.[112]This involves the Tribunal having to consider whether(1) there is a legitimate aim which the Respondent is acting in pursuance of, and(2) whether the treatment in question amounts to a proportionate means of achieving that aim.[113]It must be kept in mind by the Tribunal that what the employer is seeking to justify in an Equality Act 2010 section 15 case is the treatment of the employee where that is because of something arising from disability.[114]The Respondent contends that the treatment of the Claimant was a proportionate means of achieving the legitimate aims of managing employee performance and absence, maintaining standards of behaviour and conduct, and running an efficient service.[115]The onus is on the Respondent to establish justification. This involves showing that the unfavourable treatment (in this case stopping the Claimant’s sick pay) was a reasonably necessary and proportionate means of achieving a “legitimate aim”.[116]In so far as part of the Respondent’s justification argument seeks to rely upon avoiding financial penalties being imposed by JLR for failing to adhere to key performance indicators in respect of attendance, the Tribunal notes that saving money is not in itself a legitimate aim.[117]Nevertheless, the Tribunal was prepared to accept that managing employee performance and absence, maintaining standards of behaviour and conduct and running an efficient service were legitimate aims, although these seem to be aims which are of rather general application.[118]The issue becomes that of whether the treatment of the Claimant was a proportionate means of achieving these legitimate aims.[119]When assessing proportionality, while a Tribunal must reach its own judgment, that must in turn be based on a fair analysis of the working practices and business considerations involved, having particular regard to the business needs of the employer. The Tribunal accepts that the business needs of the employer in this case clearly involve keeping the customer satisfied, namely Jaguar Land Rover. - 22 -[120]However, the Tribunal was not satisfied that conducting a formal investigation and referring the Claimant to a disciplinary hearing were proportionate in the circumstances of this case where any concerns regarding the dependency leave which had been taken by the Claimant might have been more appropriately dealt with through informal management action.[121]The treatment which needs to be justified is that of stopping the Claimant’s sick pay, but his sick pay was being stopped because he was absent whilst an investigation was underway, so it becomes relevant to consider whether the Respondent’s aims could have been achieved without a formal investigation which turned out to be a lengthy and protracted process even with the Claimant, according to the evidence of Mr McDermott, wanting the process to be conducted as quickly as possible.[122]The test of justification is an objective one to be applied by the Tribunal. While keeping the Respondent's workplace practices and business considerations firmly at the centre of its reasoning, the Tribunal was not satisfied that stopping sick pay was proportionate, whether generally or in the circumstances of this case. Indeed, this case demonstrates the potential adverse effect, in individual circumstances, of having such a blanket policy. It might have been proportionate to have a policy to the effect that sick pay would not be payable where an employee who was under investigation was signed off work by a GP but that it would need to be reviewed once occupational health advice had been obtained. In this case, occupational health advice had been obtained shortly before the Claimant’s sick pay was stopped. This made it clear that he was genuinely and seriously unwell. He was unlikely to be fit to attend a meeting for six to eight weeks. Notwithstanding this, the further investigatory interview went ahead on 20 October 2022. It is clear that stopping the Claimant’s sick pay put pressure on him to return to work and was ultimately a factor in his return to work at a point in time when he did not consider that he had fully recovered. The Tribunal rather doubts that it achieves the aim of an employer, to manage employee performance and absence and maintain standards of behaviour and conduct and to run an efficient service, if this has the effect of employees attending investigatory meetings when they might not be fit to do so and / or attending work when they may not be fit to do so (in particular where the employee is unfit because of a disability).[123]In this case, no individual consideration appears to have been given to the Claimant’s situation. For example, the occupational health advice was suggesting the possibility of postponing any investigatory meeting for six to eight weeks to allow time for treatment to be established so that the Claimant could better represent himself. It is all very well relying on the Claimant having willingly attended the investigatory meeting, but he was doing so where there were significant financial consequences for him in not attending the meeting. - 23 -[124]In the circumstances of this case, the Tribunal was not satisfied that suspending the sick pay of a disabled employee during a sickness absence caused by his disability was an appropriate and reasonably necessary way to achieve the Respondent’s aims. This was not the sort of case where there was any real suggestion that the Claimant was seeking to frustrate or delay the Respondent’s internal processes. He was genuinely unwell. Insofar as Mr McDermott felt that he had to apply the Policy, the Policy seems to be imposing a one size fits all approach which fails to take account of individual circumstances. The Claimant’s individual circumstances should have been taken into account. Stopping the pay of an employee at the Claimant’s level of pay and with his family circumstances was likely to impact significantly upon him. By contrast, in a situation where there was no real suggestion of an employee seeking to frustrate the conduct of internal processes, it is difficult to see that the needs of the Respondent are that an employee such as the Claimant should be pressurised into attending formal meetings when there is occupational health advice which suggests that he may not be fit to do so by reason of his disability.[125]As such, the Tribunal concluded that the treatment of the Claimant was not justified for the purposes of Equality Act 2010 section 15.[126]It follows that the Tribunal upholds the complaint of discrimination arising from a disability. Evidence and findings of fact as to remedy[127]The Tribunal has already found that the effect of the discriminatory act was that the Claimant’s company sick pay was not paid between October and December 2022. He was paid Statutory Sick Pay during this period. In January 2023, he was reimbursed the difference between what he received in Statutory Sick Pay payment and what he would have received if he had been paid full company sick pay.[128]In his Statement of Evidence, the Claimant describes the effect of having his sick pay withheld was that he felt that he had let his family down. The Tribunal accepted that this was how he felt.[129]However, the Claimant’s evidence to the Tribunal was that during this period, he received a loan of £5,000.00 from his father. This figure was a little more than the Claimant would have received by way of any net payment of company sick pay. There was no evidence of actual financial loss before the Tribunal.[130]The Claimant’s statement of Evidence also describes his mental health symptoms, and also physical symptoms which he appears to be suggesting were caused by his mental health difficulties such as chest pains, short breath and panic attacks. However, there is little to date the symptoms as described - 24 - in his Statement and they are not confirmed by the entries in the GP records for the period of time with which the Tribunal is concerned namely between October 2022 and the repayment of the sick pay in January 2023.[131]From the GP records it can be seen that the Claimant was already struggling because of the impact of his treatment at work before his sick pay was suspended. However, it is also clear from the Claimant’s evidence that the f financial concerns caused his marriage to become strained and that this caused a hostile environment for his children, and this situation was amplified with there being the pressure of the run-up to Christmas. The Tribunal accepts that this would have case, although the evidence suggests that his marriage was already under strain. Clearly there were other potential causes of strain on the Claimant’s marriage, but this cannot have helped.[132]It is clear that the Claimant’s issues and perception regarding his treatment by the Respondent were a focus of the discussions which are recorded as having taken place during his consultations with his GP. However, it is also clear that the various other stressors to which he was subjected, both workrelated and non-work related, had already resulted in him being signed off work with mixed anxiety and depressive disorder by early September 2022 before his pay had been suspended. It is also clear that the issues which resulted in him being signed off work continued to have a significant impact on him. As such, the suspension of his sick pay had the effect of adding to, or aggravating, the impact or injury to feelings which had already been occasioned by the Claimant’s perception of his treatment by the Respondent in other respects, with this other treatment not having been found to amount to unlawful discrimination.[133]In assessing the extent of any injury to feelings arising out of the impact of the Claimant’s sick pay having been suspended, the Tribunal has to seek to distinguish between the impact on the Claimant of his sick pay being suspended and the impact on him of various other stressors in his life, some of which were clearly work-related and some of which were obviously nonwork-related.[134]The Claimant had originally been issued with a “may be fit for work” fit note for the period between 2 September 2022 and 14 October 2022 as a result of a problem with a foot callous which was potentially going to need minor surgery. He seems to have continued attending work. On 9 September 2022 there was then a consultation on the telephone where the Claimant described having issues at work which he felt were getting on top of him. He was annoyed about work and was feeling victimised and bullied. This resulted in an appointment being arranged later that day and a further fit note being issued in respect of the same period and with the same diagnosis, namely that of a foot callous. The attendance note of the GP records the history given by the Claimant as being that “work had more or less disregarded his may be - 25 - fit for work note, or interpreted it as much as they can in their favour… agreed to rewrite a bit more precisely”.[135]The Claimant was next seen by his GP on 13 September 2022 when he was again describing his work as stressful. The issue impacting on him at this point in time was his perception that he was being disciplined for small things and he felt as if he was a target. He was saying that he “would like time off” and this was agreed with the GP, so that he was given a new fit note stating that he was not fit for work for the period from 13 September until 27 September 2022 with the diagnosis being that of mixed anxiety and depressive disorder.[136]The next attendance was on 27 September 2022, obviously for the purposes of getting the sickness certificate reviewed with a new certificate being issued for the period between 27 September and 25 October with the same reason given namely mixed anxiety and depressive disorder. This was a telephone consultation. The GP attendance notes record that the Claimant stated that he had seen the occupational health who “have advised some weeks off”. At this point in time, he was complaining of broken sleep and his appetite being up and down.[137]The occupational health report to which reference had been made was the report from the Claimant’s appointment on 20 September 2022 which stated that the Claimant was “likely to remain unfit for work until he has been established on adequate treatment for his mental health, which may take weeks to months” and suggested postponing any meeting with his employer “for 6-8 weeks to allow time for treatment to be established so that he can better represent himself”.[138]As a result of the consultation with his GP on 27 September 2022, a referral was made to the Practice’s Mental Health Advanced Care Practitioner resulting in a telephone triage appointment with Mrs Harriet Verah on 27 September 2022. The Claimant is recorded as stating that he was having difficulties with stress leading to low mood and inability to cope. He reported that the stress was work-related and made specific reference to being on a warning and being disciplined over small things. He also referred to non-workrelated stress, in particular with regard to the health problems of one of his daughters. He referred to having moved out of the family home and was living with his brother because he did not want his children to see him being stressed. He had effectively started to self-medicate through drinking alcohol and described drinking eight pints of lager every night for the last three weeks. As result, he had stopped taking his antidepressants in the belief that the medication would not mix with drinking alcohol.[139]As stated, it is significant that this was Claimant’s mental health state, or, viewed another way, the impact on him of the various stressors in his life, before his sick pay had been suspended. - 26 -[140]A telephone consultation with his GP then took place on 14 October 2022 which seems to have been as result of the Claimant following up the advice of the Mental Health Practitioner that he should resume taking Fluoxetine so that he was requesting a further prescription. The GP notes record a long discussion about the ongoing situation with work and specifically state that the Claimant “feels he is going to be forced to go back to work as cannot financially survive on statutory sick pay”.[141]This was the reality of the effect of the Respondent stopping his sick pay. It was effectively having the effect of forcing somebody who was not well enough to work, to go back to work, or consider having to do so, notwithstanding not being well enough to do so.[142]The next appointment was on 24 October 2022 for the purposes of getting a further sickness certificate. The GP note records that the situation had not improved at work and the Claimant was speaking to his union about pursuing Tribunal proceedings. He was now taking antidepressants every day.[143]A further appointment took place on 8 November 2022 for the purpose of extending the sickness certificate. There was supposed to be an appointment with the Mental Health Practitioner on 15 November 2022, but this does not seem to have taken place.[144]There was then an appointment on 30 November 2022 which again referred to the position in respect of the Claimant’s sick pay having been stopped. Again, this was an appointment for the purpose of seeking an extension to his sickness certificate. The GP note specifically records that “SSP is a pay cut but prefers this to return to work”. He was asking for his sickness certificate to be extended until the Christmas period, which was agreed.[145]Another appointment with the Mental Health Practitioner had been arranged for 6 December 2022 but the GP notes record that the Claimant did not attend and refer to this as “his second DNA after he had opted in from having missed previous appointments”. The referral was closed due to non-engagement.[146]The GP notes record a telephone review on 16 December 2022 which again referred to the Claimant having increased his alcohol intake recently due to the stress. The GP seems to have been sufficiently concerned to give the Claimant the contact details for the Samaritans crisis team. To some extent, this is consistent with the Claimant’s evidence to the effect that the situation was made worse by the run-up to Christmas. Although the Claimant had given the main cause of his mental health issues as being stress at work, one of those workplace issues was the fact that he was not being paid, and this would self-evidently be more of an issue at Christmas time.[147]On 3 January 2023, the GP notes suggest that main cause of stress on the Claimant was the delay regarding the internal proceedings. He was signed off - 27 - for another two weeks, but actually returned on 9 January 2023. The record of the return to work meeting records that the Claimant felt that he was being forced to return to work even though he was not 100%.[148]On 16 January 2024, there was a further telephone consultation with the GP notes suggesting that the Claimant was feeling better in that his anxiety and stress had improved but the issues at work were still ongoing. The GP note specifically states that the Claimant “has been forced into work as they refuse to pay sick pay”. The GP note then states “has been to occy health who agree he should be off work currently” but he was “unable to be off as he needs the money”. The GP clearly thought that this was an issue which was having a significant impact on the Claimant as the GP note records “have advised him to inform his union re work refusing to pay sick pay” and the GP note ends with a reference to making sure that the Claimant “has crisis numbers if needed” and had been reassured that “can call back at any point, does not need to wait for weeks, door open”.[149]Some further confirmation as to the impact of the suspension of sick pay on the Claimant is provided by the Claimant’s GP in a report dated 23 January 2024 which refers to the Claimant having “reported in January 2023 occupational health advised he was not fit to work yet sick pay was being refused and this is causing stress”.[150]The GP also refers to regular consultations for anxiety and depression with this being related to stress in respect of workplace issues. The Claimant was being prescribed fluoxetine for this.[151]It was clear to the Tribunal, from the evidence of the Claimant and the medical documentation to which reference has been made, that the Respondent’s discriminatory act of suspending his sick pay did impact upon him in a significant way and did give rise to significant injury to feelings in two main respects. The first was that it caused him significant financial anxiety. This was against a background where his marital relationship was already strained and alongside the run-up to Christmas. He explained to us the way in which this made him feel given that, realistically, he was the main breadwinner in the family. He was effectively having to go cap in hand to his father for a loan. The other significant impact giving rise to injury to feelings arises from the fact that the suspension of sick pay was clearly having the desired effect in that it was putting pressure on him to return to work, notwithstanding the fact that he was not sufficiently recovered to return to work, with the result that throughout this period he was having to worry about choosing between two fairly unpalatable choices, namely staying off work and having no money as against returning to work when he was not fit to do so. The fact that there was the possibility of any sick pay being paid by way of backpay when he returned to work was of only limited significance in terms of mitigating this level of anxiety given that there would be no backpay unless he returned to work, so - 28 - that the only way to get pay reinstated was to contemplate returning to work even when he was not fit to do so. Relevant legal principles as to remedy[152]Section 124 of the Equality Act 2010 provides as below. “(1) This section applies if an employment tribunal finds that there has been A contravention of a provision referred to in section 120(1). (2) The tribunal may –(a) make a declaration as to the rights of the complainant and the Respondent in relation to the matters to which the proceedings relate;(b) order the Respondent to pay compensation to the complainant;(c) make an appropriate recommendation. (3) An appropriate recommendation is a recommendation that within a specified period the Respondent takes specified steps for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate …. (6) The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by the county court or sheriff under section 119. (7) If a Respondent fails, without reasonable excuse, to comply with an appropriate recommendation … the tribunal may – (a) if an order was made under subsection (2)(b), increase the amount of compensation to be paid; (b) if no such order was made, make one”.[153]In terms of financial loss, compensation must be calculated in the same way as damages in tort. The general aim as described in Ministry of Defence v Cannock [1994] ICR 918, being that “as best as money can do it, the applicant must be put into the position she would have been in but for the unlawful conduct”.[154]Under Equality Act 2010 section 119(4), an award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).[155]The “eggshell skull” principle applies to loss arising from discrimination / detriment, so that the discriminator must take the victim as s/he finds him/her. - 29 -[156]In order to award compensation, the Tribunal must be satisfied, on the basis of its evidence and its findings of fact, that the harm suffered by the Claimant was caused by the act of discrimination (see Essa v Laing Ltd [2004] ICR 746, CA). In Ahsan v The Labour Party [2011] UKEAT/0211/10, Underhill P stated that liability extends only to those consequences which “directly and naturally” flow from the acts about which complaint is made.[157]In Vento v Chief Constable of West Yorkshire Police (No.2) [2003] ICR 318, CA, the Court of Appeal gave specific guidance on how Employment Tribunals should approach the issue of injury to feelings. The Court of Appeal described some of the elements that can be compensated under the head of injury to feelings which, according to Mummery LJ, include “subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on”. The Court of Appeal also emphasised that, after making an award for injury to feelings, the Tribunal must stand back and have regard to the overall compensation figure to ensure that it is proportionate and not subject to double counting. Three bands of compensation (the “Vento bands”) were identified, namely:• a lower band for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence;• A middle band for serious cases that do not merit an award in the highest band; and• A top band for the most serious of cases, such as where there has been a lengthy campaign of discriminatory harassment.[158]The Vento bands were subsequently revised to take account of inflation (see Da’Bell v National Society for Prevention of Cruelty to Children [2010] IRLR 19 EAT).[159]The Vento bands are now revised on an annual basis by way of Presidential Guidance. The Fifth Addendum to the Presidential Guidance updates the Vento Bands for Claims presented in the year from 6 April 2022 as follows:• Lower band - £990 to £9,900;• Middle band - £9,900 to £29,600;• Top band - £29,600 to £49,300.[160]In HM Prison Service v Johnson [1997] ICR 275, EAT, the Employment Appeal Tribunal summarised the general principles that underlie awards for injury to feelings:(1) awards for injury to feelings are designed to compensate the injured party fully but not to punish the guilty party; - 30 -(2) an award should not be inflated by the Tribunal’s feelings of indignation at the guilty party’s conduct;(3) awards should not be so low as to diminish respect for the policy of discrimination legislation, but should not be so excessive that they might be regarded as untaxed riches;(4) awards should be broadly similar to awards in personal injury cases;(5) Tribunals should bear in mind the value in everyday life of the sum that is being are contemplated;(6) Tribunals should bear in mind the need for public respect for the level of awards made.[161]The focus must be on the effect of the unlawful discriminatory treatment on the Claimant, not on the gravity of the discriminatory acts of the Respondent (see Komeng v Creative Support Limited [2019] UKEAT/0275/18).[162]In accordance with regulation 6(1) the Employment Tribunals (Interest on Awards etc) Regulations 1996, interest is awarded on injury to feelings awards from the date of the act of discrimination complained of until the date on which the Tribunal calculates the compensation. For all other sums it is from the mid-point of the date of the act of discrimination complained of and the date the Tribunal calculates the award.[163]Where a Tribunal considers that serious injustice would be caused if interest were to be calculated according to the aforementioned approaches, it may calculate it on such different periods as it considers appropriate (regulation 6(3) the Employment Tribunals (Interest on Awards etc) Regulations 1996. Conclusion as to remedy[164]By the time of the Remedy Hearing, the Tribunal was informed that the Claimant was no longer employed by the Respondent. In the circumstances, this is not a case where the Tribunal could consider making a recommendation that the Respondent takes specified steps for the purpose of obviating or reducing the adverse effect on the Claimant of any matter to which the proceedings relate.[165]As stated above, the company sick pay which should have been paid to the Claimant was eventually paid to him in January 2023. He seems to have managed financially as a result of having received a loan from his father. There was no evidence of actual financial loss before the Tribunal.[166]It follows that the main head of claim is in respect of injury to feelings.[167]Quantum awards for injury to feelings in discrimination Claims are increasingly being reported in first instance Employment Tribunal cases. A - 31 - selection of such reports can be found in Harvey on Industrial Relations and Employment Law (Division L Part 7) (“Harvey”). Whilst the reporting of such awards assists consistency in the making of awards, it needs to be recognised that individual reports are of limited assistance as cases are rarely alike given that even where the circumstances giving rise to the cases may seem similar, the impact of the discrimination in issue on a particular Claimant in terms of injury to feelings may well vary significantly.[168]In terms of circumstances which involve some similarities, the Tribunal notes that Harvey reports the awards made in the two cases set out below.(1) Shittu v South London & Maudsley NHS Foundation Trust (2020) (Case No 2302126/2016) (unreported). This case involved a Claimant who was in remission from cancer and received a deduction of one day's pay from his wages arising from a hospital check-up and colonoscopy which the Respondent determined to be an unauthorised absence. Having lodged a grievance which the Respondent failed to investigate, the Claimant resigned. There was no persuasive evidence that the docking of wages contributed to a decline in mental health, and the resignation would have occurred in any event. The Claimant had not made great reference to the issue in dealings with occupational health, his complaints or meetings concerning the same and it only formed a part of his resignation letter. In light of this, he was awarded £5,000, on the basis that an award was merited towards the upper end of the lower Vento band for discrimination arising from disability.(2) Bainbridge v Atlas Ward Structures Limited (Hull) [2012] EqLR 842. This case involved a Claimant who was a welder and whose wife was disabled. He suffered disability discrimination by association when he was selected not to have his temporary contract renewed because of the amount of time he had taken off at short notice to look after his wife. This was essentially a one-off act of discrimination but with serious continuing consequences. It added to the Claimant's already difficult domestic circumstances a level of financial burden and worry which considerably increased his stress levels. That affected his self-confidence and eating and sleeping patterns although he did not require medical assistance. An award of £6,000 was made on the basis that an award at the upper end of the lower adjusted Vento band was appropriate.[169]The Tribunal was also referred to the quantum award in Duployen v Whyte & Mackay Limited (2022) (Case Number 4111716/2021) (unreported). This was a case where the discriminatory treatment included imposing a final written warning for absence which was disability related, failing to adjust the trigger points in a sickness absence policy or agree to a reduction in working hours and stopping sick pay for two days when the Claimant attended unexpectedly at work. The Tribunal found that the discriminatory treatment had caused the Claimant to suffer embarrassment, humiliation and distress, as well as being - 32 - occasioned stress, worry and upset, and the treatment had a detrimental impact on his mental health and impacted on his relationship with his wife. As such, the Tribunal awarded £7,500.00 for injury to feelings on the basis that it considered that the injury to feelings ought reasonably to be assessed at the upper end of the lower Vento band (which would have extended to £9,100.00 rather than the £9,900.00 to which the lower band extended in relation to the Claim of the Claimant).[170]Ultimately, in the present case, the Tribunal was satisfied, based on our findings of fact set out above, that there was a significant level of injury to feelings specifically arising from the discriminatory act as well as the fact that the effect of the discriminatory act was to aggravate or exacerbate the already difficult position that the Claimant was in, in terms of his mental health, as a result of the other stressors which were impacting on him. We were satisfied that this was a case where an award towards the middle to upper end of the lower band of Vento was appropriate and considered the appropriate figure to be £7,000.00.[171]In terms of interest on injury to feelings, our calculation was based on interest running from the date of the discriminatory act on 28 September 2024 to the date of the calculation, 17 May 2024. This was a period of 596 days so that the applicable calculation was £7,000.00 x 13.063% (8% ÷ 365 x 596) = £914.41.
Outcome
[172]It follows that the complaint of discrimination arising from disability succeeds and the Claimant is awarded £7914.41 inclusive of interest, but his other complaints are dismissed