Mr N Shilton v Mr A Weisz T/a Glossy Car Coats:1310712/2022
EMPLOYMENT TRIBUNALS
Case No 1310712/2022
Between
Mr. N ShiltonClaimantMr A Weisz t/a Glossy Car CoatsRespondent
Before
Employment Judge MeichenDate 14 May 2024
JUDGMENT
[1]The claimant was a disabled person at material times (2016 to 2022). Employment Judge Meichen 10.4.24 Reasons for the judgement having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. 1 of 1[1]The complaint of failure to make reasonable adjustments for disability is wellfounded and succeeds.[2]The complaint in respect of holiday pay is well-founded. The respondent made an unauthorised deduction from the claimant's wages by failing to pay the claimant for holidays accrued but not taken on the date the claimant’s employment ended.[3]The respondent shall pay the claimant the following sums:a. Compensation for past financial losses: £10,018.20; CASE No 1310712/2022b. Interest on compensation for past financial losses calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996: £1041.89;c. Compensation for injury to feelings: £18,000;d. Unlawful deduction from wages (the claimant shall be responsible for paying tax and national insurance) £54[1]The complaint of failure to make reasonable adjustments for disability is wellfounded and succeeds.[2]The complaint in respect of holiday pay is well-founded. The respondent made an unauthorised deduction from the claimant's wages by failing to pay the claimant for holidays accrued but not taken on the date the claimant’s employment ended.[3]The respondent shall pay the claimant the following sums:a. Compensation for past financial losses: £10,018.20;b. Interest on compensation for past financial losses calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996: £1041.89;c. Compensation for injury to feelings: £18,000;d. Unlawful deduction from wages (the claimant shall be responsible for paying tax and national insurance) £54
REASONS
[1]The claimant brings claims for a failure to make a reasonable adjustment and unauthorised deductions from pay (annual leave).
Background
[2]The claimant was employed by the respondent as a Body Shop manager or a stripper and fitter (his precise job title title was disputed). In practical terms this involved the administration and repair of vehicles using a variety of power tools, chemicals and paints.[3]The claimant had been employed without issue in respect of his character for a considerable period of time. Whilst there has been some debate as to the overall duration, it appears that he has at least between 18 and 22 years continuous employment with the respondent.[4]During the course of his employment on the 20th of January 2015 the Claimant was diagnosed with Hand Arm Vibration syndrome. A condition which may be attributable to the long term use of vibrating power tools.[5]On the 30th December 2015 the claimant was diagnosed with Raynaud’s Phenomena which is a condition affecting the circulation to the hands and is secondary to a primary condition. On the 11th of February 2016 he was diagnosed with Peripheral Neuropathy a condition affecting the nerves of the limbs. Subsequently he was also diagnosed with golfers elbow.[6]The claimant takes a variety of medication (which have changed over time) however, the principle medication for the purpose of these proceedings, is Gabapentin, a nerve blocker, which he took during the working day.[7]The claimant has had various periods of sick leave associated with the above conditions and he has presented sick notes which are not disputed.[8]Following a period of annual leave in August 2022 the claimant returned to work for three days. The claimant asserts that during that time he was subjected to various acts of ill treatment, some of which are not relevant to this claim. On 9th August 2022 the claimant commenced a period of sick leave with stress and anxiety, which he argues, was secondary to his principle disability (Hand and Arm Vibration Syndrome).[9]The claimant remains on roll as an employee to date, however, he was paid SSP and has now exhausted the 28 week provision of that support.[10]On 6th of October 2022 the claimant issued a grievance, set out at page 79 of the bundle, alleging various acts of wrongdoing, including a failure to make reasonable adjustments and provide an auxiliary aid, as well as complaints about holiday pay. That grievance has never been responded to.[11]The claimant commenced a period of early ACAS conciliation between the 27th of October 2022 and the 8th of December 2022. He issued an ET1 claim on the 12th of December 2022.[12]The matter was case managed by Employment Judge Maxwell who settled a list of issues, having consulted with the parties, and there has been no objection to that list. Preliminary issues[13]At the outset of today’s hearing, the Employer Member, became unavailable for personal reasons, and no replacement was available at short notice on the 13th of May 2024. Having consulted with the parties they both consented to continue the case constituted with myself and Employee Member, Mr Deneen. This Judgment is our unanimous decision.[14]A Preliminary hearing has already been undertaken and there are findings of fact that the claimant is a disabled person, within the meaning of the Equality Act 2010. Jurisdiction / Law[15]Disability is the only protected characteristic which involves the duty to make adjustments. That duty, which applies in work cases, provides, by section 20(2) that an employer discriminates: “..against a disabled person if –the employer fails to comply with a duty to make reasonable adjustments in relation to an employee.”[16]By section 20(1) a failure to comply with the first requirement, as set out in section 20(3), is a failure to comply with a duty to make reasonable adjustments. As expressed in section 20(3): “The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”[17]In deciding whether that duty has been broken or fulfilled, section 136 prescribes the way in which the burden of proof should be approached. That is a section which, by subsection (1), applies to any proceedings relating to a contravention of the Equality Act. Subsection (2) provides: “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.”[18]The Tribunal must therefore decide the issue of disability (which it has done).It must then identify whether a PCP was applied and whether that placed the claimant at a substantial disadvantage and the respondent had knowledge of that disadvantage and the need to make the adjustment.[19]S123 of the Employment Rights Act 1996, sets out time limits for the presentation of a claim. In terms of time, time runs from the date of knowledge of the disadvantage and consequently when the Respondent should have reasonably made/considered the adjustment. It is possible where an obligation to make an adjustment is a continuing state of affairs, that the limitations of S123 can be extended to a date of the Tribunal’s discretion (based on the facts of the case) Secretary of state for work an pensions (jobcentre plus) V Jamil UKEAT /0097/13.[20]The Claimant argues that he has received an unauthorised deduction of 4 hours pay for holiday deducted from his wages as well as a failure to accrue the holiday rights for the period of sick leave.[21]Unpaid holiday pay. S13 ERA deals with unauthorised deductions. In Stringer and ors v Revenue and Customs Commissioners; Schultz-Hoff v Deutsche Rentenversicherung Bund 2009 ICR 932, ECJ, the ECJ ruled that under the Working Time Directive workers absent on longterm sick leave are entitled to benefit from paid annual leave calculated at their normal rate of remuneration.[22]The underlying rationale, according to the ECJ, is that the Directive treats entitlement to annual leave and to a payment for it as two aspects of a single right. The purpose of the requirement for payment is to put the worker, during leave, in a position which is, with regard to remuneration, comparable to periods of work. Regulation 13 of the Working Time Regulations combined with the decision in Stringer, make it clear that during a period of sick leave and the 52 weeks thereafter, a worker can carry over and continue to accrue annual leave entitlement whilst on sick leave.[23]We have been provided with a list of issues which has set out the matters requiring determination. A list of issues, it must be remembered, is a tool towards an efficient hearing. The PCP’s pleaded are set out at page 68 of he bundle and were approved by EJ Maxwell at the preliminary hearing.[24]The standard of proof to be applied to all matters is the balance of probabilities. Evidence[25]We have heard evidence from the claimant and Mr Weisz the respondent. We have also heard detailed submissions and considered the written bundle of material.
Findings
[26]The first issue that we need to consider is whether the respondent subjected the claimants to a PCP as defined by the list of issues . We will take these in reverse order of their complexity. Medication – Not safeguarding medication[27]We find that this was an isolated incident in August 2022. The claimant had left his medication in his locked tool box which was then removed by a colleague whilst the claimant was on holiday. The key to the toolbox had been left with a colleague. The claimant gave evidence that he had for many years stored his medication there and had been seen to take it by respondent.[28]There was no policy on the storage of medication. Gabapentin is a controlled drug. On balance we were not satisfied that the failure to make available a storage facility for medication amounted to a PCP. The practice had been going on for years, without complaint. Whilst the loss of the medication was an issue. We cannot see that this caused the claimant a substantial disadvantage. We therefore dismiss this element of the claim. Not allowing time off for medical appointments[29]This element of the claim is also pleaded in the unauthorised deductions element of the claim. Having heard the evidence, it is common ground that time off was allowed for medical appointments, irrespective of whether there was a debate about how willing the respondent was to consent to this. Following these appointments there was a conversation as to results of the medical process. The debate appears to be that he was not paid for time off but had to take annual leave. We have not been provided with details of the level and frequency of these appointments. We are satisfied that time was allowed, and it was permissible to use annual leave. We therefore dismiss this element of the claim. Increased workload[30]The claimant has complained that there has been an increased workload. He argues that a PCP should have been applied from 2019 to reduce the workload. It is common ground that there were around 3 to 4 employees on average over the 2016 to 2022 period.[31]In 2021 during Covid the number was reduced to 2 with the claimant and a painter, being the only workers. The workload appears to have diminished and then been delayed in rebuilding to a pre covid level. At the point it began to increase the claimant was the only qualified body shop worker who could complete repair work (other than painting). It was therefore the case that the business relied heavily on the claimant. We have not been told that the claimant was working extra hours, or throughput compared to routine work had increased. We find that the term “increased workload” and the evidence supporting it is insufficient to discharge the burden of proof to demonstrate that this PCP existed or impacted the claimant.[32]However, we noted there were inconsistencies in how the respondent dealt with this issue. At paragraph 10 of his statement the respondent said he had reduced the claimant’s workload and regarded him as a good worker. However, in evidence he said that his business had transformed since the claimant left. The respondent has implied that the claimant was not doing his job properly. We found this inconsistency to be an unfair criticism and there was a lack of evidence to substantiate the statements and observations made by the respondent. Provision of non and low vibration tools.[33]Much of the evidence has been related to this particular issue and has been subject to much debate. The claimant explained in both his oral and written evidence that he had asked repeatedly for consideration of low vibration tools. He recalled a sales rep advising him that the market was bringing in low vibration tools due to the health risks to workers. He could not recall when this occurred.[34]He argued that when raised with the respondent he was told; “I pay your wages and if you don’t like it you know what to do”. He could not be specific about dates, but stated that it was an ongoing issue and request. He was clear that the respondent was aware of his disability.[35]Mr Weisz denied ever saying to the claimant that “I pay your wages and if you don’t like it you know what to do”. However, he accepted that he had said similar things to another worker, and that this was known to the claimant and the context as to why it had been said. We find on balance that it is likely that either these words or similar were used to the claimant and or an environment was such that the respondent dismissed the claimant’s discussions about working conditions.[36]We were struck in evidence that Mr Weisz was very dismissive of the claimant’s health conditions and we find that he did not accept the Tribunals determination that the claimant was disabled at the relevant time. This was clear in his attitude when he recounted his own health issues and that at aged 82 he was still working with power tools. There appeared a tacit acceptance that his (Mr Weisz’s) Carpel Tunnel Syndrome had been caused by his own use of the tools. We formed the view that he had an attitude that the claimant should just accept the situation or leave i.e. “if you can’t do your job there is the door (see bundle page 103). “[37]The claimant explained in his evidence the impact of his condition and the fact that the prolonged use of vibrating tools, exacerbated this to the point that he would require a break and or his joints would seize up. He argued that the absence of low vibration tools and PPE made the condition worse and that respondent had a duty to provide the tools.[38]There has been much debate in the evidence as to the ownership of the tools and who they belong to. The contract is silent on the provision of tools, therefore we find the obligation was on the respondent to provide necessary tools. Save that we acknowledge that it is common for workers to retain and bring their own favoured tools such as occurred here.[39]In terms of the power tools there has been a deal of confusion as to who owned these. The claimant has said in his evidence that the pneumatic tools belonged to him, however, Mr Weisz said he owned the tools and non of them vibrated.[40]We found Mr Weisz’s evidence to be contradictory and unreliable. There were discrepancies and inconsistencies in his written evidence which were then compounded by his oral evidence. For example, at 232 a letter dated the 16.09.23 stated a list of 7 tools that the respondent denied owning. He said that “these tools belong to you; therefore, you should have purchased anti vibration gloves.” This is repeated at 113 on the 16.11.23. However, his response to the claim in his witness statement at paragraph 9 stated that ‘he supplied, non-or low vibration sanders, grinders and low vibration gloves.’ In the ET 3 at page 24 the respondent said that gloves were well stocked for all procedures.[41]In his oral evidence the respondent accepted that he had not provided low vibration gloves and said that they cost £35 and he could have done that. We find that the respondent did not provide any low vibration gloves.[42]There was significant confusion over the ownership of the tools, ultimately the claimant removed his tools and this was accepted by the respondent as there was no follow up. Given the extent of the bad feeling now ongoing, we are satisfied that the tools were purchased by the claimant and that in effect he was being obligated (without an adequate contractual provision in his contract) to provide his own tools.[43]When asked about the specifications the respondent said the tools do not vibrate. In the ET3 he said that all the tools are shake resistant. We accept the Claimant’s evidence that he was not allowed to use Mr Weisz’s tools and there was an expectation he would provide his own.[44]We were not satisfied with Mr Weisz’s account of the provision of tools, that he properly understood what specification there were, or would have entertained buying any. We find there was no conversation or plan to review the support, equipment, or conditions for the claimant.[45]We accept that this was at a time when the claimant was struggling with his health and is likely to have discussed the condition and symptoms with Mr Weisz. The use of medication was open and in front of him. Updated reports were discussed verbally and the respondent was aware that the tools were exacerbating the claimant’s symptoms.[46]We have seen a COSHH assessment (at page 197) for what we presume to be 2017. This document came out after disclosure, and was served late. Mr Weisz in evidence said he had a whole folder of them. We find that there has been a failure of disclosure on behalf of the respondent to provide all these documents.[47]The COSHH assessment was outsourced and provides a mechanism to assess the risks and recommendations, with a view to internal review by the employer as to how to control and action risks. In short there should be a follow up to a COSHH assessment. We have seen no evidence that this occurred.[48]The COSHH says that with no preventative action there would be a high risk. With current measures there is a medium risk and that if all preventative measures were in place it would be low risk. In the surveillance section it discusses at HS4 monitoring of Hand and arm vibration and that this is in place, however, we have seen no evidence of this. It is noted that; issues of staff are noted and need to be monitored. We consider the form provided is likely to be incomplete as the questionnaire is not provided and the claimant said he never saw a document and was never interviewed.[49]We consider on the evidence there was a failure to monitor this issue for the claimants condition and consequently a failure to consider what if any assessment or adjustment was required. Therefore we find that the respondent was closed to consideration of any options which might have included further assessment of the workplace such as an OH assessment, or the provision of alternative tools or aids, or the exploration of the same.[50]Consequently we find that the respondent was implementing a PCP by failing to provide or consider the provision of low impact tools, or vibration aids, or changes to working patterns and tasks.[51]We now turn to consider whether there was a substantial disadvantage to the claimant. Substantial disadvantage[52]We are satisfied on the evidence of the claimant that he was suffering ongoing physical pain, and associated stress and anxiety with his condition. This was directly linked to the continued use of tools which were vibrating and a failure of the respondent to consider his complaints and or the general closed mindset to making changes. Compared to a worker who did not have the claimants disability we are satisfied that the failure to consider and or implement changes to the PCP, placed him at an ongoing and continued substantial disadvantage, in compounding and exacerbating the symptoms his disability. Knowledge and disadvantage / need for adjustment[53]We remind ourselves that the responsibility for the consideration of the reasonable adjustment is upon the employer. However, where an employee suggests an adjustment the employer should consider it to assess whether it would overcome the disadvantage. See para 6.24 ECHR Employment statutory code of practice.[54]We find that the respondent was aware of the Claimant’s disability as the evidence is that he had been provided with sick notes, verbal updates, had seen the medication and was aware of the ongoing discomfort.[55]The respondent used his wife as a comparison in his evidence as she suffered from Raynaud’s syndrome, and said he was aware of the condition. However, we find that there was a fundamental lack of understanding form the respondent that Raynaud’s phenomenon (as secondary condition), was a distinct condition from Raynaud’s syndrome. In any event he has closed his mind to the fact that the claimant had hand and arm vibration syndrome.[56]We are satisfied (on balance) that the respondent was aware of the disadvantage and that there was at least some preventative aid to vibration in the form of non vibration gloves which he was aware of and declined to purchase. The COSHH assessment provided the opportunity to monitor the condition and risk assess it, via a questionnaire survey, which would have been an ideal opportunity to investigate the matter or condition more fully and to take the risk into account and agree an action plan. The respondent failed to evidence any inclination to investigate or follow up the assessment. It appeared to us that he viewed this as a tick box exercise.[57]We are satisfied that the respondent was aware from sales reps that there were more modern, and updated tools /equipment on the market. We find that the claimant has discussed this with the respondent, in the context of the symptoms he was suffering. The patient journey that he has had since 2015 and the additional medication shows that the condition persisted and deteriorated over time.[58]In his evidence the claimant said that his hands would lock up and he would have to step away and have breaks. We find that this is part of the reason the respondent accused him of not working to his capacity and sitting down at his desk. We are satisfied on balance that the ongoing tool use and the lack of aid was fully know to the respondent to be causing pain and suffering to the claimant, and therefore constitutes knowledge (in our finding) of the substantial disadvantage.[59]By as late as the 6th of October 2022 the respondent was aware of the disadvantage, as this was detailed in the grievance at issue 7 and the respondent has never responded to or engaged with this and was still closed minded at this hearing to the issue.[60]There was in effect a perfect storm evidencing this pathway to deterioration, namely the health diagnosis in 2015 onwards, the ongoing condition and medication usage, the COSHH assessment and monitoring annually which should have provided opportunity for employee input and re-assessment. The claimant’s then deteriorating condition, culminating in the relationship breakdown, as has now occurred, even though the claimant remains technically as an employee. Jurisdiction[61]Having found those matters we must turn to consider whether these findings and complaints are in time in the context of S123 ERA.[62]The evidence of both parties as to when the adjustment should have occurred, or when the technology had improved is unclear. Neither party could be specific about dates. On balance we accept the claimant’s evidence that there was an ongoing complaint from him regarding the condition he suffered and the disadvantage the work and tools was causing him[63]The Tribunal has previously found that the claimant was a disabled person from 2016. We are satisfied at this point that the respondent knew that the claimant had a disability that as consequence the claimant was at a disadvantage. We are satisfied that this was conduct extending over time. That as the claimant’s condition continued and deteriorated from 2016 onwards, there was an ongoing and repeated failure of the respondent to consider a reasonable adjustment, that we consider to be a disadvantage.[64]There was an ongoing duty to the respondent, given that the disability was linked to the use of vibrating tools. We are satisfied as discussed in secretary of state for work an pensions (jobcentre plus) V Jamil UKEAT /0097/13, that this is conduct and repeated failure to engage with the duty to make a reasonable adjustment, extending over time from the beginning of 2016 to the middle of October 2022 when the respondent should have responded to the grievance.[65]The reductions in staffing over the covid period, made the claimant’s role more vulnerable and we consider there was then a further deterioration in the respondent’s consideration of application of the duty to make reasonable adjustment. This was particularly in evidence around the 9th of August 2022, when the respondent told the claimant he could no longer sit down at work and complained about his attitude behaviour and productivity. The COSHH assessments as we have found do not appear to have been used or actioned appropriately to monitor the risks to the claimant.[66]Given the date the claimant attended ACAS, matters occurring prior to the 22nd of July 2022 may be out of time, unless they are a continuing act. We find that for the purpose of S 123 ERA that the time should be extended to 2016 to cover the entire period as a continuing act and that it is just and equitable to do so. Conclusion – reasonable adjustment[67]We find that the respondent has discriminated against the claimant pursuant to s 20 & 21 of the Equality Act 2010 by failure to make a reasonable adjustment and provide an auxiliary aid from 2016 to October 2022. Annual leave / Unauthorised deduction[68]Finally we turn to annual leave and the pleaded case to the issue of whether there has been unauthorised deductions. We have already found it was appropriate to use annual leave for medical appointments and do not make any finding that an unauthorised deduction occurred in this regard.[69]It is pleaded that in the August 2022 pay the claimant was deducted a half days wage for attending a medical appointment, which should have been treated as annual leave. Whilst he claims more deductions were made, he has been unable to evidence these.[70]It appears to have been accepted in evidence by the respondent that he should not have deducted the half day’s wage and that this was properly payable. Given that this is now accepted we will make this award, as an unauthorised deduction of a half day of pay.[71]It has been discussed that it is open to the claimant to claim ongoing holiday pay, during the sick leave period. Mr Edwards noted that he wanted to see an articulated case for this. We find that this is articulated in the claim at page 11 as the claimant seeks the re-imbursement of losses due to being on sick leave, which would encompass accrued annual leave in the sick period. At page 16 of the schedule of loss this is also articulated as additionally no annual leave has been paid or offered since 2022 (a fact not disputed). Conclusion – Holiday pay[72]We find that there has been a failure of the respondent to consider the payment of the balance of the year’s holiday in 2022 and the holiday accrued whilst on sick leave in 2023. We are unable to make a determination as to the remaining days of holiday in 2022 as this has not been provided, we are limited therefore to assumptions as to what has been taken. We can deduct two weeks leave (as disclosed foreign holiday taken by the claimant), one day for medical appointments and the bank holidays prior to August 2022, of which there are five. We conclude that the claimant has had a minimum of 16 days off in 2022. This leaves a remaining balance of 14 days including bank holidays. He would also be entitled to a portion of the leave in 2023.[73]We will hear further submissions on remedy, as to whether there should be any further award for this or separate to the compensation the claimant seeks. We are mindful that there should not be a double payment for any compensated losses.
Remedy
[74]Having delivered our liability Judgment, we allowed the parties further time and heard further submissions as to the appropriate remedy awards. We the retired to consider our finding on remedy.[75]The Schedule of loss claims loss of earnings being the difference between the SSP for 6 months and what would have been the full rate of pay the claimant should have received.[76]Mr Edwards argued that there was no link to show that the claimant would have been able to work in any event and argued that the award should be limited to the injury to feelings in the lower band (middle to higher portion.[77]Mrs Shilton to her credit has expressed the limitations of her understanding of how to formulate the loss and has left it to the Tribunal to exercise our discretion as to the value of the award.[78]We consider there has been a habitual failure of the respondent to act over a number of years. This has exacerbated rather than mitigated the situation. In terms if the suggestion that the respondent has tried to resolve matters in September 2022, we reject that. We do not consider this was a genuine attempt, because it asked for the return of keys and discussion about the return of tools was ongoing from August 2022. The respondent failed to respond at all to the grievance on the 6th of October 2022. We take notice of this and how it has affected the claimant.[79]We are satisfied that for the period of 28 weeks the claimant was unwell, and unable to work and there was a direct nexus to the treatment he received from the respondent, which could and should have been prevented and there was no meaningful attempt to resolve this. We consider it appropriate to compensate past loss of earning for 28 weeks, to include pension and interest at the standard rate. We award a payment for loss of earnings of £9370.20 (gross) plus £680 for the pension loss totalling £10018.20. We award an interest payment on this at 8%, totalling £1041.89 to date.[80]In light of the compensated loss of earnings we do not make any separate award for accrued holiday for this 28 week period, save for the £54 (which we award) as we consider this covered by the compensation warded as it would take him to an equivalent pay for this period, and it would not be just and equitable to in effect double count the holiday pay.[81]We have not awarded any loss of wages beyond the 28 weeks because we believe in effect that the relationship had ended and the claimant did not intend to return. At this point he should have commenced a search for alternative employment, notwithstanding the legal lacuna regarding his employment status with the respondent (this has not been a matter we have been asked to determine).[82]We consider in terms of the injury to feelings, in light of the continued and repeated failure to address the issues that this has caused stress and anxiety in the claimant over a prolonged period and that should not be underestimated. We consider it easily escapes the lower Vento band. The claimant has limited capability to work and he has suffered ongoing mental health issues. We consider the injury to be in the lower middle band, and award the claimant £18,000. We make no award as any interest on this payment on the injury to feelings.[83]For clarity the total award is £29114.09[84]That is our Judgment.