Mr A Thompson v Hanson Quarry Product Europe Ltd: 1400307/2021
EMPLOYMENT TRIBUNALS
Case No 1400307/2021
Between
Mr Andrew ThompsonClaimantHanson Quarry Product Europe LtdRespondent
Before
Employment Judge MidgleyMr J Duffy (instructed by Counsel) for claimantMr M Humphreys (instructed by Counsel) for respondentDate 25 July 2022
JUDGMENT
The claimant was disabled within the meaning of s.6 EQA 2010 between 3 August 2020 and 16 October 2020 as a consequence of the conditions of Superventricular Tachycardia and Ischemic Heart Disease. JUDGMENT having been sent to the parties on 28th February 2022, and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The issue to be determined at this preliminary hearing is whether the claimant was at the material time disabled as a consequence of Ischaemic Heart Disease and Superventricular Tachycardia within the definition contained in Section 6 and Schedule 1 of the Equality Act. Procedure, Hearing and Evidence[2]In preparation for the hearing the parties had agreed a bundle of 345 pages, consisting of relevant medical evidence. I only read and considered the pages I was referred to by the parties. In addition, I had the benefit of the following: 2.1. A disability impact statement from the claimant 2.2. A witness statement from the claimant[3]The claimant had prepared the witness statement in addition to his disability impact statement and served it on the respondent shortly before the preliminary hearing. The respondent objected to the claimant relying on the later statement as there was no Order for witness evidence. Having heard argument from both counsel, I permitted the claimant to rely on the statement: the respondent had had sufficient time to read, consider and respond to it, and was not therefore prejudiced by its admission, and the content of the statement was relevant to the issue I had to determine, and merely covered in written form what the claimant was likely to say in answer to questions from Mr Humprhey.[4]The claimant gave evidence by affirmation and answered questions from counsel and from me. I found the claimant to be an honest, credible, and straightforward witness. I accepted his evidence.[5]I heard concise verbal submissions from both counsel before giving Judgment.
The Issues
[6]The relevant issues were as follows 6.1. Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? In particular: 6.1.1. Did the claimant have a physical or mental impairment. The claimant argues that he had a x impairment, namely x. 6.1.2. Did it have a substantial adverse effect on the claimant’s ability to carry out day-to-day activities? 6.1.3. If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? 6.1.4. Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures? 6.1.5. Were the effects of the impairment long-term? In particular: 6.1.5.1. did they last at least 12 months, or were they likely to last at least 12 months? 6.1.5.2. if not, were they likely to recur? Factual Background[7]I made the following findings on the balance of probabilities on the basis of the evidence which I heard and from that contained in the agreed bundle.[8]The claimant has been employed by the respondent as a rail operative since 1987.[9]He has suffered from the condition of Superventricular Tachycardia (“ST”) for approximately twenty years. He describes the symptoms of that condition as follows: when he suffers an attack, he has a sudden missed breath and then has a very rapid shallow pulse. If he remains standing, he begins to feel faint and needs to sit down, although he prefers to lie on his back and raise his legs. He will remain in that position until his pulse returns to normal. The attacks can last from a few minutes to up to an hour. When he suffers an attack, he cannot walk, work, or drive until his pulse has stabilised. He has found drinking ice cold water or eating an ice lolly can help his pulse return to normal quicker.[10]The claimant did not go to his doctor every time that he had a heart palpitation, but largely sought to self-manage it by lying down, raising his feet, and the taking steps detailed above.[11]In June 2014, the claimant was diagnosed with Ischaemic Heart Disease (“IHD”), following an angiogram. As a result on 28 October 2014 he underwent a double heart bypass. He takes medication to manage the IHD, ST and hypertension conditions. I accept his evidence as to details and periods over which he has taken that medication: in brief he has taken the five separate medications detailed on page 81 of the bundle. In particular, atenolol was prescribed in relation to the SVT and its dosage was increased in March 2020. The OH reports[12]After the claimant’s bypass operation, the respondent obtained three occupational health reports in respect to determine whether he was fit to return to work. The first was on 25 June 2014. That report identified the following: 12.1. In October 2014, just before his operation, the claimant was reported to be suffering from episodes of central chest pain on exertion. He described suffering from episodes of short-lasting chest pain when he walked more than three to four hundred yards, and he could not climb two flights of stairs at that stage without chest pain. There was some regularity in chest pain of a short duration when he undertook physical activities in his role. 12.2. The occupational health report noted that the claimant was likely to be covered by the Equality Act and indicated that he was medically fit to undertake his full-time work role but should do so on a pattern of restricted work duties, limited to office type work or light physical work with the condition that he should avoid heavy physical work and that he should not undertake any activity that would require him to walk for more than two to three hundred yards at a time.[13]A second occupational health report was produced on 16 March 2015, after the heart bypass operation. At that time the claimant had satisfactory control of his symptoms as a consequence of surgical intervention and the prescribed medications, which I have previously indicated. The opinion of the occupational health physician was that the claimant was fit to return to work in a rehabilitative role undertaking a temporary position as a Rail Loadout Operator, which was office-based work of a light physical nature; the rehabilitative role being undertaken on a four-week phased return basis with a restriction precluding heavy manual work and an adjustment to duties and activities.[14]The claimant was not at that stage considered to be fit for his full-time role for a period of at least for four weeks but was functionally fit to perform the duties of his temporary restricted role (i.e. without heavy manual work and with the benefit of other restrictions as indicated). The occupational health physician opined that it would be sensible to proceed on the assumption that the Equality Act would be likely to apply, notwithstanding that there was no significant impairment to his ability to undertake his daily activities.[15]A third occupational health report was produced on 8 January 2016. At that stage the claimant reported that he had suffered from episodes of heart palpitations in July and October 2015. He described having a long history of episodes of palpitations which occurred on an occasional basis; the report noted he had been prescribed regular treatment to reduce the frequency and severity of the palpitations. The claimant reported that he no longer suffered with symptoms of angina and that his exercise tolerance was normal. That observation was made in the context of the claimant’s office base role in the rail loft, which did not require him to undertake any physically demanding work or activities.[16]The claimant was considered medically fit to continue his Rail Outloader role. The occupational health physician formed the view that the claimant was likely to be regarded as disabled within the meaning of the Equality Act as a consequence of his circumstances. The claimant’s evidence as to the conditions and their effect on day-to-day activities[17]During the claimant’s evidence, both in his witness statement and in his evidence before me, he described the consequence of his symptoms and their regularity in this way:[18]He suffers from shortness of breath when climbing stairs: after climbing two flights of stairs, he is sufficiently short of breath that he needs to pause and cannot speak to people for twenty or thirty seconds. Other physical activities, such as gardening, or lifting heavy objects, rapidly lead to him becoming short of breath and he has to sit down to rest.[19]He expanded on that point in his oral evidence, which I accepted, stating that when he uses a wheelbarrow, he is able to take one load before he has to sit down for five minutes to recover his heart rate and his breath. That was not something that he experienced before he developed the IHD and ST.[20]Similarly, he needs to rest if he undertakes any digging or manual labour of any significant onerousness after a short period as his heart will pound and he will become breathless and faint.[21]When asked what he was capable of before he developed the two conditions, he said that he would be able to perform the activities better and for longer periods and would not have to take time to recover after five minutes or so. Again, I accept that evidence as being truthful, accurate and honest.
The Relevant Law
[22]Section 6 of the Equality Act 2010 provides as follows: 6 Disability(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.(2) A reference to a disabled person is a reference to a person who has a disability. (3)… (4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability. (5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1). (6) Schedule 1 (disability: supplementary provision) has effect.[23]The relevant sections of Schedule 1 are as follows: Long-term effects 2(1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. Effect of medical treatment 5 (1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect. (2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.(3) Sub-paragraph (1) does not apply— (a) in relation to the impairment of a person's sight, to the extent that the impairment is, in the person's case, correctable by spectacles or contact lenses or in such other ways as may be prescribed; (b) in relation to such other impairments as may be prescribed, in such circumstances as are prescribed.[24]The Equality and Human Rights Commission Guidance (“the Guidance”) was issued in accordance with s.6(5) EQA and by virtue of section 12(1) to Schedule 1 a Tribunal must take it into account when determining whether a person is a disabled person.[25]In order to determine whether a claimant has a disability the tribunal should consider four questions (see Goodwin v Patent Office [1999] ICR 302, EAT):- 25.1. did the claimant have a mental and/or physical impairment? (the ‘impairment condition’) 25.2. did the impairment affect the claimant’s ability to carry out normal dayto-day activities? (the ‘adverse effect condition’) 25.3. was the adverse condition substantial? (the ‘substantial condition’), and 25.4. was the adverse condition long term? (the ‘long-term condition’). Impairment[26]The meaning of impairment is dealt with at A3 of the Guidance which provides: “the term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness.”[27]Thus ‘Impairment’ in s.6 EQA 2010 bears ‘its ordinary and natural meaning… It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment with the stated effects’ (McNicol v Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498, CA) The term is meant to have a broad application.
Remedy
[28]In Rugamer v Sony Music Entertainment UK Ltd [2002] ICR 381, EAT, the Employment Appeal Tribunal suggested the following definition of physical or mental impairment under the DDA: ‘some damage, defect, disorder or disease compared with a person having a full set of physical and mental equipment in normal condition’.[29]Appendix 1 to the EHRC Employment Code states that ‘There is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment, not the cause’ — para 7. This endorses the decision in Ministry of Defence v Hay [2008] ICR 1247, EAT, where the EAT held that an ‘impairment’ under S.1(1) DDA could be an illness or the result of an illness, and that it was not necessary to determine its precise medical cause.[30]It will not always be essential for a tribunal to identify a specific ‘impairment’ if the existence of one can be established from the evidence of an adverse effect on the claimant’s abilities (see J v DLA Piper UK LLP [2010] ICR 1052, EAT. Similarly, it is not always necessary to identify an underlying disease or trauma where a claimant’s symptoms clearly indicate that he or she is suffering a physical impairment (see College of Ripon and York St John v Hobbs [2002] IRLR 185, EAT.) Substantial adverse effect[31]The meaning of ‘substantial adverse effect’ is considered at section 212(2) EQA 2010 and paragraph B1 of the Guidance which provides “a substantial effect is one that is more than a minor or trivial effect”.[32]The Tribunal’s focus, when considering adverse effects upon day-to-day activities, must necessarily be upon that which claimant maintains he cannot do as a result of his physical or mental impairment” (see Aderimi v London and South Eastern Railway Ltd UKEAT/0316/12, [2013] ICR 591).[33]In that context, the appendix to Schedule 1 of the Equality Act 2010 includes examples of factors which it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities. These include “a total inability to walk, or inability to walk only a short distance without difficulty; for example because of physical restrictions, pain or fatigue, and persistent distractibility or difficulty concentrating.”[34]Conversely the guidance indicates that the following factors would not reasonably be regarded as having such an effect: “experiencing some tiredness or minor discomfort as a result of walking unaided from a distance of about 1.5 kilometres or 1 mile; inability to concentrate on a task requiring application of several hours.”[35]Day-to-day activities include normal day-to-day activities and professional work activities, even if there is no substantial adverse effect on activities outside work or the particular job (see Igweike v TSB Bank Plc [2020] IRLR 267). In conducting that assessment, the tribunal should disregard the effects of treatment (see Guidance at sections B12 to B-17).[36]The Guidance addresses recurring or fluctuating effects at C5. Examples of how to address episodes of such conditions as depression, or conditions which result in fluctuating symptoms are given at paragraphs C6, C7 and C 11; they provide: C6. If the substantial adverse effects are likely to recur, they are to be treated as if they were continuing. If the effects are likely to recur beyond 12 months after the first occurrence, they are to be treated as long term. C7. It is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the “long-term” element of the definition is met. A person may still satisfy the long-term element of the definition even if the effect is not the same throughout the period. It may change: for example activities which are initially very difficult may become possible to a much greater extent. The effect might even disappear temporarily. Or other effects on the ability to carry out normal day-to-day activities may develop and the initial effect may disappear altogether. C11. If medical or other treatment is likely to permanently cure condition and therefore remove impairment so the recurrence of its effects would then be unlikely even if there were no further treatment, this should be taken into consideration when looking at the likelihood of recurrence of those are facts. However, if the treatment simply delays or prevents a recurrence, and a recurrence would be likely if the treatment stops, as is the case with most medication, then the treatment is to be ignored and the effect is to be regarded as likely to recur.[37]In all four contexts the Guidance stipulates that an event is likely to happen if it ‘could well happen’ (see para C3). This definition of the word ‘likely’ reflects the House of Lords’ decision in Boyle v SCA Packaging Ltd (Equality and Human Rights Commission intervening) 2009 ICR 1056, HL. Discussions and Conclusions[38]I address the questions set out in Goodwin. Did the claimant have a mental or physical impairment?[39]There is no dispute in this case that the claimant had physical impairments, namely the two conditions relied upon: ischaemic heart disease and super ventricular tachycardia. Did the impairment affect the claimant’s ability to carry out normal day-to-day activities?[40]There is some dispute as to the precise nature of the impairment caused the condition. I observe that the claimant was first diagnosed in approximately 2000 with IHD and with SVT in 2014. Since those dates he has been prescribed a medication to manage those conditions which he takes daily.[41]There is evidence before me demonstrating the nature of the conditions and their effects in terms of palpitations and otherwise. I turn to address the respondent’s arguments in relation to these matters.[42]I deal firstly with the medical evidence in the form of the occupational health reports. I observe that all of the reports recognise that the claimant’s condition amounted to a disability within the Equality Act. Mr Humphreys says that there is nothing within the reports that would support the conclusions that are reached on that issue, given the findings that are made as to the impact and the claimant’s ability to perform the rehabilitative role.[43]However, it is clear from the OH report produced in March 2015 (at p171) that the occupational health report was expressing its opinion on the claimant’s abilities which benefited from the effect of medical treatment, including the medication. Secondly, (at 173), the occupational health practitioner observes that there is a long history of episodes of palpitations which occur on an occasional basis, and again notes the prescription of regular drug treatment to reduce the frequency and severity of those episodes. Certainly, therefore, it was the conclusion of the occupational health team that at least some of the medications were taken to treat the conditions.[44]The respondent also relies upon the assessments contained in the undated Health Register Report (at pages 338 and onwards) which classified the claimant as fit to undertake each of the activities listed in the report. Mr Humphreys very reasonably accepted that the assessment must have been in relation to claimant’s role at that time, which was the rehabilitative role as a Rail Loadout Operator, but stressed that the report consistently classified the claimant as being fit, and argued that the report was the only third party evidence in relation to the substantial adverse effect of the condition.[45]However, the evidence had limited power, in my judgement, as there was no evidence before me as to the medical qualifications or understanding of the individual who prepared the report or their awareness of the claimant’s underlying health issues or the treatment that he received in respect of it. Its scope is necessary limited to consideration of whether the claimant was capable of performing certain roles or functions within the respondent’s workplace, which were office based and did not involve any element of heavy labour or arduous activity. The test I have to apply is necessarily a wider one, the impact of the condition upon day-to-day activities outside the workplace.[46]Lastly, Mr Humphreys suggested that the assertions that the claimant made in respect of his conditions were not supported or corroborated by the Health Register Report, which classified them as ‘minor,’ albeit, again, Mr Humphreys very fairly accepted that that it was impossible to know the nature of the categorisations between ‘significant’ and ‘minor,’ as there was no evidence in the report identifying it. Given the relative low hurdle that the claimant has to clear to establish that the conditions had a ‘substantial’ adverse impact, being one which is more than trivial, their categorisation as ‘minor’ would not of itself preclude me reaching the conclusion on the basis that the available evidence that the effect was more than minor.[47]In any event, I accept the claimant’s evidence as to the manner in which he self-managed his condition without recourse to his GP or medical treatment as detailed below. Further, I take into account that the absence of references in the medical records, particularly in the relevant period, has to be viewed in the context of the impact the pandemic had upon access to medical treatment. The claimant said that he did not go to his doctor every time that he had a heart palpitation, but largely sought to self-manage it by lying down, raising his feet, and the taking steps detailed in his impact statement to ameliorate the effects of an attack or the shortness of breath and faintness caused by exertion. Again, I accept that evidence as being plausible, and I found the claimant to be an honest, straightforward and credible witness. That, it seems to me, explains the absence of such references in the medical reports and records and therefore I do not draw the conclusion from those absences that the claimant’s evidence as to the regularity or effect of his palpitations should be rejected. I find it credible and have accepted it.[48]The description the claimant gives is one of difficulties in undertaking what may be described as relatively low-level physical activities which would from part of day-to-day activities, namely gardening and climbing stairs. Furthermore, that he is very limited in the time that he can undertake the activities for before he becomes so short of breath that has to stop and take remedial steps. Similarly, his ability to walk even 200 or 300 metres or to climb stairs is very limited. I note that the Guidance suggests that being unable to walk less than a mile would fall within the definition. Being unable to work more than 300 metres must also.[49]For all those reasons I find that there was an impairment in the claimant’s ability to carry out normal day-to-day activities. Was the adverse condition was a long-term one?[50]In this context, the impact of medication is significant. The claimant has had one condition for about six years, another for a significantly longer period. Since the diagnosis of each of those conditions the claimant has been prescribed daily medication and he required a double heart bypass in 2016. Whilst some of the symptoms may be connected to the hypertension, this is an organic situation in which each of the conditions (both those relied upon as disabilities and those that are not) has some part to play. I cannot say on the basis of the medical evidence that it is appropriate or reasonable to conclude on balance that it is the hypertension that is the cause of the effect on the claimant’s day to day activities, rather than the IHD or ST, and certainly the medical evidence references the latter two as much as it references hypertension. Where I have been taken to entries relating to hypertension, they are in the context of an annual health review, which is of course a sensible step for someone with an underlying heart condition, such as the claimant. That does not demonstrate that hypertension caused the claimant’s symptoms and IHD and/or ST did not.[51]Applying the guidance, I am satisfied that the effects of the conditions were long-term as, taking into account the nature and regularity of the symptoms whilst managed by medication (an effect which I must of course disregard when assessing what the symptoms would be and the period over which they would last), I conclude that they have lasted for more 12 months and/or are likely to recur.[52]For those reasons I conclude that in the period from 3 August – 16 October 2020, the claimant was a disabled person for the purposes of the Act.
The Relevant Law
[1]Background 1.1. This is a claim for unfair dismissal, detriment and disability discrimination arising out of the dismissal of Mr Thompson after many years of employment by Hanson Quarry Products (Europe) Ltd, (“Hanson”). The dismissal took place on 7 September 2020 with immediate effect and the claim was brought on 7 January 2021. The Respondent says that the dismissal was by reason of redundancy and fair and that there was no detriment or discrimination.[2]Evidence 2.1. The claimant gave evidence on his own behalf and called Mr Tony Hulbert, Regional Officer for Unite, to give evidence on his behalf 2.2. The respondent called three witnesses, Mr Gary Langton, currently Marine Managing Director and formerly Area Operations Manager for Aggregates based at the Whatley Quarry, Mr Justin Collis, Project and Engineering Manager, formerly Quarry Manager at the Whatley Quarry, and Mr Joseph Bagnall, Regional Director, and the appeals officer in this case 2.3. The witnesses gave evidence from written witness statements. 2.4. The parties presented an agreed bundle of documents of 314 pages of which we read those pages to which we were directed. Two additional documents were added by consent, a job description for a rail foreman and a job description for a quarry operative. 2.5. Numbers in brackets in these Reasons are references to the page numbers in the agreed bundle, the paper number first and the digital number second.[3]Issues 3.1. The Claimant claims unfair dismissal, dismissal under s.152(1) (a) and (b) TULRCA 1992, detriment under s.153 of the Trade Union and Labour Relations (Consolidation) Act (“TULRCA”) 1992, discrimination arising from disability under section 15 of the Equality Act 2010 (“EqA”) and a failure to make reasonable adjustments (EqA, ss 20 and 21). 3.2. The issues before the Tribunal to decide, using the numbering in the original list, are as follows. This is the original agreed list but incorporating the points which Mr Humphreys confirmed at the close of the hearing that the Respondent was not challenging. It is agreed that the Claimant was dismissed.[2]What was the reason for dismissal? The respondent asserts that it was a reason related redundancy, which is a potentially fair reason for dismissal under s. 98 (2) of the Employment Rights Act 1996 (“ERA”).[3]Did the requirements of the respondent for employees to carry out work in the place where the Claimant was employed by the respondent cease or diminish, or were they expected to cease or diminish?[4]The Claimant denies that there was a genuine redundancy situation on the following basis: i. Vince Pitt, a Unit Manager of the Respondent stated in a communication to the workforce on 18 August 2021 that the company was “in a great place at present and the future looks to be just as promising as we have found this year. The pandemic has not been as damaging to our business as we had feared and as you have all witnessed we are very busy”; ii. There was no diminution in the number of employees required to carry out work of a particular kind, namely Rail Operatives; iii. The Respondent engaged contractors to backfill the roles that were made redundant and then subsequently re-advertised the vacated roles and therefore there was no reduction in the headcount;[5]If so, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant. The Tribunal will usually decide whether: i. The respondent adequately warned and consulted the claimant; ii. The respondent adopted a reasonable selection decision, including its approach to a selection pool; iii. The respondent took reasonable steps to find the Claimant suitable alternative employment;[6]Was the decision to dismiss a fair sanction, that is, was it within the range of reasonable responses open to a reasonable employer when faced with these facts?[7]Did the respondent adopt a fair procedure? The Claimant challenges the fairness of the procedure in the following respects; i. The individual redundancy consultation was not satisfactory or meaningful in that the Respondent failed to take the Claimant’s concerns about the selection criteria into account. He had three consultation meetings. The Claimant understands that he was the only employee on the 1st round of consultations who had a member of the HR department present. The Claimant also was advised by Darren Underhill, union representative (who accompanied him to the first and third meetings), that he was the only member with whom the Respondent would not discuss the skills matrix (although it was discussed with the Claimant later at the second and third consultation meetings). ii. The Respondent failed to engage in satisfactory or meaningful consultation with the Claimant’s Union; iii. The Respondent failed to agree the selection criteria with the Union or the Claimant; iv. The Claimant should not have been placed into the General Operative selection pool as he had been employed for the last 33 years as a Rail Operative. There was a misapplication of the selection criteria for General Operative role when the Claimant was a Rail Operative; v. The Respondent ring-fenced three roles in the General Operative pool and the employees in those roles were excluded from the redundancy process however those subjected to the redundancy exercise were still scored against these three ring-fenced roles as part of the 24 jobs included in the selection criteria; vi. The selection criteria utilised by the Respondent was subjective in that it took into account the opinion of individual managers. The Claimant submits that the selection criteria was designed in such a way to target specific employees including himself. The selection criteria did not take into account previous skills and experience. vii. The Respondent made no effort to explore voluntary redundancy despite the Claimant raising it during the consultation process. viii. The Respondent failed to consider suitable alternative employment other than to offer him vacancies which were physically impossible for him (due to his disability) or were hundreds of miles away.[8]If it did not use a fair procedure, what is the percentage chance that the Claimant would have been fairly dismissed in any event and, if so, when would that have occurred? Dismissal under s.152(1) (a) and (b) TULRCA 1992:[9]Was the principal reason for the Claimant’s dismissal because(a) he was a member of Unite, the Union, or(b) had taken part in the activities of an independent trade union at an appropriate time[10]The Claimant relies on the following reasons: The Respondent accepts that the Claimant did all these things[11]It is admitted that the Respondent selected the Claimant for dismissal during the redundancy process[12]Did the circumstances constituting the redundancy apply equally to one or other employees in the same undertaking who held positions similar to that held by him and who have not been dismissed?[13]Was the reason or principal reason for that action because that he was a member of an independent trade union or had taken part in the activities of an independent trade union at an appropriate time?[14]That is, was the dismissal because he was a Senior Shop Steward and that he was selected for redundancy as a consequence of the following: The Respondent accepts that the Claimant did all these things – the issue is causation[15]Did the Respondent treat the Claimant unfavourably by: i. Selecting him for redundancy; ii. Dismissing the Claimant.[16]Did the following things arise in consequence of the Claimant’s disability (para 48, EJ Midgley’s judgment, page 81i): i. The Claimant was limited in the time that he can undertake physical activities before he becomes so short of breath that he has to stop and take remedial steps. ii. The Claimant has shortness of breath when he undertakes any digging or manual labour. iii. The Claimant has a very limited ability to walk 200 or 300 metres. iv. The Claimant’s ability to climb stairs is very limited. The Respondent says Yes, because the tribunal has told us that[17]Was the unfavourable treatment because of the “things” outlined above?[18]Was the treatment a proportionate means of achieving a legitimate aim. The Respondent alleges: The need to retain a multi-skilled workforce at the site. This would ensure that employees could be more easily moved between areas of the Quarry as and when the business required it.[19]The Tribunal will decide in particular: i. Was the treatment an appropriate and reasonably necessary way to achieve those aims? ii. Could something less discriminatory have been done instead? iii. How should the needs of the Claimant and the respondent be balanced?[20]Did the Respondent know, or could it reasonably have been expected to know that the Claimant had the disability? From what date? The Respondent does not argue that the respondent did not know or could not be expected to know.[21]Did the Respondent know, or could it reasonably have been expected to know that the Claimant had the disability? From what date? The Respondent does not argue that the Respondent did not know or could not be expected to know.[22]A “PCP” is a provision, criterion, or practice. Did the have the following PCPs: Applying selection criteria equally to all employees.[23]Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that: The Claimant had been unable to perform physical roles and was therefore scored down.[24]Did the Respondent know, or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage? The Respondent does contend that it did not know or could not reasonably be expected to know that the Claimant was likely to be placed at the disadvantage.[25]What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests: i. Adjustment of the selection criteria to take into account his disability; ii. Adjustment of the selection criteria to allow for previously acquired skills iii. Adjustment of the selection criteria to allow for the extra weighting applied to particular skills to be removed. The Primary and Arrival/Departure Rail Operative skills were heavily weighted at x5. There was no consultation on this. The Claimant submits the rail loft skills should have been weighted due to the responsibility, communication and the management of plant and resources involved; iv. Ring-fencing all Rail Operative roles including the Claimants.[26]Was it reasonable for the Respondent to have to take those steps and when?[27]Did the Respondent fail to take those steps? Remedy[28]Does the Claimant wish to be reinstated and/or re- engaged?[29]What basic award is payable to the claimant, if any?[30]If there is a compensatory award, how much should it be? The Tribunal will decide: i. What financial losses has the dismissal caused the claimant? ii. Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? iii. If not, for what period of loss should the Claimant be compensated? iv. Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? v. If so, should the claimant’s compensation be reduced? By how much? vi. Does the statutory cap of fifty-two weeks’ pay or £88,519 thereafter apply? Automatically unfair dismissal s.152 and 153 TULRCA 1992[31]The Tribunal must order the minimum basic award prescribed in s.156 TULRCA 1992 (before deductions are made). Discrimination[32]Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the claimant? What should it recommend?[33]What financial losses has the discrimination caused the claimant?[34]Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?[35]If not, for what period of loss should the Claimant be compensated for?[36]What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?[37]Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?[38]Should interest be awarded? How much? 4. Findings of Fact References to witness statements are given as “ws” References to the page numbers are given with physical page numbers first, digital page numbers second. 4.1. Whatley Quarry is a large quarrying site, producing around six million tons of aggregate material per year. As Mr Collis describes it, “Material is loaded onto large dumper trucks and transported across the quarry where it is processed and then screened and sorted by size. Once sorted, the materials is loaded onto either lorries or trains ready for delivery to customers. Around two million tons of the material is delivered by lorries from the site annually, the rest being delivered by rail.” 4.2. Mr Thompson’s employment began on 16 March 1987. 4.3. On 10 July 2009, he became a Rail Foreman (90/104). That role was at grade and skill level E1. 4.4. The role involved Mr Thompson driving locomotives and shunting but with a range of duties relating to Sidings and Loading Management (job description 10/10/09). Those included hand-over, organising shunting requirements or notify the availability of shunting manpower for other duties elsewhere, completing daily shift reports, organising daily shunting requirements for repairs and reporting faults or safety issues, arranging holiday and sickness cover and meal breaks, taking responsibility for safe practice and spillage, preventing overloading, signing trains off for dispatch and forging good working relationships. 4.5. Mr Thompson had an NVQ Rail Operations level 2 shunting from November 2003, and had been working on the basis that he was qualified to do so until 2014. 4.6. As a Rail Foreman he had personal development reviews (oral evidence). Mr Thompson’s health 4.7. In 2003, Mr Thompson was diagnosed with supraventricular tachycardia. 4.8. Employment Judge Midgley recorded the day-to-day effects of that condition as follows: “When he suffers an attack, he has a sudden missed breath and then has a very rapid shallow pulse. If he remains standing, he begins to feel faint and needs to sit down, although he prefers to lie on his back and raise his legs. He will remain in that position until his pulse returns to normal. The attacks can last from a few minutes to up to an hour. When he suffers an attack, he cannot walk, work, or drive until his pulse has stabilised. He has found drinking ice-cold water or eating an ice lolly can help his pulse return to normal quicker.” 4.9. In June 2014, Mr Thompson was diagnosed with ischaemic heart disease. 4.10. On 30 June 2014, an Occupational Health report recorded episodes of central chest pain on exertion, and the diagnosis. The pain was provoked by more physical work activities. He was medically fit to undertake his full-time working hours but should work a pattern of restricted duties, office or light physical work. He should not be required to walk more than 200 to 300 yards at a time. It was likely that the Equality Act 2010 applied and that Act required that reasonable adjustments should be made to facilitate working needs (106/122). 4.11. On 21 October 2014, he underwent coronary artery bypass surgery. 4.12. He had discussions with his manager both before and after that surgery. His manager was concerned about his safety getting about the site in particular and about the avoidance of heavier duties, associated with locomotive and shunting work. Mr Thompson transferred to the rail loft as a Rail Loadout Operator initially on a temporary basis. 4.13. The loft is accessed by a double flight of stairs but once in the office, there was no physical exertion required and Mr Thompson needed to go in and out relatively little. 4.14. An Occupational Health report was obtained in March 2015 which referred to his temporary position at that point as a Rail Loadout Operator, work of a light physical nature. He was to have a phased return, with no heavy manual work and adjustments made (109/123). 4.15. In 2016, the Occupational Health report described him to be doing Loader Admin and confirmed him to be medically fit to carry out the Rail Outloader role (114/128). That report again refers to the probability that Mr Thompson was covered by the Equality Act with regard to disability (128). 4.16. There were routine annual health assessments carried out confirming his fitness for what he was doing in 2017, 2018 and 2019. 4.17. His health did not preclude him from driving. 4.18. Employment Judge Midgley noted the medication Mr Thompson took and the self-management of his palpitations. Even with that, he suffered significant limitations in respect of physical activity at the material times, “The description the claimant gives is one of difficulties in undertaking what may be described as relatively low-level physical activities which would from part of day-to-day activities, namely gardening and climbing stairs. Furthermore, that he is very limited in the time that he can undertake the activities for before he becomes so short of breath that has to stop and take remedial steps. Similarly, his ability to walk even 200 or 300 metres or to climb stairs is very limited.” 4.19. Employment Judge Midgley held that Mr Thompson met the criteria to be regarded as disabled under the Equality Act 2010. Rail Loft Role 4.20. After his surgery, Mr Thompson had had a phased return to work and was transferred to the Rail Loft, eventually on a permanent basis. It meant a reduction in his grade and pay, but his manager was concerned for his health and safety moving about the site and doing the work of a Rail Foreman. 4.21. The manager expressed concern about him crossing the yard, “The yard is several tracks wide and the surface is uneven, moving vehicles around, slippery sleepers, the manager at the time did not think it was a health and safety risk worth taking.” (Mr Thompson, oral evidence) 4.22. Locomotive drivers face a certain amount of heavier activity, pulling points, coupling wagons. 4.23. At the time he was offered other possibilities, including weighbridge work or dispatch, mobile plant, dumper and front-end loader roles (oral evidence). He was a skilled and experienced man and recognised as able to handle different roles. The Loft was a role that was less physically challenging, apart from using the stairs a couple of times a day (185/201) 4.24. The contract in place from 2015 was that dated 14 September 2015 taking effect from 3 August 2015 (101/115). That describes him as a Rail Operative. He was at grade and skill level C2. Mr Collis explained the grading, “Quarry roles within the Company are divided into different grades, based on skill set, to ensure consistent payment for equal work across the country.”(para 6) 4.25. That change meant a demotion and lower pay but work within his capacities and avoiding risk (102/116). 4.26. Allocated to the Rail loft, there were six workers, three covering the 24 hour shifts as Rail Loadout Operators and three handling Rail Trippers. 4.27. Mr Thompson worked as a Rail Loadout Operator. His role was primarily computer based (ws para 7). It involved checking materials available, inputting what was to be loaded and in what order, from instructions. If materials were not available to meet the orders in the bins he would arrange for additional supplies. He worked in an elevated office, with two flights of stairs up to it, with a gantry from which he could view vehicles arriving and departing and record wagon numbers. There were CCTV cameras that he monitored. 4.28. There were three workers covering 24 hours between them. Mr Thompson was busy, often having to work during meal breaks or to eat while supervising someone who was not able to carry out the role independently (oral evidence). He had difficulty in getting cover for his breaks. 4.29. Mr Collis tells us that it took some 3 - 4 minutes to fill a wagon, there would be perhaps 20 wagons per train and an average of 12 trains over the 24 hour period. 4.30. Rail Trippers managed the wagon filling. Quarried material was loaded onto wagons by rail trippers or occasionally by front-end loaders. The tripper travelled along the track and the role of the rail tripper was to ensure it was accurately located so as to load each wagon. The operator sat in the cab of the rail tripper and operated it by computer. There would be some housekeeping duties associated with it, as with other roles. 4.31. While the Rail Loadout Operators worked from the Rail Loft, Rail Tripper operators had to walk up to get to the rail tripper, so walking several hundred yards and climbing up – there were stairs and a ramp. The Union 4.32. The site is substantially unionised. Mr Thompson had been the Union Health and Safety representative and in 2018 was elected Convenor for Unite the Union, a role he held until his dismissal. 4.33. As Convenor, he was responsible for the following activities: Acting as a link between trade union members and Putting forward issues to managers on behalf of members; Attending work council meetings; Representing members at national pay talks. 4.34. He spent around ten to twelve hours per month on union activities. He also attended meetings with onsite union representatives and visiting outside union officials and represented employees at disciplinary or grievance meetings (Mr Thompson, ws paras 5 and 6). 4.35. Working relationships between the Company and the staff were traditionally amicable and co-operative, with regular negotiation and consultation on shifts, terms and conditions. There had been consultation in advance of any redundancy process. 4.36. In January 2020, Mr Langton joined the company as Area Operations Manager for Aggregates based at the Whatley Quarry. He has 30 years of management experience and has worked in a rail loft himself, amongst other roles. His was a new role for the quarry. 4.37. Contractors had traditionally been used at the Quarry to cover sickness and holidays. Within the last couple of years before these redundancies, some 15 contractors had been taken on as permanent employees, which had had required union negotiation over the unexpected effect on bonuses. 4.38. Neither Mr Hulbert nor Mr Thompson felt that Mr Langton was sympathetic to the Union. 4.39. Mr Thompson refers to an incident in March 2020, when he accompanied two union members when they were called to Mr Langton’s office. They had shut the exit weighbridge because of the lack of Covid prevention measures in place. Mr Langton agrees that he told Mr Thompson to leave on the basis that it was not a union matter: there had been no grievance or formal complaint, he expected not to require union representation at an informal discussion with staff and he says that is what they successfully achieved without Mr Thompson’s attendance. Mr Thompson saw it very differently. This was a health and safety matter and the workers were clearly in breach of management directions: this was in his eyes very much part of his role as a union representative. 4.40. Mr Hulbert referred to the first time he met Mr Langton who had made a comment on the lines of “I don’t much care for unions” to which Mr Hulbert replied, “I do”, and that at that point he foresaw some difficulties ahead for the union on the site. 4.41. The working relationship between the Union and the Company had hitherto been good. Mr Hulbert’s evidence is that “the relationship changed dramatically when (Mr Langton) joined the business and it has dramatically changed since he moved on.” He says the relationship has got back on track, improving dramatically (Mr Hulbert, ws paras 19 and 20). The redundancy exercise 4.42. In early 2020, the company were looking for efficiencies and to overcome wasted time, and were considering a restructuring exercise to run the site with fewer staff. 4.43. Covid-19 had been a factor well before lockdown and, once furlough became available during the early stages of the pandemic, some 56% of staff, including Mr Thompson, were furloughed. By July 2020, furlough had been extended, with the flexible furlough scheme in place until October. 4.44. Three men continued to cover the Rail Loft Loadout function, with someone covering for Mr Thompson while he was on furlough. 4.45. The site continued to function effectively. 4.46. There were major uncertainties facing the company and a substantial loss of business was feared. 4.47. The success of operating with fewer staff led Mr Langton to resume the plan for redundancies, in May 2020, with the goal of losing 19 members of staff. Two resigned, leaving 17 roles to be shed. 4.48. The Company’s intention was to operate with a multi-skilled workforce, providing maximum flexibility with a reduced head count. Additional skills attracted additional pay. There were a lot of individuals across the Quarry with multiple skills at a competent level. There were also a significant number of individuals working in settled roles. Those included at least three individuals with adjustments for disabilities, two of whom worked in the rail loft. One of those was Mr Thompson, one was a Rail Tripper. They each had settled roles within their capabilities and that was an arrangement that had been acceptable to them and the company. The 2004 Redundancy Selection Procedure 4.49. There had been a Redundancy Selection Procedure in 2004 that addressed selection for redundancy in the 2004/05 operational review (88b/100). Volunteers for redundancy would be invited before compulsory redundancies, without guaranteeing acceptance if it might cause an imbalance of remaining skills and experience and impact on efficiency. Objective criteria would be used so far as possible in redundancy selection. Prime examples of objective criteria were competence assessments then used across the operations in terms of NVQ and EPIC license attainment and the assessed ability of multiskilling. 4.50. Guidance was given on assessing qualifications and experience, workforce involvement, multi-skilling, time-keeping, length of service, live disciplinary issues and attendance (unauthorised absence, assessed over 12 months). 4.51. In respect of qualifications, the procedure recognised four levels, those with an NVQ with competence and capacity to recognise and rectify minor problems, those with competence to carry out the role and always reporting problems to a superior, those requiring some supervision or those requiring considerable supervision in carrying out the role. 4.52. In relation to workforce involvement, employees were encouraged to be involved in Works Council meetings, Health and Safety Committees and to become Safety Representatives and that was reflected in the scores. 4.53. In respect of multi-skilling, points were awarded where a worker was paid for and competent at a number of skilled activities (4), was qualified and competent at least one other skilled activity in addition to their main job (3), was willing and competent to assist in additional unskilled jobs in addition to the core job (2) or can and does only competently perform the core job (1). 4.54. The 2004 redundancy document suggested that nationally multi-skilling was approved and encouraged. 4.55. Time-keeping and attendance were assessed over a 12 month period, disciplinary issues over six months to two years where there were warnings. 4.56. That document was not looked at by Mr Langton nor was he referred to it by his senior managers when they settled the criteria for redundancy selection on this occasion. It was referred to by Mr Hulbert in the meeting of 10 August 2020. It was not considered. The First Matrix 4.57. Mr Langton explained that having decided on a headcount reduction and efficiencies, he was looking for “objective criteria that would take into account the four areas of competencies backed by certificates and other measure of competence. That was his view in March 2020. Progress on that came to an end initially during the pandemic but was resumed after a period with lockdown and falling sales. 4.58. Having settled on that, he tells us, “I instructed my three senior managers of the site to go away and based on their experience to come back with their personnel, experience and skills for us to be able to put scores against.” “How did you ensure consistency in the scoring?” “They each manage different departments but they also cover each other’s. So they had to do their own and then put it together and then we ran through it. And then with knowing the scope and the full written criteria, verbally over a coffee, we had a lot of data to put in a format, so a collective effort from all, and each of us had the ability to speak openly candidly and in a safe environment and then we had to evidence that with competency with certificates and training records.” 4.59. There are no records of those conversations or of the way the scores were applied in each case. 4.60. There were two different selection procedures being applied, one in Aggregates and one to Asphalt. The Area Operations Manager for Asphalt was seeking initially to select on “soft” factors - effort, commitment, overtime. A different matrix was used for Aggregates, where Mr Thompson worked. That was skills based. 4.61. The approach to skill levels was to take a snapshot of active skills held at that point in time. It favoured those with more than one current, active skill over those who had worked in a single settled post without maintaining skills elsewhere 4.62. The majority of the roles in the Quarry require formal qualifications. Most required NVQs at level 2. Those and QCF (Qualifications and Credit Framework) did not lapse with time. 4.63. In addition, roles requiring accreditation needed refresher training and fresh certification. That re-accreditation training varied from skill area to skill area but would take between half a day and two days. 4.64. The rail functions at the quarry were managed by an independent rail operator, Mendip Rail Ltd, who were responsible for the rail sidings. Hanson employees were seconded to them to operate the sidings. Sidings operatives had to be competent at shunting wagons and driving trains. 4.65. Mendip conducted the assessments for those roles and provided training. They were due every two to three years. 4.66. Mr Thompson for example had NVQs, but not having worked in shunting or locos since 2014, had not had recent refresher training or reaccreditation. He had not been put forward for or requested training. 4.67. There was no consideration of whether lapsed skills could very readily be the subject of refresher training and certification: Mr Langton told us, “There is a huge amount of flexibility and multi-skilling in the workforce but given the time-line for what we were trying to achieve, upskilling was not considered.” 4.68. For Aggregates, the skill matrix was developed over time. The version applied at the start of the August consultations is here referred to as the First Matrix, though it was the outcome of a number – perhaps nine – iterations. 4.69. Six pools were identified in the First Matrix. The Rail Loft staff, all six workers including the Rail Trippers and the Rail Output Loaders, were pooled together as “Rail”. The other pools were Maintenance, Front-End Loader (“FEL”), Dumper, Weighbridges, Fitting and Admin. In the admin pool there was only one person, a unit clerk (201c/220). 4.70. These did not reflect actual departments, simply a collection of skill areas. 4.71. 23 skills were to be assessed, such as front-end loader, rigid dump truck, locos, admin, rail loft, rail tripper, in and out weighbridge, primary, wash plant, spillage, admin and housekeeping. 4.72. The pools identified did not cover all working areas. Not included in that First Matrix were the workers in Sidings, Primary, Explosives, Electrical or Spillage (201c/2020). 4.73. If they were not in the matrix, workers were not put at risk of redundancy. 4.74. Nobody included in the First Matrix had the skills to handle locomotives (“locos”), shunting or spillage, for example and those workers that did were not put at risk of redundancy at any stage, as Mr Langton confirmed (oral evidence). 4.75. Each skill area was allocated one point. Additional weighting – scores of 5, 10 or 15 – were added to “Primary” and to those with full or limited responsibilities in certain areas. 4.76. In that version, a score was also allocated, maximum 2 points, for flexibility (201c/220). 4.77. Of those assigned to Rail, two workers scored 1 point each for Rail Loft skills, two scored 1 each for Rail Tripper skills and two scored a point for both. Mr Thompson scored 1, for Rail Loft skills. Others had points in addition for skills in handling mobile plant, offering flexibility and/or first aid. 4.78. Mr Thompson would have scored points for locomotive driving, shunting and possibly other mobile plant handling had it not been for his disability and being transferred to the Rail Loft in 2015, so that his skills were seen by the company and accepted by him as being out of date. 4.79. Mr Thompson was sent that version of the matrix with the scores after a meeting with the union over the process in August while he was on furlough, by a shop steward. The consultation process 4.80. There was no prior consultation with the Union over the proposal to make redundancies, contrary to previous practice. The numbers involved did not make union consultation obligatory. 4.81. Mr Langton said this, “I am aware that there was union involvement on site with the senior managers driving this process. When and to what level I don’t know. I did not.” 4.82. The scoring was carried out before any consultation on the criteria took place and initially without consultation on scoring with individual employees. 4.83. Although the redundancy consideration has been described by the Respondent as involving all employees, a number were not sent at risk letters. The at-risk letters were issued on the basis of the First Matrix (201c/220). Forty-nine workers were issued with at-risk letters (202/223). 4.84. Two individuals, including the maintenance manager, were dismissed immediately, not having the two years required for employment protection. (Mr Collis, oral evidence, page 201/217) 4.85. Mr Thompson was notified that he was at risk of redundancy on 3 August 2020. His first consultation meeting took place on 4 August 2020 (126/142). He had union representation. 4.86. Others had the same letter on 3 August and first consultation meetings on the same day or shortly afterwards. 4.87. Twenty-eight, including general operatives, were told immediately that they were not at risk, on 4 August. That was based on their scores, applied before any consultation. Eight others including Mr Thompson were told that they were at risk and there would be further consultation (213/233). The same process the next day led to five more general operatives being told they were not at risk and seven being told that they were. 4.88. Mr Langton explained that the skills matrix gave them the scores to come to that conclusion at that early stage. Mr Langton confirmed that the individuals kept at risk at that first consultation were the same individuals as made redundant in the final outcome. He explained, “The selection of those identified from the skills risk were those that were made redundant. The skills matrix scores did not change, so the outcomes were the same.” 4.89. Page 203/223 is an annotated spreadsheet headed “At Risk – 4th Timetable”. It shows those identified by 4 August as not at risk. Against those identified as being at risk is an entry showing the pool. Mr Thompson is shown as being in a pool of 6, 3 at risk. The unit clerk is at risk, in a pool of 1. The weighbridge team were in a pool of 8 and 2 were identified as being at risk. 4.90. The roles themselves were not redundant. In particular, there were 6 in the rail loft and there remain 6 whose primary role is in the rail loft or on rail trippers. It is the individuals working that have changed, those with limited skills replaced by multi-skilled workers. Mr Langton agreed it was not the roles that were redundant but the individuals, because others with more skills could carry out their roles. (Mr Langton, oral evidence) Union Consultation 4.91. Mr Thompson asked for union consultation over the process at the meeting on 4 August 2020. 4.92. Mr Hulbert learned of proposals at that point, when Mr Thompson telephoned him and informed him that the Respondent had already held first consultation meetings and had informed some employees that they were at risk of redundancy and other employees that their roles were safe. 4.93. The process of consultations was suspended while meetings took place with the Union. 4.94. Mr Hulbert wrote on behalf of the five union representatives on 6 August 2020, notifying a “failure to agree”. 4.95. That pointed out that the redundancy procedures used in 2004 and 2009 had not been followed, “The Aggregates side has not even given the agreement any consideration at all.” 4.96. The criteria being used were criticised as fundamentally subjective and designed to dispatch Unite representatives and long-serving staff. 4.97. He warned of the potential for discrimination under the Equality Act arising from the approach being taken. 4.98. He complained of the failure to consult in a meaningful way, and that some employees had been told that they were no longer at risk, implying that decisions had been taken before the consultation even began (130/146). 4.99. Union consultation took place at meetings on 10 August, 11 August and by zoom on 27 August, a meeting which Mr Thompson attended (133- 137, 138 – 141, 150 – 152). Mr Wilcock, Regional Director Aggregates, attended the first two, Mr Langton the third, Mr Wilcock being on leave. 4.100. There are minutes of those meetings. They are not verbatim. Even so, the quality is very poor. Mr Hulbert was forthright, With all due respect, these minutes of 11 August are written on the back of a cigarette paper. They are the worse minutes I’ve ever seen. 4.101. He had had no part in writing or amending the minutes and they were not “particularly meaningful”. 4.102. Mr Hulbert attended the meeting of 10 August. He had not seen the scored version of the first matrix. He saw headings only. 4.103. He challenged that people had already been taken “off risk” after the first meeting with them, although the process was just beginning, “It implies a decision has been made” (133/149). “You have already made your decision (134150)” 4.104. He questioned the fairness of looking for a multi-skilled workforce, not having planned on that basis, “The concern is that for many years the business has been happy with individuals doing 1 job. Now you are looking for flexibility. I don’t disagree with the flexibility, but you haven’t multiskilled them or provided any sort of flexibility programme.” 4.105. Mr Wilcock’s answer to that was, “We have never been in a place where anyone has come to us. We would never have said no, we would cry out for it. We have already got a lot of highly skilled and highly flexible people within Whatley. There are 2 parts to the flexibility. The skills but also things like willingness to learn and do things differently, hours, overtime etc.” 4.106. He said Whatley Quarry was seen as less flexible and agile than other sites, to which Mr Hulbert said, “You can’t blame them if you haven’t multi-skilled them.” 4.107. Mr Hulbert also expressed concerns about the criteria. Absence records had not been used. Mr Wilcock said that they had made the decision not to use absence records, but to use skills as the decider. 4.108. Mr Hulbert didn’t understand why that was, “What you normally have, you would always use absence as a guide. No point in having a good skill base if they don’t turn up for work. It is a fundamental in any, any situation. Here, where the multiskilling was, down on the quarry itself, mobile drivers, those would have been the people with poor absence records. No doubt about it, Mr Thompson would have retained his job, and some of the newer employees had very poor records, they do not turn up for work and we know that because our reps represent them and so we know that, so why would you not use a medium that eliminates those that do not turn up for work? (Oral evidence) 4.109. The HR representative at that meeting suggested that they had to consider the relevance of things like absence and length of service, and, “We would need to be careful in terms of potential discriminatory criteria, e.g. under the DDA.” 4.110. It was pointed out too that they had not taken into account NVQs and that they had been used in the 2004 redundancy selection procedure. Mr Wilcock said, “We have to draw a line somewhere. If we thought someone wasn’t capable just because they didn’t have the NVQ that would be an issue. It is good they have the qualifications, but they weren’t judged on that. It is about competence in the role.” 4.111. That is not the view that Mr Langton takes. He said that competence was based on qualifications, NVQ, in-date certificates, “NVQs are very much part of our sector. Very few parts of mobile plant would you be permitted to operate without one.” 4.112. He told the tribunal that no guidance was required as to how managers satisfied themselves as to staff having the skill level, either they did or they didn’t – it was binary. He confirmed that there were no written criteria on marking workers against the criteria (oral evidence). 4.113. How that difference in approach affected the scoring is not known, save that Mr Langton did not take part in the scoring process. 4.114. Mr Hulbert wanted them to scrap the whole process and start again. In his view, the criteria were not designed to retain a multi-skilled workforce but to target older members and Trade Union representatives. 4.115. The Union also pointed out, and it was agreed, that if a pool was reduced by, say, three workers, it was not then appropriate to move 3 new workers in to cover those roles. That would apply to Mr Thompson’s situation. He had been identified as a member of a pool of six, three of whom were at risk but there was never a question of dispensing with three of the roles (137/153). 4.116. This was put to Mr Langton, “If you are reducing a pool of 6 by 3 you should not be putting other people in there to cover the job, the job is not redundant. You still needed 6 people in the rail loft. So how is the job redundant?” “Because there are people that have the same skills as Mr Thompson.” “The job, the functionality of the process was not redundant. It is the people that are redundant and the redundancy criteria was picked up from the matrix, there were several other multi-skilled people who could complete that work.” (oral evidence). 4.117. At the meeting on 11 August, the Company put forward a different approach to pools. The general operatives were to be pooled. The other new pools were Sidings, Weighbridge, Primary, Engineering, Support. 4.118. Flexibility had been removed as one of the criteria, leaving the selection entirely based on current skills for roles. That followed a discussion by telephone initiated by Mr Hulbert. Flexibility was seen as highly subjective. 4.119. Over the two discussions there were references to other criteria, including absences, length of service, qualifications, contractual roles, the impact of the Equality Act, but the criteria remained solely skill based, using the roles and weighting identified by the company. The matrices did not consider experience save as regards current ability to perform roles. They did not include performance, discipline or any other factors. 4.120. Absence, timekeeping and flexibility, with guidance on scoring were included in the revised Asphalt matrix (140/156). 4.121. During the 27 August meeting, the circumstances of one worker, not Mr Thompson, on light duties was discussed in relation to potential discrimination and the management response was that, “We have reviewed this person and are confident the disability does not affect the matrix scores.” (166) 4.122. The outcome of the consultation with the union is that the union saw the matrices as improved but not agreed. Mr Hulbert put it this way, “No. there was no agreement. I think it looked a lot better. There was no formal agreement with the business that the criteria were acceptable and I don’t think they were looking for our agreement.” We had no say in the criteria. We challenged them. We vigorously challenged it. There were some amendments made, in particular on the asphalt, asphalt was changed dramatically because it was very subjective. We never agreed the aggregates, because we always felt that there were certain jobs in rail that should have been ring fenced. In his rail loft, if you still need 6 operatives there should not be a redundancy in that department. We agreed nothing, elements in it that were not right. Maybe better than when we first started….. They had already made the decision effectively. I asked them to retract all the criteria and start afresh, with fair criteria, but they refused, that is minuted. They had decided who was going and who was staying.” 4.123. No change had been made in response to the Union representations other than the removal of flexibility. Mr Hulbert drew out the contrast with earlier negotiations he had been involved with the Company. There had been a good and effective relationship at which difficult issues had been discussed and resolved. 4.124. In previous redundancy consultations, voluntary redundancies had been accepted, reducing the need for compulsory redundancies. Throughout this exercise, voluntary redundancies were not accepted. Mr Thompson thought some six people would have gone willingly, as he explained at his second consultation meeting on 1 September but the response was that the Respondent was not considering voluntary redundancies at this time (159/175),and they did not at any stage. 4.125. Voluntary redundancies might have reduced the number of compulsory redundancies without removing the required skill base, since there need be no commitment to accepting volunteers. 4.126. Mr Collis did tell us that while voluntary redundancy was not an offer on the table, he had had some applications but that the skills sets of those individuals were not skills that the company could afford to lose (oral evidence) The final matrix: the pools 4.127. The final version of the skills matrix that had been an evolving document is shown at page 201/ 217. The skills matrix identifies roles across the business against which individuals scored. The matrix did not reflect any commonly used criteria, such as performance, conduct, workforce involvement, length of service, time-keeping, unauthorised absence or attendance. 4.128. The pools were now Managers, General Operatives, Sidings, Weighbridge, Primary, Engineering and Support. The latter now incorporated two roles, unit clerk and stores. 4.129. A pool had been created of General Operatives. That pool consisted of 38 employees who carried out a variety of different roles at the Site. That was a much bigger group than in the original pools. The goal was to reduce the number of General Operatives from 38 to 29. 4.130. Not all General Operatives were in that pool. Some were also placed in Weighbridge and Primary. 4.131. Although the Claimant’s contract identified him as a Rail Operative, he was classified for these purposes as a General Operative along with all the Rail Operatives in the Rail Loft. 4.132. in the Respondent’s view, that “most appropriately matched his skill set.” Mr Collis explained that, “In reality, he was not carrying out the role of a Rail Operative. Rail Operatives at the Site had a variety of skills including shunting wagons and driving trains.” He added, “The Claimant let his skills in these areas lapse and therefore did not possess the skills required to carry out the role of a Rail Operative.” 4.133. The remaining Rail Operatives were pooled together in Sidings, in a discrete group. They all scored for locos and shunting and they were the only workers with those scores - the managers did not have them. These workers had not been sent at-risk letters and were never part of the redundancy consideration. The final matrix – the criteria 4.134. There were 24 skill areas assessed (201/217). 4.135. Most attracted 1 point per skill area. Two involved regulatory body roles that required substantial experience and training. Those had scores of 5, 10 or 15 and were awarded to managers and scores of 5 were given to a couple of foremen. 4.136. Primary was a weighted area, everyone with that skill scoring 5 points. 8 people achieved those 5 points, including the 4 in the Primary pool, one manager, one spillage worker, one weighbridge operator and one general operative. That is said by the Respondent’s Regional Director to be a critical role and one which it takes at least six months to learn (139/155, 11 August consultation with union). It is a desk-based role using computers and CCTV cameras. 4.137. Mr Langton justified the extra points for primary - most skills were allocated 1 point, primary 5 – by comparison with the rail loft, “Having done the rail loading role for many years myself I understand how it works. This is busier, but I have extensive rail loading experience. I have seen how it works there. I understood it far better than the primary role. But it is more than just the primary crusher, you are dictating the frequency of material entering the crusher, then through the processes including screening and then out into the next stage and so very much more complex. I take my hat off to those that do it.” 4.138. A number of scoring areas identified those with discrete skills: The only people scored for Spillage were the four spillage workers; they were all multi-skilled. One did not have two years service and was dismissed, the others were retained. The only people scored for Engineering were the engineering team and a couple of managers; eight out of eleven of them scored only 2 points, the other point being for housekeeping. Redundancies were made. The only people scored for Electrical were the three electricians and one manager; two of those scored only 2 points, the other point being for housekeeping. There were no redundancies. Two people scored in respect of explosive handling, both managers. 4.139. The Respondent was retaining skills in areas of need, without requiring multi-skilling save for the housekeeping point. The approach to scoring 4.140. The Respondent says that all employees were scored against the Skills Matrix using objective competency criteria, including all Rail and General Operatives. They were scored as competent in particular skills if they met a specific level skill in that skill, including whether or not they had a relevant and current license or qualification or whether they had maintained the minimum number of hours in that skill to remain competent. There were also task authorisations to confirm competence in that role (Collis page 6 day 4) 4.141. It was described by Mr Langton as a binary process: employees were either competent in a skill or they were not. They were not considered competent if they had allowed their training to expire or might be able to undertake training in future. That was not necessary from a business objective. (Collis para 16). 4.142. The Respondent has not however produced documentation to show what the competence requirements were for any skill. Mr Collis says, “All our management team know what a competent person is. It is required by Quarries Act 1999, it is a regulatory requirement, we have to have a competent person in place, authorisations, qualifications, training…. We don’t write the definition down, are they competent, they would all say the same The question for the management was are they competent, yes for competent, no for no. that takes out subjectivity. You relied on the managers as to what competence is? They know – they are appointed under the Quarry Act reg 8.1.d.” 4.143. There remains some uncertainty since the scoring was carried out using the First Matrix and Mr Wilcock took a slightly different view as discussed above. The Union objected to the fact that when the First Matrix was scored, NVQs were not expressly taken into account. The 2004 redundancy selection had recognised four grades of competence including competence without qualifications. 4.144. Nobody has specifically identified the scoring basis for the rail loft. 4.145. Mr Bagnall describes the company’s general approach to skill management, referring to a system accessible to managers, “It was called LMS (“learning management system”)and it is now called Pathways and it is like a library of people’s skills, it is down to the manager to see if he logs on to see if there are any skills needing to be renewed, and to arrange training to update, it is down to the manager to update that. Hanson’s practice is, every operator doing the role should have an NVQ2, so there should be a skills matrix that shows vocational qualification and any other skill, each job role should have that.” (oral evidence). 4.146. Every worker’s file should therefore have a job description and a skills matrix confirming competence for the job role. We haven’t seen a job description for rail loft, or Mr Thompson’s skill matrix, nor had there been any refresher training offered to him. 4.147. Mr Collis describes a process of verification to establish skill levels where there were gaps in the information available, by ringing up certifying authorities. At least once, he said an unrecorded NVQ led to someone no longer being at risk of redundancy although Mr Langton believed the scores had not changed. 4.148. Where the result of the skills matrix did not produce a final selection for redundancy, because people had equal points, length of service or other factors were used including whether training could readily updated – in weighbridge for example where a submatrix was used (Mr Langton, oral evidence). 4.149. Across the thirty-eight general operatives, one scored 15, one scored 10, twelve scored 6 or over up to 9, five scored 3. Nine, including Mr Thompson, scored 2 or less. The target was to make nine redundant. All save three scored 1 point for housekeeping. Each of those three was made redundant. Housekeeping is recognised as physically demanding. The approach to disability 4.150. The skills matrix did not reflect any disability or adjustment for disability. In particular, those who were in settled roles because of disability, which restricted them from undertaking other activities, were likely to be disadvantaged by an approach that required up to date multi-skilling. 4.151. Mr Langton confirmed that the decisions taken were based solely on the skills matrix. Asked about this, in relation to Mr Thompson, “Would it not have been reasonable to take into account his disability in marking his scores? “I consider we did the best job we could do and I would not change it.” 4.152. He was asked, “Would it not be reasonable to pool him within the rail loft and kept him in that role ringfenced since that was the only job he had been doing for five years.” “I can only reiterate, we used the skills matrix to base our decisions.” 4.153. He was asked whether he had considered addressing disability and the circumstances of those with disability adjustments specifically, “Not within the skills matrix that we set up. I was aware there were employees with medical issues and with reasonable adjustments. Like someone having a plug in for the car close to the changing rooms to reduce the distance to walk. I did not see those issues as preventing people doing their jobs.” “Did you consider not moving people” “Not in this instance, but it would have been a possibility.” 4.154. Mr Collis was carrying out the scoring assessments in collaboration with other senior managers. He was not initially aware of Mr Thompson’s health or disability, “At the time I hadn’t been aware. It was brought to my attention and then through consultation I knew from the medical perspective, he had some ailments but it had not been put to me that he was under the EA. But it did seem a reasonable adjustment was in place due to his heart bypass and other medical conditions (oral evidence). 4.155. He was asked how disability was taken into account, “Did you look for OH reports or adjustments in relation to employees? “Why would we look at medical reports to see what functions were required and what skill sets were required? How would that help me?” “You are dismissing them. You are judging them on skills and criteria, some of which an element of physicality. It would be in your mind if they may be disabled or not.” “I was looking at whether they could carry out a function and the binary process was yes they can, no they can’t” (oral evidence). “Did you consider if they were disabled or not? “In the broad sense, I looked at what skills they could carry out…. I don’t recall looking at disability per se.” 4.156. No adjustments were made to the skills matrix in respect of disability. 4.157. Mr Hulbert’s view was that those in the jobs the rail loft could have been left either on the same basis that the roles in the sidings or electrical were protected or on the basis that there were two people in there with disabilities who were doing a job within their abilities and they should have been left there (oral evidence). Mr Thompson’s scores 4.158. Mr Thompson’s second consultation meeting took place on 1 September 2020, a meeting conducted by Mr Collis with an HR representative. (155- 161). He had by then seen the first matrix, which was sent to him by a shop steward attending the first union consultation meeting on 10 August. 4.159. At this September meeting, matrix scores were discussed, using the headings from the final matrix and Mr Thompson was shown his scores. He did not disagree. 4.160. There are notes of that meeting (159/171). They are poor quality. A lot of the discussion is about the overall approach to the redundancy selection. 4.161. He was scored 1 point for “Rail Loft”. That was where he had been working since 2015. 4.162. Mr Thompson agreed he did not have recent skills, qualifications or experience to do a wider range of work, but that was because he had been in the Rail Loft for health reasons since 2015. He mentioned his heart condition. 4.163. He asked about voluntary redundancies but was told they were not being considered at this stage. They might be considered at “consult 2” although not to the detriment of the company’s skill base. 4.164. He was shown a vacancies list. None of the jobs were jobs that he could do, either because where they were or the seniority or physicality of the roles. The document included in the bundle does not include any suitable roles (162/178). 4.165. He was mistrustful of the process. He saw the matrix as contrived, “This is a hit list”. 4.166. In the Rail Loft team, one scored 8, two scored 3, two scored 2 and Mr Thompson scored 1. He only scored for “Rail Loft”. Each of the others in the Rail Loft/Rail Tripper teams scored an additional point for housekeeping. 4.167. Mr Thompson was dismissed at the final meeting on 7 September (164- 180). The dismissal was confirmed by letter on 8 September 2020 (170/186). 4.168. Two of the redundancies, including Mr Thompson, came from the Rail Loft team and one from the Rail Tripper team. The appeal 4.169. Mr Thompson appealed on 10 September (174/190). 4.170. The appeal grounds were that he should have been pooled as a Rail Operative in accordance with his contract and that his role as a Rail Operative (referring to the six in the rail loft) was not redundant; and that he had been on judged on criteria that he could not comply with by reason of his disability, and had been placed at a fundamental disadvantage. He pointed out that his disability was well known to management (172/190). 4.171. The appeal hearing took place on 5 October 2020. It was conducted by Mr J Bagnall, Regional Director. Mr Hulbert represented Mr Thompson and commended the fairness of the hearing. 4.172. The minutes, recorded by the HR representative present are poor. Comments are misattributed and as recorded make little sense. The following for example is attributed to Mr Bagnall, “If you go the specific skills for Ril, rial loft, rail tripper. Loco and shaunting. Difference between GO and sidings, Can’t belief that it was not weighted. 6 years ago, due to ill health they told me to do that. I was trained up in shaunting.” (183/199) 4.173. Half of that presumably comes from Mr Thompson, and the reference to weighting suggests that a comparison is being made between the rail loft and Primary. There was clearly a wider conversation which can only be guessed at. 4.174. Mr Bagnall relied throughout on the skills assessment in the matrix as being correct. He didn’t check them. He was satisfied that the managers would be able to assess skills. With regard to the skills areas Mr Thompson put himself forward for, he checked the requirements for the role and his competence with the site managers. 4.175. The discussion covered the role Mr Thompson had done, the comparison with primary, his challenge to the numbers given the rail loft skill, his health condition and the reason for his move to the rail loft, his previous experience with locos and shunting, in which he agreed he no longer had up to date validation. He referred to work he had done with loading shovel, dumper and skidsteer, and to being a rail foreman. They discussed why the rail loft had been chosen when he had surgery – Mr Thompson said he had been offered weighbridge or dispatch, but the rail loft only involved negotiating the stairs a couple of times a day. He was asked if other opportunities had been offered, but they had not. There was some discussion of what roles Mr Thompson was fit to carry out (and here the notes are particularly unhelpful) 4.176. At Mr Bagnall’s request, Mr Thompson sent details of the roles he thought he could do, together with some medical evidence including his last Occupational Health assessment. 4.177. He identified, as roles he could carry out, front-end loader, rigid dump truck, locos, weighbridge in and out and primary (190/206). He added that, “In the case of the loco skill it is generally accepted that there is also a degree of shunting and physical work involved with that role but I used to and certainly could drive locos.” 4.178. The appeal was dismissed. 4.179. Mr Bagnall gave his decision by letter on 16 October 2020. The appeal was dismissed. 4.180. In relation to the first appeal ground, that Mr Thompson should have been dealt with as a rail operative and that his role had not been redundant, Mr Bagnalll explained that with the creation of a pool of General Operatives, the Company had sought a high level of multiskilling in the retained group. The General Operative pool consisted of 38 people and over a quarter had the rail loft skill. The plan was to have 6 multi-skilled operatives operating across 3 shifts and not 6 rail operatives with only one particular skill and no mobile or fixed plant skills. He identified that to be classed as competent in locos and shunting he needed to have met the independent rail operator standards: MRL–Q&D–F–609 Assessment of Shunting Duties and MRLQ&D-P-601 MRL Local Instructions for Whatley Rail Sidings. 4.181. Mr Thompson did not have those. 4.182. Mr Bagnall equally dismissed front-end loader, rigid dump truck, inbridge, out-bridge and primary on the basis that Mr Thompson did not have those skills either from a training perspective or in experience relative to other general operatives. 4.183. In relation to the claim of breach of the Equality Act 2010, Mr Bagnall changed the decision under appeal. He awarded scores on two skills in the matrix in which there was an increase in physical work demand compared to the work Mr Thompson had been doing, to ensure a fair comparison. Those areas were Wash plant and Housekeeping. Those were areas he could not do. 4.184. That brought Mr Thompson to 3 points. 4.185. Mr Bagnall had also considered spillage, which he concluded Mr Thompson’s disability prevented him from doing. He did not award a point for that. 4.186. At the hearing, shunting had not been discussed but it came up in Mr Thompson’s brief note the next day, as being physically challenging. Mr Bagnall accepted that was the case but did not award a point. He accepted that there was a physical difficulty but thought the real obstacle was the lack of up-to-date skills, that is the training side. 4.187. He acknowledged that the judgment had been very difficult. He had based his final judgment on the fact that Hanson needed people with mobile plant skills, and to add more points to Mr Thompson would have prioritised him over those with badly needed skills. The passage of time was also a factor: “When I awarded the points to raise him to 3, that caused me a lot of frustration, he is now back at peer level with people with 3 points. I did think about going through the selection process again. But I was mindful of the passage of time. This process started in August, now October. There are people who have been put at risk, taken off, doing the job and others redundant. So not fair to disrupt people’s lives. So I made the decision to look at what was in the interests of Hanson.“ 4.188. Mr Bagnall concluded by saying that his change of scores did not change the decision. The score was still too low to avoid redundancy (197/213). 4.189. Two individuals in the rail loft had retained their posts with only 3 points. They had been taken off risk at the first consultation meeting, before Mr Thompson’s redundancy dismissal. 4.190. Mr Bagnall did not consider it appropriate to go through the selection process again, or to determine the matter by reference to length of service or on interview. He was asked about this, “So what is the point of having an appeal, you have weighted certain things as more important?” “I think that is a fair point but I thought it was the right decision because of the passage of time. What was the best way forward, in that small subgroup of people. Mobile plant is a massive issue, now it is a calamity. We would not want to let anyone go. Very few people had rail tripper. I weighted it to them and I didn’t uphold his appeal.” “Other objective factors, length of service, absence record?” “No” (oral evidence). 4.191. In November 2020, the Company advertised for a general operative. Mr Collis explains that recruitment in the months after the redundancies were to replace two individuals who had retired, not to replace those made redundant (oral evidence, 213/233), Mr Thompson says someone else had already been taken on; this advertisement is only for one. 4.192. Mr Collis considers the redundancy exercise to have been worthwhile and successful, “There was a genuine redundancy situation as is still the case and the business having streamlined and worked out the efficiencies have now produced the biggest tonnage ever with the reduced number of persons, so that shows that the process worked.” (oral evidence) 4.193. It was however damaging to morale. 4.194. In August 2021, a morale survey was carried out. The Unit Manager wrote to the staff “It has become clear to me from the feedback that the redundancies made last year has had a lasting negative impact on the team at Whatley. Having had such an arduous and demanding year I know it will feel that the process was particularly wasteful. However, I was not party to the action but have been assured it was necessary for the outlook of the business at that time with so many variable unknowns. I am asking if you could all look to the future now, leaving past grievances behind.” (217/237) 4.195. He confirms the pandemic had not been as damaging as feared, they were very busy, and that contractors would be vital and would be utilised heavily until further changes (referred to as “Westdown”). That conflicts somewhat with the statement that use of contractors had not increased. 5. Law 5.1. Section 98(1) of the Employment Rights Act 1996 (“ERA”) sets out: “In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.” 5.2. It is for the employer to satisfy the Tribunal as to the reason for the dismissal. 5.3. The reasons that are potentially fair under section 98(2) are capability, misconduct, redundancy or some other substantial reason. 5.4. If the employer fails to establish that the reason for the dismissal was an acceptable one, the tribunal must find the dismissal unfair. 5.5. Where the employer establishes that the reason for the dismissal was within section 98(2), then the next question is whether it was fair and equitable including as to the procedure adopted. 5.6. By section 98(4), “Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and b) shall be determined in accordance with equity and the substantial merits of the case.” 5.7. First, therefore the employer must establish the reason or principal reason for the dismissal and that it is a potentially fair reason. 5.8. Then the Tribunal must be satisfied that the employer has acted reasonably in treating the ground as a sufficient reason for dismissal. 5.9. By section 139(1), “For the purposes of this Act, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to - …. (b) the fact that the requirements of that business – (i) for employees to carry out work of a particular kind (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish. Reason in the mind of the employer 5.10. Applying Abernethy v Mott Hay & Anderson (1974 IRLR 213), “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.” 5.11. That is expanded in Beatt v Croydon Health Services NHS Trust 2017 EWCA Civ 401 2017 IRLR 748 “The essential point is that the “reason” for a dismissal connotes the factor or factors operating on the mind of the decision-maker which causes them to take the decision – or, as it is sometimes put, what “motivates” them to do what they do.” Fair Redundancy 5.12. Where the allegation is of dismissal for redundancy, the employer must show that the facts supporting that ground in fact exist (Elliott v University Computing Co (Great Britain) Ltd 1977 ICR 147). 5.13. In Williams v Compair Maxam Ltd [1982] IRLR 83, the Employment Appeal Tribunal set out the standard which should guide tribunals in determining whether a dismissal for redundancy is fair under section 98(4). 5.14. Browne-Wilkinson J set out the following guidance: “…there is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles:
The Relevant Law
Remedy
[1]The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.[2]The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.[3]Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things such as attendance record, efficiency at the job, experience, or length of service.[4]The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.[5]The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment. 5.15. The position was summarised by Lord Bridge in Polkey v A E Dayton Services Ltd [1988] ICR 142 at 162 – 163 “in the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimize redundancy by redeployment within his own organisation. It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with.” 5.16. In carrying out a redundancy exercise, an employer should begin by identifying the group of employees from which those who are to be made redundant. If an employer simply dismisses an employee without first considering the question of a pool, the dismissal is likely to be unfair (Taymech Ltd v Ryan EAT 663/94). If the employer genuinely considers the problem of selecting the pool of those from which selection for redundancy is to be made, it is difficult but not impossible to challenge. 5.17. The Employment Tribunal has a duty to scrutinise the way in which the employer selected the pool. The use of fair selection criteria to the wrong pool is likely to result in unfair dismissal. 5.18. The question for the Tribunal is not what the Tribunal thinks is the right pool. It is whether the employer’s choice of pool is within the range of reasonable responses available to the employer. “Different people can quite legitimately have different views about what is or is not a fair response to a particular situation… in most situations there will be a band of potential responses to the particular problem and it may be that both of solutions X and Y will be well within that band.” 5.19. Where there is a customary arrangement or agreed procedure, that specifies a particular selection pool, the employer will normally be expected to adhere to it, unless it was reasonable to depart from it. Otherwise, it needs to be a reasonable and considered choice based on genuine motives. 5.20. Relevant factors in determining whether the employer has acted reasonably in identifying the pool will include, Whether other groups of employees are doing similar work to the group from which selections are made Whether employee’s jobs or skills are interchangeable Whether the employee’s inclusion in the unit is consistent with his or her previous position Whether the selection unit was agreed with any union. 5.21. Usually the pool is composed of employees doing the same or similar work. There is no principle of law that the selection should be limited to similarly placed employees (Thomas and Betts Manufacturing Co Ltd v Harding CA [1980] IRLR 255). 5.22. The question of how the pool should be defined is primarily a matter for the employer to determine (Taymech v Ryan EAT/663/94). 5.23. In Capital Hartshead Ltd v Byard [2012] IRLR 814, the following guidance is given. a) It is not the function of the Tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted b) The range of reasonable responses test applies to the selection of the pool from which the redundancies were to be drawn c) There is no legal requirement that the pool should be limited to employees doing the same or similar work. d) The question of how the pool should be defined is primarily a matter for the employer to determine. e) The Tribunal should consider with care the reasoning in deciding if the employer has genuinely applied its mind f) It is difficult to challenge if the employer has genuinely applied its mind to the problem. 5.24. Selection from the pool is again a matter for the employer, to be interfered with by the Tribunal only if the criteria adopted are such that no reasonable employer could have adopted them or applied them in the way in which the employer did. The question is whether the employer sets up a system of selection which can be reasonably described as fair and applies it without any overt signs of conduct that mars its fairness (British Aerospace plc v Green CA [1995] IRLR 437, Bascetta v Santander [2010] EWCA Civ 351)) 5.25. When selecting for redundancy, the criteria applied must be objective and applied with transparency and must not be unduly vague of ambiguous. There should be reference to data such as records of attendance, efficiency and length of service that would support or explain the scorings given, although an element of judgment is necessarily part of the assessment. The Tribunal again must not substitute its own judgment but be satisfied that the method of selection was not inherently unfair and that it was applied in the particular case in a reasonable fashion. Has the employer acted fairly overall in its assessment of skills and requirements. 5.26. It is reasonable for an employer to try to retain a workforce that is balanced in terms of skills and abilities. So it is reasonable to assess skill and knowledge, but there should be some objective assessment. An organisation that appraises and keeps records will be better placed than the employer that relies only on a subjective opinion. 5.27. It is important that the criteria for selection are not subjective or dependent on the subjective opinion of an individual manager, but capable of at least some objective assessment. However, objectivity is not an absolute requirement; ultimately this is a question of balance: “The concept of a criterion only being valid if it can be “scored or assessed” causes us a little concern, as it could be invoked to limit selection procedures to box ticking exercises” Master of the Rolls, Mitchells of Lancaster (Brewers) Ltd v Tattershall UKEAT/0605/11 5.28. In Biluan v Mental Health Care (UK) Ltd UKEAT/0248/12/[2013] All ER (D) 265 (Mar), an elaborate and seemingly objective selection meant that individuals were scored without the input of their managers. That was held to be unfair – the Respondents had lost touch with common sense and fairness. 5.29. Job losses confined to one team can result in the dismissal of skilled and experienced staff who are of greater long-term value to the organisation than other individuals whose posts are not directly affected. Selection criteria for redundancy are sometimes applied to a class of employees wider than the class to which the redundancy situation relates. The leading case is W Gimber and Sons Ltd v Spurrett 1967 ITR 308, “If there is a reduction in the requirements for employees in one section of an employer’s business and an employee who becomes surplus or redundant is transferred to another section of that business, an employee who is displaced by the transfer of the first employee and is dismissed by reason of that displacement is dismissed by reason of redundancy.” 5.30. It can therefore be unfair not to consider offering alternative employment to a potentially redundant employee, even in the absence of a vacancy (Lionel Leventhal Ltd v North EAT 0265/04). Whether such a failure is unfair is a question of fact for the Tribunal which should consider factors such as, Whether there is a vacancy How different the two jobs are The difference in remuneration between them The relative length of service of the two employees The qualifications of the employee at risk of redundancy. 5.31. Again, it is a matter of the Tribunal considering the range of reasonable responses in assessing whether failure to consider or the reasons for rejecting bumping is fair. 5.32. However including a range of different job functions in the pool can be unfair. In Contract Bottling Ltd v Cave and anor EAT 0525/12, a single pool of all administrative staff, encompassing functions as diverse as accounts, sales and quality control, and applying a general scoring matrix to identify the staff who scored the lowest was unreasonable. It meant that employees who were kept on might be retrained to do work of a completely different kind – so a warehouse manager, retraining to do accounting work. 5.33. We are referred to guidance derived from R v British Coal Corpn and Secretary of State for Trade and Industry, ex p Price [1994] IRLR 72 at 24, “Fair consultation means:(a) Consultation when the proposals are still at a formative stage(b) Adequate information on which to respond(c) Adequate time on which to respond(d) Conscientious consideration by an authority of the response to consultation Another way of putting the point is that fair consultation involves giving the body consulted a fair and proper opportunity to understand fully the matters about which it is being consulted, and to express its views on those subjects, with the consultor thereafter considering those views properly and genuinely.” 5.34. Where lack of consultation or other procedural failure renders the dismissal unfair, the Polkey principle applies, derived from Polkey v AE Dayton Services Ltd [1988] ICR 142. When assessing the compensatory award payable in respect of the unfair dismissal, a reduction may be made where the lack of a fair procedure made no practical difference to the decision to dismiss, other than perhaps through extending the period of employment for a period. That may have the effect of reducing the compensatory award to nil. In the alternative, where the evidence is that the employment would have continued, the Tribunal may conclude that it is not just and equitable to reduce the award at all (Software 2000 Ltd v Andrews and ors [2007] ICR 825, EAT). Dismissal (s.152(1)(a) and (b) TULR(C)A 1992 5.35. By section 152(1)(a) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A”), dismissal where the reason or principal reason is that – (a) he was a member of Unite, the Union, or (b) “had taken part in the activities of an independent trade union at an appropriate time” the dismissal is unfair. Detriment (s.153 TULR(C)A 1992 5.36. By section 153 of TULR(C)A. where the reason or principal reason for the dismissal of an employee was that he was redundant but it is shown, (a) that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by him and who have not been dismissed by the employer, and (b) that the reason (or if more than one, the principal reason) why he was selected for dismissal was one of those specified in section 152(1) the dismissal is unfair. Discrimination arising from disability – section 15 5.37. By section 15(1) of the EqA, “A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.” 5.38. The Code of Practice sets out at paragraph 5.7 that this means placing someone at a disadvantage. Even if an employer thinks they are acting in the best interests of a disabled person, they may still treat that person unfavourably. 5.39. By section 15(2) of the EqA, the above does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. 5.40. The focus of section 15 is about the extent to which the employer is required to make allowances for disability (General Dynamics Information Technology v Carranza [2015] EAT 0107). The consequences of a disability include anything that is the result, effect or outcome of a disabled person’s disability. 5.41. There are four elements for a claimant to succeed in a section 15 claim. There must be unfavourable treatment There must be something that arises in consequence of the claimant’s disability The unfavourable treatment must be because of (ie, caused by) the something that arises in consequence of the disability, and The respondent cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim. 5.42. There is no requirement for a comparator. 5.43. The analysis required is explained in Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2015] UKEAT 0397, [2016] ICR 305 (“Weerasinghe”). There are two causative steps to be established. The first is that the disability has the consequence of “something”. It causes “something” or leads to “something”. That might be, for example, a need for frequent visits to the toilet, or a difficulty in speaking to strangers on the telephone. The second is that the claimant is treated unfavorably because of that “something”; the treatment arises in consequence of it. 5.44. It does not matter in which order that is addressed. Either way, the reason for the treatment and what it is that arises from the disability have to be addressed. 5.45. Weerasinghe also establishes that the consequence of disability may involve more than one step, (para 41). At paragraph 29, Mr Justice Langstaff explains how the facts of the case of Malcolm v London Borough of Lewisham [2008] IRLR 700 might be interpreted under section 15. The disability led to the Claimant wrongfully subletting his property; it was because of the effects of his mental condition (something arising in consequence of his disability) that he had sublet the property, and it was because of that that he was subject to eviction proceedings. Had section 15 applied, the Claimant would have succeeded in his claim that his eviction constituted unlawful discrimination against him. 5.46. Simler P in Pnaiser v NHS England [2016] IRLR 170, EAT, gave the following guidance as to the correct approach to a claim, adopting and developing the guidance in Weerasinghe. '(a) 'A tribunal must identify the unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. (b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. 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 for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant: (d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. This involves an objective question and does not depend on the thought processes of the alleged discriminator. 5.47. We are referred to Sheikholeslami v University of Edinburgh [2018] IRLR 1090, where Simler P develops that approach, “…this provision requires an investigation of two distinct causative issues: (i) did A treat B unfavourably because of an (identified) something? and (ii) (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. (See City of York Council v Grosset [2018] EWCA Civ 1105, [2018] IRLR 746).” 5.48. If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified”.(para 5.21 Code of Practice). 5.49. In terms of burden of proof, in a section 15 claim, in order to prove a prima facie case of discrimination, the claimant will need to show: That he has been subjected to unfavourable treatment That he is disabled and that the employer had actual or constructive knowledge of this A link between the disability and the “something” that is said to be the ground for the unfavourable treatment Some evidence from which it could be inferred that the “something” was the reason for the treatment. 5.50. In Cummins Ltd v Mohammed, (UKEAT/0039/20/00), the Tribunal is reminded that it is essential to consider why the decision-maker acted as he or she did: what is the reason for the impugned treatment? 5.51. If unfavourable treatment is because of something arising in consequence of the disability, it will be unlawful unless it can be objectively justified, or unless the employer did not know and could not reasonably have been expected to know that the person was disabled. If the employer can show that the reasons for the unfavourable treatment arose from another cause, and not the “something” arising in consequence of the disability, that is a further basis for defeating the claim. 5.52. Justification requires that the unfavourable treatment is a proportionate means of achieving a legitimate aim. This is an objective test on which the Tribunal must make its own assessment. The measures must “correspond to a real need, are appropriate with a view to achieving the objectives pursued and are necessary to that end” Bilka-Kaufhaus GmbH v Weber Von Hartz (case 170/84) [1984] IRLR 317. 5.53. The onus is on the employer to establish justification, including proving that the unfavourable treatment pursues a real need on the part of its undertaking. 5.54. The legitimate aim relied on may well be the needs of the business. We are referred to Hensman v Ministry of Defence UKEAT/0067/14 which emphasises that the Tribunal must pay full regard to those needs, in the assessment of proportionality. 5.55. The conduct in question has to be both an appropriate and reasonably necessary means of achieving the legitimate aim, and requires consideration of whether a lesser measure might have served that aim (Birtenshaw v Oldfield [2019] IRLR 946). It is for the assessment of the Tribunal whether that lesser measure was appropriate – not whether it would have been acceptable to the decision maker. That is because this is an objective assessment for the Tribunal. 5.56. The same point is made by the EAT in Stott v Ralli Ltd 2022 IRLR 148. The Tribunal must engage in “critical scrutiny” by weighing an employer’s justification against the discriminatory impact, considering whether the means correspond to a real need of the undertaking, are appropriate with a view to achieving the aim in question, and are necessary to that end. The Tribunal must consider whether a lesser measure could have achieved the employer’s legitimate aim. 5.57. In O’Brien v Bolton St Catherine’s Academy 2017 ICR 737, the Court of Appeal indicated that the judgment of the decision-maker should be accommodate a substantial degree of respect, provided he has acted rationally and responsibly. It was accepted that it had been legitimate for the tribunal to conclude that, on the facts of that case, relating to dismissal for sickness absence, having found the dismissal to be disproportionate for the purposes of the section 15 claim, it should logically follow that the dismissal was also unfair for the purposes of the ‘reasonableness’ test in section 98(4). Lord Justice Underhill explained that although the language of the two tests was different, “I very much doubt whether the two tests should lead to different results.” 5.58. The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification (Hardys & Hansons plc v Lax [2005] IRLR 726, CA) The Tribunal must weigh the reasonable needs of the undertaking against the discriminatory effect of the employer’s measure and make its own assessment as to whether the former outweigh the latter. Failure to make reasonable adjustments - section 20 5.59. The EqA, by section 39(5), imposes a duty on employers to make reasonable adjustments. 5.60. The duty is set out at section 20 of the EqA. 5.61. The duty comprises three requirements. Here the first is relevant and that applies where a provision, criterion or practice of A’s (the employer) 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. 5.62. A failure to comply with those requirements is a failure to make reasonable adjustments. By section 21(1) and (2), “A discriminates against a disabled person if A fails to comply with that duty in relation to that person”. 5.63. The duty does not arise where A did not know and could not reasonably be expected to know that B has a disability and is likely to be placed at the disadvantage referred to – that is the effect of schedule 8, paragraph 20, as amended, to the EqA However, the employer must do all they can reasonably be expected to do to find out whether a worker has a disability and is, or is likely to be, placed at a substantial disadvantage. So, knowing of a condition such as dyslexia, the employer has a duty to do what it reasonably can to establish the effects of that and so avoid the risk of a substantial disadvantage arising. 5.64. Guidance is given in the ACAS Code of Practice in Employment (2011), at paragraph 6.19, What is reasonable to do will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially. 5.65. The following example is then given, “A worker who deals with customers by phone at a call centre has depression which sometimes causes her to cry at work. She has difficulty dealing with customer enquiries when the symptoms of her depression are severe. It is likely to be reasonable for the employer to discuss with the worker whether her crying is connected to a disability and whether a reasonable adjustment could be made to her working arrangements.” 5.66. In Wilcox v Birmingham CAB Services Ltd [2011] Eq:R.S810, the EAT took the view that unless the employer had actual or constructive knowledge of the disability, the question of substantial disadvantage did not arise. An employer will be taken to have the requisite knowledge provided that they are aware of the impairment and its consequences. There is no need for them to be aware of the specific diagnosis (Jennings v Barts and the London NHS Trust [2013] Eq:R 326 EAT). If an agent or employee knows in that capacity of a worker’s disability, the employer will not usually be able to claim that they do not know, see para 6.21 of the Code. 5.67. Where a disabled person keeps a disability confidential, no duty arises for the employer “unless the employer could reasonably be expected to know about it anyway.” (Code para 6.20) 5.68. And, “If a disabled person expects an employer to make a reasonable adjudgment, they will need to provide the employer … with sufficient information to carry out that adjustment.” 5.69. No like for like comparator is required – the comparison may be between those who could do the job and the disabled person. As explained in Royal Bank of Scotland v Ashton ([2011] ICR 632), the tribunal must identify the non-disabled comparator or comparators. That may be a straightforward exercise, “In many cases, the facts will speak for themselves and the identity of the non-disabled comparators will be clearly discernible from the provision, criterion or practice found to be in play.” (Fareham College Corporation v Walters ([2009] IRLR 991) 5.70. There is no onus on the disabled worker to suggest what adjustments ought to be made. It is good practice for employers to ask. If the disabled person does make suggestions, the employer should consider whether such adjustments would help overcome the substantial disadvantage and whether they are reasonable. (Code of Practice para 6.24) 5.71. It is a good starting point for an employer to conduct a proper assessment, in consultation with the disabled person concerned, of what reasonable adjustments may be required. … It is advisable to agree any proposed adjustments with the disabled worker in question before they are made. (Code of Practice para 6.32.) 5.72. In considering whether there has been a failure to make reasonable adjustments, the tribunal must identify the nature and extent of the substantial disadvantage relied on by the claimant; make positive findings as to the state of the respondent’s knowledge of the nature and extent of that disadvantage and assess the reasonableness of the adjustment that it is said could and should have been taken in that context. 5.73. The process for the Tribunal therefore is to identify: (a) the employer’s provision, criterion or practice which causes the claimant ’s disadvantage (b) the identity of the persons who are not disabled with whom comparison is made (c) the nature and extent of the substantial disadvantage suffered by the employee (d) what step or steps it is reasonable for the employer to have to take to avoid the disadvantage (General Dynamics Information Technology Ltd v Carranza [2015] IRLR 43). 5.74. The Tribunal must identify all of those to judge whether the proposed adjustment is reasonable. There is no need to find that the adjustment would have prevented the adverse effects. The Tribunal is entitled to find that the adjustment proposed was a reasonable option with a not unreasonable chance of success (The Environment Agency v Rowan [2008] IRLR 20). 5.75. Assessing the reasonableness of any particular step, relevant factors will be how effective it will be in preventing the substantial disadvantage, how practicable it is, how much it will cost and how disruptive it may be, the size and resources of the employer and the nature of the business. It may also be relevant that external resources are available to help provide adjustments (Code para 6.28). 5.76. Failure to make a reasonable adjustment cannot be justified, but only reasonable steps fall within the duty. Whether or not adjustments were reasonable in the circumstances is to be determined by the employment tribunal objectively, (HM Land Registry v Wakefield [2009] All E R 205 (EAT). Burden of proof 5.77. By section 136(2) and (3) of the EqA, the test in respect of the burden of proof is set out: “(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.’ 5.78. The switching of the burden of proof is simply set out in the Code at para 15.34: “If a claimant has proved facts from which a tribunal could conclude that there has been an unlawful act, then the burden of proof shifts to the respondent. To successfully defend a claim, the respondent will have to prove, on balance of probability, that they did not act unlawfully. If the respondent’s explanation is inadequate or unsatisfactory, the tribunal must find that the act was unlawful.” 5.79. For the burden of proof to shift, the claimant must show facts sufficient – without the explanation referred to – to enable the tribunal to find discrimination. The Barton guidelines as amended in the Igen case (Igen v Wong, 2005 IRLR 258 CA), remain the basis for applying the law notwithstanding the re-enactment of discrimination legislation in the 2010 Act. It is those guidelines that establish the two-stage test, “The first stage requires the complainant to prove facts from which the Employment Tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld (Peter Gibson LJ, para 17, Igen) 5.80. The Tribunal is required to make an assumption at the first stage which may be contrary to reality. 5.81. In Hewage v Grampian Health Board [2012] UKSC 37, the application of the Barton/Igen guidelines to cases under the EQA is approved at the highest level. At paragraph 33, Lord Hope, on the burden of proof provisions, says, “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…” 5.82. In Laing and Manchester City Council and others, 2006 IRLR 748, the correct approach in relation to the two-stage test is discussed, “No doubt in most cases it will be sensible for a tribunal formally to analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case…. (para 73) The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race (or other) discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect, ‘there is a nice question as to whether the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race”’. 5.83. The nub of the question remains why the claimant was treated as he or she was: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” (Madarassy v Nomura International plc) 2007 IRLR 246). 5.84. In that case, in a judgment later approved by the Supreme Court in Hewage, above, Mummery LJ pointed out that the employer should be able to adduce at stage one evidence to show “that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant.” 5.85. The “something more” that may lead a Tribunal to move beyond the difference in status and treatment need not be substantial – it may be derived from the factual context including inconsistent or dishonest explanations (see Base Childrenswear Ltd v Otshudi 2019 EWCA Civ 1648 CA; Veolia Environmental Services UK v Gumbs EAT 0487/12. 5.86. The presence of discrimination is almost always a matter of inference rather than direct proof – even after the change in the burden of proof, it is still for a claimant to establish matters from which the presence of discrimination could be inferred, before any burden passes to his or her employer. 5.87. In drawing inferences, an uncritical belief in credibility is insufficient’ as Sedley LJ pointed out in Anya v University of Oxford 2001 IRLR 377 CA (paragraph 25) it may be very difficult to say whether a witness is telling the truth or not. Where there is a conflict of evidence, reference to the objective facts and documents, to the likely motives of a witness and the overall probabilities can give a court very great assistance in ascertaining the truth. 5.88. In Talbot v Costain Oil, Gas and Process Ltd and ors 2017 ICR D11, EAT, His Honour Judge Shanks — having looked at the relevant authorities — summarised the following principles for employment tribunals to consider when deciding what inferences of discrimination may be drawn: it is very unusual to find direct evidence of discrimination normally an employment tribunal’s decision will depend on what inference it is proper to draw from all the relevant surrounding circumstances, which will often include conduct by the alleged discriminator before and after the unfavourable treatment in question it is essential that the tribunal makes findings about any ‘primary facts’ that are in issue so that it can take them into account as part of the relevant circumstances the tribunal’s assessment of the parties and their witnesses when they give evidence forms an important part of the process of inference assessing the evidence of the alleged discriminator when giving an explanation for any treatment involves an assessment not only of credibility but also of reliability, and involves testing the evidence by reference to objective facts and documents, possible motives and the overall probabilities where there are a number of allegations of discrimination involving one person, conclusions about that person are obviously going to be relevant in relation to all the allegations the tribunal must have regard to the totality of the relevant circumstances and give proper consideration to factors that point towards discrimination in deciding what inference to draw in relation to any particular unfavourable treatment if it is necessary to resort to the burden of proof in this context, s.136 EqA provides, in effect, that where it would be proper to draw an inference of discrimination in the absence of ‘any other explanation’, the burden lies on the alleged discriminator to prove there was no discrimination. 5.89. Unreasonable conduct or poor management does not of itself point to discrimination. There must be indications from the evidence that point to the unreasonable conduct relating to the prohibited ground (Laing v Manchester City Council and anor 2006 ICR 1519, EAT). 5.90. In Glasgow City Council v Zafar 1998 ICR 120, HL, Lord BrowneWilkinson considered that ‘the conduct of a hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer he might well have treated another employee in just the same unsatisfactory way as he treated the complainant, in which case he would not have treated the complainant “less favourably”.’ His Lordship also approved the words of Lord Morison, who delivered the judgment of the Court of Session, that ‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances’. 5.91. Equally, it cannot be simply inferred that the fact that an employer has acted unreasonably towards one employee means it would have acted the same way towards others. A failure to explain unreasonable conduct by the employer can support an inference of discrimination. If an employer acts in a wholly unreasonable way, it may be inferred that the explanation offered is not the true or full explanation (Rice v McEvoy 2011 NICA 9 NICA). In all cases, the drawing of inferences involves careful consideration of the surrounding facts:. “Facts will frequently explain, at least in part, why someone has acted as they have” (Elias P in Laing (above). 5.92. However, ‘Merely because a tribunal concludes that an explanation for certain treatment is inadequate, unreasonable or unjustified does not by itself mean the treatment is discriminatory, since it is a sad fact that people often treat others unreasonably irrespective of race, sex or other protected characteristic.’ Simler P, Chief Constable of Kent Constabulary v Bowler EAT 0214/16 5.93. As stated by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337, HL, an unjustified sense of grievance does not point to less favourable treatment. 5.94. Where a case consists of several allegations, the Tribunal must consider each separately to determine whether less favourable treatment occurred by comparison with others, so as to shift the burden of proof, rather than taking a broad-brush approach in respect of all the allegations (Essex County Council v Jarrett EAT 0045/15).[6]Submissions 6.1. Mr Duffy and Mr Humphreys both made written submissions which we have considered fully and with equal care in making our findings of fact and in determining the issues. We are grateful for their assistance.[8]Disability: a comment 8.1. It is perhaps important to add a note about the Respondent’s understanding of disability discrimination. 8.2. There obviously has been recognition of the duty to make reasonable adjustments in the past. Mr Thompson’s situation was addressed appropriately in 2014. We know of three workers altogether with disabilities, and have heard that adjustments had been made for them. 8.3. In this process, however, there appeared to be no awareness of any duty towards those with disabilities. The Equality Act and the need to avoid discriminatory selection criteria was mentioned during the Union consultation meetings by Mr Hulbert and the HR representative but apparently the reference was not understood. The selection criteria did not require that the Respondent identified that anyone had a disability or an adjustment. In consultation, Mr Thompson raised his heart condition and the reason that he was in his present job, but it was dismissed. Neither Mr Langton nor Mr Collis displayed any knowledge of any obligations under the Equality Act. Disability was simply not a relevant consideration. 8.4. That is dispiriting in a significant employer. Training, and not simply online training, is clearly needed.[9]Determination 9.1. In respect of the issues to be determined at this hearing, not including remedy, we find as set out below, based on the analysis above. 9.2. It is agreed that the claimant was dismissed. The reason we find was redundancy. It was a genuine redundancy situation. The requirement for employees to carry out work in the place where the claimant was employed diminished. 9.3. The respondent did not act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant. The choice of selection pools was reasonable but the decision to exclude skills that could have been quickly re-certificated was not. The use of current skills criteria only to the exclusion of all other personal or professional factors was not reasonable. It was in particular not reasonable to exclude any knowledge or consideration of disability and disability adjustments or to use potentially discriminatory criteria. And finally, the adjustment to the selection criteria that was made in respect of disability did not avoid the disadvantage of dismissal and rendered the appeal process nugatory. 9.4. It was a factor to be considered that Mr Thompson was able to perform competently in the role he had, and that was a role that was being retained. 9.5. The consultation was poor, the approach taken with the Union and in individual consultations was inflexible and the outcome was pre-determined before the consultation started. That was in a setting where a sound selection procedure for a significant redundancy operation had previously been agreed with the Union. There was no genuine engagement in consultation. The unfairness of the procedure is illustrated by the fact that the scores were established before any consultation, although that was consciously concealed until a later stage. 9.6. This was an unfair redundancy dismissal and, in our judgment, with a fair procedure, the Claimant would not have been dismissed. Dismissal under s.152(1) (a) and (b) TULRCA 1992: 9.7. It is agreed that, 9.8. It is not established that the principal reason for dismissal was the union membership or activities. 9.9. Equally, the reason or principal reason for his selection for redundancy is not established to be that he was a member of an independent trade union or had taken part in the activities of an independent trade union. 9.10. The Respondent treated the Claimant unfavourably by: iii. Selecting him for redundancy; iv. Dismissing the Claimant. 9.11. It is agreed that the following things arose in consequence of the Claimant’s disability (para 48, EJ Midgley’s judgment, page 81i): v. The Claimant was limited in the time that he can undertake physical activities before he becomes so short of breath that he has to stop and take remedial steps. vi. The Claimant has shortness of breath when he undertakes any digging or manual labour. vii. The Claimant has a very limited ability to walk 200 or 300 metres. viii. The Claimant’s ability to climb stairs is very limited. 9.12. The unfavourable treatment was because of the “things” outlined above. 9.13. The Respondent says that the need to retain a multi-skilled workforce at the site was a legitimate aim. This would ensure that employees could be more easily moved between areas of the Quarry as and when the business required it. We agree that that is a legitimate aim. 9.14. The Tribunal does not find that selecting the Claimant for redundancy and dismissing him was an appropriate and reasonably necessary way to achieve those aims. It was neither appropriate nor necessary to rely solely on criteria that discounted his disability and the adjustment previously made for it. 9.15. Instead, his services could have been retained, in the role he had shown himself able to perform, with little impact on the overall level of skills at the Quarry. 9.16. This was discrimination arising from disability. 9.17. It is agreed that the respondent had the following provision criterion or practice: applying selection criteria equally to all employees. 9.18. That provision, criterion or practice put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that the claimant had been unable to perform physical roles and was therefore scored down. In our judgment that wording addresses the failure to score. 9.19. Did the respondent know, or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage? This is denied but in our judgment it is very plain that the Respondent knew and could reasonably be expected to know that Mr Thompson was going to be placed at that disadvantage. 9.20. The following adjustments are amongst a number that could have been made and would have been reasonable to make: v. Adjustment of the selection criteria to take into account his disability; vi. Adjustment of the selection criteria to allow for previously acquired skills 9.21. Those were reasonable in that the disadvantage to the Respondent is substantially outweighed by the disadvantage to the Claimant in failing to make those adjustments. Other reasonable adjustments should have been explored. 9.22. The steps the Respondent took did not avoid the disadvantage. 9.23. Accordingly the Tribunal finds that the Respondent did discriminate against the Claimant on the grounds of disability, having failed to make reasonable adjustments in relation to him. JUDGMENT on REMEDY Following the liability Judgment dated 25 July 2022 and issued on 1 August 2022, the Respondent must pay to the Claimant compensation for unfair dismissal and disability discrimination in the sum of £100,250.15, comprising: In respect of the unfair dismissal: £500 for loss of statutory rights In respect of disability discrimination £48,858.21 for loss of earnings (of which £1,663.71 is interest) £23,309.85 for injury to feelings (of which £3,309.85 is interest). The award is fully taxable and is grossed up from £72,668.06 to £100,250.15, adding £27,582.09 in respect of tax due in the year of payment. Case Number: 1400307/2021 The calculation is as set out in the agreed draft calculation pursuant to the Remedy Judgment delivered orally on 30 September 2022. The Tribunal is grateful for the assistance of counsel in carrying through the calculations.