Mr R Phillips v Bournemouth and Poole College: 1404996/2019

EMPLOYMENT TRIBUNALS

Case No 1404996/2019

Between

Mr R PhillipsClaimant

Bournemouth and Poole CollegeRespondent

Before

Employment Judge Rayner

Ms l NI’Man (instructed by lay representative) for claimant

Date 13 July 2022

JUDGMENT

[1]The Respondent has conceded that the Claimant was unfairly dismissed.

[2]The Respondent discriminated against the Claimant contrary to section 15 of the Equality Act 2010, for a reason arising from his disability, in that he was selected for redundancy and dismissed for redundancy.

[3]The Respondent discriminated against the Claimant contrary to section 20 and 21 of the Equality Act 2010, by the Respondent failing to make a reasonable adjustment to their redundancy process.

REASONS

[1]Mr Phillips contacted ACAS to commence ACAS early conciliation on 26 July 2019 and the certificate was issued on 26 August 2019.

[2]The effective date of termination of the Claimant’s contract was 31 July 2019.

[3]Mr Phillips presented a claim to the Employment Tribunal on 31 October 2019 for unfair dismissal and disability discrimination in respect of his selection for redundancy and dismissal by reason of redundancy. He brought claims that he had been discriminated against for a reason arising from his disability and for a failure to make reasonable adjustments.

[4]Firstly, the Claimant asserts that he has been discriminated for a reason arising from his disability by the Respondents ignoring the fact that sickness absence was disability related when carrying out matrix scoring, which formed the basis of the selection process for redundancy. He asserts that they should have recognised that his absence was disability related, and the cause of his not having the performance scores that others had, and should have made allowances, or provisions for alternative scoring methods.

[5]Secondly, he asserts that the Respondents should have made a reasonable adjustment to the method of scoring him when making the selection for redundancy. He relies on a PCP of the criteria used of assessing the employee’s performance based on the previous academic year. He states that this was a year during which he was absent due to his disability of anxiety and depression and that he therefore scored lower on the performance, placing him at risk of redundancy and dismissal.

[6]He asserts that the Respondent should have adjusted their scoring to reflect the impact disability related absence, or that they should have adjusted the time period to assess the performance over a period not affected by disability related absence.

[7]The Respondent filed their grounds of resistance on the 17 December 2019 and filed amended grounds of resistance on the 2 July 2020.

[8]The Respondent conceded in the amended grounds of resistance that the Claimant was disabled at the material times by reason of both impairments of diabetes and by reason of stress, anxiety and Depression, for the purposes of the Equality Act 2010.

[9]The Respondent also conceded in its amended ET1 that it had knowledge of the Claimant's impairment and disability by reason of diabetes only at all material times.

[10]The Respondent denies that it had actual or constructive knowledge at the material times that the Claimant was disabled by reason of stress, anxiety and depression. Following concessions as set out below, this is the only remaining issue which the tribunal had to determine on the facts.

[11]The Respondent conceded that the Claimant’s sickness absence of 5 months in 2018, was disability related sickness arising from stress; anxiety and depression.

[12]Case management hearings took place on 26 May 2020; 9 July 2021 and 19 May 2022.

[13]The Claimants claim of indirect discrimination was dismissed on withdrawal on 9 July 2021. The issues following Concessions made by the Respondent.

[14]The parties agreed a list of issues dated the 15 July 2021. This is in the agreed bundle and reflected the Respondent’s position at the start of the hearing.

[15]During the course of the hearing the Respondent made further concessions.

[16]The Respondent conceded that, in light of the Respondent’s witness evidence, the sickness absence was the reason why the Claimant had not been allocated any scores for one part of the scoring matrix, which formed part of the selection process for redundancy.

[17]The Respondent also conceded that the Claimant had therefore been disadvantaged or treated unfavourably, for a reason arising from disability in the scoring and therefore the selection process.

[18]In respect of its defence under section 15 Equality Act 2010, the Respondent conceded that, whilst its pleaded legitimate aim of selecting people fairly for redundancy remained valid, in the light of the evidence, the Respondent could not argue that the process had been carried out in a proportionate way and that it was not proportionate in the circumstances, and would not succeed. The defence was not pursued.

[19]The Respondent conceded that this meant that the discrimination claim under section 15 Equality Act 2010 would succeed, if the ET found that the Respondent had actual or constructive knowledge of the Claimant’s disability by reason of stress , anxiety and depression.

[20]Thirdly, in respect of reasonable adjustments, the Respondent accepted the scoring matrix used was a PCP which the Respondent had applied to the claimant, and that it substantially disadvantaged the Claimant as a disabled person, because of his sickness absences. Therefore, the Respondent would have had a duty to make reasonable adjustments, if it had had the requisite knowledge of the Claimant’s disability and that he was likely to be placed at the disadvantage referred to. (schedule 8, section 20 Equality Act 2010).

[21]Following the conclusion of evidence and at the point of closing statements, Counsel for the Respondent conceded that the Claimant had been unfairly dismissed. This concession was in respect of the process, and the application of the criteria for selection, and the availability of suitable alternative employment , which arose when Miss Lewis, another teacher of English who had also been in the pool for selection, resigned, leaving a full time vacant post, which the Respondent conceded should have been offered to the Claimant.

[22]Following these concessions, the only issue for determination by the panel was whether the Respondent knew or could reasonably have been expected to know that the Claimant was a disabled person at the material times by reason of stress anxiety and depression. The Respondent’s Supplementary witness statements

[23]On the first day of hearing the Claimant raised a concern that the Respondent had sent them additional witness statements which they had received shortly before the long bank holiday of the 2nd; 3rd; 4th and 5th of June 2022.

[24]The Respondent accepted that they had sent two supplementary witness statements, one from Tracy Griffin and one from Caroline Wayment, to the Claimant.

[25]Mr Islam Choudhry, counsel for the Respondent explained that it had been realised at a late stage that the Respondent witness statements did not deal with the question of whether or not the Respondents knew or could reasonably have been expected to know that the Claimant was disabled by reason of stress anxiety and depression at the material times.

[26]On realising their omission, the Respondent’s solicitors decided to deal with the issue by drafting and serving supplementary witness statements on the Claimant. This was done, but no application was made for leave to serve the statement and no explanation was given to the Claimant for the late service of the statements. The statements were served shortly before the long Jubilee bank holiday weekend.

[27]Mr Islam Chaudhry explained that those instructing him had sent the witness statements to the Claimant so that he would have the opportunity of reading them in advance of the hearing. He stated that no objection had been received from the Claimant to the statements being submitted to the Employment Tribunal.

[28]The Claimant, through his representative Mrs Linda Ni’man, who is not a lawyer but lay representative, made it clear that they did object to the late submission of the witness statements and that the provision of them shortly before the bank holiday had caused them stress and confusion.

[29]Following an explanation of the process to the Claimant by the Judge, Mr Islam Choudhry made an application for permission to file and serve the supplementary statements and to rely upon then as evidence in chief. He candidly accepted that there had been an oversight in respect of the evidence necessary, and that following review of the witness statements which had already been exchanged, in the light of the discussion that took place at the case management hearing in May 2022, the Respondents had realised that they needed to provide some evidence in chief on the point. Mr Islam Choudhry accepted that the supplementary witness statements had been provided at a very late stage within the chronology, but submitted that the Respondent would be significantly prejudiced were they not allowed to lead evidence in chief on the question of knowledge. He submitted that any prejudice to the Claimant could be dealt with by allowing the Claimant further time to read and prepare to deal with the additional matters in cross examinations.

[30]The Claimant objected to the late provision of the statements and pointed to the three case management hearings that had taken place and the fact that witness statements had been exchanged prior to the latest case management hearing and also referred to the list of issues and the pleaded case which had clearly identified the question of whether or not the Respondents knew that the Claimant was disabled by reason of stress anxiety and depression as an issue in the case.

[31]We heard Submissions and we considered the pleadings in the case. We find that the amended pleadings dated 1 July 2020 set out in significant detail the Respondents case on knowledge. The Respondents knew from the outset that this was a fundamental part of their claim. The Respondents have been professionally represented throughout, and ought to have dealt with this issue in their primary witness statements.

[32]However, we all agreed that it was in line with the overriding objective and in the interests of justice that the Respondent had the opportunity to lead evidence in respect of knowledge, and considered that the prejudice to the Claimant could be dealt with by ensuring additional and sufficient time to prepare for any additional cross examination was allowed. If this had led to any delay or adjournment, then the matter could be dealt with by way of costs, if appropriate.

[33]We accepted that the Claimant would require some further and additional time in order to read and absorb the information within the witness statements and to prepare appropriate cross examination.

[34]The Respondent had intended to call Mrs Wayment or Mrs Griffin as the first witnesses but as Mrs Ni’man was not fully prepared for the cross examination and asked for some further time to prepare, Mr Islam Choudhry agreed to call Mr. Johnson who had dealt with the Claimants appeal as his first witness.

[35]Mrs Ni’man asked for further time to prepare cross examination in respect of knowledge and it was agreed that the Court would start slightly later on the second day of hearing to give some further time for preparation. The witnesses Evidence

[36]We heard evidence from the following witnesses on behalf of the Respondent 36.1. on the first day of hearing from Mr. M Johnson on behalf of the Respondent. Mr. Johnson was employed by Bournemouth and Poole college as the Vice Principal Finance and Commercial Development. Mr. Johnson dealt with the appeal hearings in the redundancy process and heard and dismissed the Claimants appeal on 19 June 2019. 36.2. Mrs Caroline Wayment, who was employed by the Respondent as the Executive Director Of Human Resources from July 2017 until November 2019 . Mrs Wayment was primarily responsible for the design of the redundancy process, and consultation with the trade unions and the provision of guidance to managers during the process. Mrs Wayment is now retired. 36.3. Mrs Tracey Griffin, who was employed as the Assistant Principal Curriculum from September 2018 until October 2021. Mrs Griffin was deputy to the Vice Principal Curriculum and Quality and the college strategic lead for English and mathematics.

[37]On behalf of the Claimant we heard evidence from the following witnesses: 37.1. Mr. Phillips, the Claimant gave evidence on his own behalf. 37.2. Mr. Martin Edwards, who was the Claimant’s UCU officer for six years and who accompanied Mr. Phillips to his outcome meeting on the 29 April 2019 and also attended the Claimant’s appeal meeting with him on the 19 June 2019 in his capacity as his union officer. Mr. Edwards worked as an English lecturer for the Bournemouth and Poole college for 29 years and was a trade union officer for six years. 37.3. Jessica Steinberg who was a teaching assistant at Bournemouth and Poole college for nine years. She had attended to accompany the Claimant to his return to work meeting with the Vice Principal Ms Northover in 2017. Miss Steinberg also accompanied the Claimant to a meeting on the 23 April 2019, to review student attendance; performance and retention across English classes, with the Assistant Principal Mrs Tracy Griffin. 37.4. Mrs Okell, who worked as a teaching assistant for four years at Bournemouth and Poole college, supporting the English and Maths department from September 2015 until her retirement in 2020 37.5. Ailsa May Miller, an employment support advocate and advisor for the Dorset Mental Health Forum for eight years, who assisted the Claimant when he was referred to the Dorset Mental Health Forum in May 2018. Miss Miller accompanied the Claimant to his occupational health review in July 2018; assisted him in writing emails to the Respondent and accompanied the Claimant to the return to work meeting on the 30 August 2018 in a cafe in Poole Park, with Sharon Mackett and a representative from the HR department.

[38]The witnesses set out above gave live evidence to the Tribunal as well as providing written witness statements.

[39]In addition the Claimant provided a witness statement from Barbro Hoel . Ms Hoel was unable to attend at the Tribunal to give evidence in person due to a family emergency. The witness statement was submitted by the Claimant and read by the Panel.

Findings of fact

[40]The Claimant started work with the Respondent on 1 August 1994 and worked as a lecturer until 31 July 2019 when his employment was terminated on notice. He had 25 years employment at the point of his dismissal.

[41]Since 2012, the Claimant has taught English and functional skills. He also taught English to adults. The Claimant reduced his contract to a 0.8 FTE contract from the beginning of 2017. He states that this was because of his health and asserts that the Respondent knew this.

[42]The Claimant was diagnosed with diabetes in 2017, after he had reduced his contract hours. Knowledge of Disability

[43]The Respondent asserts that due to the occupational health advice it received in July 2018 and secondly, due to the fact that the Claimant’s sickness absence in 2018 was no more than six months, that the Respondent was not aware that the Claimant was disabled by reason of stress anxiety or depression and that they did not know and could not reasonably have been expected to know that the Claimant was disabled by reason of anxiety and depression at the material times. The Respondent further asserts that it did not have actual knowledge of any alleged substantial disadvantage and denies that it ought reasonably to have known the that the Claimant suffered any substantial disadvantage from the application of the alleged PCP

[44]We make the following findings of fact relevant to the question of whether or not the Respondents knew or could reasonably have been expected to know at the material times that the Claimant was a disabled person by reason of anxiety and depression.

[45]The decisions taken in respect of the Claimant which are in issue in respect of disability are the process used and the decisions made which led to the decision to select the Claimant for redundancy and the decision to dismiss the Claimant by reason of redundancy. The material times are therefore the period of time starting with the identification of the Claimant as at risk of redundancy, including the scoring of him and others using the matrix and ending with his dismissal.

[46]Prior to his selection for redundancy the Claimant had worked for the Respondent for 25 years as teacher. He had a clean disciplinary record and good achievements which he sets out in his statement at paragraph 5 to 7 and on which he has not been challenged. We accept his evidence on these points.

[47]The Claimant suffered a number of events in his private life, including the death of his father, which were difficult and stressful for him and which led to him making an application to reduce his teaching load, and to reduce his contractual hours. His request to reduce to 0.8 of a full-time equivalent was dealt with by his then line manager, Mr Barney Selman. The request was agreed in September 2016. Whilst this was described at the time as a temporary arrangement, the Claimant remained as a 0.8 until his termination by reason of redundancy in 2019. Both Mr Selman and Mrs Griffen knew that the Claimant was 0.8 FTE, and Mr Selman knew why. Mrs Griffen would have been aware had she read his file.

[48]The Claimant told us that the reason why he sought to reduce his contract hours in 2016, was because he was suffering with stress. He relies on this as evidence that the Respondent knew or ought to have known that he was a disabled person at that point in time.

[49]The application form, which is included in the bundle at page 115, states the reason for his request as Richard wishes to reduce his hours to achieve a better work life balance and reduce the amount of stress that he experiences at work.

[50]The Claimant says that this is evidence that he told the Respondent he was suffering with Stress; The Respondent says that this was simply him reporting he was suffering with stress as a result of factors at work and in his private life, but not that he was suffering with an impairment.

[51]We agree with Respondent. At this point, the Claimant was flagging up that he was finding aspects of work and home life stressful and that these were causing him stress. He was not telling the Respondent that he had an impairment or a medical condition.

[52]Following this, two things happened in connection with the Claimant’s work.

[53]First, we accept that the Claimant told the Respondent that he found his timetable stressful.

[54]We also accept the Claimant’s evidence in respect of an incident that occurred at work, when he was threatened by a student who stated that they would fillet him with a knife.

[55]We accept that the Claimant did , and most teachers, would have found this incident upsetting and stressful and accept that the Respondent should have recognised that this would be stressful for the Claimant. However, there is nothing in evidence or documents to suggest that the Claimant was telling the Respondent that he found this particularly stressful because he had a mental health impairment. We find that the Claimant is again informing his employer that he finds the situation at work stressful.

[56]However, we also accept that an employer who is told on several occasions that an employee is finding work and things outside work stressful, particularly where there this is a change, and where there is a persistent and ongoing issue, could be expected to ask further question, or to make enquiries of the Employees health, to see whether or not there may be some underlying health condition. We do not find that such an obligation arose at this point.

[57]The Claimant was diagnosed with diabetes in March 2017 and notified his employer. He wrote to Carol Browne to tell her that he has been diagnosed and signed off sick as a result.

[58]Following this, the Respondent referred the Claimant to occupational health for a report. We were not shown the referral document, but we have seen the report that was produced, following a telephone consultation with the Claimant on 2 May 2017.

[59]The occupational health report is set out at page P 186 of the joint bundle.

[60]From the information set out in this OH report we find that 60.1. Mr Phillips did not tell the OH practitioner on that occasion, that he was suffering with any impairment of anxiety and depression. 60.2. He did tell the OH practitioner that he was finding his role inherently stressful. 60.3. The OH practitioner recorded that it is advised to manage stress effectively for a diabetic, as cortisol can raise blood sugar levels. OH advised that the Claimant should be referred for a stress risk assessment of his duties, using the health and safety executive stress tool. 60.4. The occupational health report refers the employer to three websites for further information, including www.nhs.uk/conditions/stress/anxiety/depression/understandingstress

[61]Following the occupational health assessment and the report the Claimant returned to work and met with Anthony Wright, a Respondent manager. They discussed the HSE Stress tool, which includes a form to be filled in and agreed. Following the meeting, Mr Wright filled in the form reflecting the discussion that they had had and with a summary of the issues and with proposed actions and sent it to the Claimant. He invited the Claimant to send it back to him with any corrections the Claimant wanted to make.

[62]The form deals specifically with the Claimant’s experience of Stress. The form asks for details of the things that might cause stress, and whether any all of them or a particular problem for the Claimant.

[63]The form then has a column for setting out what, if anything, can be done for the Claimant about the factors which might be causing stress.

[64]In this form, the Claimant has identified with his manager aspects of work which were causing him stress .

[65]The form we have seen and the information available at the time tells the employer that the Claimant’s job is stressful for him and is leading to him experiencing stress at work. The combination of the occupational health report and the following HSE stress assessment tool inform the Respondent of this fact and the need to manage stress at work for the Claimant.

[66]Whilst the form does set out and record that there are several aspects of his work that cause him stress, it does not record or state that the Claimant was at that time suffering from any specific impairment. That was not the purpose of the form.

[67]At this point the managers who worked most closely with the Claimant knew that he had had been recently diagnosed with diabetes, and that this was probably a disability, because this is what OH say in their report, and also knew that the Claimant found that his job was stressful and that they are advised to manage stress at work, because it has an impact on his diabetes.

[68]The Respondent knew or ought to have known that the Claimant was finding his job stressful, and therefore suffering with stress, and was anxious, that this would have an impact on his diabetes, but not that he has an impairment of anxiety and depression.

[69]We find that the information the Respondent had from the Claimant and from occupational health did not put them on notice of an impairment of Stress, anxiety and depression at this point. There was no suggestion from anyone that the Claimants stress was its self a mental health impairment.

[70]What the Respondent did know was that stress could impact on diabetes and therefore needed to be managed.

[71]We find that even if further enquiries had been made by the Respondent at this point about the Claimant and the stress he was suffering, no one would have given them any further information which would put them on notice that the Claimant was suffering with an impairment of stress, anxiety and depression which might amount to a disability. We find that the inquiries of occupational health were reasonable and appropriate in any event at this stage.

[72]In making this finding, we have borne in mind that the Claimant did not agree to the disclosure of his medical records to his employer whilst he remained in their employment, and has only disclosed a relatively limited section of them during the course of these proceedings.

[73]From the records we have seen for the period April – May 2017, we find that during this period, there are references to diabetes, but no reference to stress, anxiety or depression. There is no mention of stress at all in the medical reports disclosed for this hearing, which cover the period from June 2016 until June 2017. Diabetes is mentioned and the only medication mentioned is for diabetes.

[74]Following the occupational health report and the completion of the stress tool, the Respondent put in place measures to assist the Claimant with managing stress at work.

[75]On 3 October 2017, the Claimant was observed in a lesson, without notice. The outcome was that the Claimant was recorded as requiring improvement.

[76]Following this, Mr Selman wrote an email to Karen Northover, stating that he had carried out the lesson observation, that Mr Phillips had not taken it well, and that he was concerned that this may bring on an episode of stress for him. He had offered to act as a mentor for the Claimant.

[77]We did not hear evidence from Mr B Selman, but he is the person who line managed the Claimant at that time and subsequently, and is also the person who carried out the scoring of him with Tracey Griffen in the subsequent redundancy selection exercise. He was aware of the Claimant’s history of stress, its causes and we find, its progression.

[78]At this point in time Mr Selman knew that the Claimant suffered stress and knew that pressure at work may bring on an episode.

[79]On 7 November 2017 the Claimant wrote to the Respondent asking for parity, with others who had disabilities, by being give notice of lesson observations. He says that he understands that employees who have conditions which are exacerbated by stress can be given notice of lesson observations as a result of the college policy. He asks for the policy to be applied to him.

[80]He says that stress has a deleterious impact on him, that he feels discriminated against, and that the stress impacted on his physical and mental well being. he says that he had felt agitated and suffered a lack of sleep.

[81]At this point we find that the Respondent ought to have realised that the Claimant was still suffering with stress and that it was impacting upon his mental well being, and how it was impacting on him, because he had told them. We all agree that this is different quality of information. We consider that any reasonable employer ought to have considered whether or not the college policy of giving notice of lesson observations should be applied to the Claimant, and that this would have involved some discussion with the Claimant about both his diabetes but also about his mental health.

[82]We find that had questions been asked at this point, the Claimant would, on balance of probabilities have told his employer that he was anxious and stressed and that this may have led to a referral to OH.

[83]We have not seen any response to this request, and accept Mr Phillips evidence that there was none. We are surprised not to see any response to this request.

[84]We find that the Claimant was given the benefit of the Respondents policy, but not until later in the chronology, following recommendations from OH, following the Claimants return to work, and after a period of 5 months absence from work due to his mental health disability in 2018.

[85]On 27 November 2017 the Claimant wrote to the Respondent again, this time raising a concern about windows in rooms where he was teaching, which would not open, and asking for a different room allocation so that he could have fresh air. He says that it is an issue for him and others who have health conditions . He refers to his diabetes but makes no mention of mental health.

[86]In January 2018 the Claimant was assessed as part of the annual PsR process.

[87]In February 2018, the Claimant was absent on sick leave for a short period of time. The reason for his absence was recorded as flu like symptoms.

[88]When he returned to work, he was sent the Back to Work Form by Carole Browne and invited by her to set up a meeting with her to discuss his return to work. This was on 6 February 2018.

[89]At this point and on the same day Karen Northover, who was the deputy VP Curriculum, contacted the Claimant at 9.03am and asked him instead to meet with her that afternoon at 2.15pm, to discuss his return to work .

[90]The Claimant attended the meeting with a colleague, Jessica Steinberg. Ms Steinberg gave evidence to the ET both in the form of a witness statement and under oath. In her witness statement, she stated that Mr Phillips was upset before going into the meeting, in part because he had just received his scores back from Dorset Wellbeing, who had been providing him with some support in respect of his mental health, and these scores suggested to Mr. Phillips that he was suffering with poor mental health.

[91]Mr Phillips also gave evidence that he was upset before and during this particular meeting. Mr. Phillips sets out in his statement that he had filled in the form with Dorset Wellbeing about his mental health, received a response with scores showing poor mental health, and had brought a copy of it to the meeting and that he showed it to Karen Northover. We accept his evidence and the evidence of Miss Steinberg that this is what happened.

[92]Neither Mr. Phillips or Miss Steinberg made any notes at that meeting. It was a meeting held by the Respondent and Miss Northover did write on the back to work form. This is the only record of the meeting made in the meeting.

[93]Mr. Phillips did produce a copy of a note of his recollection of the meeting that he told us he had made shortly after the meeting. We find that the note he made is a fair reflection of his experience of that meeting.

[94]Both Mr. Phillips and his companion Miss Steinberg, say that during the meeting Mr. Phillips was unable to speak and was in tears at some points. We accept that this is true.

[95]Both Mr. Phillips and Miss Steinberg also made comments about how Karen Northover had spoken to and dealt with the Claimant during the course of that meeting.

[96]Mr Islam- Choudhury, counsel for the Respondent, challenged both witnesses, by putting it to them that if the manager had been speaking to him in the way suggested that one or both of them would have raised it outside the meeting with senior managers. Neither agreed with him. Miss Steinberg stated that it was not her role to do so, although she agreed that she had not done so. The Claimant agreed that he had not taken matters further, but confirmed that he had been upset and distressed in the meeting and both reasserted that they experienced Karen Northover as being aggressive and dismissive.

[97]We find that the Claimant was upset and distressed during the course of that meeting, and find that he was unable to speak at times and also find that he was, at points in the meeting, in tears. We find that this was in part because of the scores he had received. We find that they did both experience Karen Northover as being aggressive and dismissive, and that this contributed to the Claimants distress in the meeting.

[98]We find that in this meeting Ms Steinberg did explain to Karen Northover both that the Claimant had been getting support from Dorset Wellbeing and explained the Claimants mental health scores.

[99]We find that at that meeting, Karen Northover must have realised that the Claimant was upset and distressed and that this was in part because of his mental health. At the least, she was, we find on notice that the Claimant was experiencing poor mental health at that point in time. We consider that, as a senior manager of the Respondent, it was appropriate for her to make some enquiry about his fitness to return to work and in particular about his mental health. She had been shown a letter from the Dorset Healthcare regarding wellbeing sessions the Claimant had attended and she records on the return to work form, that Mr Phillips told her that he was feeling anxious at the moment.

[100]The Claimant had returned from a period of absence for flu and we find that any manager ought to have asked at this point, why he was so upset and distressed and why he had been at Dorset healthcare and why he required the wellbeing sessions.

[101]Mr. Phillips had worked for the Respondent for a very long time. From the evidence we have before us, there is no previous suggestion the Claimant had been upset and distressed in meetings. Any further enquiry about the Claimant’s history at this point would have indicated that he had suffered with being stressed and anxious for some time, and that he had reported his concerns.

[102]The Respondent knew that he had reduced his contract to achieve a better work life balance, and ought to have realised that his behaviour and demeanour in this meeting was a change from his normal presentation.

[103]Following that meeting Mrs Northover wrote to Carol Ivens in HR with the completed return to work form. On this form she has recorded Richard disclosed that he is feeling quite anxious at the moment and showed me a letter from the well being team at Dorset healthcare confirming…. well being sessions arranged. Suggested that Richard contacts employee assistance programme which Karen will send and suggested that a referral to Occupational Health. Furthermore Karen to arrange for Dee Lester to carry out an assessment on room 57 and workplace in general 104. .. she goes on to state following a meeting today with Richard and his colleague Jess Steinberg (for support ) find attached a completed return to work form the form details Richards sickness absences in the last 12 months and recommendations. It is also detailed that Richard informed me today that he has been referred to attend a number of well being sessions due to his current emotional anxious situation. moving forward I have recommended the following that Richard accesses the employee assistance programme; that Richard is referred to our occupational health for a full.. . Caroline could you please send Richard details of REAP and arrange for occupational health to contact Richard so an appointment can be arranged

[105]We find that this was appropriate action for her to take at this stage, and indicates that she was aware and that she informed human resources, of the Claimant’s state of mental health.

[106]The result of this was that the HR department was on notice of the Claimant having treatment in respect of his mental wellbeing and that he was anxious and emotional.

[107]An OH referral was made, although we have no evidence from any one about what was said on that referral form.

[108]The Claimant was subject to a performance review on 7 March 2018. The Claimant has told us that he felt demeaned at the meeting, and this may have been a reflection of him suffering with stress anxiety and depression at this point, but it does not assist us in assessing the knowledge of the Respondent.

[109]On 29 March 2018 the Claimant had a lesson observation and was assessed as good. This was with Alice Copp.

[110]The Claimant produced a note he had written, following a meeting with Karen Northover and Sharon Mackett on 7 March 2018, at which he says Sharon Mackett asked him what he was anxious about, and that he explained. We accept that this conversation took place, although we have no evidence of what else may have been said. The Claimant has also recorded and we accept, that he raised the question of a reasonable adjustment in respect of lesson observations. A review of the Claimant by OH took place.

[112]We have no evidence of when the referral to OH took place and we have not seen the referral that was made to OH, and do not know what questions were asked. An OH report was produced following a telephone consultation with the Claimant on April 13 2018. This is 2 months after the Claimant met with Karen Northover.

[113]The Report states that the referral was made due to concerns regarding his health, and we find that this refers both to his physical and mental health. In this report it is recorded that the Claimant is on medication for diabetes that the Claimant had told OH that his mood is low but his sleep patterns have improved and that he has commenced some counselling and will attend a mindfulness workshop. The report states that he had discussed medication with his GP but this was not an option for him at that time.

[114]At the end of the report the occupational health practitioner stated that she had asked if she could contact the Claimant GP but he had not given consent.

[115]Following the referral, and before the report was finalised, the Claimant was signed off work by his GP with depression and anxiety. His first sick note runs from the 17 April 2018 and the Claimant did not return to work until October 2018.

[116]During that period of time the Claimant provided his employer with a series of sick notes each of which identified that the reason for the Claimant’s absence. These sick notes were not originally included in the bundle of documents for hearing which was prepared by the Respondent, but were attached to the supplementary witness statements provided by Tracy Griffin and Caroline Wayment.

[117]The first sick note is dated the 17 April 2018 and runs until the 30 April 2018 . It states that the Claimant has a condition of depression and anxiety as a result of which he is not fit for work.

[118]The second sick certificate is dated the 26 April 2018 and runs until the 13th May 2018. That certificate refers to condition of moderate depression.

[119]The third sick certificate is dated the 10 May 2018 until the 16 May 2018 and refers to moderate depression.

[120]The fourth sick note runs from the 16 May 2018 until the 22 May 2018 and refers to moderate depression and anxiety.

[121]The 5th sick certificate runs from the 21 May 2018 until the third June 2018 and refers to moderate depression and anxiety.

[122]The sixth six certificate which runs from the 1st of June 2018 until the 30th of June 2018 for moderate depression the 7th sick note runs from the 29th of June 2018 until the 28th of July 2018 and refers to moderate depression.

[123]The final sick note which runs from the 30 July 2018 until the 29 August 2018 refers to moderate depression.

[124]The Claimant states in his witness statement that following his appointment with occupational health, and prior to the report being given to the Respondent, he considered that some clarity was required in respect of some of the detail set out in the report. The Claimant declined to give permission to the occupational health practitioner to contact his GP but instead stated that he would contact his GP and ask for a letter to be written and provided to occupational health.

[125]Whilst this process was ongoing, the Claimant contacted Carole Browne on the 10 May 2018. He wrote two emails on the 10 May at 3.03 pm and one at 10:18pm.

[126]In his first e-mail which he copied to Caroline Ivens who worked in HR and to N Jones who we understand was the Claimants union representative, he states I am communicating via e-mail because at present part of my anxiety and depression makes it very deleterious to my health and well being to use the telephone. For the avoidance of any doubt my GP is in the process of writing formally a letter to occupational health and once OH have received this information they will be able to finalise this report and submit this with my consent to the college. Furthermore having been to the surgery today a fit note has been issued for one week. . .

[127]The same day Carol Browne wrote to Mr. Phillips copying in Carolyn Ivens and Sharon Mackett, asking the Claimant if he could let her know the expected date of his return to work, for planning purposes. She copied the email to Carolyn Ivens,

[128]Mr Phillips replied, stating that the fit note covered him until Wednesday 16 May and he had been asked to see his GP on that day to be reassessed.

[129]On the 17th May 2018, Mr. Phillips did return to work. He spoke with Carol Browne to let her know that he was returned to work and provided his fit note. The letter from his doctor suggested a phased return to work

[130]The Claimant was told that he would not be teaching any classes and was told that he needed to move his work materials and files to the second floor business studies office.

[131]The Claimant also attended at a return to work interview on the 17th May at 3:00 PM and was told that the return to work form would be completed the following Monday.

[132]In fact, of the Claimant was signed off sick again from the 21 May 2018.

[133]On Monday 10 July 2018, the Claimant replied to Sharon Mackett, his line manager, regarding an invitation to attend an absence from work meeting.

[134]The Claimant attended at a further assessment with OH on the 10 July 2018.

[135]He states that he had attended at an occupational health assessment that morning and that the report from that assessment would be with the Respondent within the next eight working days. He suggested that it made sense for him to meet with the Respondents following receipt of the report so that the contents could be discussed and any recommendations suggested also discussed. He also stated I am receiving support from a Wellness in work advisor from Dorset mental health forum and would be grateful if she were allowed to accompany me to the meeting. perhaps we can agree a date time and venue once we are in receipt of the report

[136]The Occupational Health report dated 12th of July 2018 was provided to Caroline Ivens, and the Claimant contacted both Sharon and Caroline on the 3 August 2018 asking for a meeting to be organised to discuss reasonable adjustments to facilitate his return to work. He stated that he would be accompanied to the meeting by Ms Miller, his well being advisor from the Dorset mental health forum who had been supporting him. Caroline Ivens replied stating that the meeting would be set up with Sharon Mackett his line manager, once she returned from annual leave. A meeting took place on the 28th of August 2018.

[137]The Respondent has not provided us with any notes of that meeting, but the Claimant has provided a note which he made after the meeting, recording his recollections of that meeting

[138]We have also heard evidence and had a witness statement from Ms Miller who attended the meeting with him, and we accept her evidence as a true account of her recollections of that meeting. At that meeting the OH report was discussed.

[140]The report refers to some helpful briefing information having been provided with the referral to occupational health. Again we have not been provided with a copy of the referral or the briefing information provided by the Respondents at that time.

[141]The report records that the Claimant was accompanied to the meeting by his well being at work advisor from the Dorset Mental Health Trust.

[142]The report records that Mr. Phillips explained but he had experienced increased levels of anxiety over the last few years and that he had experienced low mood; sleep disruption and tiredness. He had been referred to the steps to well being in February 2018 and he told the occupational health practitioner that at that point he score indicated high levels for anxiety and depression. He then attended 6 counselling sessions and stated that he was currently working on the material provided following those sessions he was receiving support from an employment advisor which was ongoing on a fortnightly basis

[143]The report states that Mr. Phillips had self funded a GP report dated the 31 May 2018 and that that report was forwarded on the 5th of June 2018. The occupational health provider confirms that she had seen the occupational health report dated the 13 April 2018; the GP letter dated the 31 May 2018 and correspondence from the 14 April and the 5 June 2018 between the Claimant and occupational health. It is recorded that following the occupational health telephone assessment, Mr. Phillips saw his GP and had been prescribed antidepressants.

[144]She records that he explained that he has found the process very stressful and at that time was very difficult for him to fully understand it given his levels of anxiety and tiredness, given the unsolved work issues and the OH process he felt unwell and he felt that the situation caused him a mental breakdown. He ended up being signed off work by his GP since the end of April due to anxiety and stress. The current medical certificate has been extended until 28th July 2018.

[145]The report goes on to state that Mr. Phillips explained that with medication and counselling his mental health had improved but he does not feel fully recovered. His motivation is still impaired and struggles with hot environments. His mood has improved but he can get upset when dealing with work issues eg e-mail. He joined a gym and goes three to four times a week he manages his routine at home and maintains his social context.

[146]During the course of the consultation the Claimant completed a self reported emotional questionnaire which was the same as the one that had been completed in February 2018 and OH note a significant improvement for scores for anxiety and slightly improved scores for depression. It is stated that the current questionnaire indicated mild anxiety and moderate depression.

[147]Whilst this occupational health report does not state in terms that the Claimant had a mental health impairment, we consider that is it implicit from the information provided to the Respondent that this is the case. The Claimant continues to suffer with anxiety and depression despite the fact that he is taking medication and despite the fact that some improvement might be expected with reasonable adjustments in the workplace.

[148]The OH practitioner was asked if the Claimant would be covered by the Equality Act. She states that in her opinion diabetes would be unlikely to be covered and goes on to say that the anxiety seems to be related in a significant proportion to work circumstances and once these are sorted, the symptoms should improve. Additionally, this is a recent diagnosis and with suitable support ( Medication and Counselling) he should be able to manager better the condition with mild /moderate impact on his daily/work activity. This opinion might be reviewed should the anxiety become more problematic and impact significantly on his daily activity. However this would required a legal rather than a medical opinion for any definitive statement.

[149]We find that this report, which records that the Claimant is receiving treatment, provides the employer with sufficient information for them to have understood that the claimant had a mental health impairment, and that without medication and other treatment, it had been having a substantial impact of his ability to carry out ordinary day to day activities.

[150]His anxiety and stress may have been caused by a combination of the diagnosis of diabetes and work issues such as unannounced lesson observation, having to work in an unventilated room which he found too hot, but the impact on him, was that he had a mental breakdown and was signed off work. He had reported that he found it difficult to understand the process due to stress, and tiredness. The OH practitioner notes that even with medication, his motivation remains impaired, and that he struggles with hot environments and that he gets upset when dealing with some aspects of work via emails.

[151]What is clear, we find is that the cause of the Claimant's absence from work was a mental health impairment, which, without medication was more likely than not to have had a substantial impact on his ability to carry out some day to day activities, such as sleeping, and being able to attend at work, and being able to deal with emails. This was the case from the point that he was signed off work in May 2018, at the latest. The report makes clear that the Claimant was continuing to receive various forms of treatment including medication and self-help techniques. It is obvious we find , from the report, that these are having an impact and that as a result, the Claimant was able to manage and his health was improving.

[152]The report records that Mr Philips was suffering with low mood and had felt anxious for some time, and that he described unannounced lesson observations as causing him worry and anxiety and that he was losing sleep and was aware that he was displaying symptoms of agitation.

[153]The Claimant was signed off work for 5 months. He did not return to work until October 2018. At this point the respondent is, we find, on notice that he has depression and anxiety. We accept that some of the sick notes say moderate depression and anxiety, but we find that at this point there was sufficient information available to the Respondent , from their own knowledge and from the medical notes, that the Claimant was suffering with a mental impairment which was depression and anxiety , and that it was having an effect on him that was more than minor, because he was unable to work.

[154]The Respondent had sufficient information that they ought to have known, or could reasonable have been expected to know that the Claimant had a mental health impairment which might amount to a disability, if it lasted 12 months, or if it was likely to last 12 months or recur.

[155]Mrs Griffin said she did not see the sick notes but accepted that she knew the Claimant had been absent for a long period of time. She suggested that , even if she had seen them, she would not have realised that he was disabled, since the notes only referred to moderate depression.

[156]The point is, that at the stage that Mrs Griffin did the scoring, she was aware of the sickness absence and could have and should have asked questions. The same would have been true for Mr Selman.

[157]We have also considered what Mrs Wayment, the senior HR professional, who was responsible for the design and management of the redundancy process knew or could reasonably have been expected to know. We heard evidence from Mrs Wayment on day two of the hearing. She had been appointed in 2017 as Director of Human Resources.

[158]Her evidence was that she did not immediately become aware of the Claimants health issues. She had become aware of the Claimant and his health issues following a period of sickness absence which exceeded a few weeks. One of the steps she had taken when coming into post was to put in place various systems for monitoring sickness absence.

[159]She accepted that even if she had not seen all the documents on file about the Claimant’s sickness record and reasons for sickness absences, that the Claimant had provided a number of documents to the Respondent and the Respondent as an organisation, and the HR department, was aware of them. These included two occupational health reports and a number of items of correspondence between the Claimant and the Respondent.

[160]The OH practitioner had, we accept, set out some practical matters which may lead to improvements in the Claimants ability to manage his condition at work, and we note that these were implemented, including that notice of lesson observations would be given and the moving of his office and access to ventilated classrooms, to some extent.

[161]We accept that after this report was received the Claimant returned to work on a phased return, following a period of annual leave.

[162]We find that Mrs griffins statement that she would not have realised that the Claimant was disabled , after the event and in defence of a disability discrimination claim, addresses the wrong question. The question is whether the respondent could reasonably have been expected to know.

[163]We find that she should have made an enquiry, and that any enquiry by her would, on the basis of the information available to HR and on the Claimants file, have led to her being given information which would put her on notice both of an impairment and that it had a substantial and adverse impact on his ability to carry out day to day activities, absent treatment and medication. She, and the respondent officers in HR and other managers, had between them sufficient information we find to draw a conclusion that the claimant was likely to be disabled within the meaning of the Equality Act 2010.

[164]They ought reasonably to have known that by February 2019 about the Claimants impairment and its treatment and the length of time it had lasted. This was from April or May 2018 at the least.

[165]However, no review of the Claimant had been carried out since the OH referral in the summer of 2018.

[166]As stet out in our findings in respect of the redundancy process below, at the point of moderation of those at risk of Redundancy, which was the 19 April 2019, Mrs Wayment, the senior HR professional knew that the marks awarded by both Mrs Griffin and Mr Selman had been negatively affected by the fact of the Claimants 5 months absence. She ought, we find, to have asked questions about this, and considered whether or not the Claimant was a disabled person, who was being disadvantaged as a result of the sickness absence. Again, we find that any investigation at all would have flagged up at the very least, a likely impairment and the likelihood of a substantial impact on the claimant being able to do ordinary day to day activities, and the fact that this may had lasted at least 11 if not 12 months at that point, or that it might well last for 12 months.

[167]Even if Mrs Wayment or Mrs Griffin did not have actual knowledge of the Claimants disability at that point, the Respondent was on notice of all the key factors of disability, and any enquiry by either women or any one else in HR, at that point about the reason for the absences and the Claimants health in general, ought to have led to a conclusion that the Claimant was or might be disabled.

[168]We find that at this point the Respondent knew or could reasonably have been expected to know that the Claimant had a mental health impairment; that he was receiving treatment including self-help techniques and that he was on medication to treat anxiety and depression and that the combination of these treatments, enabled the Claimant to return to work.

[169]We remind ourselves that the question of whether a person is disabled within the meaning of the Equality Act is to be assessed without the benefit of medication and self help techniques. The Respondent needed to ask its self, what would the impact of the Claimants impairment be on him without the benefit of medication. Mrs Wayment confirmed the to the Tribunal that she was aware of this aspect of the Equalities Act 2010.

[170]We find that the Respondent knew or could reasonably have been expected to know, once they received the sickness absence notes and then once they received the occupational health report, that the Claimant had the impairment of both depression and anxiety and knew or could be reasonably be expected to know that it had a substantial adverse impact on his ability to carry out ordinary day to day activities.

[171]We find that the Respondents had sufficient information about the Claimant’s condition at that point and about the condition that the Claimant had been suffering with from April 2018 at the latest, to realise that by the time the Claimant returned to work in October 2018, that he had been suffering with a mental health impairment which had the substantial adverse effect on him for at least six months.

[172]At that point we accept that the Respondent did not have any specific information telling them how long the Claimant’s condition would last.

[173]The question which we have to consider is, could they reasonably have been expected to know that the Claimants impairment and its impact on him would last 12 months or may recur? Was it likely that the Claimant’s condition would last 12 months?

[174]What the Respondent did know was that the Claimant had the condition ; that he was receiving treatment and that the condition was being managed with treatment.

[175]We observe that a reasonable employer managing a Claimant returning to work in these circumstances might have been expected to put into place some form of review both of the adjustments which were being made and of the Claimant's own well being. This Respondent did not do that.

[176]Nor did they consider at any point in the redundancy process, even once it was clear that his significant period of sickness absence had impacted upon his scores to his detriment, whether or not his impairment and its effects had lasted or would be likely to last 12 months.

[177]We find as fact that, had they made any inquiries during the period of time from October 2018 until the point of the selection of the Claimant for redundancy and up to the date of his dismissal, they would have been told that the Claimant continued to take medication to manage his mental health impairment.

[178]We find on the balance of probabilities, on the basis of the information available to them that they would have known or could reasonably have been expected to know that the Claimants impairment could well last for a 12 month period, and that it could recur.

[179]We have heard no evidence from the Respondent that anybody ever asked the Claimant about his health and his treatment after he returned to work or that anybody from the human resources department or anywhere else ever asked anyone to consider whether or not the Claimant was disabled by reason of anxiety and depression.

[180]This is despite the Claimant raising an appeal, at the end of which he states that he considers he is disabled.

[181]Our conclusion is that had they done so they would on balance of probabilities have been bound to conclude that the Claimant was at the point both of the scoring and the point of the moderation and at the point of the appeal and therefore the decision to dismiss him a disabled person within the meaning of the 2010 Equality Act. The Respondents redundancy process

[182]Although the respondent has conceded that the dismissal was unfair, we make the following findings of fact about the chronology of events because they are relevant to the question of the timing of knowledge, and because they are relevant to the question of how the claimant would have been treated but for the discrimination. This is relevant to the issue of remedy which is still to be determined.

[183]On 6 March 2019 the Claimant attended a consultation meeting at which he was notified that he was at risk of redundancy. The Claimant was told that the College was looking to reduce functional skills and GCSE lecturers within the English and Maths department by five FTE posts. 2 ½ full time equivalent posts were to be deleted from the English provision and 2 1/2 posts from the maths provision.

[184]The Respondent states and we accept that prior to this announcement there had been consultation with the recognised unions, and various meetings had taken place about the method for selection. We accept the evidence from Mr Edwards and Mrs Wayment, that the college met with union reps on several dates and we have been referred to the notes of the various meetings about this process. We find in particular that there was discussion about the matrix for selection, and the scoring of staff within that matrix.

[185]We find that the process of consultation and the process of design of the scoring matrix and the process put in place for the individuals in each pool to be scored was a fair and reasonable one. The unions were informed of the need to make redundancies and were consulted about the suggested method for selecting staff to be placed at risk of redundancy.

[186]As a result of discussion, it was agreed that a scoring matrix would be used to rank employees according to a number of factors and following consultation with the union, some changes were made to the matrix and the criteria.

[187]Firstly, the use of sickness records as criteria was removed, and secondly the unions’ request for the staff themselves to be able to contribute to their final score was agreed.

[188]The Claimant states that he was told that he was in a pool of 9 people who taught English, from which the 2.5 posts for redundancy would be selected.

[189]He was told, along with all other staff, that the selection would be made according to a scoring matrix, which would be scored by three people. He would score himself, then two managers would also score him. There would then be a moderation process, and the selections made according to the resulting scores.

[190]As part of the process, the Claimant was provided with a page of guidance, which set out the criteria against which each person would be scored. The guidance set out the precise score which would be allocated in respect of each aspect of each criterion, and also gave the weighting each criteria. The score given was to be multiplied by the weighting, to give a final score on each criterion.

[191]On the face of it, there was no room for discretion, as the criteria required the scorers to identify whether or not an individual either had the skill, qualification or knowledge or did not have it, and score them accordingly.

[192]Some of the skills set out were not applicable to the teaching of English, and we accept that, although the Claimant scored himself in respect of some of those matters (Such as the ability to teach the apprentices) the managers did not score him or any other individual for these criteria. There was no unfairness in the scoring in this respect, although there was a lack of clarity in the guidance.

[193]Each employee in the pool would be scored by themselves, and then by two managers. The managers would either be line managers or the learning directors. In the Claimant’s case his matrix scoring and that of others in his pool was carried out by Barney Selman and Tracey Griffiths. Mrs Griffiths gave evidence to the ET, Mr Selman did not.

[194]The people in the pool were all asked to submit their own scores which they did. The Claimant scored himself according to his understanding of the criteria and the factors within each, and his knowledge of his own skills and abilities and achievements.

[195]The Claimant was then scored by the two individuals, and the Respondents state that this was done independently.

[196]The two scorers had the guidance; the matrix and the Claimants own scores as well as access to the college N drive, which held all the individuals’ personal files. These files contained the Claimant’s timetables, so that the scorers could see what the Claimant and others were teaching and when, and which age group and level they were teaching, and therefore the skill set. The N drive also gave access to PsR forms and lesson observations.

[197]All other employees in the pool were also scored by the same two individuals. The next stage was to add up the scores. This gave a ranking of the highest scoring and the lowest scoring individuals.

[198]The next stage was a moderation of the scores. Moderation meetings were set up and Tracey Griffin attended with Caroline Wayment from HR. Mr Selman was not involved at all.

[199]There was no guidance given either to the managers involved in moderation, or to employees, about the process and discussion that would take place at these moderation meetings. The Respondent witnesses described a discussion about the process followed in reaching the marks for each candidate, but did not suggest that there was any interrogation of the reason why the marks were given at the level they were. Mr Selman took no part in the discussion at moderation, and Mrs Wayment did not challenge any of the decisions about why marks were allocated as they were to certain individuals.

[200]The guidance states as follows: Performance records: [please use in conjunction with the last full year PsR ie 2107/18. If the individual has not been observed this academic year, please refer to last year. 4 targets =5 3 targets=4 points 2 targets=3 points 1 target=2 points 0 targets -1 point Multiply by weighting x 2. NB If an individual has been had significant absence(sic) for what ever reason (ie maternity/absence etc) this will be reviewed on a case by case basis at the moderation meeting.

[201]The number of targets met was therefore an important part of the score, and was based upon the expectation that everyone would have been through the process.

[202]The reference to absence was important to Mr Phillips, because he had been absent for 5 months, and because his PsR had not therefore been completed.

[203]Whilst the guidance referred to absence, and to addressing any issues at the moderation stage, it does not say how this would happen, or what adaptions or adjustments to scoring might be made. From the evidence we heard, we find that there was no process agreed with the trade unions, or with managers as part of the consultation or at any other time.

[204]Neither Mrs Wayment , the head of HR or Mrs Griffin, had given any thought to what this meant in practice before they met to discuss the scores of those in the pool for English and Maths.

[205]We find that the result or consequence of this vague statement in the guidance and lack of consideration of what it meant, was that a person who had been absent, and whose scores were affected, or whose PsR had not been completed for example, like Mr Phillips, did not know how they would be scored. Neither we find, did the scorers. We find that what happened in practice, was that the three people involved, Mrs Griffen, Mr Selman, and Mrs Wayment at the moderation stage, all had to decide at the time how to score Mr Phillips.

[206]They had to determine whether and if so what adjustments, if any, to make to the scoring of an individual and to determine how to do that. There was no discussion about how this would be done, or what would be taken into account, and no discussion that we heard evidence about in respect of the potential discriminatory impact of this part of the process.

[207]At the moderation stage therefore, the score of any person who had been absence was dependent upon the HR director and the one scorer, Mrs Griffin, taking into account the absence and reviewing the scores.

[208]Mrs Wayment told us that she had asked about the Claimant’s sickness absences and the impact on marking.

[209]She told us and we accept her evidence that Mrs Griffin told her that no scores had been allocated to the Claimant in respect of achievement, retention or recruitment because there was no information on the relevant PsR sheets. This was because of his sickness absence. Mrs Griffin accepted that she knew the claimant had been absent on sick leave. No other information had been looked at, and no enquiries made about the sickness absence and no information provided by HR about it. No consideration had been given about whether there was a need to make adjustments to the process and if so how to make the process fairer for Mr Phillips, despite the fact that he had taught at the respondent College for 25 years, and was clearly disadvantaged by this process, to the extent that he was selected for

[210]Mr Selman, apparently independently, had given the exact same score to the Claimant. He did not attend to explain his scoring, and there is no information available about why he did what he did at the time. We conclude on the basis of the information we have, that his reasons were the same as Mrs Griffins, in so far as they arose from the Claimant’s sickness absence. Mr Selman had known the claimant for a number of years and had been involved as set out below in various discussion and meetings with him about his health and his work.

[211]We find that both Mr Selman and Mrs Griffin and Mrs Wayment must have realised that the result of the failure to allocate any score at all to Mr Phillips, because of the effect of his sickness absence, was that he would be selected for redundancy, whereas he may not have been, if scores had been allocated to him on some other basis.

[212]The moderation process was we assume, intended to ensure that scoring was done fairly and without discrimination. However, in this case, we find that Mrs Griffin and Mr Selman both decided on a method of scoring Mr Philips which was significantly disadvantageous to him. The Respondent now concede that it was unfavourable treatment and for a reason arising from his disability.

[213]We have therefore considered the Claimant’s own score, the scores he was allocated by Mrs Griffin and Mr Selman , and what happened at moderation.

[214]He awarded himself 4 x 2 points in respect of the section overall, but made a total of 12 points. The maximum points that could be awarded here were 10, on the basis of 5 points being awarded of all 4 targets were met, with a weighting of x2.

[215]The Claimant considered that he had met all of his targets in respect of each of the matters set out, in the previous year, and more generally that his targets as set for the year in question, indicated both that he had met targets previously and that he would meet them in the future.

[216]The Respondents did not specifically address his score within their evidence. The Claimant was cross examined on his own assessment of his score. Whilst the documents in respect of the PsR in the bundle do not assist us, we accept the Claimant’s evidence that there were other documents which showed he had met targets in the past. We also accept his own assessment of his ability, from the information we have before us. He had 25 years experience and we note that there had never been any issues with his performance, until he became disabled and had started to suffer with anxiety and depression. He had returned to work after the 5 months absence and following a phased return he had, on all accounts continued to teach appropriately and to standard. We accept there had not been an assessment and accept that the Claimant had been moved from one class because of a disruptive student, but nothing we have heard to have been referred to suggests to us other than that the Claimant was doing his job as required.

[217]We find that the basis on which the Claimant assessed his own score was a fair one, and that it was a realistic and sufficiently objective reflection of his achievements during the time that he was at work in the recent past. We find that his calculation was wrong, but that if he had got that right, he would have been justified in awarding himself 10 points, which was the maximum in this part of the scoring.

[218]We heard evidence from Mrs Griffin, and she confirmed that that she awarded no points for the student achievement; student retention or student attendance and only awarded 2 points to the Claimant because he had had a good lesson observation. She told us that she thought she was being kind to him, because she looked at a lesson observation which suggested he had not been good, and that therefore she adjusted this score upwards, to balance out the lack of data in any other areas.

[219]We find that at the moderation meeting, Mrs Wayment was told the reason for the lack of points and that she ought to have realised that this was incorrect scoring. We also find that as an HR director, and on the basis of our findings in respect of knowledge, that she knew or could reasonably have been expected to know, on making reasonable enquiries, that the Claimant was or was likely to be a disabled person, and that therefore she ought to have realised that this was potentially disability discrimination. We find as fact after hearing her evidence and the evidence from Mrs Wayment, and note the Respondent’s concession in this respect, that the reason why no points were awarded was the Claimants sickness absence and that the lack of data arose from that absence and the associated lack of review.

[220]Whilst the Respondent has made concessions about the cause, these findings remain of importance because of the timing of that concession. Had the discriminatory impact been recognised and addressed at the moderation meeting, when it ought to have been addressed, the outcome for the Claimant would have been different.

[221]We find that any reasonable employer operating reasonable process would have identified this as an issue and addressed it at that point.

[222]Neither Respondent witness stated in their witness statements or their supplementary witness statements, that this discussion had taken place, and nor did they set out the reason why the Claimant was allocated the scores as he was.

[223]The amended grounds of resistance, filed by the Respondent on 1 July 2020, states at paragraph 22(d) as follows in respect of the scoring: The Claimant was scored objectively and reasonably in the matrix process which was then calibrated through a moderation process. The moderation process took into account reasonable adjustments for disability. The Claimant scored poorly against others in the pool which led to his selection for redundancy.

[224]At para 30 it states that, the Claimant was on sick leave for the whole of September 2018. The Claimants performance was assessed using his personal review appraisal and for performance during the period October 2018 to March 2019. It is contended that the Claimant suffered no material disadvantage by being assessed over a period of six months as opposed to seven months for colleagues

[225]No explanation has been given to us as to why the Respondent asserted a basis of scoring which was not supported by the witnesses who carried out scoring and from whom we have heard sworn evidence.

[226]We had no evidence before us as to why Mr Selman had scored the Claimant at 2 points. He took no part in the Moderation, but we have no evidence that he ever raised any concern about the impact of the Claimant’s significant absence in his scoring of the Claimant.

[227]Mr Selman knew that the Claimant had suffered with stress in the past. We infer from the evidence we have heard, and the scores he gave, that he knew that the claimant had been absent on sick leave.

[228]We have considered what score might have been awarded, had the fact of the Claimants disability related sickness been acknowledged at the time, and dealt with by way of an adjustment to the basis for scoring, as the guide anticipated.

[229]We accept the Claimant’s evidence in respect of his 25 years experience and his abilities as a teacher and his achievements. We find that his own score in respect of performance was a fair assessment of his own abilities. We find that in any fair scoring system, and on the basis of the Respondent guidance, a score ought ot have been reached on the basis of other records or information.

[230]Mrs Griffin and Mr Selman did not do this, but had they done so fairly, and with proper guidance from HR, about disability discrimination, reasonable adjustments and discrimination for a reason arising from disability, we find that the Claimants own score would, on balance of probabilities, have been the most likely score that each would have awarded.

[231]We therefore find that the score the Claimant would have been awarded, but for this discrimination, would have been a score of 10 points from each scorer, giving him a total of 20 points, rather than the total of 4 points he actually received.

[232]This is a difference of 16 points.

[233]We have also looked at the fairness of the scoring in other respects, bearing in mind that the Respondent does now concede that the Claimant was unfairly dismissed because of the unfair process of scoring and mistakes that were made at the point of scoring as well as the later failure to offer him the suitable alternative employment which was available as a result of the resignation of Mrs Lewis. ( See post) .

[234]We had evidence before us that the scoring carried out by Mrs Griffin and Mr Selman, in respect of relevant knowledge and experience, disregarded experience the Claimant had of teaching Adult classes. The reason both scorers wrote on the forms was that adult classes had been allocated to the Claimant due to issues in study programme classes( Mr Selman) and Adult session added to time table due to 16-18 class issues( Mrs Griffin)

[235]We were surprised that both scorers had reached the same conclusion that scores should not be awarded to Mr Phillips because of how his experience of teaching the class was gained, because there is no indication anywhere within the guidance or within the process agreed with the trade unions, that the reason for an individual gaining any experience was a relevant factor, when assessing whether or not the person had the experience.

[236]No one disputed that Mr Phillips had taught the adult sessions. They were, as Mrs Griffin wrote, added to his timetable.

[237]We find that in the absence of any specific criteria for disregarding experience gained through timetable changes, or re allocations of work, that the Claimant should have been scored in respect of this experience. We accept his evidence that he had it on his timetable and that he taught it, as being sufficient.

[238]The reason why the Claimant was allocated this teaching, arose, we find from him being allocated a class in which there was a particularly difficult student who caused disruption and difficulties in the class.

[239]It has not been suggested by anyone that Mr Phillips was failing to deal with the matter or was himself at fault, but a decision was taken to move him from teaching the class and he was reallocated a different class, which was teaching adults.

[240]We find that this approach to the Claimants scoring was wrong and ought to have been identified by the HR expert at the point of moderation. The Claimant’s own score was again higher, and was, we find, in that respect the correct score. Any form of basic interrogation of scores would have identified that an error had been made which disadvantaged Mr Phillips. This was procedurally unfair and ought not to have happened.

[241]The failure of the two scorers to allocate him the correct score, and their joint willingness to take into account an irrelevant factor, suggests to us that both scorers had a reluctance to credit the Claimant with expertise and experience which he had gained.

[242]On the 29 April the Claimant attended a meeting with Mrs Griffin and his union Rep. He was told that he would be made redundant. Another colleague was also selected for redundancy.

[243]During the meeting the Claimant was provided with a score which had been given by the two individuals who carried out the marking exercise.

[244]It was unclear to the Claimant who had undertaken this scoring.

[245]The Claimant was concerned at the scoring, and in particular, considered that his scoring for performance was particularly low, and assumed that this was because it had been based on the previous year when he has had significant sickness absence.

[246]In that meeting the Claimant was given formal notice of redundancy and given the termination date of the 31 July 2019.

[247]The Claimant appealed his redundancy, and an appeal meeting was held on 19 June 2019, chaired by Michael Johnson, finance director.

[248]The Claimant asserts, and we find as fact that following notice of termination by redundancy, but before that date of his dismissal, another member of staff resigned. He states that he was not informed of a vacancy and asserts that this might have been suitable alternative employment for him. We find it would avhe been and the respondent concedes that it ought to have been offered to him. We find that if offered the post , he would have accepted it.

[249]This was the result of a colleague, Miss Lewis, who was in the English pool of 9 with Mr Philips, who had not been selected for redundancy, and who had not opted for voluntary redundancy, deciding that she would resign. She was a full time Equivalent, and the post left vacant by her resignation, meant there was a job which was suitable and available, and which could have been offered to the Claimant.

[250]The decision not to offer that post was made, we find, by the executive, but we find that the decision was strongly influenced by the views of Mrs Griffin.

[251]Her evidence to us about this post was extraordinary. She asserted that she considered that the post should be left vacant in case Miss Lewis changed her mind, and suggested that her resignation may have been the result of the Claimant causing Miss Lewis to feel guilty about not being made redundant. This was not, she confirmed, ever discussed with Miss Lewis, and was not a matter about which there was any other evidence. She had no reason we find, to believe this. We find that in the maths department, similar resignations after the selection process did lead to those individuals at risk of redundancy being offered posts and not being made redundant. There is no valid and reasonable explanation given in evidence for the Respondent not having followed the same process in the English department with Mr Phillips.

[252]We heard evince from was Mr Johnson, who had conducted the appeal meeting.

[253]In advance of this meeting, the Claimant had submitted his grounds of appeal. We were referred to these.

[254]The Claimants appeal was based on the method of scoring him and the scores allocated to him.

[255]He was represented by his union representative Mr Edwards, who gave evidence to us about the process in general and the appeal hearing he attended with Mr Phillips.

[256]We find that prior to the appeal, the Claimant and his union representative and the Union more widely, made a number of requests for further information about the process and the scoring of all those in the pool for

[257]No further information about the reasons for allocating the Claimant the scores that he had received were provided to him. This meant that he was not able to understand why he had been allocated scores by his managers which were significantly different to his own scores.

[258]We have made findings of fact about the scores he was allocated and the errors made by Mrs Griffin and Mr Selman in respect of his scores. The evidence before the ET supports a conclusion that the Claimant would have been scored higher had he not been absent on sick leave, and had the two managers not used their own discretion over the allocation of scores in respect of his current teaching. The appeal

[259]The evidence of Mrs Griffin was that the meeting she had with the Claimant was simply to inform him of the outcome of the process and the decision to select him for redundancy. She did not consider that it was appropriate for her to discuss with the Claimant at all, either the methodology of the scoring or the process of moderation. She told the tribunal that she considered that if the Claimant had wanted to discuss these matters he could have made an arrangement to meet with her on another occasion, or that he could raise his questions on appeal.

[260]The Claimant did notify the Respondent that he wished to appeal and on the 8 May 2019 Caroline Ivans wrote to him asking for his grounds of appeal and inviting him to appeal hearing to take place on Monday the 13 May 2019

[261]The Claimant wrote back to Caroline on the 10 May 2019 attaching a Word document, in which he set up his grounds for appeal.

[262]In that letter the Claimant stated that he was currently signed off by his GP with a fit note and was deemed unable to work until the 14 May 2019, Therefore, would not be able to attend a hearing on the 13 May 2019. He went on to state that he wished to lodge an appeal to the issuing of a redundancy and this is due to concerns detailed below regarding the scoring on the matrix by the manager and the AP and anomalies therein the process appears flawed in many respects.

[263]Next the Claimant set out the information he required from Human Resource in order to hopefully work through the current obfuscation.

[264]He states the whole process requires clarity and meaningful data to fully and truly comprehend how these schools and this outcome has been reached I have concerns with regard to the process of redundancies as in the meeting held with Tracy Griffin and Sharon maquette and Martin Edwards UCU local branch representative

[265]The Claimant requested minutes of the meeting at which he had been informed that he was selected for redundancy and asked for electronic copies of the letter; a copy of the script which Mrs Griffen had read from at that meeting; minutes of all meetings held to date in the process, including those held to inform the member of staff that their post was redundant; to identify who was involved in the process; when the meeting was held; the matrix scores and comments to substantiate, support and explain the scores given by those involved in the process to those subject to the possibility of redundancy, not just those being made redundant; the anonymous scores of others involved in the redundancy pool.

[266]He then states these documents form the basis of my appeal primarily the process its anomalies and the scoring awarded by the manager ,who was this ?and the AP who was this? surely the minutes of the meeting will identify exactly the individuals and their roles there scoring and there clear reasons for the marks awarded in this process ., .-

[267]We find that it was crystal clear from this letter that the Claimant wanted information that would explain to him how he had been scored by both people and the reasons for the scores awarded to him.

[268]He then states as you are aware it is on record with HR that I live with both diabetes and anxiety and depression having been referred to OH and a report published and held on file detailing the conditions and how they impact on my work life and well being, therefore I would reiterate the whole process of redundancy has had a deleterious impact on my wellbeing and exacerbated my health issues. I have had to take time before I have been able to respond and work towards lodging an appeal .

[269]We find that this statement flagged up to human resources and to Mr. Johnson, who received this document prior to hearing the Claimants appeal, that the Claimant might have a disability because of anxiety and depression.

[270]Prior to hearing the Claimants appeal, Mr. Johnson was sent a variety of information. He set out at paragraph 21 of his witness statement what he received and we accept his evidence in that respect.

[271]On the 13 May Mr. Edwards copied Mr. Johnson into an e-mail he was writing on behalf of three union members, one of whom was the Claimant. All three union members were appealing the decision to make them redundant because they did not feel the matrix selection procedure had been fair. Mr. Edwards stated that primary concerns arose in respect of the matrix scoring not having been moderated properly. Mr. Edwards requested information about the moderation process

[272]Whilst we accept that Mr. Edwards was the Claimants trade union representative, the Claimant had set out very clearly in his appeal letter the basis on which he was appealing. We find that Mr. Johnson can have been in no doubt that the Claimant wanted to know why he had been scored, as he had been, and this was a matter which needed to be considered at the appeal hearing.

[273]On the 16 May 2019 Caroline Wayment replied to Mr. Edwards with a copy to the Claimant and gave an explanation of the scoring process. She did not explain how individual managers had reached the decision about individual scores but rather stated that the process was undertaken independently by two individuals and was then followed by internal moderation. This was a description of process and did not provide the Claimant with the information he had requested.

[274]Mr. Johnson told us, and we accept, that he requested information about the moderation process and spoke to both Caroline Wayment and Diane Graham, who was the Principal and Chief Executive Officer, to establish what happened at the moderation meetings. He asked for a document to be supplied to affected employees and their representatives.

[275]Mr. Johnson then received an e-mail from Diane Graham setting out what she believed the process to have been.

[276]She made reference to the three scores per individual, one from the relevant learning manager, one from the director of learning and one from the individual themselves. she states the sheet shows the three scores totalled, but also states that this total score was not used in the process and with hindsight should not have been included on the sheet as she says it caused confusion.

[277]We find that in reality it had been anticipated that the three scores would be totalled up and that it was only at the point of moderation and only in respect of the pool for English that a decision was made to disregard the individuals own scores.

[278]Finally she said that to clarify the process at the moderation meeting the panel compared the scores from managers with the scores from the individual and in particular if there were any significant discrepancies between their scoring and that submitted by the individual where this debate led to changes score this was noted on the individual score sheet once this was completed for each individual decisions about selection for redundancy were made based on the revised scores.

[279]Diane Graham then included a paragraph that I was present at all moderation meetings. She was writing the note for Caroline Wayment.

[280]Mr. Johnson raised a concern about this last part because he had information which suggested that Caroline Wayment had not in fact been present at all meetings.

[281]We find that this exchange was an attempt to explain the process but find that it indicates that even at the stage of appeals, there was no agreement between the Respondent officers as to what had happened at moderation or the process that had been followed. Nor was there any willingness to investigate whether or not the Claimant might be correct, that he had been scored unfairly.

[282]The description of the process provided to Mr. Johnson prior to the appeal meeting with Mr. Phillips is not the same as the explanation provided by Mrs Wayment and Mrs Griffin to this Employment Tribunal.

[283]We have been provided with no explanation at all as to the reason for the lack of clarity and the failure to provide a straight forward explanation either to the Claimant or to Mr. Johnson, about precisely how the Claimant was scored and how the scores were moderated.

[284]We find that the moderation process was ineffective. Nothing was done to interrogate any scores allocated to the Claimant and there was no moderation by considering the differences between his scores and the scores that his managers had reached. Any enquiry of Mr Selman or Mrs Griffin or Mrs Wayment would have shown this.

[285]The Claimants appeal hearing took place on the 19 June 2019. the Claimant was given an opportunity to explain his grounds for appeal in more detail.

[286]At the outset of the meeting Mr. Phillips noted that adult provision had been added but that he had self scored for his experience taking an honest approach.

[287]About 20 minutes into the meeting Mr. Johnson gave the Claimant the note which had been provided by Mrs Wayment, which had in fact been written for her. The Claimant was given 15 minutes to review that document and the meeting then continued.

[288]At the end of the meeting the Claimant told Mr Johnson that he had been bullied and threatened and intimidated by a number of members of the Respondents staff; that he felt victimised and targeted and believed that he was covered by the Equality Act. He also stated that he had not raised the matters because he had not felt able to do so that he had just tried to cope and said I am on medication I was wary of the consequences.

[289]Mr. Johnson was on notice that the Claimant had a health issue because he knew the Claimant had been signed off sick. He also now knew that the Claimant considered he was covered by the Equality Act and that the Claimant was on medication.

[290]We find this stage that the most cursory of discussions between Mr. Johnson and Mrs Wayment and any other member of the human resources staff would have put them on notice the Claimant was likely to be a disabled person within the meaning of the Equalities Act and that since he was still taking medication, that his impairment may have lasted for at least 12 months.

[291]Mr. Johnson stated that there were a number of matters that he needed to investigate and he told the Claimant that he would provide his decision after he had done that.

[292]We find that following that meeting Mr. Johnson did seek some further information but that he did not ask any questions about the way in which the scores have been allocated and nor did he seek to investigate whether the points made by Mr. Phillips were justified or not. He made no enquiry at all about the Claimants health.

[293]Since both Mrs Wayment and Mrs Griffin knew that the Claimant’s sickness absence had affected his scores, we consider that any inquiry ought to have revealed this fact and in the light of the information provided by the Claimant at the appeal at least ought to have raised serious concerns with Mr. Johnson about the fairness of the process.

[294]We also find that at the point of the determination of the appeal the Respondents knew or could reasonably have been expected to know that the Claimant was a disabled person.

[295]Mr. Johnson did not investigate the questions raised by the Claimant and instead simply dismissed his appeal.

[296]The questions asked by the Claimant and his representative ought to have led to an explanation being given to the Claimant about the information used to score him, and the reasons why the managers scores were so different from his own.

[297]The Claimant and the Claimant’s union representative were cross examined about what they had asked and what they had said, and it was put to them that, had their believed that Mr Phillips had been discriminated against in the process, then they would have said so at the time. The witnesses agreed that this had not been said, but both Mr Phillips and Mr Edwards expressed the view that they could not form any view about the fairness of the process, because they did not know how the scoring had been done. We agree.

[298]The Respondent had a responsibility for to carry out a fair and transparent process, and part of any fair appeal process must be the provision of information to an appellant, where it is requested, about the process followed to reach a score which places the Claimant at risk of redundancy.

[299]If there is an error, or a discriminatory score, the Claimant can only challenge it if he is given the information, and the person hearing the appeal can only correct the error, if he asks questions about the process.

[300]The appeal ought to have been an opportunity for the Claimant to raise and discuss these matters, and ought to have been an opportunity for Mr Johnson to examine the scores themselves to see if there had been errors made. He did not do this.

[301]We find that Mr Johnson was concerned about the process. He considered that there were flaws, and he was unsure about the way that moderation had taken place. He therefore made some enquiries prior to the appeal hearing with Mr Phillips.

[302]The Respondent conceded, at the point of submissions, that it could not defend the fairness of the process, and that there was suitable alternative employment that the Claimant could have done, and that it had, therefore unfairly dismissed the Claimant, The relevant legal principles

[303]The Respondent has conceded that it unfairly dismissed the Claimant both because of its procedure and because there was suitable alternative employment available. we do not therefore set out the law in respect of unfair dismissal or suitable alternative employment.

[304]In respect of disability the Respondent concedes that the Claimant was a disabled person by reason of both the disabilities relied upon and that it had knowledge of the Claimant's diabetes as a disability. The Respondent has also conceded that it applied the PCP relied upon by the Claimant for the purposes of a reasonable adjustments claim, and that it knew or could have been expected to know that the PCP would substantially disadvantage the Claimant as a disabled person.

[305]The Respondent also concedes that the failure to award the Claimant any marks because there was a lack of data because he had been absent on sick leave, , was something which arose in consequence of his disability, and is unfavourable treatment for reason arising from disability.

[306]We have not therefore set out the law in respect of any of these matters since the findings of fact we have made are not determinative of these issues.

[307]The only legal principles we have had to consider in order to determine the disability discrimination claims , are in respect of knowledge.

[308]Did the Respondent know, or could it reasonably have been expected to know, that the Claimant was a disabled person within the meaning of the Equality Act 2010 at the material times. Knowledge of disability

[309]An employer has a defence to a claim under S.15 EqA if it did not know that the Claimant had a disability , under S.15(2). This stipulates that subsection (1) does not apply if the employer shows that it ‘did not know, and could not reasonably have been expected to know’ of the employee’s disability.

[310]We were referred by respondent counsel to the case of A Ltd v Z

2020 ICR 199

, EAT. At paragraph 38-40 of her judgement Judge Eady QC states as follows: A Respondent will avoid the liability that would have otherwise arisen under section 15 of the 2010 act if it can show that it did not know and could not reasonably have been expected to know of the complainants disability. A finding that the Respondent does not have actual knowledge of the disability is thus not the end of the tribunals task, it must then go on to consider whether the Respondent had what(for shorthand) is commonly called constructive knowledge;, that is whether it could, applying a test of reasonableness-have been expected to know, not necessarily the Claimants actual diagnosis, but of the facts that would demonstrate that she had a disability- that she was suffering a physical or mental impairment that had a substantial and long term adverse effect on her ability to carry out normal day to day activities. 39. as to what a Respondent could reasonably have been expected to know, that is a question for the employment tribunal to determine. The burden of proof is on the Respondent, but the expectation is to be assessed in terms of what was reasonable; that, in turn, will depend on all the circumstances of the case

[311]We reminded ourselves that where knowledge of disability is disputed by the employer, as in this case, under either section 15 or section 20 of the Equality Act 2010, that it is for the employer to show that it was unreasonable for it to be expected to know that the employee suffered an impediment in his mental health, which had a substantial long-term effect . The question of reasonableness in this context is one of fact and evaluation which we must assess objectively and coherently taking into account all relevant factors and ignoring irrelevant. We also reminded ourselves that we must consider what information the Respondent might have been provided with had it made enquiries of the Claimant at particular times in the chronology. We remind ourselves that we must balance the likelihood that any further enquiries by the respondent would yield information about the alleged disability against the dignity and privacy rights of the employee .

[312]We have also borne in mind that an employer cannot simply turn a blind eye to evidence of disability. While the Equality Act 2010 does not impose an explicit duty to make enquiries about the claimants possible or suspected disability, we remind ourselves that the EHRC Employment Code states that an employer must do all it can reasonably be expected to do to find out whether a person has a disability (see para 5.15).

[313]It suggests that ‘Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a “disabled person”’ — para 5.14.

[314]We have also reminded ourselves of the guidance in the code in respect of knowledge of a disability held by an employer’s agent or employee — such as an occupational health adviser, personnel officer or recruitment agent. This knowledge will usually be imputed to the employer (see para 5.17).

[315]In particular, we have borne in mind he Court of Appeal’s decision in Gallop v Newport City Council

2014 IRLR 211

, CA (a case considering reasonable knowledge under S.4A DDA). In that case G complained of workplace stress and was referred to two occupational health advisers engaged by his employer. They both expressed the opinion that he was not disabled for the purposes of the DDA. An Employment Tribunal rejected G’s subsequent claim of a failure to make reasonable adjustments, finding that the employer could not reasonably have been expected to know that G was in fact disabled (he suffered from clinical depression). The EAT upheld that decision on the basis that the employer was entitled to rely on the advice given by the occupational health advisers. However, when the case progressed to the Court of Appeal, Lord Justice Rimer stressed that the key question is whether the employer had actual or constructive knowledge of the facts constituting the claimant’s disability: it was an error of law for the tribunal to allow the employer to deny relevant knowledge by relying on its unquestioning adoption of occupational health advice. Rimer LJ rejected the notion that an employer can simply ‘rubber stamp’ an occupational health adviser’s opinion. Instead, it must make its own factual judgement as to whether the employee is disabled.

[316]In this case we have therefore considered the information available to the claimant’s managers, who were Barney Selman and Tracey Mackitt, the information available to Karen Northover, who was also a manager, the information provided by the claimant to Carol Brown and Carolyn Ivens, both of whom worked within human resources, as well as the information provided to occupational health practitioners and other individuals, including Mrs Griffin, Mrs Wayment and Mr Johnson.

[317]In respect of the question of knowledge, and specifically in respect of the information that an employer might reasonably have been expected to receive, had enquiries been made , Mr Islam Choudhury for the respondent placed particular emphasis on paragraph 23 of the judgement in A Ltd v Z

2020 ICR 199

, EAT, by. We have taken them into account when making our findings of fact and drawing the conclusions from them.

[318]These can be summarised as follows;a. it is actual or constructive knowledge of the disability itself and not the causal link between the disability and its consequent effects which led to the unfavourable treatment that is required

b. the Respondent does not need to have constructive knowledge of the complainants diagnosis. However ,it is for the employer to show that it is unreasonable for it to be expected to know that a person a suffered an impediment to his physical or mental health or be that the impediment had a substantial and see long term effect.

c. The question of reasonableness is one of fact and evaluation, and must be adequately and coherently reasoned and must take into account all relevant factors and not take into account irrelevant factors when assessing the question of constructive knowledge an employee's representations as to the cause of absence or disability related symptoms can be important this is because in asking whether the employee has suffered substantial adverse effect the reaction to life events may fall short of the definition of disability for the Equality Act

d. the approach adopted to answering the question is to be informed by the EHRC code, which notes act 5.14 it is not enough for the employer to show that they did not know that the disabled person have the disability they must also show that they could not reasonably have been expected to know about it employers should consider whether a work has a disability even where one has not been formally disclosed.

e. when making enquiries about disability employers should consider issues of dignity and privacy and sure that and ensure that personal information is dealt with confidentially it is not incumbent upon an employer to make every inquiry where there is little or no basis for doing so

f. reasonableness for the purposes of section 15 two must entail a balance between the strictures of making enquiries the likelihood of such inquiries yielding results and the dignity and privacy of the employee as recognised by the code

[319]When the Unfavourable treatment complained of is made up of a series of distinct acts occurring over a period, albeit a short period ,it is necessary to consider not only whether the employer had the requisite knowledge at the outset but also, if it did not, whether it gained that knowledge at any subsequent stage when the treatment was ongoing.

[320]For example, in Baldeh v Churches Housing Association of Dudley and District Ltd EAT 0290/18 the EAT held that a tribunal had erred by rejecting B’s claim that her dismissal was discriminatory contrary to S.15 on the basis that the employer did not know about her disability when it reached the decision to dismiss her, without also making a finding as to whether the employer had gained actual or constructive knowledge of her disability by the time it rejected her appeal against dismissal. On the facts of the case, B’s complaint of unfavourable treatment in her dismissal had to be taken as referring both to the employer’s initial decision to dismiss and to its subsequent rejection of her appeal.

[321]We have also borne in mind that in the age discrimination case of Reynolds v CLFIS (UK) Ltd

2015 ICR 1010

, CA, the Court of Appeal held that allegations of discrimination relating to a decision to dismiss and a decision on appeal were distinct claims that must be raised and considered separately. In the EAT’s view, that approach applies equally to claims under S.15 EqA. It is important to consider whether the employer had the requisite actual or constructive knowledge at the time of the impugned treatment. Discussion and conclusions

[322]In respect of the point at which we must determine knowledge of disability, we remind ourselves that for discrimination under S.15(1) to be established, the employer must have the requisite knowledge of disability at the time it treats the employee unfavourably. In this case the treatment complained of is the selection of the Claimant and his dismissal by reason of redundancy.

[323]That decision was made as a result of the scoring of the claimant by his managers Mrs Griffin and Mr Selman , the moderation of his scores subsequently by the respondent and the decision to therefore select him for redundancy and issue him with a letter of dismissal. The decision to reject his appeal confirmed that he would be dismissed. The claimant does not assert that the appeal itself was an act of discrimination by reason of section 15 section 20.

[324]The Claimant’s reasonable adjustment claim relies upon the PCP of assessing the claimant’s performance from the most recent personal review appraisal and actual performance of October 2018 to March 2019.

[325]We remind ourselves that the Respondent has conceded, in the amended grounds of response dated 1 July 2020, that the Claimant was a disabled person by reason of diabetes at the material time and that the Respondent knew or could reasonably have been expected to know that the Claimant was a disabled person by reason of diabetes

[326]We remind ourselves that in the amended grounds, the Respondent concedes that the Claimant was a disabled person at all material times by reason of anxiety and depression, bur deny that they had actual knowledge of the disability or that it they could reasonably have been expected to have had knowledge of the disability at any material time.

[327]The question that we have considered is what information the employer had before it at the point it made the decisions in the redundancy selection exercise, and whether the information that it did have meant that it ought to have made further inquiries of the Claimant or others about any impairment and its impact on the Claimant, and what the result of those inquiries might have been.

[328]We have also considered what would have happened, if the discrimination had not taken place and if a fair process had been followed.

[329]We conclude on the basis of all the evidence and the facts found, and applying the legal principles that the respondent could reasonably have been expected to know that the claimant was a disabled person at all material times.

[330]We conclude that the respond had sufficient knowledge of, or could have been expected to know, what the impact on the claimant would be, and of the disadvantage he would suffer, as a result of the PCP applied by them in the redundancy process.

[331]We conclude that the discrimination arising from his sickness absence, and the failure to make a reasonable adjustment to the proess, meant that the Claimant was deprived of a total of 16 points. Had this been added to his score, his total final managers score would have been 74. We find that he was the only person subjected to discrimination, because he was the only person who had had a period of significant sickness absence,

[332]Without the discrimination, and on the basis of manager only score, Mr Philips would not have been in the bottom two scores. He would have been in 7th position and not in 8th position.

[333]As a result we conclude that he would not have been selected for

[334]We have also considered the result of the unfair scoring. If the additional score of 2 points from each manager, with a weighting of three, had been added, it would have given him an additional 6 points from each manager, and an overall total of an additional 12 points.

[335]We have no evidence that anyone else was disadvantaged in this way, and find that the result of this unfairness coupled with the discrimination was to deprive him of a total of 28 additional points. Had this been added to his managers score of 58, his final score would have been 86 points. He would have been one of three people in 3rd place, and would not have been selected for redundancy.

[336]The matter will now be listed for a remedies hearing. EMPLOYMENT TRIBUNALS Claimant Respondent Mr R Phillips v Bournemouth and Poole college Judgment On remedy Heard at: Southampton On: 30 January 2023 Before: Employment Judge Rayner Mr R Spry-Shute Mr P English Appearances For the Claimant: Ms Ni’man, friend of the Claimant For the Respondent: Mr Islam-Choudhury, Counsel Declaration of Remedy

Findings of fact

[1]The Claimant suffered an injury to feeling and the respondent will pay the Claimant the sum of £14,000.00 for that injury to feeling.

[2]The Claimant is entitled to interest on the award at the rate of 8% for the period from the date of the discrimination, which was the until the date of hearing. Interest is awarded of £4200.00.

[3]The Clamant suffered loss of earnings as result of discrimination and dismissal of £16,969.91.

[4]The Claimant is awarded interest on his loss of earnings at 8% for the period of 21 months of £2375.79.

[5]The Clamant suffered pension loss, calculated using the complex method of £52, 214.55. The Respondent will now pay the Claimant the total sum of £89,760.25 as compensation for discrimination.

Findings of fact

[1]This remedies hearing was listed in person over two days following judgement and reasons dated 13 July 2022 being sent to the parties. It was not possible to resolve all the matters of remedy within that time, and therefore with agreement of the parties, the judgment was reserved.

[2]Mr. Phillips worked as a lecturer at the Bournemouth and Poole college for 25 years until he was dismissed by reason of redundancy with notice. The parties agree that his notice pay (paid in lieu of notice) meant that he did not start to suffer any loss of earnings until 28 April 2019.

[3]The employment tribunal found both that the respondents knew that the Claimant was disabled within the meaning of the Equality Act 2010 at the material times and that the Claimant had been unfairly dismissed; discriminated against for a reason which arose from his disability in the manner of scoring him in respect of the redundancy selection exercise and that his dismissal was an act of unlawful disability discrimination.

[4]The parties have produced a large bundle of documents for this remedies hearing and have put in a significant amount of work to prepare a schedule of loss with counter arguments and responses. We are grateful to both parties for the work they put into the production of these documents.

[5]We heard evidence from the Claimant on his own behalf and also heard or received written evidence from Mrs. J Steinberg, Ms A Miller and Ms S Gauntlet supporting him.

[6]We are grateful to Mrs Ni’man, who has assisted the Claimant throughout and who has carried a large amount of responsibility for preparing the paperwork for this case. She is not a lawyer. She has worked on a voluntary basis, and we recognise, as the Claimant does, that on occasions, it has been difficult for her to obtain clear instructions from the Claimant. This is not a criticism of the Claimant, who we acknowledge has found his dismissal and the process of the tribunal claim difficult and distressing. However, we recognise that there have been a number of frustrating delays and failures to disclose relevant materials, but that this did not happen because of any want of effort by Mrs Ni’man.

[7]We are also very grateful to both the respondent solicitor Mr Hodge, and the respondent counsel, Mr Islam-Choudhury, for their diligence and professionalism in preparing for this case. It is evident from some the correspondence that there have been numerous difficulties in preparing an agreed bundle and the schedule of loss. There have been issues with disclosure which have led to further documents being produced on both days of this remedy hearing. We pay tribute to the patience of them both.

[8]Mr Phillips is disabled, and the Respondent conceded that he was disabled by reason of diabetes and by reason of stress anxiety and depression in their ET3, filed on 17 December 2019.

[9]They conceded in their amended ET3, that they had knowledge of the Claimant’s disability of diabetes at all material times but denied that they had actual or constructive knowledge of disability by reason of stress, anxiety and depression.

[10]The ET found that the respondent knew or ought reasonably to have known of this second disability of stress, anxiety and depression, at the material times, which were the point at which the Claimant was identified as a person at risk of redundancy up until his dismissal by reason of redundancy.

[11]We made no findings that the Claimant was disabled by reason of any other impairment, although we were told that the Claimant suffered with double incontinence, both whilst an employee of the respondent, and he asserts, following his dismissal. We accept that this was true. Background to the damages claim – what is claimed by C?

[12]The Claimant has submitted a detailed schedule of loss and the respondent has provided a counter schedule which the Claimant has commented on. In the process of finalising the schedule for the purposes of this hearing the parties have managed to reach agreement over a number of matters, although the level of award for injury to feeling and the length of time and level of award for past loss of earnings; future loss and pension loss all require determination.

[13]The Claimant claims past loss of earnings from the effective date of termination of the 31 July 2019 until the 6 June 2022, which is the date of the liability hearing. This is a period of 148 .71 weeks.

[14]The parties agree that the Claimant’s annual gross salary was £27,612.06 (0.8% of a FTE) and that the relevant figure for gross weekly pay was £531.00 per week and that the Claimant's net weekly pay was £426.13.

[15]The parties agree that no basic award is payable to the Claimant as he had received redundancy payment.

[16]The parties also agree that the matters to be determined by the ET are as follows; 16.1. what steps had the Claimant taken to mitigate his loss; 16.2. did the Claimants employment by the police on a part time contract bring any period of loss to an end; 16.3. what was the period of the Claimants loss of earnings? 16.4. what level of award should be paid in respect of injury to feeling? 16.5. in respect of pension loss is the appropriate method of calculation the simple calculation or other?

[17]We remind ourselves at the outset of the key legal principles that we must apply when considering remedy in cases of unfair dismissal and in cases of disability discrimination, and we summarise these as follows. Key Legal Principles

[18]Mr Islam-Chaudhury has helpfully set out the key legal principles within his skeleton argument. These provide a fair overview of the legal principles relevant to this case.

[19]In respect of a claim for unfair dismissal the employment tribunal can award compensation that is just and equitable in the circumstances the tribunal should take a broad brush approach to what is just and equitable see section 123 ERA 1996.

[20]We remind ourselves that the purpose of compensation is not to express disapproval but is to compensate for any financial loss. (see for example Clarkson International Tools Limited v Short

1973 IRLR 90

[21]The award of any loss is subject to the duty of the person to mitigate any loss or damage recoverable.

[22]When considering whether or not the Claimant has mitigated his losses, we must consider the point at which the Claimant would have found work and what his income would have been at that point. A Claimant must give credit for any income received.

[23]We were referred to and take into account the steps set out by the EAT in Gardner Hill v Roland Berger Technics limited

[1982] IRLR 498

. We remind ourselves that this requires us to consider what steps were reasonable for the Claimant take to mitigate their loss; did the Claimant take reasonable steps to mitigate loss and to what extent would the Claimant have mitigated their loss if they had taken those steps.

[24]The Respondent reminds us that the statutory cap in a case of unfair dismissal after grossing up for any tax would be 27,612 pounds and six being 52 weeks weekly pay the student to section 124(1ZA) ERA 1996.

[25]In respect of any discrimination found we may award compensation which, as far as possible, puts the claimant in the same position he would have been in but for the unlawful acts of the respondent. (See for example Ministry of Defence v Wheeler

[1998] IRLR23

and Chagger v Abbey National

[2010] IRLR 47

.).

[26]Since the tribunal is entitled to award compensation corresponding to any amount that a County Court may award by virtue of section 124(2) and (6) of the Equality Act 2010, we must also take into account the tortious principles of both remoteness and causation.

[27]When considering loss of earnings, we are entitled to consider what would have happened but for the discriminatory act. It is appropriate to consider whether or not the claimant would have been dismissed in any event. (See Chagger above.)

[28]In relation to compensation for discrimination, in Citibank NA v Kirk

[2022] EAT 103

[2022] IRLR 925

the EAT adopted the principles set out by Langstaff P in relation to compensation for unfair dismissal in Lindsey v Cooper Contracting Ltd

UKEAT/0184/15

(22 October 2015, unreported). We have reminded ourselves of these principles and applied them when making our decisions and drawing conclusions below. 28.1. The burden of proof in relation to mitigation is on the wrongdoer. 28.2. If evidence as to mitigation is not put before the employment tribunal by the wrongdoer, it has no obligation to find it 28.3. What has to be proved is that the claimant acted unreasonably; they do not have to show that what they did was reasonable. 28.4. There is a difference between acting reasonably and not acting unreasonably. 28.5. What is reasonable or unreasonable is a matter of fact. 28.6. In determining reasonableness the views and wishes of the claimant should be taken into account as one of the circumstances, although it is the tribunal's assessment of reasonableness and not the claimant's that counts. 28.7. The tribunal is not to apply too demanding a standard of the victim; after all, they are the victim of a wrong. They are not to be put on trial as if the losses were their fault when the central cause is the act of the wrongdoer. 28.8. The test may be summarised by saying that it is for the wrongdoer to show that the claimant acted unreasonably in failing to mitigate. 28.9. In a case in which it may be perfectly reasonable for a claimant to have taken on a better paid job, that fact does not necessarily satisfy the test. It will be important evidence that may assist the tribunal to conclude that the employee has acted unreasonably, but it is not in itself sufficient.

[29]In particular we remind ourselves that it is for the employer to show that the claimant has failed to mitigate his or her loss. This means that the employer must adduce evidence in relation to mitigation and that a vague assertion of failure to mitigate unsupported by any evidence is unlikely to succeed. (see for example Ministry of Defence v Hunt and ors

[1996] ICR 554

, EAT)

[30]This means that, in the first instance, compensation will be assessed on the basis that the claimant took all reasonable steps to reduce his loss. Whether a claimant has mitigated his loss is a question of fact, and we remind ourselves that we must judge the matter on the particular circumstances of the case.

[31]Unlike unfair dismissal there is no statutory cap on the compensation that may be awarded in a discrimination case.

[32]In this case it is necessary for us to consider whether or not the Claimant’s employment with Dorset Police had the effect of breaking the chain of causation. When considering whether or not an act breaks the chain of causation, it is for the tribunal to make findings of fact.

[33]We remind ourselves that the duty to mitigate will not be allowed to operate oppressively. This means that it may be reasonable for an employee to give up a new job which proves unsuitable (see Dundee Plant Co Ltd v Riddler EAT 377/88). Whether or not a new job or job which the claimant then leaves, as in this case, breaks the chain of causation will be a question of fact for the employment tribunal to determine taking into account all the relevant factors in the case.

[34]When the claim relates to a discriminatory dismissal, we remind ourselves that, in calculating future loss of earnings, we will have to consider the likely chance that the claimant — but for his dismissal — would have continued in his employment until retirement.

[35]We have been referred to the correct approach for determining this issue, as set out by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police (No.2)

[2003] ICR 318

, CA (a sex discrimination case). In that case the question was what were V’s chances of remaining in the police force until the age of retirement at 55 if she had not been discriminated against and dismissed? The Court of Appeal confirmed that this requires an assessment of a chance, based on material available to the tribunal, including the use of statistical information as to the probability of an employee remaining in the service of the employer on a longterm basis.

[36]We remind ourselves that the Court of Appeal emphasised that since such an assessment of chance involves a forecast about the course of future events, it should not be approached as if the tribunal were making a finding of fact based on a balance of probabilities.

[37]When making an award for injury to feeling the tribunal has a wide discretion but will take into account the Vento guidelines. We also remind ourselves that it is for the claimant to prove this loss.

[38]Awards for injury to feeling are compensatory and not punitive and they should not be so low as to diminish respect for the policy of the discrimination or but nor should they be excessive and they should bear some resemblance towards incomparable cases in personal injury for example.

[39]Compensation for unlawful discrimination may include an award for personal injury which has arisen as a direct consequence of the unlawful acts of discrimination. The claimant must prove injury to health. (See for example Sheriff V Klyne Tugs (Lowestoft Limited)

[1999] ICR 1170

[40]Psychiatric personal injury awards differ from an injury to feeling award in that there must be specific medical evidence of a psychiatric injury.

[41]We remind ourselves that when considering whether to award compensation for psychiatric injury, we must decide whether the full injury is attributable to the respondent's unlawful accident or not where there has been a pre-existing condition. Whilst the discriminator takes the victim as he finds him a respondent will only be liable full psychiatric injury which they have caused or contributed to. (see HM Prison Service v Salmon 2001IRLR 425.) The Respondent’s position on remedy

[42]The Respondent agrees that the Claimant is entitled to an injury to feeling award but submits that much of the distress and injury which the Claimant refers to was not injury caused by the Respondent but was the result of pre-existing disability or other ill health which the Claimant suffered from.

[43]The Claimant’s evidence is that his health has been affected by the discriminatory redundancy and the ET process, and that since the hearing, he has suffered significant episodes of poor health.

[44]The Respondent took the Claimant through his health records and refers to them in submissions. Counsel has focused on the lack of evidence within them of the Claimant reporting significant changes to or deterioration in, his health, of the type which he has given evidence of before this employment tribunal and in his witness statement.

[45]The respondent asserts that the Claimant is exaggerating the impact that the discrimination had on his health, and is also looking at it with hindsight, and recollecting things as being worse that they really were.

[46]The respondent asserts that any loss of earnings claimed by the Claimant should be limited in time. Counsel points to two events which it is said bring the period of liability to an end. The first event is a short period of part time work with the police that the Claimant undertook and then resigned from, and the second is the point at which the Claimant started to carry out one to one teaching and tutoring for two different agencies, as well as privately.

[47]The respondent asserts that the Claimant has in any event taken insufficient steps to mitigate his loss.

[48]The Claimant asserts that his losses should be calculated on a continuing basis. He also asserts that the period of time that he worked for the police should not bring his period of loss to an end.

[49]In respect of pension loss, the respondent recognises that the Claimant has suffered a loss of pension, but urges us to calculate any pension loss using the simple method of calculation. The Claimant asserts that the appropriate method for calculation is the complex method. Chronology of events since the date of dismissal.

[50]The Claimant was given notice of redundancy at the end of April 2019. He worked part of his notice, and the remainder was paid in lieu. The parties agree that the period of any loss therefore starts on the 31 July 2019.

[51]The Claimant did not immediately start looking for work and told us in evidence that he initially felt unable to apply for any form of work or benefit. He also told us, and we accept, that having spent the majority of his working life at Bournemouth and Poole college, contemplating working somewhere else or knowing how to go about looking for it was very difficult for him. We also accept that Brockenhurst college, which is a Further Education College some miles away was associated or affiliated with Bournemouth and Poole college. We accept that the Claimant felt some wariness about applying for jobs there, but in any event, there is no evidence before us that there were any jobs available which the Claimant could have applied for either at Brockenhurst college or at Bournemouth and Poole college, or any other Further Education College, within the time frame following his redundancy.

[52]The Claimant says that he started to look online for employment with employment agencies such as Indeed and we find that his first application was made at the end of July 2019.

[53]We find that this was a reasonable point for the Claimant to start looking for alternative work following the discrimination and need for adjustment to his new circumstances.

[54]We accept the Claimant’s evidence that he made enquiries about many different types of work, although not teaching work, but he did not get interviews.

[55]The Claimant filed his claim to the employment tribunal and we accept that this process did cause him additional stress.

[56]In the autumn of 2019, the Claimant applied for and was offered a part time job with Dorset Police, as a counter services officer. He started work on the 19 November 2019.

[57]He told us we accept that being offered the role gave him a boost to his selfesteem. We find that this is also indicative that the claimant was making efforts to find alternative employment and was willing to look at a different career path.

[58]We accept that the reason he did not apply for the full- time post on offer with the police was because he was told at the point of interview that it had already been filled. It was reasonable for him to continue to apply for and accept the part time role.

[59]We accept the Claimants evidence that he was suffering with double incontinence at this point in time and that on a number of occasions he had difficulty managing his condition both on his way to work and in the workplace. We accept that he was concerned that this may occur again and we also accept his evidence that he was teased by other members of staff about his need to use the toilet on the regular basis.

[60]We accept his evidence that his double incontinence made it particularly difficult for him to adjust to a new workplace. We accept that he found his treatment by the staff distressing and upsetting and that he felt it was an affront to his dignity. We also accept that as a relatively new employee he did not feel able to raise the matter by way of a grievance and we accept that the advice of many of his friends was that he was not well enough to continue working. His reasons for leaving were a combination of these factors.

[61]We accept the Claimants evidence that this did impact upon his health and his mental health, and that having taken advice from his mental health advocate, Ailsa Miller, he decided that he could not continue working in that job because of the impact it was having on his diabetes and his mental health.

[62]The Claimant resigned without giving notice on the 19 February 2020.

[63]We have taken into account the Claimants resignation letter and note the reference to the probationary period. We cannot find, as the Respondent urges us, that the real reason why the Claimant left his employment was that he was failing his probationary.

[64]In any event, even if he were to have been failing his probationary period we have no evidence before us as to why that might be and we observe that a man with a significant disability who is being subjected to harassment by colleagues may well not perform the best of his ability.

[65]Shortly after the Claimant’s resignation a national lockdown was imposed as a result of the COVID-19 pandemic.

[66]We accept the submission of the Respondent that during the course of the pandemic lockdown many opportunities arose for online tutoring and teaching. We have no evidence before us however of any actual opportunities or vacancies which the respondent asserts the Claimant ought to have applied for.

[67]The Claimant did in fact start looking at one to one teaching and we accept that he was assisted by his friends to put his details on various websites.

[68]On the 23 August 2020 the Claimant registered with the Sugarman group, a teaching agency. He completed the applications and passed the relevant checks and was then offered work. We find that this was a reasonable time for him to take to identify opportunities and make applications.

[69]The Claimant also subsequently signed on with a second agency called Teaching Personnel.

[70]He continued to be offered and to accept teaching work with both agencies.

[71]In addition, the Claimant carried out some private work tutoring students on a one to one basis in their own homes. The Claimant had not disclosed his earnings from this work to the Respondent in his initial schedules of loss, but he has given evidence of the work he did and the pay he received to this tribunal.

[72]The Respondent submits that the Claimant’s lack of openness in respect of this work was a deliberant concealment. The Claimant asserts that he did not realise that he needed to make disclosure in respect of this work, or this pay.

[73]The work he received and the pay he received for it is clearly relevant to the question of his mitigation of his loss.

[74]In respect of his health the Claimant has asserted that during the period between leaving the police and starting work on an agency basis, his self-esteem and confidence was affected and he felt more despondent and concerned for his future and his health. He explained that over the following seven months he tried to focus on his health but felt increasingly erratic and filled with anxiety. We accept that this is how he felt. Discussion and conclusion

[75]We have first considered the credibility and honesty of the Claimant. This is of particular importance given that much of what he says about his health, whilst supported by those who have given evidence for him, is not reflected in his medical notes.

[76]We all agree that the Claimant is fundamentally honest in the evidence he has given to the employment tribunal, but we accept the respondent submissions up to a point, that the Claimant is not wholly realistic about many of the matters he has given evidence of.

[77]We accept, for example that he did suffer from double incontinence and that he did not discuss this with his doctor. We accept that he found this to be an embarrassing condition and understand why that would be the case. We also accept that Mr Phillips felt at times both that he was a burden on the health service and that he felt annoyed with himself and frustrated with his own ill health and that for this reason he may not have given the detail to his GP which he has set out in his witness statement and given evidence of before this court.

[78]We also find that Mr Phillips has allowed the fear of an incident arising from his incontinence to affect his decisions about employment and his ability to carry out work, in a wholly negative way. Whilst it is understandable that the condition would cause anyone concern; potential embarrassment and worries about a loss of dignity, we note and accept the Claimant’s own doctor's analysis of the Claimant is somebody who tends to catastrophize. We all agree that it is more likely than not that in reality Mr. Phillips would have been able to manage in a workplace with reasonable adjustments and medical assistance and would not being prevented from doing so by reason of double incontinence.

[79]We accept that his disability of stress, anxiety and depression, make it significantly harder for him to manage the physical impairments and that the worry and distress that arise from the management of them, and his lack of realistic assessment of what might happen, is a symptom of his disability and not the result of any dishonesty or lack of effort on his part .

[80]We also find that there is an inter relationship between the Claimant’s disability of stress anxiety and depression and diabetes. It is understandable that diabetes and raised blood sugars impact upon the management of stress and anxiety. These are again facets of the Claimant’s disability.

[81]From the evidence we have heard both from the Claimant himself but also from the witnesses who gave evidence on his behalf and who were not challenged by Mr Islam-Choudhury, we accept that the Claimant’s life, both whilst he was employed at the respondent but in particular following him being made redundant and in the lead up to the employment tribunal hearing, both for merit and for remedy, has been chaotic.

[82]We have found as fact that the Claimant had a pre-existing mental health condition, and that by start of the respondent's redundancy process he was a disabled person by reason of it. We remind ourselves that the Respondent takes their victim as they find him, in this case, as a disabled man and existing mental health impairment and diabetes.

[83]We have made specific findings of fact, in our merits judgment that, had the issue of scoring been properly identified at the moderation meeting, the Respondent ought at that point to have realised that the Claimants scoring was potentially disability discrimination (see para graphs 218-227 liability judgment.)

[84]We also found that the failure to offer the Claimant a suitable alternative vacancy was discriminatory. We found Mrs Griffins evidence to have been extraordinary. (paragraph 251).

[85]We made findings of fact about the appeal process, and the requests made by the Claimant and his representative for information about the scoring process, which were not provided to him. (254-8)

[86]We made findings about the process of the appeal, and the failure of the respondent to address the question of scoring. We have made findings of fact about what happened at the meeting, how the scoring issues were addressed and the steps taken by the respondent to investigate the Claimant’s concerns. We have made findings of fact about the respondent’s failure to ask questions about the Claimant’s assertion that he was a disabled person.

[87]The respondent is right to point to these pre-existing illnesses as relevant to the question of whether or not the respondent caused or contributed to a psychiatric injury or a personal injury, both of which the Claimant claims damages in respect of.

[88]These findings are also relevant to the assessment of the reasonableness of the claimant’s actions post employment in seeking work, and then retaining work, as well as to the questions of injury to feeling more generally.

[89]If the discriminatory acts of the respondent make it harder for the claimant as a disabled person, suffering with anxiety and depression to look for work, then that is a factor that flows from the discriminatory acts of the respondent, whether or ot the respondent caused the initial impairment. Psychiatric illness

[90]We have some evidence that the claimant’s mental impairment was caused or contributed to by factors arising in his past. We have no evidence that the Respondents actions caused the mental impairment, and we find that it did not. The claimant had an existing mental impairment at the start of the redundancy process. 91.

[92]We all agree that the respondent’s behaviour towards the Claimant during the course of the redundancy process, in selecting him for redundancy and then dismissing him were inherently stressful and likely to have an impact upon Mr Phillips, and that it was foreseeable that a discriminatory process would have a negative impact upon Mr Phillips, given his disability.

[93]We all agree that the Respondent’s’ actions had a negative impact on a preexisting mental impairment, but all agree that the respondent did not cause the illness. Mr Phillips did suffer stress and anxiety, as result of being discriminated against, and we find that this was in part due to the inherent stress of bringing employment proceedings.

[94]We have therefore considered whether there was any significant change in the claimant’s mental health impairment from before the discriminatory conduct and after.

[95]The Claimant has been on medication throughout the period, and we accept that there have been fluctuations both in his diabetes and in his mental health.

[96]We find it unsurprising that there were occasions when the Claimant saw his doctor and reported to be in a good place and we also find it unsurprising that there were other occasions as reported by the Claimant and others when he will not be. We all agree that this is a common feature of mental health impairment and disability of stress anxiety and depression, and was a feature of this case.

[97]We also take into account that those who suffer with disabilities which Mr Phillips has, inevitably have to make more effort to manage their daily affairs. Whilst medication may assist, it is not our understanding that it is expected to entirely remove the effect of depression or anxiety, anymore than insulin will remove entirely the effects of diabetes. The condition inevitably still requires management on a daily basis and that very management of the condition takes time energy and mental bandwidth. We accept that other people may manage their disability differently, but we find that in this case Mr. Phillips genuinely found the day-to-day management of his ill health and his disability difficult and that this placed additional stress on him.

[98]The Claimant reported that they were many occasions from the end of his employment until this hearing when he felt overwhelmed and unable to deal with the preparation for the employment tribunal. We accept that this was true and that it was both in respect of managing the paperwork and in respect of communicating and liaising with those who were offering to assist him.

[99]He has also told us that he found the process of looking for work difficult and that at times he felt overwhelmed and destroyed.

[100]We remind ourselves that the Claimant had suffered with similar symptoms, leading to periods of sickness absence, before any discriminatory acts by the Respondent.

[101]We accept that his medical notes, which record and report the occasions on which the Claimant saw his doctor and in brief what was discussed, do not reflect what Mr. Phillips has told us in evidence . We accept the Respondent’s submissions that there is a fundamental difference between the Claimant’s recollection of the state of his mental health and the comments that he was making to his doctor during some of the periods of time he refers to.

[102]The Respondent asserts that this is because the Claimant is simply wrong. The Respondent asserts that had the Claimant really been feeling and suffering as badly as he now tells the tribunal he was, that he would have or should have raised these matters with his doctor.

[103]The respondent urges us to draw conclusions that the Claimant is not a reliable witness of truth albeit that they accept that he is not being deliberately dishonest. Mr Islam- Choudhury submits that what Mr Phillips is doing is retrospectively catastrophizing events as well as looking at things with the light of hindsight in an attempt to excuse his failure to mitigate his loss.

[104]The Claimant's evidence has been rambling and confusing in many instances. He had to be reminded several times to focus on the question being asked rather than giving a history or an explanation of why a particular context may have arisen.

[105]He has, however, been perfectly capable of giving lucid evidence when pressed and we all consider that he has demonstrated an intelligent and articulate understanding of the proceedings even if, as with many litigants, he has not found it easy to give simple direct answers to simple questions.

[106]We all agree that the Claimant’s recollection of his own history is likely to be tainted by his stress and anxiety over these proceedings. We also consider that it is highly likely that he has focused on the more negative aspects of his feelings over the last two years and that the process of recalling and describing how his feelings have been injured and harmed is likely to have contributed to him focusing on the negative rather than positive.

[107]We all agree that for the Claimant, the stress of being selected for redundancy; having to challenge his selection through the employment tribunal and having to search for new employment, were things that flowed inevitably from the fact that the Claimant had been discriminated against by the Respondent. The fact that there was also a national pandemic impacted the Claimant, although it was not something which flowed from discrimination, the fact that Mr Phillips had to deal with it as an unemployed disabled man, rather than as a disabled employee of the Respondent, impacted badly on him.

[108]Not only was the discrimination by the Respondent a relevant factor when considering the steps Mr. Phillips was able to take to seek alternative employment, but we conclude that it was a contributory factor when Mr. Phillips decided to stop working for the police.

[109]We have carefully considered the medical history and the dates of specific entries that we have been referred to by Respondent counsel. We have also taken into account and are grateful for the careful chronology set out within the respondent’s helpful skeleton argument.

[110]We agree that as a matter of fact there were occasions during that chronology when the Claimant was not recorded by his doctor as suffering any new or different or worsening adverse effects to his disabilities, because of discriminatory actions by the Respondent.

[111]We also accept that there are a number of specific occasions when the Claimant talked to his doctor about a heightened level of stress which was linked to the fact of the employment tribunals; the fact of him no longer having representation and the fact that he was having to prepare for the employment tribunal hearing.

[112]The Claimant and his representative have pointed out that a number of concessions were made at the final hearing both in respect of the availability of suitable alternative employment and in respect of the scoring of the Claimant.

[113]We find on the evidence we have before us that the Claimant did continue to suffer stress and anxiety throughout the period up to this hearing, and that it was at times worse as a result of the discrimination. We also conclude on the evidence from the medical notes, that on balance respondent did not cause or contribute by its discriminatory act directly to any psychiatric injury which the claimant suffered. we have no medical evidence at all to suggest that this was the case. rather we find that the claimants existing mental impairment, continued to be impacted and the claimant continued to suffer stress and anxiety, which impacted on his ability to mitigate his losses, and which caused him distress as a result of the discrimination he had suffered.

[114]Following on we conclude that the claimant’s decision to cease working was a reasonable one, because of his health and his difficulty in managing it. Although the double incontinence was not part of the Claimants disability, it was his inability to manage it in a new work place, as a disabled man with anxiety and depression, which we find lead to his decision to resign.

[115]We conclude that this decision did not, in the circumstances of this case, break the chain of causation, or bring to an end the Respondents liability to the Claimant for loss of earnings. Injury to feeling

[116]The Respondent asserts that injury to feeling should be assessed in the low band of Vento on the basis that there was a one off instance of discrimination and that it was not deliberate or intentional.

[117]The Claimant asserts that an award for injury to feeling should be in the top band of Vento and also asserts that injury to feeling award should take into account an award for personal injury on the basis of psychiatric injury.

[118]We all agree that this is not a one-off act of discrimination and we also all agree that whilst we have not found that anyone's actions were consciously or deliberately discriminatory, we have found a persistent lack of care for Mr. Phillips and what happened to him coupled with a disinterest in ensuring a full and fair process and a total failure to address at all the question of disability despite the Claimant raising it with the respondent.

[119]We find as fact that the Claimant was distressed by his treatment and that his distress did have an impact upon his mental health and that the stress itself was likely to have impacted upon his ability to manage his disability and to manage his other health conditions.

[120]We conclude that the distress of the discrimination persisted and was worsened by the need to proceed to an employment tribunal and we conclude that the late concessions made by the respondent, compounded the distress anxiety and feelings of hurt suffered by the Claimant.

[121]We find that the Claimant’s injury to his feelings were genuine and serious.

[122]We find that with the Claimant’s psychiatric injury was not caused by the respondent because it was a pre-existing impairment but we do find with that in the short to medium term the Claimants mental health was impacted by the discriminatory treatment of the respondent.

[123]On the basis of the information before us we all agree that the past treatment of him by the Respondent, contributed to the Claimant’s ongoing mental health issues and the need for him to find suitable employment in a new environment. We accept that after working for 25 years in the same establishment as a teacher that the difficulty for him as an older disabled man will be significant and bring inevitable stress and that for Mr. Phillips this continues to be hurtful and distressing. 124. from the facts set out above we conclude that the impact on Mr. Phillips mental health is properly compensated for within an injury to feeling award and in this case we make no separate award in respect of psychiatric illness.

[125]When assessing the level of the injury to feeling award, we have taken into account the fact that they are other factors impacting upon Mr. Phillips mental health, including his other health conditions, a pre-existing mental health conditions not caused by the respondent, and we conclude therefore that the correct level of award for an injury to feeling in this case is the lower middle of the middle band of Vento. We award £14,000.00 for injury to feeling. Loss of earnings

[126]The first question we have considered is, has the claimant mitigated his loss and when

[127]The Claimant did apply for other jobs. We find that he did not apply for very many, but he did apply for vacancies which he thought he would be able to do. We find that in the period from his dismissal until his application for with a job with the police, he acted reasonably, given the state of his health given his disabilities and given the evidence we have of available vacancies, in looking for suitable alternative employment to mitigate his loss.

[128]We have considered whether or not this incident breaks the chain of causation in terms of the liabilities of the respondent for losses flowing from their acts of discrimination. We find that the Claimant was reasonable in remaining in the job for the period of time he did, but we also find that he was reasonable to leave when he did.

[129]Firstly the Claimant had taken on a very different sort of employment in an attempt to return to the workplace. Secondly, he was working in a wholly new environment in a wholly new job role with new colleagues who did not necessarily know of or understand him or his disability.

[130]We accept his evidence that the front facing role within the police force posed particular difficulties for him, because he could not simply leave the desk when he needed to do so if he was dealing with a member of the public.

[131]We accept that the employer had put in place some reasonable adjustments for him and we also accept the respondent’s point that had the Claimant raised the matter it is entirely possible that further adjustments would be made. However, we do not find that the Claimant’s failure to do this and his decision to leave instead breaks the chain of causation. For these reasons we conclude that it does not. Pension Loss and period of loss

[132]We next consider, but for the acts of discrimination, how long the Claimant was likely to remain in the employment of the respondent.

[133]We have made findings of fact about the Claimant’s ill health during the course of the substantive merits hearing. We have observed that the Claimant sought reasonable adjustments from the Respondents, and we take into account that were reasonable adjustments to be made so that the Claimant could manage his physical health conditions, it is highly likely that some of his anxiety would have been reduced.

[134]We find as fact that nonetheless over the course of the past three years the Claimant’s physical health has deteriorated. We find this fact on the basis of his own evidence and that of his medical advisers and the notes, that his incontinence has become worse and harder for him to manage. We accept his evidence that this causes him significant distress and affects his confidence particularly when having to deal with new people for example in a new workplace. We all agree that nonetheless the increase in the severity of his symptoms would, in any workplace have posed difficulties for Mr. Phillips which would have required attention and assistance from an employer.

[135]We also find that the Claimant’s diabetes has not been well controlled. We note from his medical records that he was advised on numerous occasions to take more exercise but that he had difficulty sticking to any particular regime. We find that this is highly likely to continue.

[136]The Claimant has told us that there were periods of time when he was not well enough to work although not formally signed off by his doctor. We also find from his medical records that the Claimant’s dose of citalopram was increased at least twice during the material times of this case.

[137]The Claimant had a disability of anxiety and depression which predated the redundancy exercise and for which he was being prescribed medication, and part of our findings were that the respondent knew or had constructive knowledge of the fact of the Claimants mental health disability as well as his physical disability prior to the redundancy selection exercise. The Claimant had a significant period of time off sick prior to the redundancy exercise and we find that it is highly likely that he would have continued to have significant periods of sickness absence had he remained employed.

[138]We find that on balance of probabilities his health would have deteriorated rather than improved in the years between 2020 and his retirement age under the new teachers’ pension scheme of 67.

[139]Mr. Phillips asserted before us that he had intended to work until he was 67 because that is when he would be able to pay off his mortgage. We accept that he would have wished to have continued working until 67.

[140]He also told us that he would have intended to return to a full time teaching post rather than an 80% teaching post. Again we accept that this was his wish.

[141]We find that there was no prospect of him ever returning to a full-time teaching contract. We find instead that it is more likely than not that he would have reduced his hours further, due to his ill health. We also find that it is highly likely that he would have needed to take significant time off as sick leave due to a variety of health conditions and deteriorating health and that this may well have impacted on his ability to continue to do his job.

[142]The respondent appeared to assert that the Claimant was well enough to work full time but chose not to do so when he applied for a job with the police.

[143]We do not agree. The reason why the Claimant did not take a full-time post with the police was that although a full time and a part time post were both advertised when he attended for his interview, he was told that it was only the part time post that was available and when he was offered it he accepted that role.

[144]We find that the Claimant was well enough to contemplate returning to work when he applied for the job with the police.

[145]We find that his reason for leaving the job with the police was a combination of his own poor mental health and the impact of his other health conditions upon him. the Claimant had already been suffering with health conditions when he was employed by the respondent and had he remained with them would have been entitled to reasonable adjustments. whilst the Claimant was entitled to reasonable adjustments when he worked for the police and whilst some adjustments were made for him it is understandable that teasing from other members of staff and a lack of a network of personal support at work, combined with his anxiety and depression, meant that he did not feel able to continue working in that job.

[146]Whilst we do not consider that his decision to leave the job with the police breaks the chain of causation, we do find that it is evidence of how the Claimant may have had difficulties in any job even if he had remained with the respondent.

[147]Whilst the difficulties he had with teasing at work and a lack of a support mechanism would not necessarily have been issues, it seems likely to us that the nature of teaching work would have posed similar difficulties for the Claimant in managing his stress and anxiety his diabetes and his developing problems with incontinence.

[148]We find that he is likely to continue doing the kind of work he is currently engaged with until he retires, and we conclude that he is highly unlikely to ever obtain employment with the benefit of a final salary pension scheme equivalent to the teachers’ pension scheme into which he paid for 25 years.

[149]The Respondent has criticised the Claimant for not applying for another teaching post in an equivalent organisation. The Claimant states that he could not have applied for work at Bournemouth and Poole College and we observed that since there had been a round of redundancies even absent discrimination it is highly unlikely that there would have been a job which Mr. Phillips could have applied for. In any event there is no evidence before us from the respondent of any actual job vacancy of a type which Mr. Phillips may have been eligible to apply for either with the respondent or with any other college or school or FE organisation. In the absence of any such evidence we find that Mr. Phillips did not act unreasonably in failing to apply for a teaching post with another further education college or school.

[150]We accept his evidence that his experience at Bournemouth and Poole college, which included the process of redundancy his selection for redundancy and his dismissal, left him with trust issues and anxiety about entering a similar environment.

[151]We also accept however that part of his difficulties going forward were because of his physical disability.

[152]We find that his ill health and his need to take sick leave would have exposed him to the likelihood of Capability Management proceedings in future and that even with reasonable adjustments, there must have been a real chance that his ill health would make continued work in the classroom environment difficult if not impossible, and undesirable to him, even if it was what he hoped to do.

[153]Since he would have to work for two years before he was protected from unfair dismissal and even with the benefit of reasonable adjustments, we find that there was a real probability that he would find it difficult to obtain permanent, secure and continuing employment in the future, because of his continued and deteriorating ill health.

[154]We find as fact that it was not simply the fact of the worsening of the Claimant’s incontinence that caused him to leave, but that it was the anxiety that he suffered because of the private nature of his disability and because of the affront to his dignity of having to deal with the matter.

[155]We accept that these things are more likely than not to have impacted upon his mental health and his general ability to deal with employment.

[156]We also find that, since he had a protected pension which he could access at 60, there was an incentive for him to take retire at that age, as an alternative to the difficulties of remining in the classroom.

[157]We observe that the majority of his income is now derived through agency work and through self-employed teaching work and we all agree that this was likely to have been the most appropriate form of work for him in the future even had he not been dismissed. It is flexible and enables him to structure it around his disabilities.

[158]We conclude that there was a strong possibility that Mr Phillips could have been fairly dismissed either by Bournemouth and Poole college, or in any new employment, for ill health capability at some point in the future, but we find it most likely that Mr Phillips would have made a decision himself to retire at 60, when his first pension became available to him.

[159]We conclude that it was appropriate for the Claimant to try a new job in an entirely different environment but we also find that it was reasonable for him to resign from the position when it was proved unsuitable for him. Whilst we recognise that in some circumstances a new job will simply bring to an end the liability of the respondent, we find that it does not do so in this case.

[160]Had the Claimant not taken the position with the police, but continued to seek other more suitable work, we find that he would not have returned to teaching any earlier than he in fact did. Therefore, we conclude that his period of loss would have continued and that the respondents would have continued to be liable to him.

[161]We have therefore considered the period of time, following the Claimant leaving the police force for which the respondent remains liable for the Claimants losses.

[162]We find that the Claimant took no steps to find alternative work in the following months. We accept that the Claimant may have suffered with poor mental health but we have also taken full account of the medical records he has put before the employment tribunal. We accept the respondent’s submissions that the medical records do not indicate any mental health reason for the Claimant not applying for further employment during that period of time. We also find that there were reasons for the Claimant not taking steps to find new employment at this point in the chronology, which were nothing to do with discriminatory treatment by the college.

[163]We also found that there were points when the Claimant was in fact in much better mental health. We infer this from the medical records that we have seen. and in particular the reference within them that on one visit to the GP, the Claimant was seeming to be in a much better place .

[164]We do not accept the Claimant’s evidence that at that particular point in time there was just one day when he felt better, and this was the day he visited his doctor, and that he only reported this to his doctor because he was putting on a brave face essentially for the practitioner.

[165]Other than the Claimant’s own assertions that he was not well enough to start to look for teaching work, there is no evidence the Claimant was not well enough to start looking for work and there is evidence to suggest that he was. On balance therefore we find that he ought to have started looking for work in or about May 2020.

[166]We find that had he started looking for work in May 2020 that despite the fact there was a national lockdown he would have been able to find sufficient teaching by the end of August 2020, and that from that point onwards, he would have been able to completely mitigate his losses.

[167]We therefore consider that the Respondent’s liability to the Claimant for any loss of earnings ends by the 1 September 2020.

[168]The Claimant suffered no loss of income until the end of August 2019 because he was dismissed on notice and because he received pay in lieu of notice.

[169]We find that the first day of loss for the Claimant was the 29th of August 2019.

[170]We have therefore calculated the Claimant’s loss of earnings from the 28th of August 2019 until the 1st of September 2020.

[171]We find the Claimants loss of earnings is for a period of 53.14 weeks at the rate of £426.13 net per week.

[172]The Claimant must give credit both for his earnings from the police and from benefits which he received. His earnings from the police were £3151.58 net.

[174]We find he received benefit payments of £2045.46. (see pages 331 onwards of bundle) and additional personal independence allowance for eight weeks at the rate of £59.70 per week.

[175]We find that the amount received in benefits was £2523.06 in total during the relevant period.

[176]The total net loss of earnings awarded to the Claimant is therefore £16,969.91 (sixteen thousand nine hundred and sixty nine pounds and ninety one pence). Pension Loss

[177]We turn to consider the Claimants claims in respect of pension loss.

[178]Mr. Phillips was enrolled in the teachers’ pension scheme. Until April 2012 he paid into a final salary scheme which would have enabled him to retire at 60 (the first pension scheme). That scheme was changed with effect from April 2012, and for the remainder of his employment he paid into the teachers’ pension scheme which provided for a new retirement age of 67, on a career average basis (the second pension scheme).

[179]The benefits accrued under the first pension scheme until April 2012, were protected and Mr. Phillips remains entitled to claim his pension under that scheme from the age of 60.

[180]We find it highly unlikely that Mr. Phillips will ever obtain employment which has a final salary pension scheme again.

[181]We find that although the Claimant asserted that he wanted to continue working full time until he was 67, he would not have done so.

[182]We find that the most likely outcome is that the Claimant would retire at 60, and that in the intervening years will work at a maximum of 0.8% of full time hours.

[183]At the point of his dismissal the Claimant was 54 years old and would, we find have worked therefore for a further six years.

[184]The loss of the pension contributions he and his employer would have made under his career average scheme during the final years of his employment will impact upon the annual level of his pension entitlement from the second pension scheme when he retires.

[185]We take into account that he is eligible to pay into a private pension scheme and that he is eligible as an employee to be enrolled in the NEST scheme .

[186]We have considered the most appropriate method for assessing his pension loss.

[187]First, we have considered whether or not we can assess his pension loss on the basis of the simple approach as urged by the respondent or whether the more complex approach is required. to do this we have taken into account presidential guidance on the calculation of pension loss.

[188]We bear in mind that the simple calculation method is usually suitable and appropriate where the losses are relatively limited, where they arise at the start of employment for example. In this case the Claimant is in the later years of his employment and was a beneficiary of a career average scheme.

[189]The loss that the Claimant will suffer is significantly greater under that scheme than the simple loss of the contributions. The Claimant is highly unlikely to have any opportunity to significantly mitigate against those losses, all be it that he may be able to pay into other less generous schemes during the course of the remainder of his working life.

[190]This is likely to have a significant impact on the level of pension which he ultimately receives.

[191]We all agree that the appropriate way to calculate pension loss in this case is therefore to use the complex method full pension calculation rather than the simple approach.

[192]First, we have considered the period over which contributions have been lost. When he was dismissed, we calculate that at the point of dismissal he had 6 more years to work until he reached the age of 60. We have therefore calculated the loss of 6 years pension contribution.

[193]The complex method requires us to consider the pension that the Claimant would have received at retirement had he not been discriminated against compared with the pension that he is likely to now receive at retirement. The difference between those two figures produces a multiplicand. We calculated the multiplicand as follows.

[195]Firstly, we remind ourselves that it is for the Claimant to prove his losses. despite the parties having spent a great deal of time in exchanging schedules and counter schedules the documentation that we have been provided with is limited. we remind ourselves that we must make our decision on the basis of the best evidence available to us, and in this case part of the evidence available to us his information probably TPA website, which gives rough calculations of the expected level of pension dependent on age; the level of any contributions made and number of years over which contributions are made.

[196]In addition, we had information before us from the Claimant of a pension estimate based on a retirement age of 67 from his pension statement provided in April 2022. That estimate appeared to use the Claimants full time salary rather that the part time equivalent.

[197]We did not have any statement from the Claimant or the respondent setting out what the Claimant’s pension would have been, had he retired at 60 as we have found he is likely to do, rather than 67, and had he not been discriminated against.

[198]Neither party addressed this on the specific figures and both parties were content for the tribunal to reserve our decision and make it on the basis of the information which we did have before us.

[199]We have therefore used the calculators from the Teachers’ pension scheme website. We have used the Claimant’s date of birth, we have used the Claimant’s final salary, the fact that he worked a 0.8% of FTE contract, and the fact that he ceased to pay into the pension scheme in early 2019. We have used a retirement age of 60, on the basis of our findings.

[200]In 2012, when the first pension scheme was ended and benefits frozen, the Claimant was 47 and was there for 13 years left for him to work until the age of 60.

[201]We note that under the second pension scheme the Claimant has not lost a lump sum.

[202]The TPA calculator gives an estimated pension, had the Claimant continued to work at the respondents on a part time basis, until 60, of £4973.00 per annum, assuming no lump sum.

[203]The TPA calculator gives an estimated pension of £3063.00 per annum, on the basis of the Claimant leaving the scheme in 2019, making no further contributions and retiring and drawing his pension at 60.

[204]We have considered whether or not these are appropriate figures to use and determine that in the absence of any other better information from either party these are appropriate figures on which to assess pension loss.

[205]Using these figures, we find a multiplicand of £1910.00.

[206]Next, we considered the appropriate multiplier. We obtain this from the Ogden tables, which take into account the Claimant’s age at the point of the remedies hearing and his proposed retirement age, and sex, and gives a multiplier which is calculated to so as to compensate for the loss of pension, and for the fact that the claims will receive payment in one lump sum, rather than over a number of years of retirement.

[207]The multiplier produced also takes into account life expectancy.

[208]We used table 26, from the Ogden tables, in respect of loss of pension for men with a discount of 0.25% in the UK and no two year adjustment, which gives us a multiplier of 28.10.

[209]Using these figures, the Claimant’s pension loss is 28.10 x £1910.00 = £53,671.00. Calculations using the simple method

[210]We find that the Claimant will however receive pension contributions from the work which he will continue to do for both teaching agencies. The Claimant must give account for this amount of money in order to avoid double recovery.

[211]Whilst we used the complex method to calculate his loss of pension from the teachers’ pension scheme we consider that the simple method is appropriate to calculate the benefit that he will receive from his employers contributions into the NEST pension fund.

[212]We are told that the employer makes a 3% pension contribution amounting to £291.49 per annum on the basis of Mr Phillips’ current earnings. Using a period of five years of employment until a potential retirement age of 60 we calculate that he must give credit for £1457.45 in respect of those pension contributions.

[213]We therefore from the pension loss giving a final figure for pension loss of £52,214.55. Interest

[214]The Claimant is entitled to interest on the injury to feeling award from the date of the discrimination until the date of the calculation of the award.

[215]The date of the discrimination is the date on which the Claimant was told that he would be dismissed by reason of redundancy which is the 29th of April 2019 the date of the tribunal determination was the 30 January 2023.

[216]The period of time which the Claimant is entitled to interest is therefore 3 and years at 8%. We calculate this as £4200.00.

[217]In respect of loss of earnings, the interest is calculated from the midpoint from the date of dismissal, which is the 29 April 2019, and the date of the remedies hearing which is the 30 January 2023. Taking into account the midpoint between those two periods of time we calculated a period of 21 months, which is 1¾ years at 8%. Using the figure for annual earnings of earnings of £16,969.91 we calculate interest of £2375.79.