Employment Judge R HarfieldMr Morgan represented himself for claimantMr Lewis-Bale (instructed by Counsel) for respondentDate 6 August 2025
JUDGMENT
The unanimous judgment of the Tribunal is as follows:[1]Save for the complaints of discrimination associated with the Claimant’s dismissal on 5 October 2023, the remaining complaints of direct discrimination on grounds of disability, direct discrimination on grounds of age, discrimination arising from disability and breach of the duty to make reasonable adjustments were brought out of time. It was not just and equitable to extend time and the Tribunal has no jurisdiction to consider and determine them.[2]The complaints of direct discrimination on grounds of disability are not made out and are dismissed.[3]The complaints of direct discrimination on grounds of age are not made out and are dismissed.[4]The complaint of discrimination arising from disability is not made out and are dismissed. - 1 - Case No: 1600163/2024[5]The complaint of breach of the duty to make reasonable adjustments is not made out and is dismissed. Order posted to the parties on Approved by: 11 August 2025 JUDGMENT having been sent to the parties on 11 August 2025 and written reasons having been requested in accordance with Rule 60(4) of The Employment Tribunal Procedure Rules 2024, the following reasons are provided:
REASONS
[1]These are the reasons of the whole Tribunal, contributed to by all members of the Tribunal and are unanimous in all aspects. Background & the final hearing[2]This is a claim by Jason Morgan (‘the Claimant’) against his former employer, Green Light Traffic Management Ltd (‘the Respondent’). The Claimant’s employment began on 15 November 2021 and ended with his dismissal on 5 October 2023. The Claimant started ACAS Early Conciliation on 5 January 2024 and it concluded on 9 January 2024. He presented his claim to the Tribunal on 15 January 2024.[3]The Claimant brings complaints of direct discrimination on grounds of age and disability, discrimination arising from disability and breach of the duty to make reasonable adjustments. - 1 -[4]At a Case Management Hearing on 7 November 2024 (before Employment Judge Harfield), a List of Issues was agreed and directions were made to prepare the case for the final hearing. Judge Harfield also determined that the Claimant was disabled at the relevant time by reason of reduced mobility and pain, and that his dismissal and any discriminatory conduct extending over a period culminating in his dismissal were treated as having been presented in time.[5]At the outset of the final hearing, the parties confirmed the List of Issues as the issues we had to decide, save that it was agreed that there was a typographical error regarding the allegation pertaining to non-selection for training (the training took place on 14 and 15 September 2023, not 14 and 15 July 2023, per the List of Issues). In addition, the Claimant had subsequently provided details of the comparators he relied upon for his complaints of direct discrimination and the Respondent had confirmed the legitimate aims it relied upon (for the purposes of any objective justification, if required, in respect of the complaint of discrimination arising from disability).[6]The final hearing was conducted over five days from 28 July to 1 August 2025. We heard oral evidence from the Claimant. For the Respondent, we heard from the following employees: 6.1. James Elkins (Health & Safety Manager); and 6.2. Richard Davies (Business Development Manager)[7]The Claimant also provided a statement from Lucas Williams. However, the Respondent did not have any questions for Mr Williams and neither did the Tribunal. As such, he was not called to give evidence and his statement was accepted into evidence unchallenged.[8]Each witness we did hear from adopted their written statement. We were provided with a paginated and indexed bundle of documents (‘the Bundle’), to which we were referred. In addition, a number of other documents were adduced by the parties which we either allowed into evidence or refused, for reasons given orally at the time (‘the Supplementary Bundle’)[9]We also received oral and written subs from Ms Franklin for the Respondent and from the Claimant.[10]The Claimant is a litigant in person. The Tribunal explained the processes and procedures to him, checked his understanding, encouraged him to ask questions and gave guidance throughout. We were satisfied that the Claimant was able to fully engage in the process and present his claim to the best of his abilities.[11]The Tribunal were grateful to the Claimant, to the Respondent’s solicitors and to Ms Franklin for the assistance they provided and the - 2 - work they had undoubtedly undertaken, both before and during the hearing. We were also grateful to the witnesses, including the Claimant, who attended and answered the questions asked of them to the best of their recollections.[12]In reaching our findings and conclusions, we had full regard to all the evidence seen and heard and the submissions we received.[13]We found that all the witnesses we heard from tried to assist the Tribunal to the best of their abilities. We did not find that any witness was obstructive or deceitful. They all genuinely believed in their testimony and were prepared to concede matters of which they had no or limited recollection. However, there were a number of factual disputes between the Claimant and the Respondent’s witnesses which we had to resolve. That was one of our roles. We did so based upon the evidence provided to us and mindful that the events discussed occurred over two years ago.[14]We also reminded ourselves of the limitations and challenges of memory. We will explain why we have preferred one account to another. It will invariably have been because of our assessment of evidence which arose much closer in time to the events in dispute. As we will explain, we preferred the Respondent’s recollections and evidence to the Claimant’s. However, we do not say that the Claimant has lied or been in any way deceitful. What he has done, at most, is misremembered, a trait which is far more common that many realise. We also recognised that recollections, even inaccurate ones, can become more certain and more entrenched when challenged, as is the case in tribunal proceedings that, like here, involve some factual disputes.[15]The discomfort felt when those recollections are challenged is common and natural. It is sometimes referred to as cognitive dissonance. It may be felt by the Claimant listening to or reading this judgment. Any such discomfort should not be mistaken for criticism on our part of the Claimant. As we say, we accepted that each witness recalled what they genuinely believed to have happened.[16]Linked to those observations, the Claimant said that he has posttraumatic stress disorder (PTSD) and that it impacted on his oral and written evidence. However, there was no evidence before the Tribunal of a diagnosis of PTSD or of the Claimant being treated for PTSD. In any event, as explained, we found the contemporaneous evidence to be the most compelling and reliable indicator of what occurred and, by extension, those witnesses whose evidence was consistent with the contemporaneous evidence to also be the more reliable.[17]Any issues the Claimant may understandably have with recollection did not prejudice him or his case, as we invariably went to the source material, namely, the documents that were created at or very near to the events in question. Those documents had the advantage of: - 3 - 17.1. Being created nearer in time, when memories and recollections were fresher; 17.2. Not being created with litigation in mind; and 17.3. Not being subject to the vagaries of memory and the passage of time.[18]We only made findings required to determine the complaints brought by the Claimant. A number of other matters were raised by the Claimant in the course of the hearing. We did not engaged with those, save where they were relevant to the determination of the issues.
Applicable law
[19]The applicable legal provisions and tests were not in dispute and were helpfully summarised in Ms Franklin’s written submissions. It was not necessary to recite them in our oral reasons, save to remind ourselves of how the standard and burden of proof operates in discrimination claims.[20]However, for the purpose of our written reasons, we set out the applicable legal principles.[21]The standard of proof is the balance of probabilities. The burden of proof in discrimination complaints has two stages, as follows (per section 136 of the Equality Act 2010, Efobi v Royal Mail Group Ltd 2021 ICR 1263, SC; Madarassy v Nomura International plc [2007] IRLR 246 and Igen Ltd (formerly Leeds Careers Guidance) v Wong 2005 ICR 931, CA): 21.1. The Claimant has to prove facts from which the Tribunal could infer that discrimination has taken place; 21.2. If so, the burden ‘shifts’ to the Respondent to prove that the treatment in question was in no way because of a protected characteristic.[22]Section 123 of the EqA 2010 requires that proceedings may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates or such other period as the Tribunal thinks just and equitable. By reason of section 123(3), conduct done over a period of time is treated as being done at the end of the period, for the purpose of calculating the three-month time limit for bringing proceedings.[23]Incidents forming a continuing act do not have to consist of the same type of prohibited conduct, nor do they have to relate to the same protected characteristic (see, for example, Worcestershire Health & Care NHS Trust v Allen [2024] EAT 40, at [12] – [13], citing Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ 1686). - 4 -[24]The time limits in section 123 of the EqA 2010 are subject to section 140B of the EqA 2010 (which makes provisions for the extension of time limits as a result of engagement in ACAS Early Conciliation, as contained within section 18A of the Employment Tribunals Act 1996).[25]Section 39(2) of the Equality Act 2010 (‘EqA 2010’) states: An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by dismissing B;(d) by subjecting B to any other detriment.[26]Age and disability are a protected characteristics (per section 4 of the EqA 2010). Section 6 of the EqA 2010 defines disability for the purposes of the Act.[27]Direct discrimination is defined by section 13(1) of the EqA 2010, and states as follows: A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[28]A claimant claiming direct discrimination must show that they have been treated less favourably than a real or hypothetical comparator. The less favourable treatment must be because of a protected characteristic. This requires the Tribunal to consider the reason why the claimant was treated less favourably.[29]The relevant circumstances that the claimant and comparator must share are those which the employer took into account in deciding to treat the claimant as it did, with the exception of the element of disability (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285).[30]Discrimination arising from disability is defined by section 15 of the EqA 2010 as follows:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. - 5 -(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[31]There are two distinct steps to the test to be applied in determining whether discrimination arising from disability has occurred (per Basildon & Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14): 31.1. Did the claimant's disability cause, have the consequence of, or result in, "something"? 31.2. Did the employer treat the claimant unfavourably because of that "something"?[32]In Pnaiser v NHS England [2016] IRLR 170, the Employment Appeals Tribunal summarised the proper approach to claims for discrimination arising from disability as follows: 32.1. The Tribunal must identify whether the claimant was treated unfavourably and by whom. 32.2. It then has to determine what caused that treatment, focusing on the reason in the mind of the alleged discriminator. The motive of the alleged discriminator in acting as they did is irrelevant. 32.3. The Tribunal must then determine whether the reason was "something arising in consequence of [the claimant's] disability", which could describe a range of causal links. That stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. 32.4. The knowledge required is of the disability, not knowledge that the "something" leading to the unfavourable treatment was a consequence of the disability.[33]Section 20 of the EqA 2010 sets out the duties to make reasonable adjustments in respect of disabled persons. So far as relevant, section 20 states:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following … requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. - 6 -[34]Schedule 8 to the EqA 2010 provides more details as to the duty to make reasonable adjustments. In addition, section 212 of the EqA 2010 defines “substantial” as “more than minor or trivial.”[35]What constitutes a PCP should be construed broadly, It includes formal and informal practices, policies and arrangements and may in certain cases include one-off decisions (per Lamb v The Business Academy Bexley UKEAT/0226/15). However, it is not appropriate to interpret the phrase "provision, criterion or practice" so as to encompass all one-off decisions made by employers during the course of dealings with particular employees (per Ishola v Transport for London [2020] EWCA Civ 112).[36]If a person fails to comply with the duty to make reasonable adjustments, that person discriminates against the disabled person (per section 21 of the EqA 2010).
Findings of fact
[37]To a large extent, many of the relevant facts in this case were not in dispute.[38]The Claimant was employed by the Respondent as a Traffic Management Operative. The Respondent provides traffic management services. The Claimant was employed for 40 hours per week, made up of four 10-hour shifts per week.[39]At the time that the events we considered occurred, the Claimant was 52 and then 53 years of age (his date of birth being 30 May 1970).[40]There were a number of iterations of the Claimant’s contract of employment in evidence. However, so far as relevant, his contract with the Respondent included the following provision regarding sickness absence (at [211] of the Bundle): SICK LEAVE, PAY AND CONDITIONS If you are absent from work clue to incapacity, you must notify your line manager of the reason for your absence as soon as possible but no later than 2 hours before you're due to start work on the first day of absence.[41]On 26 July 2022, the Claimant suffered a serious injury at work, when his leg was run over by a horsebox. As a result, the Claimant was off work until January 2023 and underwent various surgical and medical interventions. As noted earlier, he was found by the Tribunal to be disabled by reason of reduced mobility and pain at the relevant time.[42]In October 2022 and whilst he was continuing his recovery, the Claimant met with Nick Tagg (the Respondent’s Business Manager) and Mr Elkin. They visited the Claimant at home, ahead of his proposed return to work. - 7 -[43]The Claimant referred to the meeting of October 22 in his written evidence, and detailed the proposed phased return to work, as follows (at Paragraph 9 of his statement): They proposed a phased return, including:• Office-based duties to assist with Integrated Management Systems (IMS)• Auditing tasks and toolbox talks• Working remotely from home until I was physically able to attend the office• Company-arranged transport when I returned[44]However, the Claimant subsequently said in his oral evidence that he was not offered company-arranged transport. The Respondent said that it was offered but refused by the Claimant. The Tribunal found that it was more likely that the transport was offered and declined. Even the Claimant accepted in his witness statement that it was offered (as detailed above), there was no evidence of the offer being withdrawn by the Respondent and no evidence of the Claimant complaining at the time about a lack of transport when he returned to work in January 2023. In contrast, the occupational health (OH) report of 8 November 2022 recorded the Claimant reporting that he been offered assistance by the Respondent with commuting (at [85] of the Bundle), and the OH report of 24 January 2023 (after the Claimant had returned to work) recorded that he had resumed driving (at [92]).[45]As noted above, the Respondent referred the Claimant to OH to prepare for his return to work and the subsequent report of 8 November 2022 included the following recommendation (at [85] of the Bundle): Therefore, I would recommend a trial of either office work/work from home/hybrid working initially, starting with 3-4 hours a day, gradually building up as he feels able. A flexible approach is advised and he may benefit from having regular weekly meetings with his line manager to monitor his progress and to provide an opportunity to report any difficulties or seek support.[46]On 23 November 2022, Mr Tagg spoke with the Claimant and recorded the conversation in a contemporaneous email (at [88] of the Bundle): I spoke to Jason this afternoon. He is keen to get back to work before Christmas and he says his consultant has told him to crack on. His consultant believes that the [OH] doctor is being overly cautious because it was a video review. I think his sick paper runs until approx. 13th Dec Can you think about how we might return Jason to work — perhaps doing a couple of hours on day one, then having a days holiday, then doing 4 hours, etc. It would be good to come up with plan that gradually builds him to - 8 - working full shifts and then full weeks — but in a way that uses his holidays between now and the year end.[47]In his oral evidence, the Claimant stated that he did not have this conversation with Mr Tagg or if he did, it was not in the manner reported by Mr Tagg. We reminded ourselves that Mr Tagg made this record within hours of the conversation. In contrast, the Claimant was recalling the same conversation two and half years later. There was no reason not to doubt the accuracy of Mr Tagg’s recollection of a conversation he had held earlier the same afternoon. We therefore found that his email was an accurate record of what the Claimant was telling the Respondent as at 23 November 2022.[48]The Claimant returned to work on 18 January 2023. There was a contemporaneous record of the nature of his return to work in the meeting the Claimant had with OH on 24 January 2024, as follows (at [92] of the Bundle): [The Claimant] states that he returned to work last week, in the office based role suggested, working 6 hours Wednesday and 8 hours on Friday. He confirms increased fatigue following the 2 shifts. He has resumed driving, but only for short and essential journeys.[49]OH went on to make further recommendations, as follows [at 93] of the Bundle): On the information provided to me today, I would advise that [the Claimant] is currently fit for work within the adjusted office-based role and work with workplace adjustments (see below). I recommend a more structured phased return to work with a gradual increase in the number of hours worked over 4-5 weeks, this may need to be extended or shortened as necessary depending upon his ongoing symptoms. One option of a phased return you may wish to consider is: Week 1 (This week)— 50% contracted hours Week 2 — 60% contracted hours Week 3 — 70% contracted hours Week 4 — 80% contracted hours A gradual return to work (see above) for him following his absence is likely to increase his ability to adapt to working his contracted hours and returning to his contracted role and may reduce the likelihood or duration of future absences related to his current physical health and wellbeing. [The Claimant] confirms that he does have a fully adjustable office chair and that he is using another chair as a footrest, regularly alternating between sitting with his leg elevated, standing, and walking around. I suggest he is provided with an adjustable footrest/stool. As stated in the previous report, [the Claimant] will need protected time to attend for OPD, physio, and hydro-pool appointments. - 9 -[50]In response, Mr Tagg and Mr Elkin meet with the Claimant on 30 January 2023 to agree a more structured return to work plan. Lisa Allen of HR made a contemporaneous note of what was agreed at the meeting. In addition, she recorded concerns that the Respondent had that the Claimant was overdoing it, causing his ankle to flare up (at [95] of the Bundle).[51]Again, this was a contemporaneous record of what was happening at the time, captured within hours or days of the events being recorded. That made such notes and records reliable as an accurate record of what in fact occurred and we had no basis not to accept Ms Allen’s record as anything but accurate. It was also consistent with, and supportive of, Mr Elkin’s recollection (per Paragraph17 of his witness statement).[52]The concern that the Claimant was ‘overdoing it’ was also reflected in the fact that the Claimant was undertaking overtime shifts away from the office. On 26 February 2023, the Claimant worked a Sunday shift on the Quay Street job (per [15] of the Supplementary Bundle).[53]This was also the shift which the Claimant relied upon to allege that he had been forced to do a 13-hour shift, whilst still in his phased return to work (which we understood to be part of his disability discrimination claim, specifically an alleged breach of the duty to make reasonable adjustments).[54]We had a number of difficulties with the Claimant’s arguments and evidence in this regard, as follows: 54.1. There was no evidence before us of any of compulsion; 54.2. The Claimant accepted in his oral evidence that he could have refused to take the shift and explain that he was on a phased return to work, but did not; and 54.3. The allegation of forcing, coercing or compelling the Claimant to do the shift was wholly at odds with the contemporaneous evidence of the Respondent raising concerns that the Claimant was overdoing his phased return to work, leading to a further referral to OH and the implementation of a more structured phased return to work.[55]The only evidence of the length of the shift was from Mr Elkin, who said that the Quay Street contract was a 24-hour job, which was why there were weekend shifts available and that each shift was 12 hours long. Mr Elkin also explained that the length of the shifts were common knowledge and would have been known to those opting to work them[56]There was also no evidence of the Claimant complaining at the time of being forced or compelled to undertake that or any other shift. - 10 -[57]We found that the Claimant chose to do the Sunday shift on 26 February 2023, that he was aware that the shift was for 12 hours and that there was no compulsion or pressure whatsoever for him to undertake it.[58]The Respondent followed the OH advice and prepared a revised return to work plan, which was discussed and agreed with the Claimant on 28 March 2023. It was reiterated to the Claimant the importance of sticking to the plan, which was a structed return to work over a four week period (per [96] – [98] of the Bundle). The revised return to work plan also permitted the Claimant to start requesting overtime from week three (that is, from week commencing 10 April 2023), if he so wished. However, any overtime was also capped initially at one extra shift per week (of 10 hours). That continued for two weeks before the Claimant was then permitted to return to normal duties.[59]At that meeting on 28 March 2023, reference was made to the fitness to work note of 17 March 2023, which did not state that the Claimant required a phased return to work but did propose that, in undertaking his normal duties, the Claimant should not be standing for more than two to three hours, that he needed to elevate his leg after two to three hours of standing and that he should not be working 13-hour shifts[60]It was not in dispute that the Claimant returned to his normal duties at the conclusion of the revised return to work plan, with effect from 24 April 2023.[61]We paused there to note that, from October 2022 until the Claimant was deemed fit to return to normal duties, the Respondent met with the Claimant regularly, referred him to OH, implemented the recommendations from OH, proposed adjustments and changes to assist the Claimant to return and remain in work, and revised the return to work plan upon further advice from OH and in light of concerns that the Claimant was not sticking to the original plan. Those were all the hallmarks of an employer who was concerned for the Claimant’s welfare and keen to support him back into the workplace.[62]From May 2023 to September 2023, the Claimant worked almost entirely on the so-called surface dressing job, which importantly included regular overtime (in that the Claimant routinely worked five shifts per week, instead of his contracted four shifts).[63]On 10 July 2023, Robert Shannon joined the Respondent in a managerial role. The Claimant continued to work on the surface dressing job and continued to be offered and accept overtime (of one extra tenhour shift per week).[64]On 8 September 2023, the Claimant refused to drive a van for work which he considered was unfit to be driven. He took photographs of the condition of the van at the time (at [146] – [152] of the Bundle). The Claimant’s evidence was that Mr Shannon rang him, was shouting about the van and was very abrupt with the Claimant. However, the Claimant - 11 - also explained how he came up with a proposal (to get the tyres replaced on the van) and how Mr Shannon complimented him for this at the time. The Claimant also recalled how a couple of hours later, Mr Shannon rang him back and apologised for his earlier behaviour.[65]On 12 September 2023, Mr Shannon offered the Claimant the role of operations supervisor. The job was filled at the time on a temporary basis by another employee, Dave Blockwell. At the time, Mr Blockwell was on leave getting married. It was not in dispute that this was a promotion and involved an increase in pay. It struck us as self-evident that neither Mr Shannon nor the Respondent would offer a promotion to the Claimant if not satisfied with the work he was doing.[66]The Claimant accepted the role but on condition that he did not begin the post until Mr Blockwell had returned from leave and the situation had been explained to him. The Claimant referred to not wanting to be seen by colleagues as going behind Mr Blockwell’s back or them losing trust in him. In his oral evidence, the Claimant said that he told Mr Shannon that he was willing to do the job but wanted to wait for Mr Blcokwell’s return and sit down with him to explain why he was being removed as supervisor, which Mr Blockwell was only performing on a stand-in basis.[67]The Claimant alleged that when he was offered the promotion, Mr Shannon said that the Claimant was not a “spring chicken” and that “the boys had noticed that he was slower than before”. The Claimant believed that this reflected the real reason he was offered the job, namely because of his age and his disability.[68]It was never the Claimant’s case that being offered the operations supervisor role was an act of age discrimination. However, we heard evidence and submissions on whether or not Mr Shannon made the ‘spring chicken’ remark when offering the role to the Claimant, so we have determined it.[69]Of particular relevance was that the Claimant made no reference to such a comment at the appeal hearing following his dismissal, which was held on 21 December 2023 (see below). That was three months after the comment was allegedly made and at a time when the Claimant was raising a number of criticisms of Mr Shannon, including an allegation that he intended to bring in his own staff. Despite also discussing the offer of the operations supervisor’s posts explicitly in the appeal hearing, the Claimant did not allege that Mr Shannon had said he was “no spring chicken”. In our judgment, if it had been said as and when alleged, it would have been raised by the Claimant at that hearing. The fact that it was not was compelling evidence that, whatever the Claimant might now believe, the comment was not made. Instead, he has misremembered the conversation and perhaps conflated conversations or comments. Indeed, the alleged comment first appeared in the course of this litigation (by way of the Claimant’s further information and his witness statement). - 12 -[70]That was also true of the alleged comment about “the boys have said you’re not the same since the accident”. It was also raised for the first time in the Claimant’s witness statement (written almost 18 months after the alleged remark was made) but was not raised at all at the appeal hearing, a time much closer to the alleged remark and when both Mr Shannon and the operations supervisor post were being explicitly discussed. In fact, this alleged comment was not raised by the Claimant at anytime prior to his witness statement, which he signed on 28 February 2025. Again, we concluded that the Claimant misremembered and the comments were not made, as alleged or at all.[71]As noted above, the Claimant was offered the operations supervisor role on 12 September 2023, which he informed Mr Shannon he would accept subject to first meeting with Mr Blockwell upon his return from holiday. On 14 and 15 September 2023, training was provided on Multi-Phase Traffic Management for eight members of staff at the Respondent’s premises (with four staff attending each iteration of the course). It was not in dispute that the Claimant was not one of the staff invited to attend the training. He says that the reason for that was because of his disability and his age.[72]In our judgment, there was no evidence whatsoever to support either of those contentions. The Claimant said that he should have gone on the training and it would have been beneficial to him. That may be so but that was not a basis to found an allegation of discrimination. At its highest, the Claimant disagreed with the decision to exclude him from the training That was some way short of shifting the burden of proof necessary for a claim of discrimination.[73]In any event, the Respondent provided compelling, contemporaneous and consistent evidence as to why the Claimant was not sent on the training. He had just been offered and accepted the post of operations supervisor and the Respondent did not think it appropriate for the Claimant to attend the training, given his new role. That was a management and operational decision clearly and obviously open to the Respondent to take. In addition, we were told (and it was not challenged by the Claimant), that one of his comparators, Steve Kenniford, was also not sent on the training, despite also being eligible to attend. On that basis, it could not be said that the Claimant was treated less favourably than Mr Kenniford, as they were both not invited to the training.[74]In addition, there were only eight places on the training. It was not suggested by the Claimant that every other member of staff attended. They did not. Places were limited and the Respondent was entitled to decide who to send on the training. Not sending the Claimant was not, without more, an act of discrimination because of his age or his disability. It was, instead, a reasonable, practical, genuine business and management decision. - 13 -[75]As such, we found that the decision to not send the Claimant on the training in September 2023 was because he had just been offered and accepted the role of operations supervisor.[76]The Claimant was absent from work from 26 to 29 September 2023 by reason of Covid. The Claimant was in work on Monday, 25 September 2023. On Tuesday, 26 September 2023, the Claimant did not notify the Respondent until 17:24 that he was unwell (at [136] of the Bundle). That was contrary the requirements of the Claimant’s contract, wherein he was required to notify the Respondent not later than two hours before he was due to start work of his absence (as noted, above).[77]The Claimant said in his evidence that he had told Nicola Smith (a member of the Respondent’s operations team) on the afternoon of Monday, 25 September 2023 that he was not feeling well and she had asked him to make arrangements for someone to cover his jobs for the following day. The Claimant said that that was him, in effect, giving the Respondent the requisite notice that he would not be attending work on Tuesday, 26 September 2023.[78]The difficulty with the Claimant’s evidence was revealed by what actually occurred in the immediate aftermath of his absence. On 27 September 2023, Mr Shannon messaged the Claimant and asked why he had not notified the office of his absence before his shift started (as required under his contract) and informed the Claimant that they were unaware of his whereabouts, save that he had not turned up for work (at [154] of the Bundle). If the Claimant’s account were correct (that he had told Ms Smith the day before that he would not be in the following day because he was ill), it was reasonable to have expected him to explain that to Mr Shannon in his reply (at [155]). But the Claimant made no reference to telling Ms Smith the day before, despite make reference to a conversation he did have with Ms Smith about where he was working the following day.[79]Similarly, if the Claimant’s recollection was correct, it was reasonable to expect him to have explained to Mr Shannon, when his failure to report was being questioned and the assertion that the Respondent did not know his whereabouts was being raised, that he had already explained on 25 September 2023 to Ms Smith that he would be off the next day, thereby complying with the contractual requirements. But the Claimant did none of that.[80]In addition, when the Claimant was subsequently dismissed for failing to report his absence, he again failed to raise what he alleged now. He did not claim at the time that he had reported his absence to Ms Smith on 25 September 2023, even though he had lost his job as a result of the matter.[81]Those factors were, in our judgment, compelling. Had the Claimant reported to Ms Smith on 25 September 2023 as alleged, he would have raised it at the time and in the circumstances he was facing, whether on - 14 - 27 September 2023 or following his dismissal. He did neither and we were compelled to conclude that that was because, contrary to what he now believed, he did not report his pending absence to Ms Smith on 2 September 2023, as alleged or at all.[82]As explained, on 5 October 2023, the Claimant was dismissed by the Respondent, with payment in lieu of notice. The reasons given for the dismissal were as follows (per the dismissal letter, at [101] of the Bundle): Unfortunately, during the period of time that you have been with the business we do not consider that your behaviour and conduct has met the standards required by the business and this was most recently demonstrated by your failure to properly notify the Company of your period of absence from 26/09/23 to 29/09/23.[83]The Claimant referred to an earlier version of the dismissal letter, which recorded him as being absent from “26/10/23 – 29/10/23”. It was not in dispute that the Claimant was in fact absent from 26 to 29 September 2023 or that the Claimant was dismissed on 5 October 2023. Mr Elkins explained that a typing error had been made, it was addressed and a corrected letter was issued to the Claimant.[84]In our judgment, that was clearly a typing error and not indicative or supportive of anything other than an innocent and inadvertent error by the Respondent.[85]The Claimant appealed against the decision to dismiss him and, as we have alluded to, there was an appeal hearing on 21 December 2023, chaired by Mr Elkin For reasons given by Mr Elkin shortly thereafter, the appeal was unsuccessful and the decision to dismiss the Claimant upheld. Analysis & conclusions[86]We determined the claim by reference to the agreed List of Issues, save that we dealt with time limits last. The substantive complaints were of direct discrimination, discrimination arising from disability and breach of the duty to make reasonable adjustments. Direct age discrimination (Equality Act 2010 section 13)[87]The complaint of direct age discrimination was in the following terms, so far as relevant (per [71] – [72] of the Bundle):3.1 The Claimant says he was the oldest person in the company and in the age group of 50 plus. He compares his treatment with people younger than that group.3.2 Did the Respondent do the following things:3.2.1 Exclude the Claimant from training on 14 and 15 Sept 2023; - 15 -3.2.2 Not offer the opportunity to work overtime and at weekends between February 2023 and the date of dismissal on 5 October 2023;3.2.3 Dismiss the Claimant on 5 October 2023?3.3 Was that less favourable treatment because of his age?[88]As we have found, the Respondent did not invite the Claimant to the training in September 2023 and the Respondent did dismiss the Claimant in October 2023.[89]However, we did not find that the Respondent failed to offer the Claimant opportunities for overtime and weekend work between February 2023 and October 2023. The contrary was true. The Claimant undertook a Sunday overtime shift in February 2023, was entitled to undertake overtime as part of his restructured phased return to work from week three and returned to full, normal duties from April 2023, before embarking on the surface dressing job from May 2023, which regularly involved overtime.[90]So far as the exclusion from training and the Claimant’s dismissal were concerned, neither were less favourable treatment by reason of the Claimant’s age. There was no evidence from which we could infer that the reasons for not inviting the Claimant to the training or for dismissing him were because of his age.[91]In contrast there was ample evidence that the reason he was not invited to the training was purely operational and business-related. Similarly there was ample evidence that the reason he was dismissed was because of his failure to report his sickness absence in breach of his employment contract.[92]For those reasons, the complaint of direct age discrimination was not made out and it is dismissed. Direct disability discrimination (Equality Act 2010 section 13)[93]The complaint of direct disability discrimination was in the following terms, so far as relevant (per [72] – [73] of the Bundle):4.1 Did the Respondent do the following things:4.1.1 Exclude the Claimant from training on 14 and 15 Sept 2023;4.1.2 Offer the Claimant a job as supervisor on 12 September 2023;4.1.3 Dismiss the Claimant on 5 October 2023?4.2 Was that less favourable treatment because of disability? - 16 -[94]As found above, all three acts of alleged less favourable treatment did occur.[95]We repeat our analysis regarding direct age discrimination in respect of the Claimant’s omission from training and his dismissal. There was no evidence from which to infer that either event occurred because the Claimant was disabled. The Claimant’s absence due to ill-health which led to his dismissal was because of Covid. It was in no way related to his disability. We also repeat our findings that there was ample evidence of non-discriminatory factors which informed the decision on training and the decision to dismiss.[96]As for the offer of the post of supervisor, in no reasonable sense could it be characterised as less favourable treatment. It was a promotion and came with a pay rise. It was more favourable treatment, compared to all those staff not offered the post. As such, it fell at the first hurdle. In any event, the reason for offering the Claimant the post was in no way related to his disability. Rather, it was related to his manager’s opinion that he was likely to be better in the job than the incumbent at the time.[97]For those reasons the complaint of direct discrimination by reason of disability was not made out and is dismissed. Discrimination arising from disability (Equality Act 2010 section 15)[98]The complaint of discrimination arising from disability was in the following terms, so far as relevant (per [73] – [74] of the Bundle):5.1 Did the Respondent treat the Claimant unfavourably by: 5.1.1 Dismissing him?5.2 Did the following things arise in consequence of the Claimant’s disability: 5.2.1 The Claimant was slower in putting out lights and other duties.[99]It was not in dispute that the Respondent dismissed the Claimant nor was it suggested that dismissing the Claimant that anything other than unfavourable treatment (in the sense that it was adverse to him, rather than beneficial).[100]The Respondent did not accept that a consequence of the Claimant’s disability was that he was slower in putting out lights or in his other duties. Indeed, it was far from clear whether the Claimant believed that these were consequences of his disability, given his own Disability Impact Statement which included the following (at [167] of the Bundle): The effects of my impairment I was a little bit slower than I was previously due to the injuries on my leg But never affected my ability to put the jobs out with 100% safety in place. I was still quicker than most operatives at the time… - 17 -[101]Even if a consequence of the Claimant’s disability was that he was slower in some tasks than he had been before, that was not why he was dismissed. As we have found, he was dismissed because he failed to report his sickness absence on 26 September 2023 in accordance with the terms of his contract. There was no evidence from which we could infer that the Claimant’s disability or the effects of the disability on his ability to undertake his tasks played any role whatsoever in the decision to dismiss him. Again, and in stark contrast, there was ample evidence that the reason he was dismissed was for failing to report (non-disability related) sickness absence.[102]It follows that the unfavourable treatment (his dismissal) was not because of something arising from the Claimant’s disability. As such, the complaint of discrimination arising from disability was not made out and is dismissed. Reasonable Adjustments (Equality Act 2010 sections 20 & 21)[103]The complaint of breach of the duty to make reasonable adjustments was in the following terms, so far as relevant (per [74] of the Bundle): 6.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs: 6.2.1 Sending the Claimant to work on the roads (other than 2 half days when the Claimant worked in the office)? … 6.5 What steps could have been taken to avoid the disadvantage? The Claimant suggests: 6.5.1 Giving the Claimant alternative duties not working on the road (whether at home, in the office or hybrid working) …[104]The Tribunal doubted whether the allegation that the Respondent sent the Claimant to work on the roads other than for two half-days in the office could even qualify as a PCP, given that it was not suggested that the same PCP was applied to anyone other than the Claimant. In order to test whether a PCP is discriminatory, it must be capable of being applied to others. In contrast, what the Claimant relied upon had the hallmarks of alleged treatment that was specific to him and his circumstances. What the Claimant complained of appeared to be better characterised as the disadvantage that might result from the application of a PCP, rather than a PCP in itself. We held those doubts notwithstanding the requirement to construe and interpret PCPs widely.[105]However, we were not addressed on the status of the PCP by either party and so have proceeded on the basis that, if applied to the Claimant, it was a PCP. - 18 -[106]But that did not advance the Claimant’s case very far because, even if it were a PCP, it was never applied to the Claimant, as alleged or at all. As we found, the Claimant was never sent to work on the roads, in the sense that he was compelled to do so against his wishes or in breach of any advice from OH or his GP. Rather, the Respondent was doing all it could to limit and restrict the Claimant’s duties, in line with the expert advice of OH. At no time did the Respondent require the Claimant to work on the roads. Matters only returned to the normal state of affairs once OH and the Claimant’s GP said it was safe and proper to do so.[107]The reason the Claimant worked on the roads before he was cleared to return to normal duties was because he chose to do so, whether on the Quay St job in February 2023 or otherwise.[108]As the alleged PCP was never applied to the Claimant, as alleged or at all, this complaint also fell at the first hurdle. Without the application of a PCP, there could be substantial disadvantage. Without substantial disadvantage, there could be no duty to make reasonable adjustments. Without any duty, there could be no breach of the duty.[109]For those reasons, the complaint was not made out and is dismissed.[110]As a footnote and for the sake of completeness, what the Claimant claimed the Respondent should have done by way of reasonable adjustments, namely, give the Claimant alternative duties not working on the road (whether at home, in the office or hybrid working), was precisely what the Respondent did do, as we detailed in our findings of fact. Time limits[111]Save for the dismissal (where the Tribunal previously extended time), all the other complaints of discrimination were presented out of time[112]By virtue of section 123 of the EqA 2010, complaints of discrimination must be presented to the Tribunal within three months of the alleged act of discrimination occurring (subject to the effects of the ACAS Early Conciliation process which, if started within the three month time limit, serves to stop the clock for the duration of the Early Conciliation and/or extend the time limit by a month, if the three month time limit expires during Early Conciliation). Whether or not complaints have been brought in time goes to the Tribunal’s power to be able to consider and determine them, otherwise known as the Tribunal’s jurisdiction.[113]So far as relevant, the Claimant began ACAS Early Conciliation on 5 January 2024 and it ended on 9 January 2024. He presented his claim to the Tribunal on 15 January 2024. On that basis, anything occurring before 6 October 2023 was out of time. As noted above, Employment Judge Harfield decided on 7 November 2024 to extend time in respect of the complaint of dismissal as an act of discrimination. However, she expressly did not determine whether any other complaint should be deemed in time or allowed to proceed. - 19 -[114]In respect of the discrimination complaints that did not relate to the Claimant’s dismissal, the Claimant would need to either show that any acts pre-dating 5 October 2023 were part of a continuing act of discrimination, the last act of which fell in time (in which case all complaints in the continuum are deemed to have been brought in time) or ask the Tribunal to exercise its discretion under the EqA 2010 to extend time.[115]We did not find that the alleged acts which were out of time were part of a continuing act which culminated with the Claimant’s dismissal. They were too disparate, too unconnected and involved different allegations of different types of discrimination against different people.[116]Were the complaints presented in some other period which was just & equitable?[117]The test is whether, in all the circumstances, the complaints were presented within such other period of time as the Tribunal thinks just and equitable (per section 123(1)(b) of the EqA 2010). That includes a consideration of why the complaints were brought out of time, how out of time they are, the merits of the complaints and the balance between the likely prejudice caused to each party of granting or refusing the application to extend time.[118]The Claimant’s explanation, as presented to us, was that whilst he did take advice and was aware of the applicable time limits, he misjudged or misread that advice, such that he did not present any of his complaints in time (even allowing for ACAS Early Conciliation). In his written submissions, the Claimant referred to being unwell with serious mental and physical health problems. However, he provided no details of those problems or, more importantly, how they led to him missing time limits which, on his own case, he had sought advice on and was aware of.[119]We reminded ourselves that the Claimant had recovered sufficiently from his physical injuries to have returned to normal duties at work. As we also mentioned, there was no evidence of the Claimant being diagnosed with PTSD or receiving any treatment consistent with such a diagnosis.[120]In her oral submissions, Ms Franklin confirmed that the Respondent did not claim that it was caused prejudice by the complaints being presented out of time. Rather, she argued that without the Claimant making good his case as to why time should be extended, extending time would be contrary to the case law that it is to be considered as the exception rather than the rule.[121]It was for the Claimant to show that complaints which otherwise would be out of time should be treated or deemed to be in time. He had been on notice from at least Employment Judge Harfield’s decision of 7 November 2024 that whether or not the complaints other than dismissal were in time would be determined at the final hearing. He had ample - 20 - opportunity to obtain and provide evidence in support of the health conditions he sought to rely upon. For whatever reason, the Claimant failed to provide any such corroborating evidence.[122]We concluded that the Claimant had failed to provide, to the standard required, an explanation, supported by evidence, that, despite being aware of the applicable time limits, his health rendered him unable to comply with those time limits. Notwithstanding the lack of prejudice to the Respondent, the absence of a corroborated explanation from the Claimant led us to find that it was not just and equitable to treat those complaints which were out of time as in time. The Tribunal therefore did not have the jurisdiction to consider and determine them.[123]Notwithstanding that, and as can be seen, we determined all the complaints before us and dismissed them (including those allegations of discrimination which remained out of time). We did so for the following reasons: 123.1. We had seen and heard extensive evidence about the complaints; 123.2. It was important for the parties to know and understand our findings and conclusions on the complaints, including those over which, ultimately, we did not have jurisdiction; 123.3. Discrimination is a serious allegation. We did not want the Claimant believing that his age and disability discrimination complaints had failed on a technicality (that of being presented out of time); and 123.4. We did not want those accused of age and disability discrimination to be left with any residual sense that they had not been fully cleared and vindicated of the allegations against them.[124]For those reasons in particular, we considered all the complaints pursued and, as explained above, dismissed them. Order posted to the parties on Approved by: 28 October 2025