Mr K Crossland v Chamberlains Security (Cardiff) Ltd: 1600344/2015

EMPLOYMENT TRIBUNALS

Case No 1600344/2015

Between

Mr K CrosslandClaimant

Chamberlains Security (Cardiff) LtdRespondent

Before

Employment Judge Pirani

Members

Mr CD Harris

Mrs E Burlow

In person for claimant

Mr N Smith (instructed by counsel) for respondent

Date 18 May 2017

JUDGMENT

[1]The claimant succeeds in his section 20 and 21 Equality Act 2010 claim for failure to make reasonable adjustments.

[2]The claimant succeeds in his section 15 Equality Act 2010 claim for discrimination because of something arising in consequence of his disability.

[3]The claimant succeeds in his section 27 Equality Act 2010 claim for victimisation.

REASONS

[1]By a claim form received at the tribunal on 13 February 2015 the claimant, who was born on 8 March 1959, issued a claim against his former employer for disability discrimination and holiday pay. The claimant says he was employed from 29 July 2014 until 26 October 2014. The dates on the Acas certificate are 7-15 January 2015.

[2]The matter came before Employment Judge Clarke at a case management preliminary hearing on 7 April 2015. At that hearing the claimant withdrew the claim for holiday pay.

[3]It has been clarified that the disability relied on for the purposes of section 6 Equality Act 2010 (“EqA”) is type I diabetes. The respondent concedes that the claimant was disabled at the material times by reason of type I diabetes.

[4]The matter was originally heard at the Cardiff Employment Tribunal in July 2015. The claimant subsequently successfully appealed and the matter was remitted to the Bristol Employment Tribunal. Although this case has been remitted from the EAT the issues were clarified and agreed at the start of this hearing. They were also read out after the evidence and were again agreed by the parties.

[5]The claimant’s first complaint of disability discrimination is brought under section 15 EqA: discrimination arising from disability.

[6]The respondent accepts that, in deciding that the claimant could no longer work at the Llandegfedd Reservoir in Pontypool and not offering him other work, it did subject him, for the purposes of section 15(1)(a), to unfavourable treatment because of something arising in consequence of his disability. The claimant also alleges that he was dismissed by the respondent is alleged to be unfavourable treatment.

[7]There is a dispute as to whether the respondent dismissed the claimant or whether he resigned. The claimant says the dismissal was something arising in consequence of his disability. The respondent says that claimant resigned because he wanted his P45 so he was able to sign on.

[8]The respondent contends it pursued a legitimate aim for the purposes of the section 15 claim, namely to ensure the claimant’s health and safety.

[9]The issue is therefore whether the respondent is able to show any unfavourable treatment was a proportionate means of achieving a legitimate aim.

[10]The claimant’s second complaint of disability discrimination is brought under sections 20 and 21 EqA: a failure to comply with the duty to make reasonable adjustments. It was agreed that the PCP relied on is a requirement that employees, and in this case the claimant, work on a relatively isolated site alone and patrol that site on foot or by car. It is agreed that the respondent applied this PCP. It is also agreed that the claimant suffered substantial disadvantage by reason of his disability about which the respondent had knowledge.

[11]The nature of the substantial disadvantage was explained by the claimant in evidence as: if he collapses after a hypoglycemic attack he will have no-one around to administer lucozade which would alleviate symptoms of the attack.

[12]The reasonable adjustments the claimant says should have been put in place by the respondent are: i. the respondent should have installed a telephone booster to improve telephone signal reception at the reservoir ii. the respondent should have recognised that security officers did not need to use their car as part of the job when at the reservoir iii. the respondent should have ensured that the gate on the site was able to be unlocked from the outside so that the site was able to be accessed in case of emergency

[13]The respondent says these adjustments would not alleviate the substantial disadvantage alleged by the claimant.

[14]In addition, the claimant pursues a victimisation by way of amendment which was permitted at the hearing in July 2015. The protected acts he relies on are: i. the grievance dated 5 November 2014 ii. the ET1 which was presented on 13 February 2015

[15]The claimant also relies on section 27(1)(b) EqA, in other words, that the respondent believed that the claimant had done, or may do, a protected act.

[16]The detriment he alleges is the respondent’s failure to re-engage him as a security officer and/or offer him work at another site.

[17]The respondent’s case is that it did offer other jobs to the claimant initially since it was willing to re-engage but once it was aware the claimant was going to litigate against it, it determined not to re-engage further. This was how the case was put at the case management hearing on 6 December 2016. We were reminded however that the full defence was set out in a response submitted during the July 2015 hearing.

[18]The withdrawal of the offer of work is said by the respondent to have occurred in late December 2014 although was not set out in any written document.

[19]The response to the victimisation claim is at divider 2a. Although it is now said that bad faith is relied on it is agreed that it is not pleaded. There was no amendment request by the respondent. Nonetheless, we were told that the bad faith alleged is that the claimant was seeking to set up claims against the respondent in order to obtain a pecuniary advantage.

[20]A point is also taken on causation. It is said that the respondent withdrew its offer of looking for alternative work when it determined that re-engaging the claimant would result in future litigation against it over and above that identified by the claimant at the grievance meeting on 16 December 2014.

[21]An issue also arises as to whether the parties complied with the Acas code on disciplinary and grievance procedures, and, if not, whether the failure(s) was unreasonable.

[22]At the last case management hearing it was ordered that this hearing deal with liability only.

[23]Application to amend: On 28 March 2015 the claimant made an application to the tribunal to amend his complaint of disability discrimination by adding Mr Richard Trevivian (the respondent’s managing director) as a second respondent. He subsequently made a further application to join Mrs Trevivian. At the case management preliminary hearing on 7 April 2015 it was said to be agreed between the parties that it would be more cost-effective to deal with the claimant’s application to amend at the full merits hearing rather than at a discreet preliminary hearing.

[24]At the start of this hearing it was agreed that the application to join would only be pursued if and when the need arises, i.e. if the claimant is successful in his claims but does not receive payment of monies from the respondent.

[25]Documents: There were a number of without prejudice documents contained in the bundle. It was agreed that no reference would be made to them in evidence and the tribunal would ignore them. We had a main bundle which ended at page 260 although it contained more than 260 pages.

[26]Prior to those pages in the same bundle were some 21 dividers each containing numerous documents, some of which were witness statements. In addition we were provided with a partly un-paginated second bundle with divider headings labelled part C, part D and part E. Among other things, the second bundle included what was said to be the previous litigation history of the claimant.

[27]The first case management hearing on 7 April 2015 limited the bundle to 100 pages and also provided that it should not include any correspondence marked without prejudice or between the parties and Acas unless agreed between the parties or ordered to be included by the tribunal. After remission from the Employment Appeal Tribunal there was a further telephone case management preliminary hearing on 6 December 2016 at which the orders were varied such that the revised bundle be limited without further direction to 250 pages. No application was made by either party to vary this order. It was not complied with.

[28]Open offer: Before we started hearing evidence the respondent made an open offer to the claimant of £27,000 without admission of liability.

[29]Representation: Part way through the cross-examination of Mr Trevivian the claimant elected to dispense with the services of his counsel and to represent himself. He was offered further time to collect his thoughts and prepare for the continued crossexamination. However, the claimant declined and elected to continue without a break. Nonetheless, the tribunal decided it would be in the interests of justice to alter the timetable such that the claimant was not required to close his case at the end of day two. Closing submissions were accordingly heard on day three. Of course, we do not know the reason for the disinstruction. However, we record our gratitude to Miss Zeitler who ably assisted the tribunal and also provided a very useful opening note. We were also greatly assisted by Mr Smith and the claimant.

[30]Witness evidence: For the claimant, we heard from the claimant himself who provided two witness statements. For the respondent, we heard from Richard Trevivian and Laura Trevivian. The respondent also provided statements from Adam Stout, a mobile site manager, Darren Shepherd, a company director of About Training Ltd, Dean Powell, the managing director of 365 Security and Guarding Ltd and Louise Llewellyn, the office manager for the respondent. Although each of these witnesses provided signed statements none of them attended the tribunal to give evidence. Although we read their statements we took into account the fact that they were not present to be cross-examined or challenged on the evidence.

Findings of fact

[31]After hearing the evidence, reading relevant documents and considering the written and oral submissions of the parties, we unanimously found the following relevant findings of fact. Some of our findings on disputed facts are dealt with in the conclusions section.

[32]The respondent is a family run security company employing approximately 50 people across 10 to 12 sites in the South Wales area. It has two directors, Richard Trevivian and Laura Trevivian. Mr Trevivian also acted as operations manager. The respondent company has an employee turnover of about 30% annually.

[33]On 23 July 2014 the respondent started providing security services at the Llandegfedd Reservoir in Pontypool via a contract with Dwr Cymru Welsh Water. The reservoir is a large body of open water where a new water sports centre was being built. The purpose of the respondent’s contract with Welsh Water was to deter and report incidents of unauthorised swimming, boating and other water related activities.

[34]There were no security cameras on site and so the work involved the guarding and regular patrolling of the reservoir boundary both by car and on foot (193-194). Although there was a 6 foot high gate blocking access to the site there was no provision to gain access to the site from the outside. Hourly check calls were used to monitor the safety of site officers. In the event of a call being missed the respondent’s control room would initially try to contact the officer directly. If an officer could not be contacted the respondent’s duty manager would then attempt to make personal call and would also attend the site in the event of a non-response. Because the reservoir was remotely situated many parts of the site had poor or non-existent phone signal.

[35]The claimant was diagnosed with type I diabetes in 1990 (1a). Type I diabetes is a lifelong condition. Without regular injections of insulin the condition would result in premature death within a very short time. The claimant’s diabetes requires him to maintain a good diabetic diet, take regular exercise, maintain a healthy lifestyle and attend hospital or surgery for regular surveillance of his condition and its complications. He needs to test his blood about eight times each day. From 1990 to 2014 his diabetes manifested itself as a progressive condition with a cumulative increase in relevant complications (1a).

[36]As of June 2014 the claimant had no record of hypoglycaemic attacks within the previous year. However, sometime in 2013 the claimant crashed his car after a dip in his blood sugar caused him to blank out.

[37]Untreated hypoglycaemia can result in coma, and very rarely in death. In June 2014 the claimant obtained a medical report from his GP for the purposes of employment tribunal proceedings with a previous employer (1a). The GP noted that the claimant had good hypoglycaemic awareness, and was aware of what to do should he experience any of the warning symptoms. The GP also noted that the claimant carried a quantity of dextrose or equivalent with him at all times to manage symptoms of hypoglycaemia should they occur.

[38]The claimant has previous experience of Employment Tribunal and High Court litigation. He also has a law degree and has completed the bar vocational course.

[39]In November 2003 the claimant made an application to the Employment Tribunal for breach of contract and unfair dismissal relating to his employment as a store manager. Although that claim was struck out he later issued a claim against the same defendant in March 2004 in the High Court. Summary judgment in High Court claim was given in favour of the defendant after a hearing in February 2005.

[40]The claimant was successful in a claim for holiday pay against a different respondent after hearings at the employment tribunal in September 2009 and at the Employment Appeal Tribunal in August 2010.

[41]The claimant also commenced litigation in 2011 against another company for whom he worked as a security guard. Relevant facts of that case included that the claimant refused to undertake outside patrols and was disciplined. His case related to the risk that as a diabetic he may suffer unpredictable hypoglycaemic episodes that may lead to serious injury or in an extreme case death, if he could not obtain assistance. The claimant argued in that case that the respondent should have taken steps to reduce the risk of injury occurring as a result of him suffering such an episode. An Employment Judge imposed a deposit order and the claimant appealed to the Employment Appeal Tribunal and to the Court of Appeal. The Employment Judge was upheld on both occasions.

[42]In February 2015 the claimant attended a tribunal hearing in Cardiff Employment Tribunal relating to, among other things, a claim for victimisation and failure to make reasonable adjustments. That claim concerned work as a security guard on a zero hours contract for the period from 9 August 2013 until 27 December 2013. He complained about inadequate provision of facilities at the respondent’s premises which he said put him at a substantial disadvantage. The claimant was successful, although prior to the hearing the response had been struck out.

[43]The claimant was previously declared bankrupt because of a cost award made against him by the University of Glamorgan after a failed libel claim.

[44]The claimant was recommended to the respondent after one of its security officers was unable to attend a nightshift due to a family emergency on 29 July 2014. After satisfactory completion of the shifts Mr Trevivian offered the claimant more work and employed him as a seasonal security guard. The claimant was not asked to fill in a medical questionnaire by the respondent.

[45]Adam Stout, a mobile security site manager, inducted the claimant onto the reservoir site on 4 August 2014. The claimant did not mention at this time that he was a diabetic.

[46]Originally the contract at the reservoir was due to finish by Christmas 2014. It was later extended and the respondent is still contracted to provide security at the same site. The respondent provided loan guard security cover from 7 PM to 7 AM during the week and 24 hour cover at the weekend. The shifts were covered by a pool of 3 to 4 guards.

[47]The claimant was provided with a written contract of employment which indicated that his hours of work may vary week to week and that it was based on zero working hours per week with basic pay of £6.31 per hour (21-22). Lone worker monitoring was in place to ensure the safety of officers. An automated system provided that hourly check calls would be made (55). The respondent also employed other employees who had minimum numbers of hours stipulated in their contract, some of whom had TUPE transferred to it.

[48]On 21 August 2014 the claimant emailed the information email account at the respondent’s office. The email was addressed to Mrs Trevivian and attached copies of various documents including his passport. The last document attached was a picture of a letter indicating that he had an outpatient appointment at a diabetic centre on 25 September 2014 (10-13). No mention was made in the text of the email of diabetes or any other medical condition. During cross-examination the claimant accepted that he attached the outpatient letter as evidence of his address for the purposes of identification rather than to inform the respondent that he had type I diabetes.

[49]Mrs Trevivian did not see the email as it was sent to a “catch all” email address which she did not look at. She explained that the email would have been seen by the person in the office who dealt with the vetting of security officers. It is likely that such person would only have checked the document for proof of address.

[50]Accordingly, prior to 10 October 2014 Mr and Mrs Trevivian were not aware that the claimant was a type 1 diabetic. However, the respondent did previously employ Adrian Grant as a Security Supervisor who was also a type I insulin dependent diabetic. Mr Grant made the respondent aware of his condition at interview and had since worked with the respondent to manage his condition.

[51]The claimant worked approximately 53 hours each week at the reservoir site which was a 50 minute drive from his home. Shifts varied between 12 and 15 hours during which time the claimant worked alone. In the course of his working week the claimant would drive on site for approximately 30 minutes.

[52]At the commencement of his employment the claimant took pictures to evidence what he regarded as unsafe working practices. He did not forward the pictures to the respondent prior to the end of his engagement (see at 7). During cross-examination the claimant explained that he did not want to complain about working practices because he was on a zero hours contract and was therefore vulnerable to termination.

[53]On the morning of 10 October 2014 the claimant had a hypoglycaemic episode on account of low blood sugar. It occurred towards the end of his shift while sitting stationary in his car waiting for the site contractor to relieve him from duty. He fell into a sleep and was woken by a knock on the window of his car. The claimant then jumped out of the car and says he appeared to be wobbling or drunk as he moved towards the gate. He realised that he needed to unlock the gate but in his “reduced intellectual state” the claimant says he was incapable of much in the way of logical thought. On the claimant’s own account he started “dancing” when patting his pockets looking for the key. At this time he was somewhere between 12 and 30 m from the bank of the reservoir.

[54]Mr Trevivian then received a telephone call from Adam Stout who reported that the contractors had indicated they were unable to gain access to the site as the security officer on duty appeared, among other things, disorientated and they were unable to attract his attention. Mr Trevivian advised Mr Stout to call an ambulance and said he would drive straight to the site to check on the claimant’s welfare.

[55]By the time Mr Trevivian arrived on site he was advised that an ambulance had already been and the claimant had since left in his own vehicle. The contractor explained to Mr Trevivian that the claimant was “completely out of it” and wandering around. Later the same day Mr Trevivian called and spoke to the claimant who advised him that he had had a hypoglycaemic attack. This was the first time Mr Trevivian became aware that the claimant was diabetic.

[56]When Mr Trevivian asked the claimant why he had never told the respondent he was a diabetic the claimant replied that he had not wanted it to affect his chances of employment. Mr Trevivian told the claimant that he would cover his shifts over the weekend but the claimant would nonetheless be paid for the Saturday and Sunday night.

[57]A report of the incident was provided to Welsh Water which was not shown to the respondent until sometime later (49). The report noted that on arrival the overnight security guard was demonstrating unusual behaviours, refused to provide access and was unable to communicate verbally. Listed under “immediate actions taken for the short term” was “discussion with Chamberlain Security to replace existing guard”. Under the heading underlying causes was, “security guard had not managed his condition but also not informed Chamberlain Security of his medical condition”.

[58]In fact, and unknown to the respondent at the material times, the way the claimant managed his condition meant that such episodes would, on occasion, occur. This increased the likelihood of a longer life span. His doctor explained in 2011 that “a consequence of his attempts to obtain good control of his diabetes is that on occasions the level of blood sugar can fall to a level that we would consider to be hyperglycaemia” (1).

[59]Mr Trevivian attended to conduct a risk assessment on Saturday, 11 October 2014. He concluded that reasonable adjustments were not feasible and the site could not be made reasonably safe for the claimant. He completed both a general and specific risk assessment (see at 51, 54 and at 62).

[60]Although Mr Trevivian had many years of completing risk assessments covering a multitude of different scenarios he had not undertaken a specific assessment dealing with diabetes previously. In the site specific risk assessment for the claimant he mistakenly referred to type II diabetes (62). Prior to completing the risk assessment Mr Trevivian did not obtain any medical information concerning the claimant’s condition and did not contact the claimant’s GP. Nor did Mr Trevivian consult with the claimant about the potential for reasonable adjustments. During cross examination Mr Trevivian explained that he obtained information about diabetes from a Google search.

[61]Because Mr Trevivian concluded that adjustments would not work and the site could not be made reasonably safe for the claimant he noted that a front of house position or employment on a multi-office site would be preferable (63).

[62]Mr Trevivian then called the claimant on the afternoon of Monday, 13 October 2014 advising him that following the risk assessment the respondent would not offer him further work at the reservoir site. He told the claimant that he was looking for suitable alternative work and that he considered a front of house position or a multi-officer site to be more suitable. An upcoming position in Cardiff City centre was discussed but ruled out as this would require the claimant going in and out of Cardiff twice a day. Subsequently, some efforts were made by Mr Trevivian to seek out alternative engagements both with the respondent and other security companies.

[63]According to the respondent on Tuesday, 21 October 2014 Mr Trevivian spoke to the claimant and updated him on efforts to find additional work. Mr Trevivian says the claimant asked if he could be sent his P45 as he wanted to sign on as there was no work currently available at the respondent. This was not regarded as an unusual request from a seasonal officer. In the event, the P45 was completed online and sent directly to the job centre on 26 October 2014 (see at 67).

[64]The claimant’s case is that during phone calls Mr Trevivian made the suggestion that in order for him to claim jobseekers allowance or benefits he would essentially have to dismiss the claimant which meant sending a P45 which he received on 26 October 2014 (see C statement at para 162).

[65]The claimant’s P45 was not fully completed by the respondent (67). Part 4, the section dealing with leaving voluntarily, was left incomplete as was part 6, which dealt with and the reasons for dismissal. Accordingly, there was nothing on the P45 itself to indicate whether or not the claimant had resigned or had been dismissed or simply requested a copy of his P45 by way of mutual termination. We return to this factual dispute in our conclusions section.

[66]On 5 November 2014 the claimant issued a grievance (68a). He said he had received his P45 a couple of days ago and now believed he needed a meeting which should be designated as a grievance to discuss, among other things, why he was dismissed and his future prospects. No mention of discrimination was made in the grievance letter.

[67]Mr Trevivian then called Acas for advice on how to deal with the grievance. The Acas officer explained to Mr Trevivian that because the claimant no longer worked for the respondent there was no need to classify the complaint as a grievance. It was implied that there was no need to comply with the ACAS code on disciplinary and grievance procedures. Nonetheless, Mr Trevivian was also advised to treat the grievance “formally” and so he made preparations for a meeting. The respondent’s own grievance procedure provides that it would make every effort to hear an employee’s grievance within five working days (19Ai).

[68]After some delay, the grievance meeting took place on 16 December 2014. Some of the delay was caused by Mrs Trevivian working part time which meant it took her longer to respond to emails from the claimant. The claimant also objected to draft wording of a letter to be sent to his chosen representative which added to the delay (see at 85-89).

[69]Present at the grievance meeting were Mr and Mrs Trevivian together with the claimant, who, in the event, was unrepresented. The claimant covertly recorded the meeting and did not alert the respondent to this until he exchanged his first witness statement for the purposes of these proceedings (see at 101).

[70]We pause there to note that this was despite the fact that the claimant is legally trained and has previously been involved in litigation and so would have been well aware of relevant duties of disclosure. The claim form was also drafted in a way which suggested that he had not recorded the meeting (see para 17 where he makes reference to Mr Trevivian having “said something like”).

[71]During the meeting Mr Trevivian asked why the claimant did not inform the respondent of his diabetes so as to allow the respondent to manage the situation (111). Mr Trevivian explained that he was concerned about, among other things, having a large body of water just feet away from where they received a report that the claimant was wandering around the site. The claimant replied by asking whether it had been risk assessed and whether Mr Trevivian sought an occupational health report or asked his doctor anything about his hypoglycaemia. Mr Trevivian responded that he had not (111).

[72]The claimant discussed potential reasonable adjustments which could be made and made reference to employment legislation (112).

[73]It was also put by the claimant that he could have been moved to one of the respondent’s other sites. Mr Trevivian replied “No, because that’s moving someone else, isn’t it. So, why should this situation impact on, and cause hardship to someone else in the company” (see at 112). The claimant replied that this would amount to a “reasonable adjustment”. Mr Trevivian went on to say that although he had been looking at other sites “there’s nothing coming up at the moment”.

[74]Mr Trevivian denied dismissing the claimant on a number of occasions and said the P45 was issued at the claimant’s request (113). The claimant denied requesting the P45 and replied that the respondent was trying to be nice by issuing it so the claimant could sign on (113). During a subsequent Employment Tribunal hearing against a previous employer the claimant confirmed that he was in receipt of benefits for the period 15 January 2014 to 14 July 2014 and also for a period of 1 week from 27 October 2014.

[75]At one stage, during the grievance meeting, when it was put to the claimant that he said he wanted his P45 the claimant replied, “yes, right, but, was I having work? Or, was I taken off that site because I had hypoglycemia?” (114).

[76]Mr Trevivian went on to say that they never had any issue with the claimant’s timekeeping, attendance or appearance and everything was “spot on” (114).

[77]The claimant mentioned litigation and tribunal awards of injury to feelings of up to £30,000 (115). However, this was not, as the respondent originally suggested, “from the very outset of the meeting”, but rather more than 30 minutes after the meeting started (see para 23 of ET3).

[78]Mr Trevivian wrote to the claimant on 22 December 2014 with the outcome of the grievance (131). He commented that he would employ the claimant again should a position become available and noted that in turn the claimant said he would work for the company again if he were offered a position. At the end of the letter Mr Trevivian referred to a deadline of 25 January 2015 set by the claimant as the last day he could put in a tribunal claim against the company. It was also noted that if the respondent was able to offer work prior to this time then the claimant would perhaps not need to consider the tribunal route. Mr Trevivian then added “I have further advised you that we will continue to look for work for you and consider you for any positions that arise but I have made you no guarantee of meeting your deadline as January is historically a quiet month for us” (133).

[79]A copy of the respondent’s meeting notes were enclosed with the letter. The claimant was not offered a right of appeal.

[80]Subsequently, after doing some research on the internet, Mr Trevivian became aware that the claimant was, in Mr Trevivian’s words, a “seasoned and serial litigator”. According to the respondent, Mr Trevivian then determined that re-engaging the claimant would result in in future litigation against it over and above that identified by the claimant in the meeting on 16 December 2015. Accordingly, in effect the offer to re-engage was withdrawn without informing the claimant. Again, we will return to the facts surrounding this issue below.

[81]An ET1 was then issued on 13 February 2015 in which allegations of disability discrimination were made. Outline of Relevant Law (i) Duty to make reasonable adjustments

[82]Section 20 of the EqA 2010 provides that the duty to make reasonable adjustments includes the requirement: where a provision, criterion (“PCP”) or practice or a physical feature 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.

[83]The Statutory Code of Practice on Employment written by the EHRC to be read alongside the Equality Act sets out, at chapter 6, principles and application of the duty to make reasonable adjustments for disabled people in employment. It describes the duty to make reasonable adjustments at para 6.2 as “a cornerstone of the Act which requires employers to take positive steps to ensure that disabled people can access and progress in employment. This goes beyond simply avoiding treating disabled workers, job applicants and potential job applicants unfavourably and means taking additional steps to which nondisabled workers and applicants are not entitled”.

[84]Duty on employer: Although it is good practice to consult with a disabled person over what adjustments might be suitable, the duty to make reasonable adjustments is on the employer, and the fact that a disabled employee and his or her medical advisers cannot postulate a potential adjustment will not, without more, discharge that duty (Cosgrove v Caesar

2001 IRLR 653

[85]Burden of proof: It is insufficient for a claimant simply to point to a substantial disadvantage caused by a PCP and then place the onus on the employer to think of what parcel of adjustments could be in place to ameliorate that disadvantage: Project Management Institute v Latiff

2007 IRLR 579

. The claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached.

[86]PCP: It is only when the 'provision, criterion or practice' has been identified that it is possible to define the 'pool' of comparators for the purpose of seeing whether there has been the requisite substantial disadvantage of the disabled person in comparison to the nondisabled.

[87]Substantial disadvantage: The duty to make reasonable adjustments only arises when the disabled person in question is put at a “substantial disadvantage” in relation to a relevant matter in comparison to persons who are not disabled. Section 212(1) EqA states that “substantial disadvantage” means more than minor or trivial.

[88]Comparators: The duty to make reasonable adjustments arises where a disabled person is placed at a substantial disadvantage “in comparison with persons who are not disabled” section 20(3)-(5) EqA. However, the comparison is not to be made with the population at large. Paragraph 6.16 of the EHRC employment code provides: “The purpose of the comparison with people who are not disabled is to establish whether it is because of disability that a particular provision, criterion, practice or physical feature or the absence of an auxiliary aid disadvantages the disabled person in question. Accordingly – and unlike direct or indirect discrimination – under the duty to make adjustments there is no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person’s”.

[89]Knowledge: EqA Sch 8, Pt 3, at para 20 provides that 'A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know—(a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question; (b) that an interested disabled person has a disability and is likely to be placed at the substantial disadvantage referred to in the first, second or third requirement'.

[90]Reasonableness of adjustments: The duty to make adjustments arises only in respect of those steps that it is reasonable for the employer to take to avoid the disadvantage experienced by the disabled person. Paragraph 6.23 of the EHRC code lists examples of matters that a tribunal might take into account. What is a reasonable step for an employer to take will depend on all the circumstances of each individual case. The test of “reasonableness”, imports an objective standard and it is not necessarily met by an employer showing that he personally believed that the making of the adjustment would be too disruptive or costly.

[91]As was noted by the House of Lords in its decision in Archibald v Fife Council

[2004] IRLR 651

, (per Baroness Hale at para 47), the duty necessarily requires the disabled person to be treated more favourably in recognition of their special needs. It is thus not just a matter of introducing a “level playing field” for disabled and non-disabled alike, because that approach ignores the fact that disabled persons will sometimes need special assistance if they are to be able to compete on equal terms with those who are not disabled. (ii) Discrimination Arising From Disability

[92]The proper approach to section 15 claims was considered by Simler P in the recent case of Pnaiser v NHS England

[2016] IRLR 170

at paragraph 31(a) Having identified the unfavourable treatment by A, the ET must determine what caused it, i.e. what the “something” was. The focus is on the reason in the mind of A; it involves an examination of the conscious or unconscious thought processes of A. It does not have to be the sole or main cause of the unfavourable treatment but it must have a significant influence on it.

(b) The ET must then consider whether it was something “arising in consequence of B’s disability”. That expression could describe “a range of causal links” and “may include more than one link” but the more links in the chain between the “something” and the disability the harder it is likely to be to establish the requisite connection as a matter of fact. The question is one of objective fact to be robustly assessed by the ET in each case.

(c) It does not matter in precisely what order the two questions are addressed but, it is clear, each of the two questions must be addressed.

[93]Unfavourable treatment will not amount to discrimination arising from disability if the employer can show that the treatment is a ‘proportionate means of achieving a legitimate aim’.

[94]The EHRC Code suggests the question of whether something is a proportionate means of achieving a legitimate aim should be approached in two stages: i. Is the aim legitimate? ii. If the aim is legitimate, is the means of achieving it proportionate – that is, appropriate and necessary in all the circumstances?

[95]It is for the employer to justify the provision, criterion or practice. In Hardys & Hansons Plc v Lax

[2005] IRLR 726

the CA held that the principle of proportionality involves a balancing exercise - the reasonable needs of the business are to be weighed against the question of whether the PCP is reasonably necessary. The fact that “necessary” is qualified by “reasonably” thus reflects the applicability of proportionality and thus does not permit a margin of discretion or a range of responses. But ‘necessary’ does not mean that the provision, criterion or practice is the only possible way of achieving the legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means.

[96]The fact that section 15 poses an objective justification test also means that it is open to a tribunal to take into account matters which were unknown to the employer at the time it treated the employee unfavourably.

[97]In the very recent case of Pulman v Merthyr Tydfil College Ltd

UKEAT/0309/16/JOJ

Kerr J noted that it is necessary for Tribunals to apply the statutory provisions to each claim separately. Section 15 includes a justification defence by reference to a concept of proportionality. Section 20 uses a concept of reasonableness instead. They are not necessarily always the same thing. (iii) Victimisation

[98]The definition of victimisation is set out in in S.27 EqA. It provides that: ‘A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.'

[99]The three-stage test is:  did the alleged victimisation arise in any of the prohibited circumstances covered by the EqA?  if so, did the employer subject the claimant to a detriment?  if so, was the claimant subjected to that detriment because he had done a protected act, or because the employer believed that he or she had done, or might do, a protected act?

[100]Section 27(3) provides that a worker cannot claim victimisation where they have acted in bad faith, such as maliciously giving false evidence or information or making a false allegation of discrimination. Any such action would not be a protected act. However, if a worker gives evidence, provides information or makes an allegation in good faith but it turns out that it is factually wrong, or provides information in relation to proceedings which are unsuccessful, they will still be protected from victimisation.

[101]The essential question in determining the reason for the claimant’s treatment is always the same: what consciously or subconsciously motivated the employer to subject the claimant to the detriment? In the majority of cases, this will require an inquiry into the mental processes of the employer. If the necessary link between the detriment suffered and the protected act can be established, the claim of victimisation will succeed.

[102]Victimisation claims under the EqA are subject to the “shifting burden of proof”, which is set out in section 136 of the Act. This section provides that the initial burden is on the claimant to prove facts from which the tribunal could decide, in the absence of any other explanation, that the respondent has contravened a provision of the Act (a ‘prima facie case'). The burden then passes or ‘shifts' to the respondent to prove that discrimination did not occur. If the respondent is unable to do so, the tribunal is obliged to uphold the discrimination claim.

Conclusions

[103]Irrespective of the legal merits of this case we regard it as reckless in the extreme for the claimant not to have informed his employer that he was a type 1 diabetic on being posted to guard a remote location alone. We do not know what would have happened had the claimant not been woken by the contractor. Not only was he putting his own health at risk but also the health and safety of others. Welsh Water had engaged the respondent to provide security at the reservoir site to deter unauthorised use of a large body of open water. If, for any reason, guards patrolling the site become physically or mentally impaired this could lead to a failure to report what could be an emergency.

[104]Turning to the issues in the case. We deal first with the claim for failure to make reasonable adjustments. As was agreed at the commencement of the hearing, the respondent concedes that it applied a PCP which put the claimant at a substantial disadvantage of which it had knowledge in relation to a relevant matter in comparison with persons who are not disabled.

[105]The remaining question therefore, pursuant to section 20 EqA, is whether the duty to make reasonable adjustments is engaged. In other words, did the respondent fail to take such steps as were reasonable to have to take to avoid the substantial disadvantage?

[106]The substantial disadvantage was not previously clearly set out in either the pleadings or witness statements. Nonetheless, as set out above, it was explained by the claimant in the following terms: if he collapses after a hypoglycemic attack he will have no-one around to administer Lucozade which would alleviate the symptoms of such an attack.

[107]We turn first to the adjustments suggested by the claimant. The first of those is that the respondent should have installed a telephone booster to improve telephone signal reception at the reservoir. It is said by the claimant that were this to be implemented then, taking into account the security calls and the remote location of the reservoir, an ambulance or emergency help should arrive within approximately 1 ½ hours of a hypoglycaemic attack occurring. This is suggested on the basis that check calls are made hourly and it would take an ambulance approximately 30 minutes to reach the site without factoring in initial response time. Of course, the frequency of check calls could be increased to every 30 minutes as was postulated by Mr Trevivian in his risk assessment (see at 63).

[108]The claimant said in his evidence that this would alleviate the substantial disadvantage because if he were unconscious for 1 ½ hours this would not lead to his death. His actual words were, “I will not be dead in 1 ½ hours”. He later conceded that if it were a cold winter this would exacerbate the risks of any such attack.

[109]We agree with the respondent that the timeframe for such a response would still be unacceptable not only for it but also for Welsh Water as any visitors to the site who might require an emergency response. Because such an adjustment would not alleviate the substantial disadvantage we conclude there was no breach of section 21 in this regard.

[110]The second adjustment contended for is that the respondent should have recognised that security officers did not need to use their car as part of the job when at the reservoir. This was conceded by Mr Trevivian. There was no need for the claimant to use a car on the site. As the claimant points out, it is noteworthy that in the general risk assessment an existing control was listed as making officers aware that it is not a necessity to drive whilst on patrol (60). This contrasts with the individual assessment undertaken in relation to the claimant which includes vehicle-related incidents of being a concern (63).

[111]However, even on the claimant’s case, removing the requirement of patrolling the site by car would not alleviate the substantial disadvantage set out by the claimant. Accordingly, we conclude there is no breach of section 21 in failing to make this adjustment.

[112]The final express adjustment contended for is that the respondent should have ensured that the gate on the site was able to be unlocked from the outside so that the site was able to be accessed in case of emergency. Again, even on the claimant’s case, were he to suffer a hypoglycaemic attack he would be left alone at a remote location for upwards of an hour as a best case scenario. Accordingly, we conclude there is no breach of section 21 in failing to make minor adjustments to the gate.

[113]The claimant himself expressly rules out multi-manning as a potential reasonable adjustment. In these circumstances, we conclude that it was reasonable to relieve the claimant from his duties at the reservoir. We have, of course, reminded ourselves that that what is a reasonable step for an employer to take will depend on all the circumstances of each individual case. The test of “reasonableness”, imports an objective standard and it is not necessarily met by an employer showing that he personally believed that the making of the adjustment would be too disruptive or costly.

[114]Having made reference to all the medical and other evidence presented to us during the case we conclude that it was reasonable to remove the claimant from the site in question. The adjustments thus far suggested would not have been effective in ameliorating the express disadvantage relied on by the claimant.

[115]However, as we have already set out, the duty to make reasonable adjustments is on the employer, and the fact that a disabled employee and his or her medical advisers cannot postulate a potential adjustment will not, without more, discharge that duty. In any event at the grievance hearing the claimant expressly said that he could have been moved to another site (see at 112). Where an employee is unable to continue in his current job as a result of a disability, the duty to make reasonable adjustments will often extend to taking positive steps to facilitate the employee’s redeployment. We remind ourselves that the duty is, of course, only to make such adjustments as are reasonable. However, in the context of redeployment, what is reasonable can include treating the disabled person more favourably than other, non-disabled employees who are vying for a post. The case law indicates that it is not always the case that an employer must redeploy rather than dismiss, everything will depend on the circumstances and the question of reasonableness.

[116]Although in this case the respondent had some employees who had TUPE’d over it had others who were on similar zero hours contracts as the claimant. We accept that Mr Trevivian did look at other potential sites. However, he adopted a narrow approach to his search which excluded swapping the claimant with another employee as articulated by him during the grievance hearing. Mr Trevivian told the claimant that he could not have moved him to another site because “that’s moving someone else, isn’t it”. He went on to say “why should this situation impact on, and cause hardship to someone else in the company” (see at 112).

[117]Although it was said in the response to the victimisation claim (submitted on during the first substantive hearing in July 2015) that the job at the reservoir finished on 9 October 2014 and it was a quiet time of year, in fact emails disclosed show the respondent undertook work at the site during Christmas time (see at 104) and then into the new year (106). In May 2017 the respondent still holds the contract for the reservoir site. The claimant also says in his statement at paragraph 181 (which he was not challenged) that he spoke to one of his former colleagues who told him that he was having to work every week-end as they had no one to replace the claimant. Although the same individual left the respondent’s employment at a later date the claimant has set out an explanation for that event in his second statement at paragraph 13.

[118]The respondent employed about 50 guards and had a turnover of approximately 15 employees per year. We conclude that even in the immediate aftermath of the incident it would not have been difficult to swap the claimant’s job with someone else’s. For these reasons we conclude that the respondent failed to make a reasonable adjustment by moving the claimant to another site.

[119]We move on to consider the claim for discrimination arising from disability. As set out above, the respondent accepts that, in deciding that the claimant could no longer work at the Llandegfedd Reservoir in Pontypool and not offering him other work, it did subject him, for the purposes of section 15(1)(a) to unfavourable treatment because of something arising in consequence of his disability. It contends that it has a legitimate aim in doing so, namely to ensure the claimant’s health and safety.

[120]The issue will be therefore whether the respondent is able to show that this is a proportionate means of achieving a legitimate aim. It was confirmed in closing submissions that the legitimate aim advanced by the respondent is not disputed by the claimant.

[121]As has been stressed in the case law it is necessary for tribunals to apply the statutory provisions to each claim separately. Section 15 includes a justification defence by reference to a concept of proportionality whereas section 20 uses a concept of reasonableness instead. They are not necessarily always the same thing.

[122]We note that it is for the employer to produce evidence to support their assertion the unfavourable treatment is justified. Generalisations will not be sufficient to provide justification (paragraph 4.26 of the Code). The fact that section 15 poses an objective justification test also means that it is open to a tribunal to take into account matters which were unknown to the employer at the time it treated the employee unfavourably.

[123]In this case when removing the claimant from the reservoir site the employer failed to ascertain the precise cause of the hypoglycaemic attack. There was also no recourse to medical evidence from the claimant’s GP or any occupational physician. Research undertaken on diabetes was confined to the internet. Although the claimant has presented evidence that at the material times his condition was under control and he knew how to respond if he felt a hypoglycaemic episode was coming on, no further medical assessment or evidence has been presented by the respondent.

[124]In any event, we have already concluded that there was a failure to make a reasonable adjustment in this case. A more proportionate response would have been to relocate the claimant to another site or swap the claimant’s job with that of another security guard. Accordingly, we also conclude that the claimant’s section 15 claim succeeds.

[125]Before turning to the issue of victimisation we will consider the issue of whether the claimant resigned or was dismissed. If he was dismissed it would seem to arise in consequence of the claimant’s disability. In addition, the relevance of the alleged dismissal goes to whether the respondent unreasonably failed to comply with the Acas code on discipline. As it turns out, whether the claimant was dismissed is a complex legal and factual issue, not least because the claimant was on a zero hours contract.

[126]There is factual dispute about whether the claimant asked for his P45 or whether this was proffered by the respondent. There is no factual dispute that prior to the issuing of the P45 Mr Trevivian told that claimant that although he was looking for suitable alternative work none was available prior to 26 October which is the date of the P45 and the date the claimant says he was dismissed.

[127]Dismissal is defined in section 95 ERA 1996 as including termination of the contract by the employer with or without notice. A resignation is termination of the contract of employment by the employee. The general rule is that unambiguous words of dismissal or resignation may be taken at their face value without the need for any analysis of the surrounding circumstances. Warning that dismissal is on the cards or is inevitable by a certain date will not amount to a dismissal. Termination by agreement between employer and the employee does not count as a dismissal in law.

[128]The claimant argues that in fact he was dismissed irrespective of the P45 issue because he was told there was nothing available and, in effect, that nothing was likely to be.

[129]We remind ourselves that the claimant was employed on a zero hours contract (see at 21). It actually provided that “this contract is based on zero working hours per week”. One interpretation therefore is once the claimant stops working and is told there was no other work available at present the contract came to an end by dismissal. At that stage it could be said there was no obligation on the claimant to do work and no obligation on the respondent to provide work. Of course, the House of Lords in Carmichael v National Power PLC

[2000] IRLR 43

held that the irreducible minimum in a contract of employment is mutuality of obligation; an obligation on the part of the Claimant to do work and an obligation on the part of the Respondent to provide work.

[130]The mutuality of obligation test is highly relevant where an individual has carried out work on a casual, irregular or sporadic basis over a period of time. Such work may be variable but fairly constant; or it may be periodic with long gaps between each “stint”, as in the case of seasonal workers. The question is whether mutuality of obligation subsists during those periods when the individual is not working, giving rise to a continuous “global” contract of employment spanning the separate engagements. The required obligation is generally seen to consist in an exchange of mutual promises of future performance.

[131]In order to determine whether such mutuality of obligation exists, it is necessary to look at the working periods themselves, taking into account their frequency and duration. Where there has been a regular pattern of work over a period of time, a court or tribunal is more likely to infer from the parties’ conduct the existence of a continuing overriding arrangement, itself amounting to a contract of employment, governing the relationship, despite the absence of any express agreement.

[132]In this case the claimant worked continually for long hours from 29 July 2014 until 10 October 2014. The nature of employment envisaged by the contract was that the security guards could be moved around and also that there may be breaks in assignments. We do not think it can be sensibly said on the facts of this case that in between assignments there was no contract of employment. In other words, it could not be said that each time an assignment ended there was a dismissal prior to being offered another assignment. In reality, on the facts of this case there was an obligation to provide and perform any work which becomes available. That obligation continued after 10 October 2016 and also after the claimant was told that the respondent was still looking to place him in a suitable post. In effect, mutual promises as to future performance were made. We also note that the respondent had a lay-off policy which provides that in the event of a lay-off (which in this case lasted less than the statutorily relevant four weeks) “employees will be offered work wherever possible” (see at 196i).

[133]Accordingly, we conclude that there was no dismissal prior to issuing the P45. Hence, who requested the P45 is relevant. This is not an easy factual dispute to resolve. Both sides have made arguments which go to credibility.

[134]Among other things, the claimant points to exaggerations in the ET3 about him making reference to a tribunal claim “at the very outset” of the grievance meeting which was corroborated by what turned out to be inaccurate meeting minutes (see at 124). He also says that during the covertly recorded grievance hearing Mr Trevivian does not say that the claimant resigned but the claimant does say that he was dismissed. The claimant also says that handing out P45s would be usual to the respondent in such situations when no work was available.

[135]The respondent, in turn, seeks to undermine the claimant’s credibility. We were reminded of the claimant’s failure to disclose his diabetes and also not only his covert recording of the grievance meeting but also the failure to disclose the fact of recording until the point of exchange of statements. We accept that someone with the claimant’s training and experience of tribunals must have known that this was inappropriate conduct.

[136]We factor in that there was no real need for the respondent to send the claimant the P45 when they did, whereas there was a potential need for the claimant to obtain benefits. A point had already been reached whereby it was agreed that the respondent would spend 6 weeks from the date of the grievance looking for alternative work to avoid the prospect of litigation (see at 125). Both Mr and Mrs Trevivian were consistent in their recollection of the claimant’s request for his P45. Despite the covert recording and the claimant’s extensive questioning, Mr Trevivian did not depart from his stated position that it was the claimant who requested the P45. At one stage, however, the claimant seemed to waiver even though he knew he was recording the proceedings and replied “yes, right” in response to “you said you wanted your P45” from Mr Trevivian. On balance, we conclude that the claimant did resign by requesting his P45 and was not dismissed.

[137]However, even if we are wrong about that we would not have concluded that the respondent’s failure to comply with the Acas code on disciplinary procedures was unreasonable pursuant to section 207A TURCA or that it would be just and equitable to increase any award for the failure to comply.

[138]The Acas code on disciplinary indicates that: “Disciplinary situations include misconduct and/or poor performance. If employers have a separate capability procedure they may prefer to address performance issues under this procedure. If so, however, the basic principles of fairness set out in this Code should still be followed, albeit that they may need to be adapted”. On these facts, if there was a dismissal it was for capability rather misconduct.

[139]Section 207A(2) TULRCA provides that: ‘If, in any proceedings to which this section applies, it appears to the employment tribunal that -(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employer has failed to comply with that Code in relation to that matter, and

(c) the failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25 per cent.' An identical provision in respect of any failure to comply by an employee is set out in section 207A(3). This reflects the fact that the Code is aimed at encouraging compliance by both employers and employees.

[140]Accordingly, the potential for adjustment to the compensatory award under S.207A only applies if the employer’s or employee’s failure to comply with the provisions of the Code is ‘unreasonable’. In addition, where there has been an unreasonable failure to comply with the Code, the tribunal may increase or reduce the award if it ‘considers it just and equitable in all the circumstances to do so’.

[141]If there was any such failure to follow the Acas code on disciplinary we conclude that the respondent has not acted unreasonably because Mr Trevivian believed, irrespective of the P45 issue, that he had not dismissed the claimant. Any such failure was not deliberate. It was inadvertent. The combination of the zero hours contract and the issuing of the P45 made this a difficult legal and factual issue. Mr Trevivian had already explained the employment situation to the claimant and no issue was taken by the claimant until his grievance letter sent on 8 November 2015 (see at 68a). Subsequently the claimant was afforded a grievance meeting and was able to set out his case. This was also a capability rather than a disciplinary issue. For the same reasons we would have concluded that it would not have been just and equitable to increase any award.

[142]An issue also arises as to whether the respondent nonetheless breached the Acas code on grievances after the claimant issued his grievance on 5 November 2014. Issues arise as to delay and the failure to offer an appeal (these were the only ones raised at the start of the hearing). We conclude that the Acas code applies only to employees and not ex-employees. The whole point of the code is to help employees and employers resolve grievances effectively in the workplace so their relationship could continue. The code is silent on posttermination grievances.

[143]In any event, if we are wrong about this and the code did apply we do not consider the delay unreasonable. The grievance was being dealt with by Mrs Trevivian who worked part time. A portion of the delay was caused by the claimant asking for a letter to be reworded. Further, Mr Trevivian took advice from Acas themselves who, in effect, advised him that the code did not apply. In these circumstances we conclude that if there was a failure to comply, such failure was not unreasonable and it would not have been just and equitable to increase any award.

[144]Finally, we consider the claim for victimisation. The first issue for us to determine is whether or not the claimant did protected acts. No issue arises that the claimant made complaints of discrimination during the grievance hearing and in his claim form. No complaint of discrimination was however made in the written grievance itself (see at 68a).

[145]It is said that these do not amount to protected acts in accordance with section 27 EqA because they were done in bad faith. As we have already set out above, a claimant cannot claim victimisation where they have acted in bad faith, such as maliciously giving false evidence or information or making a false allegation of discrimination. Any such action would not be a protected act.

[146]It was conceded at the start of the case that bad faith was not pleaded. However, it was contended that the claimant acted in bad faith because the claimant was seeking to set up claims against the respondent in order to obtain a pecuniary advantage. In the closing submissions it was said that the claimant acted at all material times with a view to setting up further claims and enhancing his prospects of successful litigation.

[147]During the grievance the claimant made reference to tribunal litigation and also potential levels of awards for injury to feelings (see at 115). However, this was after he queried why he could not have been moved to another site (112) and asked about reasonable adjustments (112). Both parties agreed that litigation could be avoided if the claimant came back to work before 25 January 2015 (see at 125). The claimant did not make malicious or false allegations of discrimination either during the grievance hearing or in the claim form when he asked about reasonable adjustments and if he could be moved to another job. We conclude that he claimant did not act in bad faith or in a way which prevents him from making protected acts.

[148]Nonetheless, the respondent argues that the reason why work was withdrawn was because of Mr Trevivian’s discovery after the grievance meeting of the “very significant body of litigation the claimant had been involved in hitherto”. It is said that the withdrawal of the offer of looking for future work had nothing to do with threats made in the grievance hearing itself. In particular, the respondent points out that in the outcome letter Mr Trevivian commits himself to continuing to look for work for the claimant (133). It is also said that re-engaging a person who is highly litigious is a legitimate concern for a small family run business. It is contended that the realisation that the claimant was a serial litigant made future employment untenable.

[149]Mr Trevivian said in evidence that he withdrew the offer of looking for further work for the claimant after he did a Google search and found that the claimant had been involved in “extensive litigation”. Contrary to what was set out at the beginning of the case he explained that this occurred “around the time that the ET1 claim form came in”. The respondent’s case also shifted somewhat as Mr Smith sought to distance himself from the way it was set out at the case management hearing on 6 December 2016 before Regional Employment Judge Parkin. In answer to a question from the claimant’s counsel, Mr Trevivian said the claimant has brought proceedings “against every employer he had for the previous 12 years”. This assertion was quickly withdrawn after relevant evidence was put to him. Mr Trevivian went on to say that he considered the claimant an “unsustainable risk due to his litigious nature” and that he formed the view that if he re-employed the claimant it would “lead to litigation”. We also note that the offer was withdrawn without informing the claimant or setting down in writing the reasons for the withdrawal. In summary, the respondent’s case on this point kept shifting and was a little opaque.

[150]The EHRC Employment Code points out at para 9.10 that detrimental treatment amounts to victimisation if a “protected act” is one of the reasons for the treatment, but it need not be the only reason. We also note that claimants need only show that they have experienced a detriment because they have done a protected act or because the employer believes (rightly or wrongly) that they have done or intend to do a protected act.

[151]In our view, irrespective of any arguments about shifting of the burden of proof, it is clear that Mr Trevivian withdrew the offer of re-engagement and of continuing to search for future employment because he thought that re-engaging the claimant could lead to a claim for discrimination. It could not be said that the offer was withdrawn for fear of prejudicing his position in pending litigation. No doubt, Mr Trevivian was influenced by what he saw on the internet. We have a great deal of sympathy for Mr Trevivian in this regard. However, we nonetheless conclude that one of the reasons why Mr Trevivian withdrew the offer was because he believed the claimant would bring a claim for discrimination against the respondent were he to employ him again. There is no justification defence to a claim for victimisation.

[152]Remedy directions: If the parties are unable to agree remedy they are to write to the tribunal within 14 days from the date this judgment was set out with joint proposed directions. REMEDY JUDGMENT The unanimous remedy judgment is as follows:

Conclusions

[1]The claimant is awarded £13,000 for injury to feelings in relation to the section 15 and section 20/21 Equality Act claims (failure to make reasonable adjustments and discrimination because of something arising in consequence of the claimant’s disability).

[2]Interest on the £13,000 is awarded at 8% from 13 October 2014 until 10 December 2017. This amounts to £2.849 per day for 1154 days = £3,287.75.

[3]The claimant is awarded £4,000 for injury to feelings in relation to the section 27 Equality Act claim (victimisation).

[4]Interest on the £4,000 is added at 8% from 25 October 2014 until 10 December 2017. This amounts to £0.877 per day for 1142 days = £1,001.53.

[5]A compensatory award for past lost earnings is awarded at £7,496.04 (six months net loss at £1,249.34 per month). From this is deducted monies awarded for loss of earnings by a previous Employment Tribunal in the sum of £8,529.13 (plus a 25% uplift). Therefore, the compensatory award is reduced to nil. The total amount awarded is £21,289.28.

Conclusions

[1]The substantive case was heard in the Bristol Employment Tribunal on 8, 9 and 10 May 2017 before Employment Judge Pirani with members Mr CD Harris and Mrs E Burlow. As set out in the judgment and reasons, the Claimant succeeded in all three of his causes of action under his claims under sections 20 and 21 of the Equality Act 2010 in his claim of a failure to make reasonable adjustments; and in his complaint of breach of section 15 discrimination (because of something arising in consequence of his disability), and also in his section 27 victimisation complaint. However, on two acts of discrimination the Claimant did not succeed:(1) the Tribunal found that Respondent was entitled to remove the Claimant from his particular post and that this complaint did not constitute a failure to make a reasonable adjustment, and

(2) the Tribunal found that the Claimant resigned and was not dismissed, and his complaint of discrimination in dismissal therefore failed.

[2]The case was due to proceed to a remedy hearing but was delayed pending the claimant’s appeal to the Employment Appeal Tribunal (EAT). Her Honour Judge Stacey, as she then was, dismissed the appeal by judgment dated 31 May 2018.

[3]The claimant then made further appeals. On 13 August 2018 the Court of Appeal rejected his application on paper. A further appeal, based on allegations of fraud, was issued on 22 July 2019 which was later withdrawn and re-presented in the Cardiff County Court. This was then dismissed with costs on 2 October 2019. On 11 August 2020 Soole J, sitting in the EAT on a rule 3(10) hearing, dismissed an appeal against the refusal of REJ Pirani to recuse himself from any remedy hearing. Soole J agreed with the President of the EAT that the allegations of bias were wholly without merit. The same judgment agreed with a previous observation that the application amounted to a re-run of arguments on his unsuccessful appeal.

[4]The issues to be determined at the remedy hearing, which were set out at the start of the hearing, are: 4.1. What amount should be awarded for injury to feelings 4.2. What compensatory award should be made. Only past loss is claimed. Issues arose as to mitigation and whether the claimant would have been dismissed in any event. An issue also arose as to what, if any, deductions should be made. 4.3. What interest should be awarded.

[5]In his statement and skeleton argument, the claimant again sought to re-run aspects of the liability hearing. Much of his evidence and submissions do not relate to remedy. Instead, the claimant has sought to return allegations of fraud. He says the ET has fallen into error because the respondent deceived the panel. He continues to argue, on paper, that the judgment, which was in his favour, should be set aside. It was made clear at the commencement of the remedy hearing that the tribunal would not be dealing with these matters. They have already been the subject of failed appeals and a dismissed application in the County Court.

[6]Nonetheless, the claimant was asked whether he wished the tribunal to set aside liability judgement. The claimant responded that he did not want the judgment to be set aside. Appointment of new members

[7]The two non-legal members who sat on the liability hearing have retired. The claimant subsequently expressed a preference for the appointment of new members rather than acceding to a judge sitting alone. Accordingly, and in accordance with section 4(1)(a) of the Employment Tribunals Act 1996 and Regulation 9(3) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, replacement members were appointed. Issue at commencement of hearing

[8]After it was explained to the claimant that the tribunal would be considering remedy only, and therefore not determining the fraud issue, the claimant sought to accept an open offer made at the substantive hearing in May 2017. According to the claimant, the offer was extant and therefore capable of acceptance. Subsequently, it transpired the claimant was only willing to accept the offer if he was permitted to continue to pursue different causes of action against the same respondent relating to the facts of this case. It then transpired that subsequent offers were made by the respondent, all phrased in terms of full and final settlement of all claims arising out of the claimant’s employment with the respondent. After some discussion, and some delay to the proceedings, the claimant withdrew his purported acceptance. Factual background

[9]The findings of fact are contained in the liability judgment.

[10]In brief summary, the Claimant was employed as a security guard by the Respondent company, which is a small family firm, on a zero-hours contract as a seasonal security guard from 29 July 2014. His role was to provide security for Welsh Water at a remote reservoir site and to deter the unauthorised use of the reservoir's large body of water. He worked alone on shifts of between 12-15 hours overnight and drove around the reservoir for approximately 30 minutes in the course of his working week. The Claimant has Type 1 diabetes which he did not disclose to the Respondent. As of June 2014 he had had no record of hypoglycaemic attacks in the previous year, but in 2013 had crashed his car after a dip in his blood sugar level had caused him to blank out.

[11]On 10 October 2014 the Claimant had a hypoglycaemic attack on account of low blood sugar whilst at work at the reservoir and was found by the site contractor. He had appeared "completely out of it" wandering around in a disoriented state within 12 to 30 m from the reservoir bank, appeared to be wobbling or drunk and incapable of logical thought and an ambulance was called.

[12]After that incident he explained to the Respondent that had diabetes. As a result of the incident he was removed from the site by the Respondent and as there were no other vacancies or positions for him elsewhere within the company no alternative work was immediately found for him. Since he was on a zero-hours contract he was not entitled to remuneration if he was not working. The Tribunal found that the Claimant requested his P45 on 21 October 2014 so that he could sign on for state benefits, which he then did from 27 October 2014, and that he had tendered his resignation. The Tribunal, having heard the evidence, decided that he was not dismissed but that he resigned.

[13]He then brought a grievance against the Respondent, which was heard on 16 December 2014. The Claimant secretly recorded the grievance hearing. The Respondent wrote with the outcome of the grievance on 22 December 2014 and stated that the Claimant would be offered work in future if it became available, but that January was usually a quiet month and no current positions were available. After the grievance meeting and on discovering the Claimant's extensive litigation history, the Respondent made a decision not to re-engage the Claimant.

[14]The aspects on which the claimant succeeded are: i. The claimant succeeded in his section 20 and 21 Equality Act 2010 claim for failure to make reasonable adjustments. The tribunal noted that the respondent employed about 50 guards and had a turnover of approximately 15 employees per year. The tribunal concluded that even in the immediate aftermath of the incident it would not have been difficult to swap the claimant’s job with someone else’s. For those reasons the respondent failed to make a reasonable adjustment by moving the claimant to another site. ii. The claimant succeeded in his section 15 Equality Act 2010 claim for discrimination because of something arising in consequence of his disability. The respondent accepted that, in deciding that the claimant could no longer work at the Llandegfedd Reservoir in Pontypool and not offering him other work, it did subject him, for the purposes of section 15(1)(a), to unfavourable treatment because of something arising in consequence of his disability. The tribunal concluded that a more proportionate response would have been to relocate the claimant to another site or swap the claimant’s job with that of another security guard. Accordingly, the tribunal also concluded that the claimant’s section 15 claim succeeded. iii. The claimant succeeded in his section 27 Equality Act 2010 claim for victimisation. It was decided that the Respondent withdrew the offer of re-engagement and of continuing to search for future employment because it was thought that re-engaging the claimant could lead to a claim for discrimination. Facts relating to remedy

[15]We were provided with a bundle of documents and heard evidence from the claimant and Mr Trevivian, both of whom provided written statements and were cross-examined.

[16]Most helpfully, at the start of the remedy hearing the parties agreed a number of salient facts and issues. Net weekly pay at the respondent was on average £288.31. Net monthly pay was therefore £1249.34. The date at which the section 15 and 20/21 discrimination occurred was 13 October 2014 and the relevant date for victimisation was 25 October 2014. These dates are relevant for the purposes of interest. It was also agreed that, for the purposes of the compensatory award, losses commenced on 21 October 2014.

[17]As set out below, the claimant received a previous compensatory award from a different tribunal with an overlapping compensatory period. In addition, as a set out below, the updated amounts for the middle banding of Vento awards was agreed in that the RPI All Items Index as at 13 February 2015, when the claim was issued, was 256.7. Therefore, the middle band of £6,000-18,000 changes to £7,909 – £23,728.

[18]The claimant’s schedule of loss gives credit for £13,491.87 for “RAS payments and monies earned and deducted” but provides no breakdown as to what was earned, from whom and when. It was agreed at the commencement that the total amount which could potentially be set off from this remedy judgment was £13,102.10.

[19]The claimant worked as a security guard from 2009 up until he started work for the respondent. His CV, which is in the bundle, shows that he also has 20 years of experience in the retail sector. His academic qualifications include a law degree, being called to the bar and an MSc. He was a CIPD member in 2014. Included in his personal statement is the following: “I can turn my hand to pretty much anything and am willing to do pretty much any job”.

[20]Prior to commencing employment with the respondent on 29 July 2014, the claimant worked for RAS, as a security guard starting, on 9 August 2013 before the termination of that employment on 27 December 2013. The claimant brought proceedings which were heard in the Cardiff Employment Tribunal on 2 February 2015 relating to this previous employment. This was three months after the end of his employment with the respondent in this case. Loss of earnings for the period post 21 October 2014 were claimed and awarded.

[21]The response to those proceedings was struck out and the respondent did not attend the hearing. The claimant succeeded claims of automatic unfair dismissal, disability discrimination, victimisation and harassment. He received a compensatory award of some £28,303. and a total award of over £55,000. The period for the prescribed element of the award was 28 December 2013 until 2 February 2015, which overlaps with the period claimed here.

[22]It is not in dispute that the claimant has already received compensation for the period 26 October 2014 until 2 February 2015 together with a further eight weeks of losses and partial losses ongoing for another 44 weeks.

[23]The tribunal judgment in the RAS hearing noted at paragraph 77 and 78 that since his dismissal from RAS on 27 December 2013 the claimant worked as a security guard for two different employers during the period 1 June 2014 until 26 October 2014. The tribunal go on to say that the claimant had, at the time of that hearing, been applying for Human Resources jobs but without success. He indicated to the Cardiff Tribunal that his age and lack of experience in HR made it difficult for him to obtain such appointments. Consequently, it was recorded that in that week, namely in February 2015, the claimant would commence a search for a retail warehouse role, a position he had previous experience of. It was also noted that the tribunal considered that warehouse work was likely to be paid at the National Minimum Wage, which was at that time £6.50 per hour.

[24]The claimant had been earning gross weekly wage at RAS of £429.74 which was said to net down to £346.41.

[25]After leaving the respondent in this case the claimant retrained as a plumber. He received a level II diploma in plumbing studies on 12 July 2016 and level II diploma in electrical installation on 19 July 2016. The claimant explains that the college he was attending had no connections with industry and the apprentice route was unavailable for him. Nonetheless, he continued to take courses in electrical installation and inspection and on 27 July 2017 and 12 July 2018 he received further certificates in this regard.

[26]Although the claimant is claiming losses for nearly three years up until 5 September 2017, he says that throughout this period he did not receive any money at all from plumbing work. In fact, the only monies earned are said to be some £389.77 which was more than 6 months after he left the respondent. This came from a short stint in a meat factory.

[27]However, he explains in his statement that, had he remained with the respondent, he could have earned “more than enough to have a more meaningful existence and, if [he] had taken courses in,….. being an electrician, he would have been able to have bought [his] own van and tools”.

[28]While working for the respondent the claimant was making an approximately 60 mile round trip to work each shift. He lives within 5 miles of a shopping centre. Within 20 miles of his address are many shops, supermarkets, stores, warehouses, shopping centres, industrial parks, care homes and retail parks.

[29]Despite what the claimant told the Cardiff Tribunal he continued to make applications for HR roles on a fairly regular basis until November 2015. Evidence of the many such applications was provided to us in the bundle.

[30]Although the claimant says he made applications for warehouse and other agency work he accepts he has provided “not a shred of evidence” relating to these applications. We find that he made minimal attempts to obtain warehouse or agency work. Injury to feelings

[31]Injury to feelings awards compensate for non-pecuniary loss. They are available where a tribunal has upheld a complaint of discrimination. The award of injury to feelings is intended to compensate the claimant for the anger, distress and upset caused by the unlawful treatment they have received. It is compensatory, not punitive. Tribunals have a broad discretion about what level of award to make.

[32]Where the discriminatory acts overlap as they arise from the same set of facts, such as where a dismissal is on grounds of both race and disability, a tribunal will not be expected to separate the injury to feelings and attribute parts to each form of discrimination.

[33]The focus is on the actual injury suffered by the claimant and not the gravity of the acts of the respondent (see Komeng v Creative Support Ltd

UKEAT/0275/18/JOJ

). The general principles that apply to assessing an appropriate injury to feelings award have been set out by the EAT in Prison Service v Johnson

[1997] IRLR 162

, para 27: i. Injury to feelings awards are compensatory and should be just to both parties. They should compensate fully without punishing the discriminator. Feelings of indignation at the discriminator’s conduct should not be allowed to inflate the award; ii. Awards should not be too low, as that would diminish respect for the policy of the antidiscrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could be seen as the way to untaxed riches; iii. Awards should bear some broad general similarity to the range of awards in personal injury cases – not to any particular type of personal injury but to the whole range of such awards; iv. Tribunals should take into account the value in everyday life of the sum they have in mind, by reference to purchasing power or by reference to earnings; v. Tribunals should bear in mind the need for public respect for the level of awards made. The matters compensated for by an injury to feelings award encompass subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression (see Vento v Chief Constable of West Yorkshire Police (No2)

[2003] IRLR 102

[34]In Vento the Court of Appeal identified three broad bands of compensation for injury to feelings and gave the following guidance (however, see below for revised figures): 1) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000; 2) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band; 3) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. Within each band there is considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.

[35]The boundaries of the bands have been revised in several subsequent cases, culminating in the decision in De Souza v Vinci Construction (UK) Ltd

[2017] EWCA Civ 879

, which held that the 10% uplift in Simmons v Castle

[2012] EWCA Civ 1288

should apply to awards for injury to feelings.

[36]It is agreed that the banding pertinent at the relevant time in this case was that set out in Da’bell v NSPCC

[2010] IRLR 19

: the EAT revisited the bands and uprated them for inflation. The lower band was raised to between £600 and £6,000; the middle band was raised to between £6,000 and £18,000; and the upper band was raised to between £18,000 and £30,000.

[37]In a separate development in Simmons v Castle the Court of Appeal declared that with effect from 1 April 2013 the proper level of general damages in all civil claims for pain and suffering, loss of amenity, physical inconvenience and discomfort, social discredit or mental distress would be 10% higher than previously. This followed upon changes to the rules governing the recovery of costs in personal injury litigation in the civil courts in England & Wales.

[38]The Presidents of the Employment Tribunals in England & Wales and Scotland have issued ‘Presidential Guidance: Employment Tribunal Awards for Injury to Feelings and Psychiatric Injury Following De Souza v Vinci Construction (UK) Ltd’.

[39]This Guidance, the third addendum of which was released on 27 March 2020 taking into account changes in the RPI All Items Index released on 25 March 2020, updated the bands as follows: i. Upper Band: £27,000 to £45,000 (the most serious cases); ii. Middle Band: £9,000 to £27,000 (cases that do not merit an award in the upper band); and iii. Lower Band: £900 to £9,000 (less serious cases). The ‘most exceptional cases’ are capable of exceeding the maximum of £45,000.

[40]These bands take account of the 10% Simmons v Castle uplift.

[41]However, this guidance applies only to cases issued on or after 11 September 2017. At paragraph 11 of that document it states that in respect of claims presented before 11 September 2017, an Employment Tribunal may uprate the bands for inflation by applying the formula x divided by y (178.5) multiplied by z and where x is the relevant boundary of the relevant band in the original Vento decision and z is the appropriate value from the RPI All Items Index for the month and year closest to the date of presentation of the claim (and, where the claim falls for consideration after 1 April 2013, then applying the Simmons v Castle 10% uplift).

[42]The RPI All Items Index as at 13 February 2015, when this claim was issued, was 256.7. Therefore, the middle band of £6,000-18,000 changes to £7,909 – £23,728. As set out above, this was agreed with the parties at the start of the hearing. Submissions on injury to feelings

[43]The respondent says that perversely it is the allegations of fraud in the claimant’s witness statement which underpin his injury to feelings claim. They also say there are good reasons to question the claimant’s veracity which may impact on any findings about the scale of any alleged injury to feelings. They suggest the tribunal has a difficult task in identifying the cause and extent of any such injury and, in any event, the relevant category of award would be minimal and at the bottom of the lowest band. The submissions emphasise that the case law highlight that the claimant must be caused injury to feelings as a consequence of unlawful conduct found to have occurred. The respondent says each head a claim needs to be considered separately in determining the figure for compensation for injury to feelings, unless they arise out of the same facts. It is emphasised the section 15 and 20 claims arise out of the same facts. Further, the victimisation claim also relates to the respondent not seeking alternative work for the claimant.

[44]In his statement at paragraph 16 the claimant says his faith that people will act with integrity and within the law has been damaged by the respondent. He goes on to say their actions were extremely hurtful and that his confidence was sapped and options narrowed. Conclusions on injury to feelings

[45]The respondent is right that in his statement the claimant refers to many things which are not relevant to the injury to feelings award in this case. For example, he refers to being called dishonest many times by the Cardiff Employment Tribunal which he describes as distressful, untrue and hurtful. He also makes reference, on various occasions, to allegations of fraud said to be perpetrated against him by the respondent.

[46]However, the tribunal accepts that the claimant is and was genuinely concerned and upset by the discrimination which he suffered in this case. He had been previously ground down by other incidents of discrimination. He was at a particularly low point when this discrimination occurred and, as he explains, this adversely impacted on the trust and faith he had in people. Although he was and has been upset by other things and incidents this does not deter from the injury he felt by the discrimination in this case.

[47]We regard the totality of the injury to feelings claim as being in the middle band. The failure to make reasonable adjustments claim relates to work being taken away from him. This was then compounded by the victimisation claim when offers of further work were effectively withdrawn. Losing work and money heightened the sense of injustice he felt.

[48]Taking all this into account, and bearing in mind the new banding, we regard the claimant’s assessment of his injury to feelings in his schedule of loss as being an accurate one. Therefore, we find the appropriate level of award as being £13,000 for the claims relating to failure to make reasonable adjustments and discrimination arising in consequence of disability. In addition, we award the claimant a further £4,000 in relation to the victimisation element of the claim. We accept there is some overlap between these two claims. Therefore, the total award for injury to feelings is that claimed by the claimant in his schedule of loss, namely £17,000. Compensatory award:

[49]Any award of compensation will be assessed under the same principles as apply to torts (see s124(6) and s119(2) Equality Act 2010). The central aim is to put the claimant in the position, so far as is reasonable, that discrimination he or she would have been had the tort not occurred.

[50]The tribunal’s assessment should be based on findings of fact, and then ‘to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice’ (see Software 2000 Ltd v Andrews

[2007] IRLR 568

, per Elias P).

[51]It is a fundamental principle that any claimant will be expected to mitigate the losses they suffer as a result of an unlawful act by giving credit, for example for earnings in a new job (mitigation in fact), and that the tribunal will not make an award to cover losses that could reasonably have been avoided (mitigation in law). The burden of proving a failure to mitigate is on the respondent. It is insufficient for a respondent merely to show that the claimant failed to take a step that it was reasonable for them to take: rather, the respondent has to prove that the claimant acted unreasonably.

[52]The tribunal will consider: 1) what steps the claimant should have taken to mitigate his or her losses; 2) whether it was unreasonable for the claimant to have failed to take any such steps; and 3) if so, the date from which an alternative income would have been obtained. Submissions on compensatory award

[53]The claimant says he acted reasonably in mitigating his loss. Because of previous bad experiences in the security industry he decided not to apply for other jobs in that sector. He claims losses from 21 October 2014 until 5 September 2017. Although he continued to look for HR roles after the Cardiff Tribunal he says he did not do this exclusively. For parts of the period of loss claimed he spent large amounts of time on litigation related work. For example, he says he sat in the car park of RAS for a period of two months seeking to establish the comings and goings of his former employer in an effort to recover substantial damages from them. This was around March 2015, eventually culminating in receipt of monies by early June 2015.

[54]The respondent says, bearing in mind the claimant was engaged in low-paid work at £6.31 per hour, it is hard to fathom how he failed to secure any other work in a period of nearly 3 years after the ending of his employment with the respondent other than a week or so in a meat factory. The claimant’s mitigation evidence (screenshots of emails relating to applications made) demonstrates an unstinting and particular focus on HR roles. Reference is made to the findings of the Cardiff Employment Tribunal in February 2015 when the claimant seems to acknowledge that his lack of experience in HR made it difficult for him to obtain such roles and accordingly that week he would commence a search for work in a retail warehouse role. The respondent therefore says the claimant has failed to mitigate has loss either in respect of warehousing work or any other work broadly at the same rate. In relation to retraining as a plumber, the respondent accepts that compensation may include time taken out of the job market to pursue essential training or study. However, they say the tribunal should be astute to an employee taking themselves out of the labour market altogether as a matter of course. In such circumstances, the employee ought to be compensated up to the date when the employee ought to obtain another position.

[55]The respondent also says that had the claimant remained with them he would not have continued to be employed indefinitely. They say security guards who had been with them for longer were released as winter 2014 approached. The respondent says it is likely the claimant would have been released shortly after the events in question anyway. Conclusions on compensatory award

[56]We accept that seeking to obtain money from a previous judgment and discrimination within the mitigation period amounts to reasonable mitigation of loss. He received a substantial award and was only able to receive the said monies by his work tracking down RAS and enforcing his award.

[57]We also accept that because of the claimant’s age and previous litigation history he might have some difficulty in obtaining alternative employment.

[58]Nonetheless, bearing in mind the claimant was earning at or close to minimum wage we do not think it would have been difficult for him to mitigate his losses. We note that close to where the claimant lives are a variety of retail businesses warehouses, stores and industrial parks.

[59]Insufficient efforts were made to look for low paid work. It was unreasonable of him not to make regular and multiple applications for agency work.

[60]We consider that the claimant would have been able to mitigate his loss at the sixmonth point. This takes into account the need for him to spend significant time obtaining the RAS monies.

[61]We do not accept what Mr Trevivian says in his statement at paragraph 25. It is suggested that had the claimant not left the respondent’s employment as a result of this incident he would have gone anyway. We have seen no disclosure in relation to how many employees were released at or around this time.

[62]Six months net loss comes to £7,496.04. Losses in this case run from the agreed date of 21 October 2014.

[63]The undefended Employment Tribunal hearing in the RAS Security case took place in Cardiff Employment tribunal on 2 February 2015. The claimant was employed by RAS from 9 August 2013 until, as the tribunal found, 27 December 2013. His claim form in that case was presented on 26 March 2014. His average pay at RAS over a period of 12 weeks was £429.74 gross or £346.41 net. In summary, the Cardiff Tribunal concluded that the claimant would be able to obtain a retail warehouse role after 8 weeks of research and interviews. Such a job, they found, would be likely to be paid at the then National Minimum Wage of £6.50 per hour. They then went on to conclude that it would take a further 44 weeks for the claimant’s pay to rise to the same level as it was with RAS.

[64]Past loss of 57 weeks at £356.41 from 28 December 2013 until 2 February 2015 was awarded (less wages earned). Loss to date of the hearing on 2 February 2015 was awarded at £13,149.22. Future loss from 2 February 2015 was calculated as being 8 weeks at £346.41 and then 44 weeks ongoing loss at the net rate of £121.53.

[65]Past loss has been awarded at the rate of £356.41 per week until 2 February 2015 by the RAS case. These monies should therefore be deducted from the compensatory award in this case. From 2 February 2015, a further 8 weeks falls to be deducted at £346.41. From 30 March 2015 until the 6 month point in this case, 20 April 2015, losses were awarded at the rate of £121.53 per week.

[66]Accordingly, for the 6 months from 21 October 2014 the claimant has already received compensation for same period in the sum of: 66.1. 22.86 weeks at £346.41 = £8,147.53 66.2. 3.14 weeks at £121.53 = £381.60

[67]The total in this period (£8,529.13) exceeds the amount awarded. This figure was then also subject to a 25% uplift for failure to comply with the ACAS code. Therefore, the compensatory award is reduced to nothing.

[68]We should say that there was some confusion at the remedy hearing because the claimant pointed out that during the 6-month period awarded the overlap in compensation was 8 weeks at £346.41 plus another 13 weeks at £121.53. This came to a deduction of 4351.17, leaving some £3,146. 67. The respondent made no countervailing submission in relation to this level of deduction. However, as set out above, this is not the correct level of overlap.

[69]Since oral judgment the parties have both written in querying the figures. £3,146. 67 was the figure announced at the hearing in light of the submissions made by the claimant without any further comment by the respondent.

[70]To the extent that there is any need to reconsider our initial judgment in this regard, we do so. The correct figures are as set out in this written judgment. The Tribunal takes full responsibility for the miscalculation made on the day.

[71]The claimant now says no deductions should be made at all to the 6 month period. He emailed the tribunal in the late evening of 3 November 2020 saying: In the Chamberlains’ case that loss of wages began on 21/10/2014. So, far so good. But, the error in the RAS judgment is that the judge appears to have began the wage compensation element straight after the judgment. Indeed, she says that I should be able to get a warehouse job in 8 weeks from then. But, that’s the wrong starting point and the wrong job. So, although I was dismissed 9 months before I started with Chamberlains, the compensation didn’t start running until 3 months after I left Chamberlains. There should never have been a cross-over in time regarding the wage compensation. The starting point, the day my wages were stopped and I was dismissed by RAS was 27th December 2013, see para 51.Therefore, clearly, the wrong starting point has been applied, because the time allowed for finding a new job in a warehouse, began ticking either on the date of the hearing, 3rd February 2015, or from the publication of the judgment on 12th February 2015. In truth, the judge should not have been interested in what job I was going to be searching for in the future.

[72]In contrast, the respondent emailed on 6 November saying the whole of the £13,491.87 should be deducted from any loss of earnings awarded by this tribunal. In fact, as set out above, it was agreed that a maximum of £13,102.10 should be set off from the RAS award.

[73]Therefore, both parties have made subsequent submissions which differ from points made at the culmination of the remedy hearing.

[74]The claimant did not appeal or apply for reconsideration of the Cardiff Tribunal compensatory award in RAS. He says the wrong starting point has been applied to the starting date for the compensatory period in that case. However, as set out above, the Cardiff Tribunal awarded him full past loss from 28 December 2013 until the date of the hearing on 2 February 2015. They then went on to award future loss at varying rates for a further 52 weeks (44 + 8). It is now not open to the claimant to say that the tribunal applied the wrong starting point or the wrong job. He was awarded and has received the said monies. He received compensation for both past and future loss. Interest

[75]A tribunal is able to award interest on awards of compensation made in discrimination claims brought under s124(2)(b) EA 2010, to compensate for the fact that compensation has been awarded after the relevant loss has been suffered (see s139 EA 2010, EA 2010 (Commencement No 4 etc.) Order SI 2010/2317 and IT(IADC) Regs 1996).

[76]The tribunal may award interest to the following types of discrimination award: past financial loss and Injury to feelings. Interest is calculated as simple interest accruing from day to day (Reg 3(1)). The interest rate now to be applied is 8%.

[77]Injury to feelings: interest is awarded on injury to feelings awards from the date of the act of discrimination complained of until the date on which the tribunal calculates the compensation (see Reg 6(1)(a) IT(IADC) Regs 1996).

[78]Tribunals are required to consider interest whether or not an application has been made by a party (see Komeng v Creative Support Ltd

UKEAT/0275/18/JOJ

). Reg 6(1)(a) of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996/2803 provides that the period over which interest accrues begins with the date of the discrimination and ends on the date the tribunal calculates compensation.

[79]Regulation 6(3) provides as follows: Where the tribunal considers that in the circumstances, whether relating to the case as a whole or to a particular sum in an award, serious injustice would be caused if interest were to be awarded in respect of the period or periods in paragraphs (1) or (2), it may—(a) calculate interest, or as the case may be interest on the particular sum, for such different period, or

(b) calculate interest for such different periods in respect of various sums in the award, as it considers appropriate in the circumstances, having regard to the provisions of these Regulations

[80]We have decided that awarding 8% interest until the date of the remedy hearing would result in a serious injustice. The claimant caused delay to this remedy hearing by a series of unmeritorious appeals. Had the claimant not appealed a remedy hearing would have been likely to take place on or before 10 December 2017. Accordingly, we award interest until that date.

[81]The calculations are as follows: i. £13,000 at 8% is £2.849 per day: 1154 days = £3,287.75 ii. £4,000 at 8% is £0.877 per day: 1142 days = £1,001.53 COSTS JUDGMENT The unanimous costs judgment is as follows: 1. The respondent’s application that the claimant pay costs is refused. 2. The claimant’s counter application for a preparation time order is refused and is out of time. Regional Employment Judge Pirani Date: 20 April 2021 For the Tribunal Case Number: 1600344/2015 V Note: Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a written request is received from either party within 14 days of the sending of this record of the decision.

[82]In any event, even if the threshold test had been reached and we extended time for the application we would not have exercised our discretion to award costs or a preparation time order in favour of the claimant.

[83]We take into account the fact that the respondent acted perfectly reasonably in making a sensible and carefully calibrated offer.

[84]We also would have weighed in the balance the claimant’s own conduct in relation to this particular issue. The panel in the Bristol Tribunal substantive hearing noted at paragraph 69 of the substantive judgment that despite the fact that the claimant was legally trained and had previously been involved in litigation he failed to disclose the recording of the meeting or the fact of recording until he exchanged his first witness statement for the purposes of these proceedings.

[85]The panel also concluded at paragraph 70 that the claim form was drafted in a way which suggested that he had not recorded the meeting. Later, at paragraph 135, the tribunal concluded that the claimant must have known this was inappropriate conduct.

[86]Accordingly, for the reasons we have provided the respondent does not succeed in its costs application. The claimant is out of time to present his costs application and we do not consider it fair or just to extend time. If time had been extended, we would have refused the claimant’s application in any event. Case Number: 1600344/2015 EMPLOYMENT TRIBUNALS Mr Keith Crossland Chamberlains Security (Cardiff) Limited Claimant Respondent v RECONSIDERATION OF JUDGEMENT: REJECTED EMPLOYMENT TRIBUNAL'S RULES OF PROCEDURE 2013 The claimant’s application for reconsideration dated 17 November 2022 of the decisions made on 20 April 2021 (costs), 3 November 2020 (remedy) and the substantive judgment (after a hearing on 8, 9 and 10 May 2017) was received more than 14 days after the dates on which the decisions were sent to the parties. Having considered the reasons given for the delay, Regional Employment Judge Pirani refuses to extend time as it is not in the interests of justice to do so because: i. The points made in relation to fraud have been made previously on many occasions both at the Employment Tribunal and on appeal. ii. The new evidence produced by the claimant could have been produced with due diligence earlier. iii. The new evidence provided would not have made any difference to the results of the various hearings. iv. The Claimant succeeded in all three of his causes of action under his claims under sections 20 and 21 of the Equality Act 2010 in his claim of a failure to make reasonable adjustments; and in his complaint of breach of section 15 discrimination (because of something arising in consequence of his disability), and also in his section 27 victimisation complaint. v. The claimant has already made unsuccessful appeals to the Employment Appeal Tribunal and the Court of Appeal. vi. The Claimant has previously brought virtually identical proceedings alleging fraud in the Cardiff ET, whereupon he decided to withdraw them, opting for similar proceedings in the County Court. This led to a strike-out with costs being awarded against him. vii. At the last hearing (costs) it was noted that the claimant again requested, in his written submissions, that “the Bristol Judgment be set-aside because of fraud”. The claimant went on to explain “I believe that the Case Number: 1600344/2015 proper administration of justice requires it. The parties can then continue the claim in Cardiff”. However, in his oral submissions the claimant did not suggest that he wanted the remedy judgment set aside. viii. Lord Justice Bean concluded that arguments on appeal that the Employment Tribunal should have found the respondent to be dishonest are hopeless. ix. The Tribunal noted in its last judgment in relation to costs: Paragraph 77 of the substantive judgment provides: The claimant mentioned litigation and tribunal awards of injury to feelings of up to £30,000. However, this was not, as the respondent originally suggested, “from the very outset of the meeting”, but rather more than 30 minutes after the meeting started (see para 23 of ET3). In essence, the claimant is concerned about what he describes as “fraudulent grievance notes”. The reference in the ET3 was wrong and misleading. The minutes were inaccurate. The respondent fought and lost the Employment Tribunal. That is as far as this tribunal found in relation to this issue. x. The panel in the Bristol Tribunal substantive hearing noted at paragraph 69 of the substantive judgment that despite the fact that the claimant was legally trained and had previously been involved in litigation he failed to disclose the recording of the meeting or the fact of recording until he exchanged his first witness statement for the purposes of these proceedings. The panel also concluded at paragraph 70 that the claim form was drafted in a way which suggested that he had not recorded the meeting. Later, at paragraph 135, the tribunal concluded that the claimant must have known this was inappropriate conduct.