Leon SchlikerClaimantAccomplish Group Limited RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge Howden-EvansMr Brockley (instructed by Counsel) for respondentDate 24 August 2023
REASONS
[1]Mr Schliker has presented claims of disability discrimination and of wrongful dismissal (ie breach of contract for failure to give notice of dismissal).[2]Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the Order”) explains a wrongful dismissal clam must be presented to the Tribunal within 3 months of the date of dismissal.[3]S123 Equality Act 2010 provides a discrimination claim must be presented within 3 months of the act (of discrimination that is being) complained of.[4]It is agreed that Mr Schliker was dismissed from his employment with Accomplish 1 of 8 on 27th January 2021.[5]It is agreed Mr Schliker commenced ACAS early conciliation on 10th July 2021 and that conciliation ended on 12th July 2021. Mr Schliker presented the ET1 claim form to the tribunal on 28th July 2021.[6]The starting point is that both claims should have been presented to the Tribunal on or before 26th April 2021. The effect of the ACAS EC provisions is Mr Schliker would not be able to start a tribunal claim for disability discrimination or wrongful dismissal without first contacting ACAS and commencing ACAS early conciliation - on or before 26th April 2021 Mr Schliker should have contacted ACAS to start early conciliation and this would have extended the time limit for presenting the claim to the tribunal by at least one month and then the ET1 claim form should have been sent to the tribunal within that extra month.[7]In relation to a wrongful dismissal claim, there is an exception to the 3-month time limit where it was “not reasonably practicable” for the claim to be presented within that 3-month period. The burden is upon Mr Schliker to prove it was not reasonably practicable for him to present the claim before 26th April 2021 and he has presented the claim within a reasonable period of time. As the respondent’s barrister has explained reasonably practicable means reasonably feasible; it is a high threshold to meet.[8]In considering whether it was or was not reasonably practicable for Mr Schliker to present the claim within the 3 month period, the legal authorities suggest I should focus on what was the substantial cause of Mr Schliker’s failure to comply with this deadline.[9]Here Mr Schliker says it was not reasonably practicable for him to submit the claim in time as 9.1. Mr Schliker and his mother were not aware of the existence of the employment tribunal or any other means of externally challenging his dismissal until a Zoom meeting, on 6th July 2021, with Paul Cotgias. 9.2. For a period of some months starting at the end of February 2021, Mr Schliker was unwell with low mood, which, combined with his learning difficulty meant he felt overwhelmed by the situation and didn’t know what to do. Mr Schliker describes himself as having attention deficit hyperactivity disorder (ADHD). He described himself as “feeling worthless and overwhelmed” for a number of months from end of February 2021 onwards. 9.3. Mr Schliker was not aware that a manager in Accomplish had told those carrying out Mr Schliker’s disciplinary hearing, that he wanted Mr Schliker to be dismissed and had referred to Mr Schliker in a derogatory manner which Mr Schliker believes suggests his dismissal was predetermined and discriminatory – Mr Schliker asserts he first became aware of this when he had sight of documents disclosed by Neath and Port Talbot County Borough Council’s safeguarding team on 2nd July 2021.[10]In relation to a discrimination claim, there is an exception to the 3-month time limit 2 of 8 when the claim has been presented within “such other period as the employment tribunal thinks just and equitable”. There is guidance in British Coal Corpn v Keeble [1997] IRLR 336 and s33 Limitation Act 1980. In particular I should consider:(a) the length of and reasons for the delay;(b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the extent to which the party sued had co-operated with any requests for information;(d) the promptness with which Mr Schliker acted once he knew of the facts giving rise to the cause of action; and(e) the steps taken by Mr Schliker to obtain appropriate advice once he knew of the possibility of taking action.[11]During the hearing, I had the benefit of considering witness statements from Mr Schliker and his mother and of hearing both witnesses give evidence on oath. I accept that both witnesses gave a truthful account. I note that when answering Mr Brockley’s questions, Mr Schliker often replied “this is a bit too much for me” and would sometimes lapse into agreeing with every question when he became tired or overwhelmed by questions. We took breaks every 30 minutes and questions were often rephrased to use shorter sentences. I accept Mr Schliker is a vulnerable witness and I recommend that an intermediary is appointed to facilitate communication at future hearings; to ensure the communication needs of Mr Schliker are met and Mr Schliker can fairly participate in proceedings.
Findings of fact
[12]Shortly before working for Accomplish, Mr Schliker had been employed by Cefn Lodge as a carer. He had worked for Cefn Lodge for circa 3 years.[13]Between 11th November 2020 and 27th January 2021 Mr Schliker worked for Accomplish as a carer.[14]On 27th January 2021 Mr Schliker was verbally told that Accomplish were dismissing him from employment. He received an email from Accomplish on 1st February 2021 confirming he was dismissed.[15]In mid-February 2021, Mr Schliker returned to his former employer and started working as a carer with Cefn Lodge.[16]On 17th February 2021 Mr Schliker’s manager at Cefn Lodge told him that “someone from safeguarding” had phoned and that Cefn Lodge were not able to employ Mr Schliker. Mr Schliker was dismissed from his employment with Cefn Lodge.[17]Mr Schliker was devastated by this dismissal and didn’t know where to turn for help. He didn’t know who “someone from safeguarding’ was and phoned Accomplish, Cefn Lodge and the Council to understand what was going on. He was not able to ascertain who had phoned Cefn Lodge. He was not able to get any answers. A manager from Cefn Lodge suggested he contact ACAS for help.[18]Towards the end of February 2021 Mr Schliker did phone ACAS – he made this telephone call whilst he was on his own. He has difficulty recalling the conversation but described it as a short conversation. He did not recall ACAS saying anything about an employment tribunal. Mr Schliker described the 3 of 8 conversation as being confusing as he had been dismissed twice – he found it too complicated to explain and too complicated to understand. Mr Schliker felt he couldn’t take any more and couldn’t cope with the situation.[19]It was around the end of February 2021 that Mr Schliker confided in his mother and asked her to act on his behalf.[20]By the end of February 2021, Mr Schliker was unwell. Whilst there are no GP records before me, I accept Mr Schliker’s evidence supported by Ms Schliker’s evidence that Mr Schliker was in a “low mood” and was experiencing feelings of worthlessness. It explains why Ms Schliker took over the conduct of this matter on his behalf at end of February 2021.[21]At the end of February 2021 Ms Schliker read Accomplish’s letter of dismissal and told Mr Schliker he needed to appeal this decision. Mr Schliker phoned “Mark”, the manager at Accomplish, and was told by Mark that Mark would speak to HR and would return to Mr Schliker. Mark did not return to Mr Schliker.[22]Between February 2021 and April 2021 Ms Schliker tried phoning Accomplish several times – the number given on the dismissal letter was an automated message and did not connect to a person; she googled Accomplish and this provided a different number. Using this number, she was able to speak to “Mandy” who sent an email to a colleague asking them to contact Ms Schliker; no one returned her call. A few days later she phoned Mandy again and was told the colleague had said she would not deal with Mr Schliker’s mother.[23]On 11th May 2021, as she had not been able to speak to anyone in Accomplish, Ms Schliker helped her son to submit a data protection subject access request to Accomplish. When this request was ignored, on 14th June 2021 Ms Schliker helped her son to submit a second subject access request to Accomplish and on 16th July 2021 they submitted a third subject access request to Accomplish. Subsequently Ms Schliker helped her son to make a compliant to the Information Commissioner’s Office. On 24th August 2021, Accomplish responded to the subject access requests and provided copies of some documents.[24]As well as trying to contact Accomplish, in Spring 2021, Ms Schliker was repeatedly phoning the local authority, trying various phone numbers, to understand why “someone from safeguarding” would prevent Mr Schliker from working at Cefn Lodge.[25]On 27th May 2021 Ms Schliker received a telephone call from Paul Cotgias of Neath Port Talbot County Borough Council, during which he confirmed that he had been the chairperson of the local authority’s safeguarding professional strategy meeting that had considered the referral relating to Mr Schliker. Mr Cotgias told Ms Schliker that he had been the person that had contacted Cefn Lodge and told them they could not employ Mr Schliker because of that safeguarding referral.[26]Mr Cotgias suggested Mr Schliker make a data protection subject access request to the social services department of Neath Port Talbot County Borough Council, to understand the background behind him contacting Cefn Lodge. Ms Schliker made that request on 27th May 2021. 4 of 8[27]On 2nd July 2021 Mr Schliker received documents from the social services department, in compliance with the subject access request. These documents included correspondence that Mr Schliker believes indicates a manager in Accomplish had told those carrying out Mr Schliker’s disciplinary hearing, that he wanted Mr Schliker to be dismissed. Ms Schliker’s evidence was that these documents led her and her son to believe that Mr Schliker was being bullied by those in Accomplish and that his dismissal had been predetermined and was discriminatory.[28]On 6th July 2021 Mr Schliker attended a Zoom meeting with Ms Schliker and Paul Cotgias. During this meeting, Mr Cotgias suggested Mr Schliker contact ACAS and start an employment tribunal claim. Mr Schliker and Ms Schliker say this was the first time they were aware of the existence of the employment tribunal.[29]Whilst Mr Brockley has suggested it is implausible that anyone would not have heard of the employment tribunal, Mr Schliker and Ms Schliker have both been questioned at length on this topic and I accept that neither of them were aware of the existence of the employment tribunal prior to that conversation with Mr Cotgias in July 2021. At the point of his dismissal, in January 2021, Mr Schliker was 21 years old. He described being dismissed as “being chucked straight in the deep end”. He was not aware of people being dismissed before. He had not read newspapers or seen anything on television referring to employment tribunals. In February 2021 he was totally bewildered and didn’t know where to turn for help. I have no doubt that had he been aware of the employment tribunals’ existence he would have contacted the employment tribunal at that point. When he became aware of ACAS’s existence, he did phone them in February 2021. Unfortunately, this was only a short call and Mr Schliker was too overwhelmed to explain his situation or receive guidance. When he became aware of the employment tribunal (on 6th July 2021) he contacted ACAS and started early conciliation on 10th July 2021.[30]Equally, Ms Schliker was not aware of the existence of the employment tribunal. She has never been dismissed from a job and Mr Schliker’s dismissal by Accomplish was the first time she had experienced any friend or family member being dismissed from employment. She had not read about employment tribunals in newspapers or seen them referred to on television or in adverts. When her son was dismissed, she genuinely believed his only recourse was to ask Accomplish to review their decision or to ask his former employer (Cefn Lodge) to reemploy him. She was aware of ACAS in February 2021, as her son had told her he had contacted ACAS – she had thought that was a good idea, but when contacting ACAS hadn’t worked, she believed that his only recourse was to persuade Accomplish to change their decision. In light of the extensive attempts, she made in Spring 2021, to pursue this with Accomplish and the Council, I accept that if she had been aware of the existence of employment tribunals, she would have contacted the employment tribunal in Spring 2021.[31]I accept that the substantial cause of Mr Schliker’s failure to present his claim within the 3-month deadline was his reasonable lack of knowledge of the existence of the employment tribunal.[32]As Lord Scarman has commented in Dedman v British Building and Engineering 5 of 8 Appliances Ltd [1974] 1 All ER 520, I should consider “what were Mr Schliker’s opportunities for finding out that he had rights? Did he take them?” When Mr Schliker became aware of ACAS’s existence, he did phone ACAS in February 2021, without delay. Unfortunately, this was only a short call and Mr Schliker was too overwhelmed to explain his situation or receive guidance and shortly after this Mr Schliker became unwell experiencing low mood and depression. It has been suggested that Mr Schliker should have sought legal advice or should have attended the CAB to seek advice. Given that he was unwell, experiencing low mood and feelings of hopelessness, I accept it was not reasonably practicable for him to seek legal advice from solicitors or from the CAB in Spring / Summer 2021. He did all that he could manage to do at that point in time – he asked his mother to take over this battle on his behalf and he did contact ACAS. I accept that it was reasonable for him to not be aware of the existence of employment tribunals until July 2021. I accept that this reasonable lack of knowledge of the existence of employment tribunals meant it was not reasonably practicable for Mr Schliker to submit his claim in time.[33]This case can be distinguished from the Dedman line of authorities as whilst Mr Schliker delegated responsibility to Ms Schliker, Ms Schliker is not an adviser. This case is more akin to the circumstances in Lowri Beck Services Ltd v Brophy UKEAT/0277/18/LA, where a Claimant with severe dyslexia had relied heavily upon his brother, who accidentally miscalculated the time limits for presenting a claim. The Employment Appeal Tribunal accepted the Tribunal’s finding that it was reasonable for the Claimant to hand over matters to his brother and it was not reasonably practicable for the claim to have been presented in time in those circumstances. In this case, in February 2021, as Mr Schliker was unwell with low mood, which, combined with his learning difficulty meant he felt overwhelmed by the situation and didn’t know what to do, it was reasonable for Mr Schliker to hand over his claim to his mother. Unfortunately, prior to 6th July 2021, she too was completely unaware of the existence of employment tribunals – I accept this meant it was not reasonably practicable for Mr Schliker to present his claim in time.[34]Mr Schliker and his mother became aware of the existence of employment tribunals during a conversation with Mr Cotgias on 6th July 2021. Mr Schliker contacted ACAS and commenced ACAS early conciliation on 10th July 2021; that conciliation ended on 12th July 2021. Mr Schliker presented the ET1 claim form to the tribunal on 28th July 2021. As he had contacted ACAS within 4 days of becoming aware of the existence of employment tribunals and had issued the claim within 22 days of that knowledge, I accept Mr Schliker has issued proceedings within a reasonable period of time.[35]Further and in the alternative, I accept it was not reasonably practicable for Mr Schliker to present this claim in time as it was not until 2nd July 2021 that Mr Schliker received new information that caused him to believe his dismissal may have been predetermined and tainted by discrimination. On 2nd July 2021, Mr Schliker became aware of new information when he had sight of documents that were disclosed by Neath and Port Talbot County Borough Council. Mr Schliker believes these documents suggest that a manager in Accomplish had told those carrying out Mr Schliker’s disciplinary hearing that he wanted Mr Schliker to be dismissed and had referred to Mr Schliker in a derogatory manner which Mr Schliker believes suggests his dismissal was predetermined and discriminatory. 6 of 8 As Mr Schliker was aware of this new information on 2nd July 2021 and had issued the claim within 26 days of this knowledge, I accept he has issued proceedings within a reasonable period of time.[36]Turning to consider whether it is just and equitable to extend time for the discrimination claim, I have considered the guidance in British Coal Corpn v Keeble [1997] IRLR 336 and s33 Limitation Act 1980. In particular:(a) the length of and reasons for the delay;(b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the extent to which the party sued had cooperated with any requests for information;(d) the promptness with which Mr Schliker acted once he knew of the facts giving rise to the cause of action; and(e) the steps taken by Mr Schliker to obtain appropriate advice once he knew of the possibility of taking action[37]I have already discussed the reason for the delay and length of the delay in this judgment. The delay was 3 months and would not appear to have had a significant impact on the cogency of evidence, particularly as Ms Schliker had helped her son to make a number of data protection subject access requests, putting the respondent on notice that it was likely to face a discrimination claim. There is no evidence to suggest the Respondent is particularly prejudiced by the delay; the dismissing officer and other witnesses remain employed by the Respondent and are available to give evidence.[38]When I consider the extent to which the party sued has co-operated with requests for information, I note there has been significant delays on the part of the Respondent to comply with data protection subject access requests, with only partial disclosure of documents being provided on 24th August 2021 and subsequent disclosure of documents in 2021. I note Ms Schliker had to make a complaint to the Information Commissioner’s Office to obtain information from the Respondent.[39]I have already discussed the promptness with which Mr Schliker acted, his attempts to consult ACAS in February 2021, his inability to seek advice in Spring / Summer 2021 and his further contact with ACAS in July 2021.[40]Having weighed up all the factors and the prejudice caused to the respondent by granting an extension (which means they will have to defend a discrimination claim, albeit there has not been any specific prejudice such as loss of documents identified) against the prejudice caused to Mr Schliker (by preventing him from pursuing a discrimination claim, in which he says discriminatory acts are still having an impact on his ability to work) – I have determined it is just and equitable to extend the time limit for this discrimination claim. Having regard to his circumstances and the speed with which he acted, I accept that by presenting the claim on 28th July 2021, Mr Schliker has presented this claim within such a period of time as the tribunal thinks is just and equitable.[41]This decision means that Mr Schliker’s claims of disability discrimination and of wrongful dismissal (ie breach of contract for failure to give notice of dismissal) have been presented within the relevant time limits in the Equality Act 2010 and Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 and the Tribunal has jurisdiction to hear them. Case management directions 7 of 8 will be provided in a separate Order.
Introduction
[1]At a case management hearing on 24 February 2022 as recorded in a case management order dated 29 April 2022, the appointment of an intermediary was recommended and an assessment and report requested in relation to supporting Leon to participate in these proceedings. At a preliminary hearing on 11 November 2022 Judge Brace adopted the recommendations in the Report for communicating with and cross examining Leon at the final hearing and other directions were made for reasonable adjustments to support Leon to participate fully in the final hearing including referring to him as ‘Leon’ during the hearing and avoiding undue formality, which is also adopted now in the written reasons to make them accessible to Leon. We discussed these recommendations and adjustments at the outset of the final hearing with the parties and representatives and throughout the hearing we had more frequent short breaks to enable Leon to focus, summed up and checked with Leon that he understood and was following the process, and were mindful of ensuring the recommendations for communicating and crossexamining Leon were followed.[2]There was a Bundle of documents of 245 pages and an additional document was produced by Mr Thomas during the hearing and was added to the end of the Bundle. We heard evidence from Leon as the claimant and from Mr Mark Thomas and Ms Cerys Jones on behalf of Accomplish. Leon was represented by his mother, Ms Schliker and both representatives made oral submissions at the end of the hearing.
Findings of Fact
[3]This is the unanimous decision of the Tribunal. We set out the following findings of fact which we determined as relevant to the issues. We are not making findings of fact on all the points in dispute between the parties, only those that are relevant to the issues in the case as now identified.[4]Leon was employed by the Respondent as a support worker, from 11th November 2020 until his dismissal on 27th January 2021. Accomplish is a company that provides support for people living with mental health needs, learning disabilities, autism and acquired brain injuries. The Application[5]Leon applied for the role of support worker by application form in July 2020. He completed the form with the assistance of a worker from Rathbone – an educational and training charity working with anyone whose needs have not been met by education or who needs support to overcome barriers to learning, training or employment. Leon gave information to the person completing the form to include in his application. There was no indication on the form that Rathbone assisted Leon in writing and submitting his application. Mr Thomas gave evidence that he had never heard of the charity, Rathbone.[6]The application included a summary of Leon’s qualifications including 5 GCSEs, a BTEC and Welsh Baccalaureate gained in 2015 at his comprehensive school and qualifications in H&S (entry level 3), Communication (entry level 3) and Level 1 Awards and extended level 1 Award in Health and Social Care (Early Years and Childcare) gained in 2016 and 2017 through Rathbone Wales.[7]Under the general information section there was a statement that ‘Applications are welcomed from disabled persons and that ‘a disability will not prejudice this application’ with the opportunity to state if a person has a disability that they would like the company to know about at this time and if so, to provide further details and information. The response written on the form was “N/A” which in the hearing Leon agreed means ‘not applicable’ and agreed that in looking at his application Accomplish would not know that he had a disability, acknowledging “it looks that way”, which we find to be the case. Interview[8]The interview was conducted by telephone on 10 July 2020 and a record of the interview notes are in the Bundle. The interview was conducted by the previous manager at the time, who was Mr Thomas’s predecessor. Leon’s answers to the interview questions recorded in the form included questions about dealing with ‘challenging behaviour’, which he understood and was able to answer. In the overall summary by the interviewer the comments on ‘communication’ record that: “Leon understood all questions asked, he made himself adequately understood in his responses. Good clear communication.” It records that the interviewer recommended him for employment and an offer was made by letter on 24 July 2020 enclosing his contract of employment and conditional on receipt of satisfactory references, acceptance of the contract terms and ability to work in the UK. A positive reference was provided by his former employer, a care home for elderly people and people with dementia and his former Head of Vocational Education and Careers at his comprehensive school. The offer letter referred to a 2 day induction, after which further courses and shadow shifts were required for a period of two weeks. Contract[9]Leon was employed under a contract of employment dated 24 July 2020. The first six months were a probationary period. At clause 13.4 of his contract it states: “The Company has the right to dismiss you without notice in the case of gross misconduct.” Clause 14.1 states: “You must comply with the Company’s rules, policies and procedures as detailed in the Company Policy Manual.” Induction Training[10]At the time the Induction Training was held by Teams because of the pandemic. Leon attended the training online, although he did not remember the term ‘induction’, he confirmed that he did his online training and on his notes from his phone, which he had copied off the rota, it records ‘induction training 10-2pm then 2-8.30pm 11/11/20’. The induction training includes a section on ‘relationships and professional boundaries’ and was included in the bundle. Mr Brockley asked Leon about that specific slide in the bundle and Leon understood the slide and examples being shown to him and agreed that the examples of behaviour were unprofessional. Overall Leon completed 15 out of 18 modules of online training during his period of employment.[11]Mr Brockley referred Leon to a policy at page 103 of the bundle titled ‘Safeguarding and Protection - Relationship boundaries’ referring him to the section heading ‘What you Need to Know and Do’. The first paragraph states that “staff should never swear at, or in the vicinity of persons we support and should be aware that swearing ... ....constitutes potential emotional/verbal abuse”. Leon said that he could not recall seeing it before. He confirmed in evidence that he understood and agreed the policy statement was appropriate and agreed that you should not swear at a PWS, though said ‘plenty of other people swear it happens all time’. Leon accepted in his evidence that anyone who swore at a PWS, even if not disabled, could be dismissed for swearing and that it could apply to anyone.[12]During the probation period Leon was supervised and Mr Will Elliot completed the supervision form. This was the first of 6 intended supervisions during the six month probation period. Leon did not recall when it was completed though thought it may be monthly and we found it likely on balance that this was completed after his first month in the role. There was positive feedback on the form from Leon about the home and colleagues and he confirmed he had received the induction training and that the service provision he had seen since joining was in line with the induction training. Regarding the values of the company, he stated ‘everything is good’. There was positive feedback about his performance generally under the section ‘monitoring at work – performance management’ from Mr Elliot, and it was noted that he should continue with his eLearning and there was staff feedback that he should be more proactive at the home in learning what tasks need doing. It was noted that he was half way through his online training (at that point) and recorded Leon’s comments that he had some frustration with the content, saying it should be general knowledge questions and Mr Elliot’s response was noted on the form that the training was geared to the job role.[13]There were nine points noted in the section for requiring improvement and detailing plans to improve, with comments including that the training was to benefit him and to take a lead from more senior staff on shift to learn; to the need to administer medication on time and put it back in place, noting that everyone can make mistakes and should take ownership of it; and that when filling out reports he should fill in information and it is vital to record accurate information. There was no record on the supervision report that Leon disclosed that he was struggling in the role in any areas discussed or that he needed additional support.[14]Leon was asked in the hearing about the supervision report and confirmed his understanding of supervision, meaning you are being watched all the time. He did not challenge or disagree with the contents of the report, except commenting about the positive feedback he gave, stating that you have to say that if you want to work for the company and that he did not remember saying that he ’loved working at the home’. Disability[15]In evidence at the hearing, having accepted that Accomplish would not know from his application that he had a disability, Leon said that ‘in the job’ they could see that he needs assistance with everything, that people have to explain to him ‘over and over again before he gets it’ and so it could be seen something was not right with him. When asked for details of who he meant, he said ‘everyone’ and that he needed to have help with every report, as he did not know how to word it. Asked if he suggested Mr Thomas was aware, he said that ‘he must have been, as a manager you have got to take everyone in’. He mentioned ‘Will’ and the ‘team leader in charge of next door, in charge of me anyway’.[16]Mr Thomas was appointed to the role of manager of the Park Avenue service (the home at which Leon worked) in mid-January 2021, approximately two months after Leon had joined and relatively shortly before his dismissal. In his witness evidence he stated that he did not know that Leon had a disability and had no reason to do so. He said that there was no record of it and that Leon did not give any indication he had a disability. He stated that these proceedings were the first time anything like this had been disclosed to him. In evidence at the hearing Mr Thomas stated that he had no reason to know at the time as Leon got on well with the clients, he did his training and got on well with it and that he does not expect anyone to come into the job and pick up everything ‘off the bat’.[17]He was asked in cross examination about the supervision form and whether given the areas for improvement this raised any questions, specifically regarding medication and regarding completing reports. Mr Thomas was not the manager at the time of this supervision, as he recalled, but said that it was normal to get distracted sometimes (as per a comment on the report) and that he would not expect someone to be perfect from the off and that he would not just assume anyone had a disability. He noted that everyone gets improvements on supervision and if Leon had said he needed help, he would have offered help.[18]On it being put to him that an employer should do what is reasonably expected to find out if an employee has a disability and to investigate where obvious concerns are noted, Mr Thomas questioned what obvious concerns there were that Leon would need help. He noted that this supervision was a first supervision and that everyone will have areas of concern; if Leon had said he was struggling but he did not do so; and that his start could be a normal start for anyone who has not got experience in care. On it being put to him that Leon had 3 years’ experience in care, he stated that it was a different service and different provider, with different paperwork and layouts and that if he went to a new company, he too would have to get to know it.[19]Ms Jones said in evidence that she did not know that Leon was disabled and that it was not apparent during her meeting with him that there was any disability, which we accept for reasons set out further below. Incident 12/02/21[20]On 12 January 2021, an incident occurred when Leon swore when sitting with a person we support (PWS) in the home. It is not in dispute that Leon swore, a colleague who witnessed and reported it (GV) said he swore, Leon said he swore and the PWS said he swore. Leon accepted that he used the words ‘fuck off’ in conversation with the PWS. GV’s statement when reporting the incident and the allegation subsequently under investigation by Accomplish is that Leon swore at the PWS. Leon disputed this and said he swore in general conversation with the PWS about something on the television.[21]Based on the statements taken and that Leon consistently gave at the time of the disciplinary investigation to Mr Thomas and at the disciplinary hearing to Ms Jones and his evidence at the hearing, we find on balance that Leon swore during a conversation with the PWS, using the words ‘fuck off’ when watching television. Although Leon had suggested that there was ‘history’ between himself and GV, whom he knew before working at Accomplish, he confirmed in evidence at the hearing that any history related to when they were at school and that he had had no problems with GV since working with Accomplish.[22]The incident was reported by GV to Mr Elliot and a second colleague, as recorded in a statement typed by them on 18 January 2021. Mr Thomas said he discussed the issue with HR and started his investigation on 18th January 2021 and asked GV for her written statement. He said in evidence this was on 16 January 2021 but that she signed it on 18 January 2021. Taking account of documentary evidence produced at the time and uncertainty from Mr Thomas in his recollection of the dates in his evidence at the hearing, we find it likely that GV reported the incident on 18 January rather than 16 January 2021. Mr Elliot and a colleague recorded their statement of GV’s report on 18 January 2021. They also took a statement from the PWS on 18 January 2021 in which he confirmed that Leon did say ‘fuck off’ and said that was how he speaks to him but it did not bother him as ‘he was a big boy and could look after himself’. Mr Thomas made a safeguarding referral by submission of a referral form to Neath and Port Talbot Council (“NPTC”) that same day (the document produced by Mr Thomas during the hearing and added to the end of bundle).[23]After the incident was reported, Leon was moved from the Park Avenue home to Ty Branwen (the home next door), and he confirmed that he was interviewed a couple of days after that, which is consistent with the incident being reported on 18 January 2021. On 20 January 2021 Mr Thomas interviewed Leon and took a short statement. In his evidence Mr Thomas went through the questions he had asked and Leon’s response, as recorded in the statement, including that Leon said that he does speak to the PWS and swear as ‘banter’ and acknowledged that it was unacceptable.[24]Mr Thomas completed his Investigation report dated 21 January 2021, making a recommendation to go to a disciplinary hearing on the basis that Leon had admitted swearing, the PWS confirmed this and that it was a regular thing and that this was not a professional relationship where the people they support are receiving appropriate care. The Disciplinary Policy includes as an example of gross misconduct, “swearing at or in the vicinity of people we support (potential verbal/emotional abuse)”. Mr Thomas passed the report on to the disciplinary hearing manager (Ms Jones), and took no further part in the disciplinary hearing. Ms Jones confirmed in her evidence that she did not speak to Mr Thomas prior to the disciplinary hearing and had only ever seen him once on a group Teams meeting before this.[25]Leon was invited to a disciplinary hearing by letter dated 21 January 2021. The letter set out the allegation of ‘swearing at a person we support’ and that this was a potential act of gross misconduct and therefore could lead to summary dismissal, it informed him of the right to be accompanied, and enclosed the investigation report and disciplinary policy. Leon accepted in evidence that those matters were all covered in the letter. When asked by Mr Brockley if he understood that he could be accompanied, he said that he ‘felt [he] could do it on [his] own but that it did not work out’. We find that Leon was made aware of and understood he had a right to bring someone with him to the hearing. When asked about his understanding of the warning that he could be dismissed, he responded that he ‘did not think it would end up like this’ and he ‘did not think that he would be dismissed’. We find that Leon was made aware of and understood the possibility of dismissal.[26]The meeting took place by Teams on 25 January 2021. Ms Jones chaired the meeting. Leon had difficulty connecting via Teams at first and Ms Jones spoke to him by telephone to talk him through connecting to the Teams meeting. She asked if he wanted to postpone the meeting because of this but he said he wanted to go ahead and ‘get it done’.[27]The minutes of the meeting record that Ms Jones read out an introduction including the reason for the meeting. The minutes record that Leon put forward his account of the incident and his explanation that he swore using the words alleged but that it was said in general conversation and was not ‘at’ the PWS and he repeated this. When asked if he understood it is inappropriate and crossing professional boundaries, he confirmed he understood and agreed it was not professional and was ‘out of order’. He suggested that if they asked the PWS he would say it was a misunderstanding, that it was made to seem like it was ‘at him’ but it was not meant like that. He made a point of adding that he had had no previous warnings and no problems since starting. In his evidence at the tribunal hearing Leon accepted that the written minutes of the disciplinary hearing were correct, he said he could not recall the questions asked, due to it being so long ago, but agreed it was written at the time and was likely correct. We accept the minutes are an accurate record of the meeting and find that Leon understood the nature of and reason for the meeting and that he engaged in the meeting to answer questions and give his own account and explanation in response, including adding that he had had no previous warnings or problems.[28]On 27 January 2021, Ms Jones sent the minutes to Mr Thomas who met with Leon and gave a copy to him to sign. Leon was sent home immediately after that meeting. Leon had arranged to see the PWS that day and sent him a message by text from his personal mobile that day to tell him that he had been sacked. A letter dated 1 February 2021 confirming his dismissal and the reasons for this was sent to Leon by Ms Jones.[29]The letter confirms his dismissal with effect from 27 January 2021 and the reasons. It was noted in the letter that at the disciplinary meeting he had said he was still learning and understands that professional boundaries have been crossed; that having given careful consideration to the investigation statements and discussions during the disciplinary meeting, it was concluded that he did swear at the person he was supporting and that this was a clear breach of the professional boundaries between him and that person; that it was their reasonable belief that an act of gross misconduct had taken place; and that due to the seriousness of the allegation and their duty of care to the vulnerable client group, there was no alternative but to summarily dismiss him. The letter also set out the right of appeal and noted that where appropriate a referral will be made for any concerns of a safeguarding nature.[30]In evidence at the hearing, Ms Jones explained the reasons for her decision. She stated that she felt this was serious and a safeguarding issue, as it evidenced Leon crossing professional boundaries and treating the PWS like a friend and not acting as a support worker to the PWS. Regarding Leon’s explanation that the swearing was not ‘at’ the PWS but in conversation with him, she stated that whether ‘at’ or ‘in the vicinity of’, it was gross misconduct and so that was not a mitigating factor and makes no difference because it is not appropriate and crossed a line. She felt that dismissal was the only option open to her as the professional boundaries had broken down and she felt that it was not ok for him to go back and work with the PWS; and that she did not feel that he could learn from it because of the relationship and because the boundaries had broken down. In her witness statement she said that breaking down the boundaries meant they could not trust him not to do it again, he was crossing and breaking professional boundaries, and that swearing is an emotional boundary.[31]When asked in cross examination if there should have been further investigation, she said that Leon had admitted it and the PWS had confirmed it, so she felt there was nothing more to investigate. With regard to speaking again to the PWS, as suggested by Leon and as put to her in cross examination in relation to the PWS’s comment in his statement ‘I’m a big boy’ and that he could look after himself, she said that it was not up to the PWS to protect himself and that “it is up to us to protect him”.[32]She confirmed in evidence that she had dealt with other disciplinary cases for swearing over the years and also confirmed that every time there is an allegation of swearing, there will always be a referral on the basis that it is a safeguarding concern. It is not in dispute that a referral was made and we find that this was based on the conduct under investigation. Referral[33]On 15 February 2021 there was a multi-disciplinary strategy meeting at Neath and Port Talbot council (NPTC). This was as a result of the safeguarding referral by Mr Thomas on 18 January 2021.[34]The bundle included a document prepared by NPTC with a summary of the referral and notes of contact and communications with Accomplish after the referral and before the meeting on 15 February 2021. In evidence Mr Thomas confirmed that he would usually be contacted after making a referral and that he did not receive an email reply following submission of the referral on 19 January 2021 and conceded that he would assume that he received a phone call. The entries on the NPTC summary are in date order and include an entry on 19 January 2021. It records notes of a communication with Mr Thomas, the date and shorthand for the type of communication, which is partially obscured “[blank]/C” and includes the following notes: “pushing for dismissal....” “not happy with his conduct....” “disciplinary interview to take place tomorrow...".[35]On balance we find this was a record of a phone call with Mr Thomas, based on the partial entry type (‘[blank]/C’ for telephone call), and Mr Thomas’s evidence that he did not receive a reply by email and concession that he would assume he received a phone call after making the referral, and that the entry also includes reference to the disciplinary interview that was subsequently conducted by Mr Thomas the following day, as recorded in the NPTC note. Initially in cross examination, Mr Thomas said that he could not comment on the contents of the note as he did not write the summary report. It was put to him that this was evidence that Leon’s dismissal was predetermined before Mr Thomas had interviewed Leon and so his dismissal must be because he was disabled. Mr Thomas denied saying that he was ‘pushing for dismissal’ and that someone was putting words in his mouth. He also stated that it was not his decision.[36]The strategy meeting took place on 15 February 2021. Mr Thomas was invited to attend the meeting by NPTC and certain actions were agreed by the multidisciplinary team at the meeting. This was after Leon’s dismissal and we make no further findings of fact about this meeting or its outcome as this is not an issue before the Tribunal.[37]In his witness statement Leon states that he was not paid a bonus that was paid to other staff, it was confirmed in submissions at the hearing that this was not a claim brought before the Tribunal and was included as part of the background. This was not a claim or issue before the Tribunal and we make no further finding in this respect.[38]For the purposes of the wrongful dismissal claim, the Tribunal has considered its own view. The tribunal finds that as a matter of fact, Leon admitted to swearing and using the words ‘fuck off’ in conversation with the PWS. This is set out in Accomplish’s policies as an example of conduct that is inappropriate and is a breach of professional boundaries, including emotional boundaries and we find it was so on this occasion, with professional boundaries being crossed by Leon. It is also conduct potentially giving rise to safeguarding concerns in relation to the vulnerable adult group that Accomplish supports and did so on this occasion for reasons as we heard in her evidence from Ms Jones, set out in our findings above. Under Accomplish’s disciplinary policy this conduct is cited as potential gross misconduct and potential grounds for summary dismissal.
Law
[39]Equality Act 2010 s.13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[40]Equality Act 2010 s.15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[41]Equality Act 2010 s.20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4)…....................................[42]Equality Act 2010 s.21 Failure to comply with duty(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.[43]Equality Act 2010 Schedule 8 - Part 3 Limitations on the Duty Lack of knowledge of disability, etc s.20(1) 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) ….........................................; (b) [in any case referred to in Part 2 of this Schedule], that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.(2) …..............................................[44]EHRC Code of practice on employment Chapter 5 s.15 claim What if the employer does not know that the person is disabled? (EQA sch 8 para 20) 5.13 If the employer can show that they:• did not know that the disabled person had the disability in question; and• could not reasonably have been expected to know that the disabled person had the disability, then the unfavourable treatment does not amount to discrimination arising from disability. 5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a ‘disabled person’. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.[45]An employer faced with a repudiatory or fundamental breach by an employee can either affirm the contract and treat it as continuing or accept the repudiation and terminate the contract, which results in immediate or summary dismissal. Summary dismissal, as dismissal without notice or with inadequate notice, is wrongful (meaning that it is a breach by the employer) unless the employer can show that summary dismissal was justified because of the employee’s repudiatory breach of contract.[46]In Briscoe v Lubrizol Ltd 2002 IRLR 607, CA, the Court of Appeal approved the test set out in Neary and anor v Dean of Westminster 1999 IRLR 288, Special Commissioner (Westminster Abbey), where Lord Jauncey asserted that the conduct ‘must so undermine the trust and confidence which is inherent in the particular contract of employment that the [employer] should no longer be required to retain the [employee] in his employment’. The Court of Appeal in Briscoe stressed that the employee’s conduct should be viewed objectively, and so an employee can repudiate the contract even without an intention to do so.[47]A court or tribunal must be satisfied, on the balance of probabilities, that there was an actual repudiation of the contract by the employee.
Conclusion
[48]In reaching our decision we have taken account of the relevant legislation set out in the Equality Act 2010 at s.13 direct discrimination s.15 discrimination because of something arising as a consequence of disability s.20 the duty to make reasonable adjustments and s. 21 failure to make reasonable adjustments and the relevant Schedules of the Act. Also, we have taken account of the Equality and Human Rights Commission (EHRC) Code of Practice and relevant sections referred to by Ms. Schliker and case authorities referred to by Mr Brockley. Knowledge of disability[49]We felt it logical to first address the claims of disability discrimination.[50]For the claim of direct discrimination, there is a two stage test and we must first consider the issue of whether Leon has proved facts from which if unexplained, the tribunal can consider that discrimination took place or is possible and that his dismissal was because of his disability. To say he was disabled and was treated less favourably is not enough, something more is required and at this stage of the test, Accomplish’s explanation for the dismissal is disregarded.[51]For the claims of discrimination because of something arising as a consequence of his disability (s.15) and a failure in the duty to make reasonable adjustments (s.20 and s.21), the issue we must address is whether Accomplish knew or could reasonably be expected to know that Leon was disabled and, if so, in the case of the reasonable adjustments claim, we must also go on to ask if Accomplish knew he was at the specific disadvantages set out in the list of issues above, because of his disability.[52]We looked at all of the evidence before us and based on our findings of fact summarised above, set out our conclusions on these issues below.[53]It was not suggested by Leon and there was no evidence before us that he had disclosed his disability to Accomplish. On his application form in relation to a question on disability, it noted ‘N/A’ meaning not applicable and Leon accepted that Accomplish would not know that he had a disability from that. We accepted Mr Thomas and Ms Jones’ evidence that they did not know at the time that Leon was disabled, that it was not disclosed to them by Leon that he was disabled and that there was no record of his disability held by Accomplish.[54]We considered whether Accomplish could reasonably be expected to know that Leon had a disability based on his performance ‘on the job’ whereby he said that ‘everyone’ should know as he always needed help.[55]In considering this, we reviewed his supervision form and there was no record that he raised his disability in supervision. We noted that there was positive feedback about Leon and from Leon on the form and when looking at the notes in relation to areas for improvement, that he did not ask for additional help or support.[56]We carefully considered whether the number of areas for improvement on the form did or ought to have reasonably put Accomplish on notice to consider whether he may have a disability or to make any enquiries about disability and concluded that it did not. In considering this question, we took into account the positive feedback on the form about Leon and also the evidence we heard that Leon started off well in his role, he got on well with the clients, he did his training and that as a first supervision, having areas for improvement was normal for a starter.[57]We also considered whether Leon’s engagement in the disciplinary process and disciplinary hearing did or ought to have reasonably put Accomplish on notice to consider or make any enquiries about disability and concluded that it did not. We took account of Leon’s evidence that he did not understand the disciplinary meeting and was unable to give his version of events and concluded based on the written documents at the time and his evidence about this at the hearing (as set out in our findings above) that he did understand and engage with the disciplinary investigation and meeting for the reasons that follow.[58]We accepted Ms Jones’ evidence that she saw no indication during the meeting that he did not understand or was not able to engage in the meeting and after some difficulties in connecting to the Teams meeting, he was given an opportunity to postpone but wanted to go ahead.[59]We found that the documents record that he gave his account of the incident consistently from his first response to Mr Thomas in the investigation meeting and in the disciplinary meeting, when he explained his version of events several times. At the disciplinary meeting, he also put forward the fact that he had no previous warnings and had no problems since starting, as something to be taken into account when speaking up for himself. He did not raise or disclose during the disciplinary process that he felt in need of more support or help in dealing with the meetings or any reason why this would be the case. He acknowledged that he had a right to be accompanied and that at the time he felt he could do it by himself. We also found that he understood dismissal was a possibility but that he did not think he would be dismissed or that it would ‘end up like this’.[60]We considered overall that at the time of the incident Leon had been employed for approximately two months, he had had his first monthly supervision session and was doing well in some areas and needed to improve in others, he had completed the majority of his online training and was considered to have had a normal start. He had not asked for additional support or help. After the incident, he had engaged in the disciplinary process and spoken up for himself in the disciplinary hearing and there was no other evidence before us to suggest that Accomplish ought reasonably to have considered or made further enquiries about disability.[61]In respect of the claim of direct discrimination, on balance we conclude that there were no facts proved from which, if left unexplained, we could conclude that disability discrimination took place or was possible and that disability was the reason for the dismissal. Therefore, the burden of proof does not shift to Accomplish and we do not move to the second stage of the test.[62]Even if that were not the case, and the burden of proof did pass to Accomplish and we were to consider the second stage of the test, we have made positive findings of fact on Accomplish’s reason for dismissal and found that it was not because of disability. We accept Ms Jones’ evidence and find that it is credible that she made the decision to dismiss Leon for gross misconduct for the reasons set out in the letter of dismissal and given in evidence at the hearing, as set out in our findings above. In summary this was because the conduct was serious and raised a safeguarding issue, it evidenced a crossing and breaking of professional boundaries in treating the PWS as a friend rather than acting as a support worker and the relationship and boundaries having broken down that they could not trust that he would not to do so again.[63]In respect of the claims of discrimination because of something arising as a consequence of his disability (s.15) and a failure in the duty to make reasonable adjustments (s.20 and s.21), on balance we conclude that at the material time Accomplish did not know and could not reasonably be expected to know that Leon had a disability for the reasons outlined above.[64]In light of our conclusions above, the claims of disability discrimination do not succeed and the claims are dismissed.[65]Although the claims go no further, even if we had found to the contrary that Accomplish knew or could reasonably be expected to know that Leon was disabled at the relevant time, on the facts that we have found above, the s.15 ‘something arising as a consequence of disability’ and s.20/21 ‘reasonable adjustments’ claims of disability discrimination would not have succeeded. As the claims fail on the primary issue of knowledge, we are not following in detail the list of issues but have set out a brief summary of our reasons below. s.15 Discrimination arising as a consequence of disability[66]In considering whether Leon was subjected to unfavourable treatment, he relies on four points: i) investigating him for gross misconduct; ii) making a finding that he was guilty of gross misconduct; iii) dismissing him for gross misconduct; and iv) making a safeguarding referral to NPTC. It is not in dispute that Leon was investigated and there was a finding of and dismissal for gross misconduct and a referral made to safeguarding by Accomplish. Whether such treatment is unfavourable, in the sense of being a detriment for Leon, it is accepted that dismissal is detrimental and would amount to unfavourable treatment.[67]However, the next issue to address is whether he was treated in that way because of something that arose as a consequence of his disability. In respect of this issue, Leon relies on and states that as a consequence of his disability: i) he struggles to understand complex situations; ii) he may not have understood that using such language was inappropriate; iii) he did not understand that the disciplinary meeting could lead to his dismissal and; iv) he found the disciplinary meeting difficult and was not able to explain his version of events and that his swearing had been taken out of context by GV and there was history between them.[68]On the facts we have outlined we have found that: I) Leon understood and engaged in the disciplinary meeting, which can be described as a complex situation; ii) that he undertook training and was able to understand and identify examples of appropriate and inappropriate behaviours from that training at the hearing and accepted that swearing at a PWS was inappropriate; iii) we found that whilst he did not believe he would be dismissed for swearing, he was informed and understood that that dismissal was a possibility; iv) he was able to participate in the disciplinary meeting and did put across his version of events and his explanation consistently. As such those things he relies on as something that arose as a consequence of his disability are not made out or established on the facts as found.[69]Therefore on the consideration of whether any unfavourable treatment established, was because of something arising as a consequence of his disability, we find it was not. The unfavourable treatment up to and including his dismissal was based on his conduct that crossed professional boundaries and gave rise to safeguarding concerns as set out in the findings of fact and outlined briefly above in paragraph 67 and was not because of something arising as a consequence of his disability on the facts as found. Failure to make reasonable adjustments[70]In considering the reasonable adjustments claim, even if Accomplish had knowledge of his disability, Leon would have difficulty in establishing there was a failure to make reasonable adjustments given our findings as outlined. The PCPs and disadvantages relied on by Leon in each respect, raise similar factual considerations to those set out above. Even if the PCPs set out in the list of issues and relied on by Leon were established, the next consideration is whether such PCPs put him at a substantial disadvantage, compared to someone who was not disabled, because of his disability.[71]In addressing this issue, the three substantial disadvantages relied on at paragraph 6.3 of the list of issues above, are not made out on the facts found. As already outlined above, we found that he understood the disciplinary meeting and the possibility of dismissal although he did not believe he would be dismissed, that he was able to engage in the process and put forward his defence at the disciplinary hearing and that he understood the inappropriateness of using swear words with PWS. Therefore the claim fails at that stage.[72]In considering the wrongful dismissal claim, this is a matter of fact for the tribunal. It is not in dispute that Leon was dismissed summarily and was not paid for a period of notice.[73]We must consider if there was a breach of contract and if so, whether it was serious enough to justify dismissal.[74]As a matter of fact, set out in our findings above, we have found that Leon admitted to swearing when talking to a person we support, that Accomplish’s policies include such conduct as an example of conduct that breaches professional boundaries and in Accomplish’s disciplinary policy it is included as an example of potential gross misconduct, also giving rise to safeguarding concerns and did so on this occasion.[75]In the context of Accomplish’s service provision and vulnerable client group and its policies, we conclude that by using swear words in conversation with a PWS, as a support worker whose role it is to maintain those boundaries (rather than for the PWS to do so), Leon’s conduct in crossing and breaking that boundary is in breach of contract and serious enough to justify dismissal and that Accomplish were entitled to summarily dismiss Leon without notice.
Conclusion
[1]As one of a number of reasonable adjustments made to support the claimant (Leon) to participate fully in proceedings, by referring to him as ‘Leon’ during the final hearing and avoiding undue formality, which was also adopted in the written reasons to make them accessible to Leon, I make the same adjustment in these reasons.[2]Leon brought claims of disability discrimination and wrongful dismissal. The claim form was presented on 28th July 2021. At earlier preliminary hearings, it was decided that(i) the claims were brought in time (Judgment dated 24 February 2022) and that(ii) at the relevant time (11th November 2020 – 27th January 2021) Leon was a disabled person by virtue of “an undiagnosed mental impairment” (Judgment dated 9 December 2022) and the question of whether or not Leon had a disability was not in issue at the final hearing.[3]The final hearing was heard before a panel on 21, 22 and 23 August 2023 and Leon was represented by his mother, Ms Schliker and the Respondent by Counsel, Mr Brockley. The tribunal’s decision and reasons were delivered orally to the parties at the final hearing. Leon’s claims of disability discrimination and wrongful dismissal were dismissed.[4]Judgment was sent to the parties on 25 August 2023 and written reasons were requested by Ms Schliker on behalf of Leon and sent to the parties on 25 October 2023. The application for reconsideration of the judgment was sent to the tribunal on 8 November 2023. Unfortunately, due to a delay in forwarding correspondence to the Judge, there has been a delay in responding to this application.
Relevant Law
[5]Rules 70 - 73 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the Rules) provide (in so far as is relevant) as follows: 70 A Tribunal may ……. on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision… may be confirmed, varied or revoked. If it is revoked it may be taken again. 71 Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all other parties) within 14 days of the date on which the written record, or other communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. 72(1) An employment judge shall consider any application made under rule 71. If the judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the tribunal shall inform the parties of the refusal. 72(2)......... 72(3) Where practicable, the consideration under paragraph (1) shall be by the Employment judge who made the original decision or, as the case may be, chaired the full tribunal which made it; .................[6]A tribunal dealing with an application for reconsideration must seek to give effect to the overriding objective to deal with cases fairly and justly contained within Rule 2 of the Regulations. This includes ensuring that the parties are on an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay, so far as compatible with proper consideration of the issues, and saving expense.[7]Outasight VB Ltd v Brown UKEAT/0253/14 is authority for the proposition that the change in the wording of the 2013 Rules (and in particular the removal of the specific categories which were contained at Rule 34(3)(a) – (e) of the 2004 Rules) does not signify a change in approach. The same basic principles apply as under the 2004 Rules and cases decided under the old rules are still relevant to cases under the new.[8]As was explained in Ebury Partners UK Ltd v Acton Davis [2023] IRLR 486 an Employment Tribunal can only reconsider a judgment if it is necessary in the interests of justice to do so. A central aspect of the interests of justice is that there should be finality in litigation. The interests of justice include not only the interests of the person seeking a review, but also the interests of the person resisting a review on the grounds that once the hearing which has been fairly conducted is complete, that should be the end of the matter. For these reasons it is unusual for a party to be given ‘a second bite of the cherry’, and the jurisdiction to reconsider should be exercised with caution. Also, in general, while it may be appropriate to reconsider a decision where there has been a procedural mishap meaning that a party has been denied a fair and proper opportunity to present their case, reconsideration should not be used to correct a supposed error made by the tribunal after the parties have had such an opportunity. This is particularly the case where the error alleged is one of law that is more appropriately corrected by the EAT (paragraph 24, Ebury).[9]In relation to the submission of new evidence, tribunals, under the 2004 Rules, were expressly required to consider whether the new evidence submitted had become available since the conclusion of the hearing and whether its existence could not reasonably have been known of or foreseen at the time, Rule 34(3)(d). This reflected the guidance in Ladd v Marshall 1954 1 WLR 1489 in which the Court of Appeal explained that to justify the reception of fresh evidence or a new trial three conditions must be fulfilled. Firstly it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial, secondly the evidence must be such that, if given, it will probably have an important influence on the result of the case, though it need not be decisive, and thirdly the evidence must be such that it is presumably to be believed - i.e. it must be apparently credible although not incontrovertible.[10]I take from Outasight that these are still relevant considerations when dealing with an application for a reconsideration which involves the submission of new evidence under the 2013 Rules. Application for Reconsideration[11]The application for reconsideration of the Judgment is in relation to knowledge of disability and wrongful dismissal. The application as set out in Ms Schliker’s letter under the heading ‘knowledge of disability’ includes reference to selected paragraphs of findings of fact and conclusions in the tribunal’s written reasons and references to selected documents in the bundle (not repeated in full here). All of the references to the specific findings and documents and points raised in relation to these have been considered.[12]Though not repeated in full, the matters set out in the application and points raised as grounds for reconsideration taken from the letter, are summarised as follows: Knowledge of Disability a) That by Leon expressing his frustration with online training would suggest he was struggling and in his own way asking for help. b) Referring to page 181 of the Bundle and the comment made by Mr Elliot on the supervision report form that he thought Leon was “somehow distracted”, Ms Schliker states was when Leon disclosed to him that he had Adhd. She further states that Leon has consistently said he told Mr Elliot and also that GV knew he had Adhd, as they both grew up on the same street which he explained at the hearing as the ‘history’ between them. c) That there is evidence to question Accomplish’s credibility in relation to disclosure of documents including late disclosure of a document on the second day of the final hearing. d) That Mr Thomas has shown to be untruthful including in relation to a warning for lateness given to Leon and saying he was not Leon’s manager at the time of the supervision review. e) That when the disciplinary hearing took place Leon was in his own home and joined by the Teams app on his phone. It was not the usual environment. Ms Jones said she saw no indication that Leon did not understand – Ms Schliker questions how could she tell if he was on a tiny phone screen. f) That using the words ‘fuck’ and ‘off’ was something that arose in consequence of Leon’s disability and Mr Thomas did not properly and fairly investigate mitigation factors. g) That Ms Jones said she had no knowledge of Leon’s disability and if so, it would have been reasonable of her to ask an additional question to confirm either way. h) Reference is made to the statutory codes of practice on employment, in summary that an employer must do all that can reasonably be expected to find out whether an employee has a disability and should consider whether an employee has a disability even where one has not been disclosed and if it does not, the knowledge it would have gained had it done so is imputed to the employer. i) Reference is made to an order in the bundle whereby an observation of Leon at an earlier preliminary hearing was that he would lapse into agreeing with questions when he became tired or overwhelmed and that this was typical behaviour that can make Leon very vulnerable. j) That it was not mentioned in the judgement that the undiagnosed mental impairment is said to be Adhd. Wrongful Dismissal k) Under the heading ‘wrongful dismissal’ again there is a reference to a specific paragraph and finding of fact in the tribunal’s written reasons and the decision. No specific point is raised or ground for reconsideration set out other than by way of a reference to a case authority (Burdett and Aviva Employment Services Ltd) with two extracts from the case (p.29 and p.31) that make reference to two further cases relating to the concept of gross misconduct in summary: i) that the conduct in issue would need to amount to deliberate wrongdoing or gross negligence and ii) that a finding an employer was entitled to dismiss for gross misconduct will not determine the question of fairness.[13]Rule 70 provides for reconsideration where it is ‘necessary in the interests of justice’. There is an underlying public policy principle that there should be finality in litigation. An application for reconsideration is not an opportunity to re-argue a case or re-open findings of fact on matters that have been raised or identified at a hearing and on which written and oral evidence has been considered and findings made and on which the parties have had a fair opportunity to present their cases. It is not intended as means by which a party can get a ‘second bite of the cherry’ (Ebury above).[14]The points raised in the application as summarised above focus on matters and findings of fact that were made by the tribunal after full consideration of all of the written and oral evidence of witnesses and of documents relied on by the parties that the Tribunal had before it and were referred to the Tribunal during the final hearing.[15]In relation to the matters raised in the application as summarised above at points a), d), e), f) and g) the points raised seek to re-open findings of fact made by the tribunal, which as indicated above were made after careful consideration of the evidence seen and heard at the tribunal, including from Leon and from the respondent’s witnesses, which included cross examination of respondent witnesses by Ms Schliker on their evidence and where relevant relating to the points raised above.[16]On point b) relating to whether there was evidence of any disclosure by Leon of his disability to the respondent, the findings and conclusions reached were made after full consideration of the evidence seen and heard at the hearing. There were no findings, based on the documents, the evidence in Leon’s written witness statement and his evidence heard at the hearing, as to the representations now made in this application that Leon disclosed that he had adhd to Mr Elliot during his supervision review, nor that he consistently said that he had disclosed this to Mr Elliot nor that GV knew that he had adhd, when referring to their ‘history’, which appears to be new evidence or evidence that the tribunal was not taken to during the hearing.[17]Alternatively and for completeness, though not argued or presented as such in the application, if it is the case that the matters raised at point b) are put forward as new evidence after the hearing, the tribunal must consider the 3 conditions set out in Ladd v Marshall (above). The first condition is whether the evidence could have been obtained with reasonable diligence for use at the trial. I consider that the evidence now cited on behalf of Leon could with reasonable diligence have been included in his written witness statement prepared for the hearing or given in oral evidence at the hearing, when he was asked questions on issues relating to the respondent’s knowledge of his disability including questions on the supervision review and report form and the ‘history’ with GV, both in cross examination or in re-examination and it was not. Therefore, I consider on balance that the first condition is unlikely to be met and there is no reasonable prospect of reconsideration based on the introduction of such new witness evidence on the part of Leon after the final hearing, proceeding further.[18]On points c) and d) as to the credibility of Accomplish and of Mr Thomas, findings were made on the evidence relevant to the issues before the tribunal. In so far as there were any submissions or findings with regard to credibility of any witnesses or the respondent generally, where relevant these are included in the findings of the tribunal and all evidence and findings were considered by the tribunal in reaching its decision. The submission of a document during the final hearing was requested by the tribunal, it having been mentioned in evidence, copies were provided to the tribunal and Ms Schliker, who was given an opportunity to read it and no objections were raised at the time to its inclusion in the bundle.[19]On point h) as recorded in the written reasons, the tribunal considered the EHRC statutory code of practice on employment, as referenced by Ms Schliker, when considering its decision.[20]On points i) and j), following a preliminary hearing on the question of disability on 9/12/22, it was determined that “at the material time (11/11/20 - 27/1/21) [Leon] was a disabled person by virtue of an undiagnosed mental impairment” as was included in the written reasons. That Leon was a vulnerable person and that an intermediary report had been obtained and recommendations made and adopted by the tribunal to accommodate and facilitate his participation in proceedings at the final hearing, and that the tribunal was mindful of this throughout including when Leon was giving evidence, was also noted and recorded in the written reasons.[21]On the grounds for reconsideration in respect of wrongful dismissal, in so far as these are understood from the letter and application for reconsideration (summarised above), Ms Schliker refers to a case authority. The tribunals factual findings on the wrongful dismissal claim and its conclusions and reasons for this including considerations of the law are set out in the written reasons. The matter was aired and argued at the tribunal and evidence was heard and submissions made by the parties and there was a fair and proper opportunity to present the case on behalf of Leon at the final hearing and reconsideration should not be used to correct a supposed error made by the tribunal after the parties have had such an opportunity (Ebury).[22]In summary, in light of the reasons set out above in relation to the application for reconsideration of matters relating to knowledge of disability and wrongful dismissal, an application shall only be considered if it is necessary in the interests of justice to do so, this includes the interests of both parties to the litigation and that a central aspect of the interests of justice is that there should be finality in litigation. The application is refused because the Tribunal considers that there is no reasonable prospect of the original decision being varied or revoked.