Mr R J Toghill v Lidl Great Britain Ltd: 1602900/2023
EMPLOYMENT TRIBUNALS
Case No 1602900/2023
Between
Mr R ToghillClaimantLidl Great Britain Ltd Case No: 1602900/2023Respondent
Before
Employment Judge S MooreMr Owain Rhys-James (instructed by Counsel) for claimantMr M Williams (instructed by Counsel) for respondentDate 25 October 2024
JUDGMENT
[1]The claimant’s claim for unfair dismissal is well founded.[2]The claimant’s claim of wrongful dismissal is well founded.[3]The following complaint of unfavourable treatment because of something arising in consequence of disability is well-founded and succeeds: a. Being dismissed on 21 August 2024.[4]The remaining complaints of being unfavourable treatment because of something arising in consequence of disability are not well-founded and are dismissed.[5]The claimant’s claim of indirect disability discrimination is not well-founded and is dismissed.[6]The following complaint of failure to make reasonable adjustments is well founded and succeeds: 2 10.5 Reserved judgment with reasons – rule 62 March 2017 a. Failure to make adjustments to the disciplinary hearing.[7]The remaining complaint for failure to make reasonable adjustments is not well founded and is dismissed.[8]A separate hearing shall be listed to determine remedy.
REASONS
[1]The ET1 was presented on 20 November 2023. This followed a period of ACAS early conciliation starting on 12 September 2023 and ending on 11 October 2023. The claim was heard at Cardiff employment tribunal on 2, 3 and 4 September 2024. The hearing was listed to deal with liability only. There was an agreed bundle of 595 pages. The tribunal heard evidence from the claimant and Mr Rhys Powell. The respondent called the following witnesses: Ms Narelle Leith, dismissing manager and Mr Alex Bowley, appeal manager. A chambers day was arranged for 26 September 2024 as there had not been enough time to reach a decision and give judgment at the hearing.[2]The claimant brought claims of unfair dismissal, discrimination arising from disability, indirect disability discrimination and failure to make reasonable adjustments. The agreed list of issues is annexed to this judgment.
Findings of fact
[3]We made the following findings of fact on the balance of probabilities. Claimant’s disability[4]It was not in dispute that the claimant met the definition of a disabled person under s6 EA 2010. The claimant was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) in May 2022 by a private firm called ADHD 360. The claimant is now under the care of NHS Wales ADHD Services. We had sight of a report from ADHD 360 to the claimant’s GP dated 12 May 2022 and the claimant’s impact statement. One of the three goals outlined was for the claimant to have meaningful conversations with the ability to retain information.[5]The claimant’s ADHD affects him in the following ways: a) He experiences ‘rejection sensitivity’ which is intense sensitivity to the impression of being rejected, harassed, or criticised. It also caused the claimant feelings of extreme anxiety in social or work settings due to the belief that no one likes him; 3 10.5 Reserved judgment with reasons – rule 62 March 2017 b) He experiences ‘ADHD paralysis’ – which is an inability to initiate, complete, or sustain tasks due to overwhelming feelings of anxiety, stress, or mental fatigue; c) The claimant needs time to process questions; d) It often seems as though the claimant is not listening when he is spoken to directly, and he will have difficulty concentrating on a conversation (especially long sentences/stories/explanations that require a higher level of focus) and afterwards, not knowing what a conversation was about and needing things to be repeated; e) The claimant can often be easily distracted by external stimuli, e.g. difficulty shutting off from external stimuli; after being distracted, difficult to pick up the thread again; easily distracted by noises or events; difficulty in filtering and/or selecting information and can get easily bogged down by details; f) The claimant needs extra time to complete detailed tasks and can get bogged down by details and not read instructions carefully; g) The claimant can find it difficult to sustain attention on tasks, is quickly distracted by his own thoughts and has difficulty concentrating (especially on things that he does not find interesting); h) The claimant finds it difficult to organise tasks and activities, such as difficulty planning; i) The claimant can be impulsive; j) The claimant can fail to follow through on instructions, e.g. failing to finish jobs or meet obligations; difficulty completing administrative tasks; starting too many tasks and failing to complete any of them; k) The claimant is often forgetful during daily activities, e.g. obligations and things such as appointments and requirements. Employment[6]The claimant commenced employment on 7 October 2019 as a shift manager at the Usk Way store in Newport. He was promoted to the position of deputy store manager (“DSM”) on 1 June 2022. DSM’s are responsible for the stores in the absence of store managers and will be the most senior manager present. He started work at the Risca store on 1 March 2023 and then moved to Ystrad Mynach on 1 July 2023.[7]The claimant’s contract of employment provided that any breach, wilful disregard or material failure to follow health and safety requirements/ food safety could amount to gross misconduct. Use of Powered Pallet Trucks (“PPT”)[8]The respondent uses manual and power pallet trucks within the warehouse and shop floor areas. PPT’s were subject to strict rules regarding who and where they could be used. The PPT’s are heavy, powerful pieces of equipment weighing approximately one tonne. If operated incorrectly they could cause serious injury or serious damage to the fabric of the building.[9]Every six months staff are required to attend refresher training. The Tribunal saw that the claimant had attended this training in September and March in 2021 and 2022. The latest refresher training had been completed by the claimant on 31 March 2023. The training documentation was online and the claimant would have had to click through a series of electronic training 4 10.5 Reserved judgment with reasons – rule 62 March 2017 modules to confirm he had read the training. The first section was titled “Important reminders”. Under a subheading “Store equipment” the refresher training provided as follows: Colleagues must not under any circumstances operate the stores PPT or Double Stacker (DS) without prior authorisation from the Trading Compliance Department at Head Office. Where authorisation has been granted, only trained members of the store management team are permitted to use the PPT or DS. Failure to adhere to this is considered a breach of Lidl’s Health and Safety policy which may lead to disciplinary action. (05.71)”.[10]The respondent’s intranet contained a Standard Operating Procedure “SOP” for operating the PPT. This provided similar warnings regarding the use of the PPT.[11]In addition, DSM’s were required to complete and file a trading compliance checklist each morning if they were the opening manager. These checklists were not taken into account by the respondent at the relevant time but came to light in the course of these proceedings. They contained a box where the DSM had to specifically tick to say that colleagues had not been operating a PPT unless authorised by Trading Compliance and trained. The claimant had ticked the box on the following dates: 20/6/23; 23/6/23; 26/6/23; 27/6/23; 30/6/23; 3/7/23; 4/7/23; 7/7/23; 10/7/23; 11/7/23; 15/7/23.[12]We find that the claimant understood the content and purpose of the form and that by signing the form he was certifying as DSM that colleagues had not been operating the PPT in an unauthorised manner and this would include himself. The forms completed by the claimant demonstrated that where there were issues he knew and was able to record those issues on the form. On a number of forms he had made comments regarding the delivery of pallets not being in a good condition or stable.[13]The claimant told the Tribunal that notwithstanding these instructions it was custom and practice in other stores for staff to use the PPT without having been trained and it was commonplace. The claimant accepted that he was aware the PPT should not generally be used in this way. Mr Powell also told the Tribunal that in the five years he had been employed by the respondent he regularly witnessed use of the PPT by several employees, generally managers, and he had the impression this was ok. He had also used the PPT without having been trained and was never disciplined. 5 10.5 Reserved judgment with reasons – rule 62 March 2017 Disciplinary procedure[14]The disciplinary procedure was non contractual. Under the disciplinary procedure it provided as follows: 2.2 Disability There may be instances where an employee maintains that their conduct is attributable to an underlying health condition, which may constitute a disability. In such circumstances, it may be reasonable to obtain medical advice from the employee’s GP/specialist or from Occupational Health to understand whether the employee’s health condition may have been the cause of, or contributed to the conduct and, if so, the extent to which this may have been the case. If this is the case, advice should be sought from the Regional Head of HR (RHoHR) or Head Office (HO) Employment Law Department before any disciplinary action is taken.[15]Under the heading “What is the Allegation” the policy provided: The allegations must contain sufficient detail to enable the employee to understand the nature and seriousness of the allegations, to be able to identify the incident and to form the basis of their answer to the allegations. For example, it is insufficient to simply say ‘fraudulent till transaction’ or ‘inappropriate language’ without giving details about what these allegations actually are. What was the transaction, when did it occur? What was the inappropriate language, when did it occur, and to whom was it directed? It is also important to be accurate about what we are alleging that the employee has done. For example if it is alleged that the employee breached a Company policy or procedure, the relevant policy or procedure should be reviewed beforehand to establish what the policy or procedure specifically states and whether the concern is in fact a breach of this policy or procedure.[16]Under the appeal section, it provided that the appeal meeting may be a complete re-hearing of the matter which may involve re-interviewing the employee and potentially taking further witness evidence or re-interviewing the original witnesses in order to come to a fresh decision or it may be a review of the fairness of the original decision in the light of the procedure that was followed and any information that may have come to light.[17]The policy also provided that the respondent at its discretion could consider an alternative to dismissal but this would usually be accompanied by a final written waring one of which was demotion.[18]The claimant informed his store manager of his ADHD diagnosis a number of weeks after his diagnosis in May 2022. He was prescribed Elvanse medication which would be effective for about ten hours. Flexible Work Request[19]On 26 March 2023 the claimant submitted a flexible work request. The reason on the form was described as “ADHD”. He stated on the form that routine was vital when managing ADHD symptoms and he did not want to work past 6pm. He also acknowledged that the proposed change in working 6 10.5 Reserved judgment with reasons – rule 62 March 2017 pattern would depend on the rest of the management team having flexibility to fill the other shifts.[20]The reason the claimant wanted set shifts was to ensure his medication was consistent and effective across the whole shift.[21]The claimant alleges that shortly afterwards Ms Leith made the following comment to him: “just so you are aware there is no such thing as a morning manager and if that is something you want to pursue you will have to consider your position in the company”. Ms Leith disputed ever making any such comment. The claimant later referred to the comment in his appeal and the minutes of the appeal meeting on 3 May 2023 (see below). On the balance of probabilities we find that the comment was made because there are near contemporaneous records corroborating that the comment was made.[22]On & April 2023 the claimant met Ms Leith to discuss the application. The claimant had been advised that he had the right to be accompanied by a co-worker at the meeting. At the end of the meeting Ms Leith told the claimant that he would need to attend a welfare meeting which was subsequently arranged for 3 May 2023. She also asked the claimant if he would agree to see occupational health to which he agreed but this was never progressed. The respondent says that it was because the claimant was subsequently disciplined but this process did not start until 19 July 2023. We accepted Ms Leith’s evidence that this was because it was not considered necessary given the later arrangements put in place by Mr Bowley following the appeal. At no time after did the claimant raise this as an issue until these proceedings.[23]On 10 April 2023 Ms Leith wrote to the claimant to advise that the request was refused as it would mean having to hire an additional manager to ensure sufficient cover over night shifts. The claimant appealed on 12 April 2023. He specifically cited his disability and requested a meeting where he could discuss the request including the impact of his disability symptoms. He also stated that the meeting with Ms Leith had reminded him that he found it difficult to express himself in high stakes one to one environment where the focus is on his well being.[24]On 21 April 2023, separate to the flexible work request a welfare meeting was arranged for 3 May 2023 between the claimant, HR and his then store manager at the Risca store, according to the invitation letter, to discuss the claimant’s current medical condition. It was unclear whether this went ahead as the claimant’s appeal against the flexible work requested was subsequently arranged on the same date at the Bridgend Regional Distribution Centre.[25]The appeal took place with Mr Bowley on 3 May 2023. On 5 May 2023 Mr Bowley wrote to the claimant with his decision. He agreed with Ms Leith that to accommodate the claimant not working any evening shifts would require the respondent to hire an additional deputy store manager. It had been agreed by the claimant that as a compromise he would work one late shift 7 10.5 Reserved judgment with reasons – rule 62 March 2017 per week on a Thursday or Friday allowing him to obtain regularity in his work pattern and balancing the needs of the other managers at the store. Mr Bowley also stated that a set rota template had to be agreed with him and his line manager and the letter asked him to confirm his agreement in writing. Mr Bowley suggested a trial period of three months to assess suitability. We did not see any written agreement from the claimants but it is common ground that the claimant thereafter for two months worked on the one late shift as suggested by Mr Bowley.[26]Ms Leith held a meeting with the claimant to discuss the agreed outcomes and as a result the claimant was transferred to the Ystrad Mynach store which could accommodate the claimant only working one late shift per week.[27]At the start of July 2023 the claimant was diagnosed with a hernia. At the same time he had been transferred to the Ystrad Mynach store.[28]The store manager was a Ms Ogden. On 14 July 2024 Ms Ogden wrote a statement of her recollection of an initial discussion with the claimant. She recorded that the claimant approached her upon starting at the store and asked her what her opinion was on him using the PPT and she told him the Lidl policy is NO and she did not want to find out about him using it as it would mean an immediate investigation. She also told the claimant that he could move it if it was under pallet for delivery in the warehouse but only for that and not on the shop floor. He was also told if he was not comfortable doing that he could leave it or ring transport about it. This was in refence to the requirement to ring Trading Compliance to obtain permission to use the PPT (see above paragraph 9).[29]The note goes on to say that on 10 July 2023 the claimant approached Ms Ogden and informed her he had been diagnosed with a hernia and although it was not causing him pain it was making pulling pallets hard. Ms Ogden offered to change his working habits and shifts to accommodate and avoid deliveries or he could be put on light duties but the claimant declined. The claimant told Ms Ogden he would speak to trading to get permission to use the PPT. Ms Ogden told the claimant that was fine but until he had written permission he would have to continue to use the manual trucks or ask for another member of staff to help move heavy pallets.[30]Following this conversation Ms Ogden contacted Ms Leith to tell her about that discussion. Ms Leith accepted under cross examination that Ms Ogden expressed concern during that conversation that the claimant was not going to follow her instructions.[31]The claimant was subsequently reported to Ms Ogden by other members of staff at the store that he had PPT on the shop floor on a number of occasions in the week that followed. There were four separate members of staff who had seen the claimant using the PPT. Ms Ogden interviewed those staff. One of the staff told Ms Ogden they thought the claimant had showed signs of knowing he should not use it on the shopfloor as he had appeared to be waiting for the remerch team to depart. 8 10.5 Reserved judgment with reasons – rule 62 March 2017[32]Ms Ogden called the claimant to an investigation meeting on 19 July 2023. The claimant was unable to say what difference advance warning of the meeting would have made when asked under cross examination other than it would be common courtesy to consider disabilities in investigations. Ms Ogden had pre prepared some questions which were: What is Lidl’s policy on the use of the PPT by store staff? Have you spoken to trading law about this? Have you previously had a conversation with me about this? Have you been using the PPT on the shop floor?[33]The claimant admitted he had used the PPT and he knew the respondent’s policy was not to. In response to the question about having a conversation with Ms Ogden he stated she had said “if you don’t know about it it’s fine (using the PPT). This was the claimant’s interpretation of what Ms Ogden had said (at paragraph 28 above). Ms Ogden then asked the claimant “is this what I said” and the claimant replied “essentially”. The claimant said he could not remember the conversation about the hernia the previous week.[34]When he was asked why he had moved the pallets he said it was because he could not move the pallets physically and that this it felt like an attempt to get rid of him as he knows very well every store uses it. He accepted he had not seen it being used at Ystrad Mynach. When he was asked why he had not asked for help with the pallets he said it was time constraints. He accepted this was not a reasonable excuse to ignore health and safety and that he understood the seriousness of using the PPT and potential dangers. The claimant was given the opportunity to then read the notes that had been taken and declined to add anything to the notes.[35]On 20 July 2023 Ms Ogden prepared an investigation report. Under the section titled “evaluating the evidence”, contested facts, Ms Ogden recorded that the contested facts were whether the claimant had been explicitly told by the SM (Ms Ogden) he was not allowed to. She recorded two concerns, the use of the PPT and abuse of trust. She also recorded that it was contested that the claimant had hid the use of the PPT. Under the recommendation section she stated that a disciplinary was required for breach of trust, disobeying company policy and the claimant was aware what he was doing wrong.[36]On July 2023 the claimant was sent a letter invited him to a disciplinary hearing regarding the use of the PPT to move stock around in the store including on the shopfloor. He was told that this allegation was considered as potential gross misconduct. Enclosed with the letter were the disciplinary policy, investigation report and script, manual handling procedure and witness statements from other staff who had seen the claimant using the PPT at the Ystrad Mynach store. The manual handling operating procedure did not say anything about the use of PPT. The claimant was informed in the letter he had the right to be accompanied by a co-worker or trade union representative 9 10.5 Reserved judgment with reasons – rule 62 March 2017[37]The situation had an impact on the claimant he subsequently was signed off sick by his GP from 20 July to 17 August 2023 with stress and anxiety. It was agreed to postpone the disciplinary hearing to 21 August 2023. The claimant was told as the hearing had already been postponed once it would not be again except for exceptional circumstances. The claimant wanted his partner to attend with him as a disability advocate but she had recently undergone surgery was not fit to attend. The claimant understood that because of what the letter said he could not ask for the hearing to be arranged in order to accommodate him being accompanied by his partner.[38]The disciplinary hearing lasted from 12:30 PM until 13.13pm at which point it was adjourned. We had sight of the notes taken at the meeting. The claimant said the hearing was conducted in a hostile manner despite him previously pointing out in his flexible work appeal he had difficulty in coping with formal meetings due to his ADHD. There are a number of times where the claimant says he cannot remember in response to questions put by Ms Leith in particular he remembered a conversation with Ms Ogden about the PPT but not the specifics and did not remember being specifically told by Ms Ogden not to use the PPT. This is important as this was the basis on which the claimant was found to have breached trust and disregarded Ms Ogden’s authority. The claimant did not dispute that he had used the PPT on multiple occasions during the first week in July 2023 and had done so in a way to hide it from the remerch team (The remerch team are a team that travels between stores to set up new stock displays). He also accepted he knew the PPT should not have been used. The reasons he gave for using the PPT at the disciplinary hearing were that other people used it all the time including managers and his hernia. He acknowledged that DSM if he was seen to be breaking the rules that staff that reported to him would think they could break the rules.[39]The hearing restarted at 13.22pm at which point the claimant was informed he was being summarily dismissed. Much was made of the nine minute adjournment. It was put to Ms Leith that she had already made up her mind to dismiss the claimant. Ms Leith told the Tribunal under cross examination that the duration of the nine minutes had been her on a call to HR. At the end of the meeting Ms Leith said “see you later Ryan”. She explained that this was a common way of saying goodbye in Australia where she is from and did not say it to offend the claimant or appear flippant.[40]The decision was confirmed in a letter dated 22 of August 2023. Ms Leith made a number of findings against the claimant that had not been put to him in the invite to the disciplinary hearing namely:• There had been a lack of remorse in the meeting by the claimant;• The claimant had withheld information at the disciplinary hearing (this was referring to the claimant purportedly refusing to tell Ms Leith who had trained him to use the PPT) which Ms Leith concluded meant she could not trust his judgment;• Ms Ogden had given clear instructions not to use the PPT and the use showed a clear disregard for her authority 10 10.5 Reserved judgment with reasons – rule 62 March 2017• The claimant had a clear intent to hide the use from Ms Ogden;• There had been deliberate deception as the claimant had admitted waiting for the Remerch team to leave before using the PPT;• As a result of the deliberate failure to comply with a reasonable instruction from Ms Ogden there was a clear breach in trust; given the deceptive usage, a final warning would not be appropriate.[41]On 23 August 2023 the claimant appealed the dismissal. He disputed that he had received an instruction from Ms Ogden not to use the PPT and asserted that the dismissal was significantly disproportionate given his otherwise clean record and cited other disciplinary cases for the same reasons not resulting in dismissal. He also challenged the procedure and Ms Leith’s involvement and explained that the meeting minutes may not accurately capture his communication style and certain responses were triggered by the circumstances which may not have occurred under less bias conditions as ADHD had not been taken into account. He acknowledged that he was wrong not to obtain approval before using the PPT but asserted that during this process (our emphasis and meaning the disciplinary process) he had never been provided with any evidence of documentation to specify the PPT should not be used or the reasons why. As he had witnessed the use of PPT in every store, he had not understood the severity. He stated: “Whilst I take accountability for using PPT, I was under the impression that I was able to do so if I obtained approval from trading law. My condition of ADHD unfortunately negatively impacted my ability to gain said necessary approval. At the time of recalling this responsibility, contacting trading law was nor possible as it was early in the morning. Later during office hours contacting trading law was taken over by immediate priorities to ensure the store was being efficiently run and staff were being supported.[42]An appeal meeting was arranged with Mr Bowley on 1 September 2023. On 11 September 2023 he write a detailed outcome letter. In summary he concluded:• The claimant had not remembered rather than deliberately withheld information;• The claimant may have misunderstood Ms Ogden when she said, “I don’t want to hear about you using it” (see paragraph 28 above) which led to a degree of ambiguity about the seriousness of the act;• The reference to a lack of remorse was incorrect and it did not sufficiently consider the claimant’s ADHD and impact on his communication style;• As a result whilst the use of PPT was gross misconduct, more attention should have been paid to his length of service and less from his communication style which may be in part due to his ADHD.[43]Mr Bowley remained concerned that the claimant knew he was breaching a company policy yet continued to do so and this was below acceptable conduct for a DSM. He was also concerned the implications of employing someone at the Claimant’s level who could not be trusted to follow instructions as the DSM is the senior person on site when the Store Manager is not there and need to be dependable and trustworthy. 11 10.5 Reserved judgment with reasons – rule 62 March 2017[44]He offered to redeploy the claimant to Shift manager along with a final written warning. This would result in a reduction of pay to £13.30 per hour. He stated, “it is, however hoped that this offer will allow you to remain in employment in a role that is better suited to you”. This phrase was used as it is contained in the relevant internal template letter. The claimant interpreted this comment as implying he was unfit for the position of DSM due to having ADHD and found the comment to be discriminatory.[45]In regards to the claimant’s assertion that other staff had used PPT and not been subject to the same sanctions Mr Bowley did not address this specifically in the letter other than thank the claimant for bringing it to his attention. His witness statements stated as follows: The Claimant alleged that the Respondent was treating him differently for his offence than others. He may be referring to two cases of which I was also aware. I know of no other cases and he was unable to identify others. In two cases, employees were disciplined for using PPTs without authorisation but were not dismissed. This was my call and in all the circumstances of the case I decided that a final written warning was appropriate. In particular, these two employees were seen using a PPT by their manager and were not pulled up for doing so. They were given a final written warning as they argued that they considered that the use of the PPT was being condoned. I did of course also take action in relation to the managers concerned. In the instant case there was nothing to suggest that the use of a PPT was being condoned and I had concluded on the evidence that the Claimant had specifically chosen not to follow an express instruction. I did not accept the Claimant’s contention that he had at no point admitted to receiving an instruction not to use the PPT. This represented a high degree breach of trust in my view. In my view he was well aware that he needed Trading Compliance approval but chose to go ahead anyway.[46]Mr Bowley was asked about the other cases when he gave his evidence. He told the Tribunal that the two employees he was referring to in his witness statements were Store Managers and it was the Area Managers who were aware of the use but had not pulled them up for doing so. The two Store Managers received final written warnings but were not demoted. One case had happened in March 2021 and the other in or around September 2021. Following the March 2021 case an internal communication was issued reiterating that unauthorised use of PPT was completely unacceptable. The Area Managers did not get formally disciplined but were called to head office and given a verbal reprimand by Mr Bowley. Mr Bowley was asked why they were not formally reprimanded and he told the Tribunal because this was the first time it had happened.[47]Mr Bowley disputed that unauthorised use of PPT was common. He told the Tribunal that every store gets a minimum of two audits and within his own area he has seen 500 audits. He has also sat outside stores to observe and personally only found one occasion where the PPT was being inappropriately used.[48]We find having regard to all of the evidence before us about the use of PPT that the respondent operated a strict policy that it was not to be used in 12 10.5 Reserved judgment with reasons – rule 62 March 2017 accordance with what is set out in paragraph 9, 10 and 11. We find there may have been occasions where this policy was not followed by employees (as in any workplace employers may have policies that are not always followed). We also accept the claimant and Mr Powell’s evidence that they had used the PPT and seen others doing so in an unauthorised manner and had not been subjected to disciplinary sanctions, meaning the claimant did not understand the severity of unauthorised use. However we do not find that it was generally accepted that the policy did not have to be followed or that unauthorised use was condoned. It was evident from the evidence form Ms Leith and Mr Bowley that unauthorised use was taken seriously moreover the fact that the respondent required the store managers to confirm on the daily checklist that there had not been unauthorised use denoted the importance of this policy.[49]On 23 September 2023 the claimant confirmed he was not going to accept the reduced sanction and redeployment. The Law Time limits
The Law
[50]S123 EQA 2010 provides: 123 Time limits (1) [Subject to [[section 140B]]] proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. …. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or ( b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[51]The key date as to when time starts to run is the date of the act (Virdi v Commissioner of Police of the Metropolis [2007] IRLR 24). 13 10.5 Reserved judgment with reasons – rule 62 March 2017[52]When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule (per Lord Justice Auld in Bexley Community Centre (Trading as Leisure Link) v Francis Robertson [2003] EWCA Civ 576.[53]Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530, provides that when deciding whether there is a continuing act, the focus should be on the substance of the complaints that the Respondent is responsible for an ongoing situation or state of affairs. The question is whether that was “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed. Where an alleged act is found not to be discriminatory it cannot be said to be part of conduct extending over a period (South Western Ambulance Service NHS Foundation Trust v King [2020] IRLR 168). Unfair Dismissal[54]The relevant law in relation to the “ordinary” unfair dismissal claim is set out in Section 98 of the Employment Rights Act 1996. In this case, the respondent relies on the potentially fair reason of conduct as the reason for dismissal.[55]In a conduct dismissal case British Home Stores v Burchell [1980] ICR 303, the Court of Appeal set out the criteria to be applied by Tribunals in cases of dismissal by reason of misconduct. Firstly the Tribunal should decide whether the employer had an honest and genuine belief that the employee was guilty of the dishonesty in question. Secondly the Tribunal has to consider whether the employer had reasonable grounds upon which to sustain that belief. Thirdly at the stage at which the employer formed its belief, whether it has carried out as much as an investigation of the matter as was reasonable in all of the circumstances.[56]In J Sainsbury’s v Hitt [2003] ICR 111, the Court of Appeal held that the range of reasonable responses test applied as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it did to the reasonableness of the decision to dismiss for the conduct reason.[57]The relevant authorities in relation to reasonableness under Section 98 (4) were considered by the EAT (Browne-Wilkinson J presiding) in Iceland Frozen Foods v Jones [1982] IRLR 439. The test was formulated in the following terms: ''Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to 14 10.5 Reserved judgment with reasons – rule 62 March 2017 summarise the present law. We consider that the authorities establish that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by [ERA 1996 s 98(4)] is as follows. the starting point should always be the words of [s 98(4)] themselves; in applying the section an Industrial Tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair; in judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what the right course to adopt for that of the employer; in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair'.[58]S100 (1) (e ) ERA 1996 provides that an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.[59]If the dismissal is procedurally unfair the Tribunal must assess the percentage chance of the Claimant being fairly dismissed (Polkey v AE Dayton Services Ltd [1987] IRLR 503, [1987].[60]In Steen v ASP Packaging Ltd [2014] ICR 56 (Langstaff P presiding) the EAT stated that the application of those sections to any question of compensation arising from a finding of unfair dismissal requires a Tribunal to address the following:(1) it must identify the conduct which is said to give rise to possible contributory fault;(2) having identified that it must ask whether that conduct is blameworthy—the answer depends on what the employee actually did or failed to do, which is a matter of fact for the Tribunal to establish and which, once established, it is for the Tribunal to evaluate;(3) the Tribunal must ask for the purposes of ERA 1996 s 123(6) if the conduct which it has identified and which it considers blameworthy caused or contributed to the dismissal to any extent. If it did cause or contribute to the dismissal to any extent then the Tribunal moves on to the next question;(4) this is to what extent the award should be reduced and to what extent it is just and equitable to reduce it. 15 10.5 Reserved judgment with reasons – rule 62 March 2017[61]The Tribunal must also consider whether, under S207 (2) TULRCA 1992 there is any provision of the ACAS Code of Practice on disciplinary procedure which appears to be relevant. S15 EQA 2010– Disability Arising from Discrimination[62]Section 15 provides that a person(a) (A) discriminates against a disabled person(b) (B) if A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. 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.[63]Basildon & Thurrock NHS Foundation Trust v Weerassinghe UKEAT/0397/14 provides the Tribunal should identify two separate causative steps in Section 15 claims (per Langstaff J, then the President of the EAT): (1) ''The current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The Tribunal has first to focus upon the words “because of something”, and therefore has to identify “something” – and second upon the fact that that “something” must be “something arising in consequence of B's disability”, which constitutes a second causative (consequential) link. These are two separate stages.''[64]Pnaiser v NHS England & anor [2016] IRLR 170 sets out the approach to be followed in Section 15 claims (paragraph 31): a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section 15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant. d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B's disability”. That expression ‘arising in consequence of’ could describe a range of causal links. 16 10.5 Reserved judgment with reasons – rule 62 March 2017 e) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. f) The statutory language of section-on 15(2) makes clear that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. g) It does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant's disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment.[65]In respect of S15 (1) (b), the Tribunal must objectively balance whether the conduct in question is both an appropriate and reasonably necessary means of achieving the legitimate aim. In Birtenshaw v Oldfield [2019] IRLR 946, the EAT held that the Tribunal's consideration of that objective question should give a substantial degree of respect to the judgment of the decision-maker as to what is reasonably necessary to achieve the legitimate aim provided he has acted rationally and responsibly. Indirect Discrimination[66]This is set out in Section 19 of the Equality Act 2010. The EHRC Code of Practice on Employment provides that the phrase ‘provision criterion or practice’ should be construed widely so as to include for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions.[67]The PCP must be of neutral application. A PCP can be a one-off decision (British Airways Plc v Starmer [2005] IRLR 862). A liberal rather than overly technical approach should be adopted when considering PCP’s. However a one off flawed disciplinary procedure will not satisfy the low threshold (Nottingham City Council v Harvey EAT 0032/12).[68]In Essop & Ors v Home Office (UK Border Agency) & another [2017] ICR 640 the Supreme Court identified six salient features of the definition of indirect discrimination: First, there was no express requirement for an explanation of the reasons why a particular PCP put one group at a disadvantage when compared with others. Second, whilst direct discrimination expressly required a causal link between the less favourable treatment and the protected characteristic, indirect discrimination did not. Instead, it required a causal link between the PCP and the particular disadvantage suffered by the group and the individual. Third, the reasons why one group might find it harder to comply with the PCP than others were many and various. The reason for the disadvantage did not need to be unlawful in itself or be under the control of the employer or provider. Both the PCP and the reason for the disadvantage were 'but for' causes of the 17 10.5 Reserved judgment with reasons – rule 62 March 2017 disadvantage: removing one or the other would solve the problem. Fourth, there was no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage. Fifth, it was commonplace for the disparate impact, or particular disadvantage, to be established on the basis of statistical evidence. Sixth, it was always open to the respondent to show that his PCP was justified. There was no finding of unlawful discrimination until all four elements of the definition in s 19(2) were met. The essential element was a causal connection between the PCP and the disadvantage suffered, not only by the group, but also by the individual. S20/21 – Failure to make reasonable adjustments[69]Sections 20 and 21 of the Equality Act 2010 set out the duty to make reasonable adjustments. In this case, it is the duty arising under S20 (3) EQA 2010. The Tribunal must consider first of all the PCP applied by the employer, secondly the identity of non-disabled comparators (where appropriate) and thirdly the nature and extent of the substantial disadvantage suffered by the Claimant. (Environment Agency v Rowan 2008 ICR 218, EAT). The question whether the proposed steps were reasonable is a matter for the ET and has to be determined objectively.[70]The EHRC Employment Code provides that the meaning of “PCP” should be widely construed so as to include and formal or informal policies, rules, practices, arrangements, criteria, conditions. Prerequisites, qualifications or provisions.[71]In United First Partners Research v Carreras 2018 EWCA Civ 323, CA, the Court of Appeal held that tribunals should not adopt an overly technical approach to what constitutes a ‘practice’ for the purpose of showing that a PCP has been applied.[72]Ishola v Transport for London [2020 IRLR 368 provides guidance on what can amount to a PCP (per Lady Justice Simler) from paragraphs 35:35. The words "provision, criterion or practice" are not terms of art, but are ordinary English words. I accept that they are broad and overlapping, and in light of the object of the legislation, not to be narrowly construed or unjustifiably limited in their application. I also bear in mind the statement in the Statutory Code of Practice that the phrase PCP should be construed widely. However, it is significant that Parliament chose to define claims based on reasonable adjustment and indirect discrimination by reference to these particular words, and did not use the words "act" or "decision" in addition or instead. As a matter of ordinary language, I find it difficult to see what the word "practice" adds to the words if all one-off decisions and acts necessarily qualify as PCPs, as Mr Jones submits. Mr Jones' response that practice just means "done in practice" begs the question and provides no satisfactory answer. If something is simply 18 10.5 Reserved judgment with reasons – rule 62 March 2017 done once without more, it is difficult to see on what basis it can be said to be "done in practice". It is just done; and the words "in practice" add nothing.36. The function of the PCP in a reasonable adjustment context is to identify what it is about the employer's management of the employee or its operation that causes substantial disadvantage to the disabled employee. The PCP serves a similar function in the context of indirect discrimination, where particular disadvantage is suffered by some and not others because of an employer's PCP. In both cases, the act of discrimination that must be justified is not the disadvantage which a claimant suffers (or adopting Mr Jones' approach, the effect or impact) but the practice, process, rule (or other PCP) under, by or in consequence of which the disadvantageous act is done. To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. I accept of course (as Mr Jones submits) that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.37. In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.38. In context, and having regard to the function and purpose of the PCP in the Equality Act 2010 , all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that "practice" here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or "practice" to have been applied to anyone else in fact. Something may be a practice or done "in practice" if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one. Conclusions Unfair Dismissal
Conclusions
[73]We firstly address our conclusions regarding the reason for dismissal. The claimant has asserted that the reason or principal reason was that in circumstances of danger which he employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger. This relates to his decision to use the PPT as he had a hernia. We reject this as the reason for the following reasons. 19 10.5 Reserved judgment with reasons – rule 62 March 2017[74]The claimant accepted that he has used the PPT on other occasions prior to him developing a hernia. Indeed it was a main feature of his claim that it was a regular occurrence for both the claimant and other staff to use the PPT. Therefore, although the hernia on this particular occasion contributed to his decision to use the PPT, he had done so on other occasions when he did not have a hernia.[75]We also do not consider that the claimant believed there to be circumstances of danger that were serious and imminent. We accept that the claimant could have been concerned about using a manual pallet truck when he had developed a hernia but this is not the same and does not amount to circumstances of serious and imminent danger. He was offered alternatives to using the PPT by Ms Ogden. The use of the PPT was not an appropriate step to protect himself. The claimant was offered light duties by Ms Ogden and help from other staff (see paragraphs 28, 29, 34). He concluded himself that asking for help would not be practical as there were not enough staff but he did not tell Ms Ogden this so she had no further opportunity to put arrangements in place. It cannot be an appropriate step to do something that has been assessed as dangerous to the claimant, colleagues, members of the public and the respondent’s property without the appropriate training and authorisation to use the PPT.[76]The s100 (1) (e ) complaint is not well founded. We have concluded that the reason the claimant was dismissed was misconduct and that was a potentially fair reason. S98 (4) ERA[77]This is a case where the claimant admitted use of the PPT and knew he was not to.[78]We have no hesitation in concluding that the respondent could not have been any clearer that use of the PPT, unless trained and authorised was prohibited. The respondent regularly and consistently communicated this to their employees. It was clear in training document, policies and crucially management check off lists that the claimant frequently completed (see paragraphs 9, 10, 11 and 48). We do not accept there is a credible basis for the claimant stating he did not understand the rule and the claimant accepted in his own statement he knew he was not supposed the use the PPT. Therefore, the usual Burchell principles in a claim involving misconduct are less applicable when the actual act of misconduct is not disputed. The claimant was not provided with those records ahead of the disciplinary hearing but nothing can turn on this as the claimant accepted he knew he was not permitted to use the PPT truck.[79]The claimant has throughout the disciplinary procedure and at this Tribunal asserted a number of reasons why he had not complied with the rules regarding use of the PPT namely his hernia, other people used it all the time, he needed to for health and safety reasons, he forgot to ring trading due to his ADHD and he had misunderstood Ms Ogden’s verbal instructions (see paragraph 28). We find that the claimant has not been consistent with his reasons. The claimant knew this was the rule but chose not to adhere to it. 20 10.5 Reserved judgment with reasons – rule 62 March 2017[80]However, in this complaint we have concluded the dismissal was procedurally unfair and not within the band of reasonable responses for the following reasons.[81]Ms Ogden’s investigation report set out two matters of concern namely use of the PPT and breach of trust (see paragraph 35). Only one of those allegations was put to the claimant in the invitation to the disciplinary hearing. (see paragraph 36). This is not in accordance with the respondent’s disciplinary procedures which are clear that the allegations must be adequately described (see paragraph 15). We do not accept the respondent’s submission that because the allegation was in the investigation report this made no difference to the overall fairness. The allegations should be in the disciplinary invite letter and employees should not be expected to work out what the allegations are from other material sent to them as part of the disciplinary pack particularly given the claimant’s communication issues.[82]The claimant was dismissed for allegations that had not been put to him. This is plain when the dismissal letter is examined. Ms Leith says that had it just been the use of the PPT the claimant would have received a final written warning. She goes on to conclude that the claimant had deliberately deceived Ms Ogden and fundamentally that he had deliberately failed to comply with reasonable instructions resulting in a clear breach of trust. The claimant was dismissed for the breach of trust conclusions but this was not an allegation he was expecting to face on the basis of the disciplinary invite.[83]Further, we agreed with Mr James that Ms Ogden should not have conducted the initial investigation as she was a witness to disputed facts in particular the allegations of disobeying the instruction and dishonesty. Ms Leith relied upon Ms Ogden’s account to reach her conclusions about the breach of trust. Although the claimant said he could not remember one of the conversations he told Ms Leith he had a different interpretation of the instruction from Ms Ogden (see paragraph 28).[84]We also agree that the respondent failed to take into account the claimant’s disability. This was particularly relevant to the claimant’s interpretation of the conversation with Ms Ogden and how his communication style influenced Ms Leith and effected his ability to participate at the disciplinary hearing.[85]We do not agree that the respondent unreasonably failed to adjust the procedure itself by pre warning him of the investigation meeting or failing to permit his partner to attend. As to the former, the claimant had the opportunity to review and sign the notes of the investigation meeting. As to the latter, the respondent did not know the claimant wanted to be accompanied by his partner.[86]We have considered whether Mr Bowley’s conduct of the appeal “cured” the procedural unfairness of the dismissal and have concluded in every aspect the appeal was reasonable save for one element which was the sanction. Our reasons are as follows. 21 10.5 Reserved judgment with reasons – rule 62 March 2017[87]Mr Bowley properly considered the claimant’s ADHD and how that may have affected his interpretation of the seriousness of using the PPT in regard to the conversation between Ms Ogden and the claimant. He also overturned the conclusions regarding the lack of remorse and found that less conclusions should have been drawn from the claimant’s communication style.[88]Mr Bowley found that whilst the act was still gross misconduct the claimant had departed from expectations of a DSM and the claimant had breached a company process knowing it was in breach of policy and despite the direct instruction from Ms Ogden. The claimant was offered a demotion with a final written warning.[89]This Tribunal considers that on the face of it, the respondent were perfectly entitled to denote use of the PPT truck on the shop floor as gross misconduct. It was obvious that this was a policy take very seriously and rightly so. Had this been a consistently applied sanction this Tribunal would have certainly concluded that it was within the range of reasonable responses to treat the misconduct as gross and summarily dismiss the claimant. We also consider it would have been within the range of reasonable responses to demote someone in a management position as acknowledged by the claimant, if managers are seen to break the rules other staff will think that is acceptable. An employment tribunal must not seek to substitute their own decision for that of the employer who are well placed to make decisions and rules about safe use of equipment within their stores.[90]However before this Tribunal was evidence of differing sanctions applied for use of the PPT truck where not trained or authorised to do so.[91]Ms Leith concluded that in the absence of the dishonesty / breach of trust she would have issued a final written warning sanction to the claimant.[92]The Tribunal heard about two other cases. Firstly, the two store managers whose area managers knew they were using the PPT and were not authorised to do so. Mr Bowley issued these employees with final written warnings as they argued that they considered that the use of the PPT was being condoned by their area managers.[93]Mr Bowley acknowledged in the appeal letter that other cases of PPT use had resulted in “equally strong sanctions, two of which he personally completed”. This was incorrect as the store managers had not been demoted.[94]Mr Bowley’s reasoning as to why the claimant’s case was different to those cases was the explicit conversation and instruction between Ms Ogden and the claimant. What was confusing about this conclusion was that Mr Bowley had already found that the claimant had misinterpreted this conversation and there may have been a degree of ambiguity with regards to the seriousness of the act. It is therefore difficult to understand why the alleged explicit instruction was used to differentiate between the claimant’s sanction and those of the store managers. 22 10.5 Reserved judgment with reasons – rule 62 March 2017[95]Further the other employees were not DSM’s like the claimant but store managers which were in overall charge of the store.[96]The other case was the area managers of the above store managers who were aware of the unauthorised use of the PPT’s but taken no action against them except, frankly a telling off at head office.[97]In our judgment, these inconsistencies in sanctions in particular in regards to no formal action taken against the Area Managers mean that the decision to dismiss the claimant (albeit via the vehicle of offering a demotion on appeal) was not within the band of reasonable responses as evidenced by the respondent’s previous decisions that fell outside of the band. For these reasons we find the dismissal was unfair. iv. In our judgment there should not be any Polkey reduction as the dismissal fell outside the band of reasonable responses the respondent cannot show there would be a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed.[98]We reserve the issue of contributory fault to the remedy hearing. Wrongful dismissal / Notice pay[99]For the same reasons as set out above we find that the Claimant did not do something so serious that the Respondent was entitled to dismiss without notice. This complaint is well founded. Time limits[100]The claimant contacted ACAS on 12 September 2023 and the certificate was issued on 11 October 2023 meaning that a complaint about something that happened before 13 June 2023 may have been out of time. The ET1 was presented on 20 November 2023. Discrimination arising from disability (Equality Act 2010 section 15)[101]We deal with each allegation of unfavourable treatment as follows. On or about 1st April 2023, the Claimant avers that NL said to him upon receipt of his application for flexible working: “Just so you are aware there is no such thing as a ‘morning manager’ and if that is something you want to pursue you’ll have to consider your position in the company”[102]This claim is out of time. Although it was a comment about the claimant’s flexible work application, we do not consider it to be linked to the other complaints about the flexible work appeal outcomes. It was an isolated one-off comment. We did not hear any evidence as to why it would be just and equitable to extend time. This complaint is therefore dismissed. Failure to fully implement its own recommendations resulting from the Claimant’s flexible working Appeal including: 23 10.5 Reserved judgment with reasons – rule 62 March 2017 - holding a meeting with management, - obtaining an OH Report on the Claimant, and - a 3-month review of his rota.[103]These acts are asserted as continuing discrimination under section 123(3) EqA. See findings of fact at paragraphs 22, 24, 25 and 26. The appeal outcome letter was dated 8 May 2023. Factually, the meeting between the claimant and Ms Leith occurred and this claim must fail as there was no unfavourable treatment. The respondent implemented what had been agreed and the claimant transferred to Ystrad Mynach as a result.[104]It is accepted that the respondent did not refer the claimant to occupational health or conduct the three-month review of the rota. The respondent says there had never been a specific agreement they would do so only an enquiry if the claimant would agree to a referral. The reason one did not then happen was because the agreed adjustments from the appeal appeared to be working well.[105]We agree that two matters amount to continuing acts under s123 (3) EA 2010 as there was an ongoing situation or linked matters surrounding the outcome of the flexible work appeal. As they are omissions or failures to act we must consider the time limit provisions under s123(3)(b) and s124. There was no evidence as to when either Mr Bowley or Ms Leith decided not to action the three matters agreed therefore s124 is in play. Therefore we must consider whether the respondent did an inconsistent act, if not what would be the expiry of the period in which the respondent might reasonably have been expected to do it. We have concluded that this complaint is in time as the claimant could not have reasonably been expected to know before 13 June 2023 that the respondents were not going to follow up these matters.[106]We go on to consider whether the failures to refer to the claimant to occupational health or conduct the three-month review was unfavourable treatment arising in consequence of the claimant’s disability. It was not clear why each matter was said to be unfavourable treatment. We do not know what the detriment or disadvantage was said to be. Further, the “something arising” was clarified in submissions to be the claimant’s communication difficulties. This is very muddled and we could not understand how the claimant’s communication difficulties could be said to have caused the impugned treatment. He was not referred to occupational health as it was not deemed necessary. The three month review of the rota did not take place as he was dismissed. For these reasons this complaint fails. Not taking into consideration adequately or at all the Claimant’s disability in the manner in which instructions regarding the alleged prohibition of the use of a PPT were provided to the Claimant which the Respondent admitted led the Claimant to ‘misinterpret the seriousness of the act’ and which ‘cast a degree of ambiguity’ (see Appeal Outcome Letter).[107]This refers to the conversation between Ms Ogden and the claimant on 10 July 2023 which Mr Bowley later found had been misinterpreted by the claimant (see paragraph 28). As Mr Bowley did take this into consideration leading to his decision to overturn the dismissal, this must be in reference to Ms Leith’s conclusions. We return to this below under dismissal. 24 10.5 Reserved judgment with reasons – rule 62 March 2017 Subjecting the Claimant to an investigative meeting without notice or warning, so that he was unable to prepare for it[108]The investigation meeting took place on 19 July 2023. It is common ground that the claimant was not pre warned or given notice. This is in accordance with the respondent’s disciplinary procedure and a practice adopted widely amongst employers for investigation meetings. The claimant’s ADHD does mean he has communication difficulties. However there was no evidence this was the case at the investigation meeting. The claimant was able to answer the questions and was given the opportunity to review the notes and agree them. He was also unable to say what difference pre warning him would have made other than it would have been courteous. This complaint is not well founded as there was not unfavourable treatment. In the Appeal letter dated 11th September 2023, AB on behalf of the Respondent having offered the Claimant the alternative to dismissal of demotion, stated, ““It is, however, hoped that this offer will allow you to remain in employment in a role which is better suited to you.”[109]See paragraph 44. The claimant interpreted the words as suggesting he was unfit for a position of DSM because of his ADHD. If so, this would be a direct discrimination claim rather than a s15 claim. The comment was included as it is a standard template document. Demotion is also provided for in the disciplinary procedure. The use of the words was not something arising in consequence of the claimant’s ADHD. Dismissing the Claimant[110]See our discussion under the unfair dismissal conclusions. We find this complaint is well founded as the dismissal was plainly unfavourable treatment and arose in consequence of the claimant’s disability specifically his difficulties with communication and the reliance on a lack of remorse. The dismissal letter could not be any clearer in showing the causal link between the claimant’s disability and the decision to dismiss the claimant namely: - The references to a lack of remorse in the meeting by the claimant; - A finding that the claimant had withheld information at the disciplinary hearing whereas he had repeatedly said he could not recall who had shown him; - A finding that Ms Ogden had given clear instructions not to use the PPT and the use showed a clear disregard for her authority and breach of trust whereas the claimant had said he had interpreted the conversation in a different way.[111]Mr Williams submitted that the reference to the lack of remorse was not related to the claimant’s disability but a lack of recognition by the claimant that he had been in the wrong. Whilst plausible, the reference to the lack of remorse was that he had now showed enough contrition as the claimant 25 10.5 Reserved judgment with reasons – rule 62 March 2017 accepted that he knew the use of the PPT was prohibited and that he had been wrong to do so.[112]The tribunal does not consider that Ms Leith formed any link in her mind to the claimant’s ADHD and her conclusions however motives are irrelevant to a s15 claim.[113]These matters were indeed acknowledged by Mr Bowley in his appeal outcome where he concluded that even though it was gross misconduct there should have been more focus on his length of service than his communication style “which may be due in part to your ADHD.” Not reinstating the claimant but offering only demotion despite having admitted acts constituting disability discrimination[114]This was unfavourable treatment. It would have resulted in loss of status and pay. We must determine what caused the treatment, or what was the reason for it. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.[115]The claimant relied upon his communication difficulties as the “something arising”. Mr Bowley acknowledged these and in fact overturned the dismissal because of them. In our judgment, the claimant’s communication difficulties did not cause Mr Bowley to not reinstate the claimant and offer him demotion. The effective cause of the treatment was that the claimant had used the PPT truck knowing this was in breach of the company process. The claimant admitted that he knew he was not supposed to use the PPT truck on the shop floor. There had been multiple reasons provided during the process and at this Tribunal. Other than where the claimant had said during the appeal he forgot to ring trading standards due to his ADHD, these reasons are nothing to do with the claimant’s ADHD. Nothing turns on that as the claimant admitted using the PPT multiple times during his employment and at other stores. Mr Bowley concluded that this conduct fell below the acceptable level for the position of DSM and it was no longer possible to employ him in this role due to the conduct.[116]For the avoidance of doubt, in our judgment, the respondent were entitled to decide the claimant should be demoted. The reason this s15 claims is because the claimant’s disability did not cause Mr Bowley to conclude the claimant could not be trusted in a management position. The cause of that was the claimant’s decision to use the PPT when he knew that it was against company policy.[117]For these reasons, the claimant’s remedy for the s15 claim will be limited to injury to feelings for the dismissal. Indirect disability discrimination (Equality Act 2010 section 19) 26 10.5 Reserved judgment with reasons – rule 62 March 2017[118]The claimant relied upon three “PCP’s: - The Respondent’s disciplinary procedure. - Instructions concerning the use of a PPT. - Dismissal of the Claimant.[119]In regard to the first two PCP’s it was common ground they were valid PCP’s applied to the claimant and to persons with whom the Claimant does not share the characteristic, ADHD. The particular disadvantages relied upon in respect of the first PCP were: - Difficulties preparing for and engage with the disciplinary process in particular the disciplinary hearings - Giving the appearance of a lack of remorse - Both of which makes it more likely that such persons would be dismissed - Difficulty in understanding instructions[120]Turning firstly to the issue of group disadvantages. The group must have the same disability as the claimant and the comparison is between that group and those who do not share that disability and both can be hypothetical. The Tribunal must decide whether the people in the claimant’s group will have the disadvantage (but not why).[121]ADHD is a neurodiverse condition that effects people in many different ways. The impact on one person, with the same disability, may not necessarily be the same as the impact on another. Mr James somewhat bravely submitted that although the evidence on group disadvantage was “a bit thin” that in respect of the first PCP, it could be made out if we concluded that persons with ADHD are more likely to be dismissed. We are respectfully unable to agree with that submission as we did not have any evidence at all to support reaching such conclusions about a group disadvantages. We were unable to consider whether those with the same disability would have the above disadvantages when compared with those with different disabilities or no disabilities at all.[122]Further, in respect of the second PCP, the claimant has not shown he was put to the disadvantages indeed we have found that the claimant was well aware and understood the instructions as to the use of the PPT.[123]In relation to the third PCP we find that this is not a valid PCP as it was a one-off act applied to the claimant not capable of being repeated. This complaint is therefore not well founded. Reasonable Adjustments (Equality Act 2010 sections 20 & 21)[124]The first PCP relied upon was not in dispute (the Respondent’s disciplinary procedure). The claimant relied upon the same disadvantages as advanced under the indirect discrimination claim (see paragraph 123 above). 27 10.5 Reserved judgment with reasons – rule 62 March 2017[125]Paragraphs 4 and 5 above sets out the impact of the claimant’s disability on his day-to-day activities. In particular, the effect on his issues with engaging in meaningful conversations and an ability to retain information. We find that the claimant’s ADHD did put him at a substantial disadvantage during the disciplinary procedure specifically the disciplinary hearing and applied sanction of dismissal but not the investigation or appeal stage.[126]There was not any issue concerning knowledge1 which is unsurprising given that Mr Bowley overturned elements of the disciplinary hearing outcome based on his understanding of how the claimant’s ADHD had impacted on his communication style and ability to take part in the procedure.[127]The steps identified by the claimant in the list of issues were as follows. ii. Implementing the Flexible Working Appeal recommendations referred to above at paragraph 66(i). The respondent did take those steps and further a referral to occupational health was not considered necessary as the agreed adjustments appeared to be working well. If the claimant had been referred to occupational health or had a three month review of the arrangements there is no evidence or basis to ay this would have made any difference to his unauthorised use of the PPT. iii. Providing clear instructions on the use of the PPT confirmed in writing. We find the respondent did provide very clear instructions the use of the PPT and the claimant was well aware of the rules. iii. Providing the Claimant with reasonable notice or warning of the investigative meeting. See above. We have already concluded this would have made no difference. iv. Allowing the Claimant to be represented at the hearing by a disability advocate, given their awareness of his disability. See above. The claimant did not tell the respondent he would benefit form a disability advocate and do not consider that the respondent should reasonably have been aware of this. v. Seeking advice prior to the hearing on the manner of its conduct for a person suffering from ADHD, to ensure that the hearing was fully cognisant of the nature of the Claimant’s disability in terms of explanation and the Claimant’s understanding of the proceedings, questions asked of the Claimant and affording him an adequate opportunity to put his case. vi. Implementing breaks in the course of the hearing to ensure that the Claimant had adequate thinking time and time for reflection as required for his disability.[128]We agree that the last two steps would have been reasonable steps to have taken and were already identified in their own disciplinary procedure (see 1 Save see below regarding a disability advocate being present at hearings 28 10.5 Reserved judgment with reasons – rule 62 March 2017 paragraphs 14) We consider that these steps would have alleviated the disadvantages as can be evidenced form Mr Bowley’s conclusions but they did not take any of those steps until the appeal stage. The claimant had been off sick due to forthcoming disciplinary hearing ands the respondent was on notice he found it difficult to express himself in these types of meetings.[129]For these reasons this complaint is well founded in regard to the disciplinary hearing. Verbal instructions regarding the alleged prohibition of use of the PPT 128. This was the second PCP and was clarified by Mr James in submissions as the disputed verbal instruction from Ms Ogden on 10 July 2024 (see paragraph 28). 129. We do not consider that this cannot amount to a valid PCP. A one off verbal instruction to one individual cannot amount to a PCP. It is incapable of further application or potentially being repeated. This complaint is not well founded.