Mr M HaqueClaimantRoyal Mail Group Limited Heard: in LeedsRespondent
Before
Employment Judge AyreIn person for claimantBen Brown (instructed by solicitor) for respondentDate 12 July 2024
JUDGMENT
[1]The claim for discrimination arising from disability is not well founded. It fails and is dismissed.
REASONS
[1]On 29 August 2023 the claimant presented a claim to the Employment Tribunal following a period of early conciliation that started on 4 July 2023 and ended on 7 August 2023. On the claim form the claimant indicated that he was bringing complaints of discrimination on the grounds of religion or belief, race and disability.[2]A first Preliminary Hearing took place on 15 October 2023 before Employment Judge Shepherd. At that hearing, there was a discussion of the claims that the claimant is bringing, the case was listed for a further Preliminary Hearing, and Case Management Orders were made.[3]Following the first Preliminary Hearing, the claimant provided further information about the disability he relies upon for the purposes of this claim, and on 14 February 2024 the respondent conceded that the claimant was, at the material time, disabled due to back pain.[4]A second Preliminary Hearing took place before Employment Judge Cox on 15 February 2024. At that hearing, the claimant withdrew his complaints of race discrimination and religious discrimination, and these were dismissed. The claimant’s applications to amend his claim were refused, the issues to be determined in the case were identified, and Case Management Orders were made.[5]The remaining claim before the Tribunal is a complaint under section 15 of the Equality Act 2010 that the respondent discriminated against the claimant because of something arising in consequence of his disability.[6]The respondent admits that the claimant is disabled as a result of ‘mild disc degeneration’ in his spine with ‘a very mild disc bulge’ and that it had knowledge of his disability. The respondent also admits that the claimant’s inability to do bag tipping duties that involve lifting and twisting is something that arises in consequence of his disability.
The hearing
[7]There was an agreed bundle of documents running to 91 pages.[8]The Tribunal heard evidence from the claimant and, on his behalf from John Deery, for whom the claimant had written a witness statement. On behalf of the respondent we heard evidence from Glynn Lloyd, previously Acting Deputy Manager and Gaurav Joshi, Parcel Lead. The respondent also produced a witness statement for Imran Khan, Parcel and Letter Lead, but did not call him to give evidence, so the Tribunal has placed little weight on his statement.[9]The claimant had produced a witness statement for John Deery and wanted to call him to give evidence. He said that Mr Deery was unable to be present at the hearing because he was off sick. Mr Deery is however still employed by the respondent, and the respondent informed the Tribunal that he had now returned to work and was due to work today. The respondent agreed to arrange for Mr Deery to attend the hearing as a witness for the claimant. Mr Deery did attend and gave evidence.[10]At the start of the hearing we discussed whether the claimant required an interpreter, as English is not his first language. The claimant told the Tribunal that he was happy to attend without an interpreter and would be able to understand the proceedings.
The issues
[11]The issues that fell to be determined at the hearing were identified at the Preliminary Hearing before Employment Judge Cox, as follows: 1. Did the respondent treat the claimant unfavourably by: 1. Mr Lloyds, deputy manager, threatening to cancel the claimant’s overtime shift on 1 June 2023; and/or 2. Mr Joshi, shift manager, telling the claimant on 1 June 2023 that he must be ready to do any job if he was doing overtime on his shift? 2. The claimant alleges that his refusal to do ‘bag tipping’ duties arises in consequence of his disability. At the start of the hearing Mr Brown indicated that the respondent admitted that the claimant’s inability to do bag tipping duties that involve lifting and twisting arises in consequence of the claimant’s disability. 3. Was the unfavourable treatment because of the claimant’s inability and/or refusal to do bag tipping duties? 4. Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aim was to ensure that the respondent is adequately staffed to meet its universal service obligation to provide postal services 6 days a week. 5. When deciding whether the treatment was a proportionate means of achieving a legitimate aim the Tribunal will decide in particular: 1. was the treatment an appropriate and reasonably necessary way to achieve those aims; 2. could something less discriminatory have been done instead; 3. how should the needs of the claimant and the respondent be balanced?
Findings of fact
[12]There were significant conflicts of evidence in this case, and no contemporaneous documentary evidence. We accept that all of the witnesses that we heard from gave evidence that they genuinely believed to be the truth and that they were not attempting in any way to mislead the Tribunal. They did however give very different versions of events. In light of the differences in the witness evidence and the lack of documentary evidence, the Tribunal has not found it easy to make findings of fact.[13]The claimant’s evidence was supported to a degree by the witness statement of John Deery, which the claimant had written for Mr Deery in July 2023. Mr Deery signed the statement on 12 July 2023, approximately 6 weeks after the events that the claim is about. He told us that he did not however read the statement carefully before signing. Had he done that he would have noticed, for example, that his name was spelt incorrectly. When giving evidence to the Tribunal Mr Deery understandably struggled to remember what had happened on 1 June 2023. He told the Tribunal that the contents of the witness statement he had signed were true.[14]The respondent’s evidence was largely consistent, although there were some differences in the versions of events given by each of the respondent’s witnesses. There is in our view, nothing untoward in this, as it is inevitable that memories of events will differ to some extent.[15]There is, in our view, an inconsistency in the claimant’s case which has been difficult to reconcile. The basis of the claimant’s case, in summary, is that he was unable to do bag tipping duties and, when asked to do so on 1 June 2023, refused. Mr Deery, who was responsible for the bag tipping area that day, did not however suggest in his evidence that the claimant was reluctant at all to move to bag tipping. Rather, it appeared that he was happy to take the claimant in bag tipping because one of the team had called in sick and he was therefore a person down. Working in bag tipping on 1 June therefore seems to have been the solution, and the way of avoiding the claimant having to leave his shift early, rather than the problem. The claimant’s evidence was that he did work in the bag tipping area until the end of his shift on 1 June and there was no evidence before us to suggest that this caused him any difficulty.[16]Mr Lloyd’s evidence was that he had not asked the claimant to do bag tipping duties, and that it was certain duties in the oversize sorting area that the claimant did not want to do. M[17]The following findings of fact are made on a unanimous basis.[18]The claimant is employed by the respondent as a Postal Processor at operational postal grade based at the Leeds mail centre. He works part time and normally works weekends. He does however work overtime on weekday afternoons and evenings. He has been employed by the respondent since June 2022 and his employment is ongoing.[19]The claimant suffers from chronic back pain which has been ongoing for many years. His back pain restricts his ability to stand and walk for long periods of time. At work he is not able to do tasks that involve lifting and twisting because this triggers his back pain. The claimant’s normal duties are in the letter sorting team and involve him sitting down and sorting letters. He is able to perform this work.[20]On Thursday 1 June 2023 the claimant was working an overtime shift between 2 pm and 6 pm, which is considered by the respondent to be the late shift. The respondent’s normal practice is that approximately 30% of staff on late shift are either working overtime or agency workers. The claimant had applied to do overtime the week before and knew in advance that he would be working in the oversize sorting area, which is not where he normally works.[21]The claimant was assigned to work in the inward oversize sorting area, which is where parcels are sorted and which was being managed by Glynn Lloyd that day. At the start of his shift the claimant told Mr Lloyd that he had a back issue. Mr Lloyd tried to allocate him duties that the claimant would be able to do.[22]The claimant was assigned to work on a machine known as the ‘Caljan’ where approximately 13 people work at any one time. There are a number of roles that need to be doing when working on this machine. Some involve lifting bags of parcels and tipping their contents onto a roller conveyor belt. Others involve standing by the belts and moving parcels. The machine has a central belt, and ‘wings’ or ‘legs’ which go off from the central belt. Each wing represents a different postal town, with, for example, separate wings for York, Leeds, Wakefield and Bradfield.[23]The claimant’s evidence was that from the start of the shift on 1 June he was on the York wing of the Caljan machine, taking parcels off rollers and putting them in to a case. He said that he was able to stand up and walk around when doing this job and was not required to lift heavy bags.[24]Mr Lloyd’s evidence was that at the start of the shift the claimant was working in a position known as PR1, next to the central belt of the Caljan machine, and not on the wing. He said that the role the claimant was required to do was to push parcels from the central belt either towards the York wing of the machine (if they had a York postcode) or the Leeds wing (if they had a Leeds postcode). He also said that approximately 30 minutes into the shift, the claimant had approached him and complained he had a headache caused by the glare of the rollers and wanted to move positions. The claimant denied saying this. Mr Lloyd also said that he had asked the claimant if he would be able to work on the York wing of the machine and that the claimant had initially said he would give it a go, but then did not and that the claimant became frustrated.[25]We found Mr Lloyd to be a credible and honest witness. We also find that the work in PR1 was more suitable for the claimant, because it did not involve walking around, which is one of the things that the claimant said in his disability impact statement that he has difficulty doing. The claimant’s normal role is sitting down, and in his disability impact statement he says that he cannot stand and walk for longer than 30 minutes. Working on the York wing would have involved standing and walking.[26]On balance, we prefer the evidence of Mr Lloyd on this issue, and find that the claimant was initially assigned to work in PR1 but complained of a headache. Mr Lloyd told another manager, Imran Khan, that the claimant was struggling to work on the conveyor belt due to a headache. Mr Khan told him to try and move the claimant onto a different activity if he could, and that was what Mr Lloyd attempted to do. Unfortunately the claimant did not appear to want to work on the wing and although he initially said he would give it a go; he did not try it and became frustrated. Mr Lloyd had no other roles available within his area, which would not affect the claimant’s back.[27]Mr Deery was managing the bag tipping area that day. A member of staff who was due to work called in sick, and Mr Deery reported to Mr Khan that he needed someone else to work in the bag tipping area, because he was a person down. Having heard from Mr Lloyd that the claimant was having difficulty working on the Caljan machine, Mr Khan decided to move the claimant to the bag tipping area as he knew that Mr Deery needed an additional member of staff, and he thought that the bag tipping area may be better able to accommodate the claimant.[28]The evidence of Mr Deery and of Mr Joshi, which we accept, is that the work in the bag tipping area is generally considered to be physically easier work. Mr Joshi said that there are different jobs to be completed, with some involving far lighter duties than others, but that the roles in bag tipping are generally lighter duties in comparison with the inward oversize sorting area where the claimant had initially been working.[29]Approximately one hour into the claimant’s shift, a conversation took place between the claimant and Mr Lloyd after the claimant had been asked to move to a wing of the Caljan machine. The claimant said that the conversation took place in the manager’s office in front of all of the other managers, and that he had asked Mr Lloyd why he had asked him to do something that he can’t do because he had longterm back pain issues. The claimant also said that he was not able to do bag tipping, and that Mr Lloyd had said ‘if you have health issues that covers your normal duties, but not overtime, and that when working overtime we can move you and you should be able to do whatever we ask you to do’. The claimant also said that Mr Lloyd told him that he had sent many people home and cancelled their overtime, and that he would do the same for the claimant.[30]The claimant’s evidence was that Mr Lloyd then telephoned staff resourcing and cancelled the claimant’s overtime, at which point the claimant said he needed to speak to his trade union, and that Mr Lloyd then said, ‘you are free to go now, go wherever you want’. The claimant also said that Mr Deery was present when the conversation took place.[31]Mr Lloyd’s evidence was that he had not asked the claimant to move to bag tipping, but that he had explained to the claimant that overtime is used when there is an excess of work, and that the respondent needed people to complete that work, regardless of what the task is. Mr Lloyd also told the Tribunal that he had told the claimant that if there is no work or no suitable work to do, overtime can be cancelled and staff sent home. He said he had discussed this in depth with the claimant and that the claimant responded by losing his temper and walking away from him. He accepted that he had told the claimant people have been sent home and overtime cancelled if there is no suitable work for them to do, or where someone was refusing to do work, as seemed to be the case here as the work initially allocated to the claimant seemed to suit his back issues but was giving him a headache so he no longer wished to do it. We accept Mr Lloyd’s evidence on this issue and find that Mr Lloyd did not ask the claimant to move to bag tipping.[32]Mr Deery had a vague recollection of Mr Lloyd and the claimant having a conversation in between the Caljan machine and the bag tipping area, and that the claimant had subsequently indicated that he would come to work in the bag tipping area.[33]The claimant alleged that Mr Lloyd threatened to cancel his overtime shift. Mr Lloyd denied having cancelled the claimant’s overtime or having threatened to do so. We find, on balance, that Mr Lloyd did say to the claimant that if there was no work available that the claimant could do then overtime may have to be cancelled. Although he did not explicitly threaten to cancel the claimant’s overtime, the claimant clearly and understandably interpreted his words as a threat. The claimant was frustrated and annoyed at the time. By telling the claimant that if there was no work he could do, overtime may have to be cancelled, Mr Lloyd was in our view implicitly threatening the claimant that his overtime may have to be cancelled.[34]We also find that the staff resourcing team was told that the claimant would be leaving shift and not working for the rest of the day. We accept Mr Deery’s evidence that, when it was agreed that the claimant would come and work in bag tipping, he had to ring the staff resourcing team and tell them to ‘reinstate’ the claimant for the rest of the shift.[35]The claimant alleges that it was Mr Lloyd who contacted staff resourcing. We find that it is likely that it was Mr Lloyd who contacted the staff resourcing team and said that the claimant was going home, and that he did that because the claimant had walked off in temper. There was no reason for anyone else to contact the staff resourcing team. The claimant was allocated to Mr Lloyd’s team that afternoon, and it was Mr Lloyd who talked about overtime being cancelled and staff being sent home.[36]We find that the conversation between Mr Lloyd and the claimant took place in the vicinity of the Caljan area. That was the evidence of both Mr Deery and Mr Lloyd. We accept Mr Lloyd’s evidence that he had noticed that the belt on the machine kept stopping and had gone over to talk to the claimant about it.[37]The comments about overtime that were made by Mr Lloyd were made in response to the claimant not being willing to move to the wing of the Caljan machine. At the time the conversation took place the claimant had not been asked to move to bag tipping. The comments were therefore nothing to do with any concerns the claimant may have had about performing bag tipping because of his back pain.[38]After the conversation between Mr Lloyd and the claimant, the claimant walked off and spoke to a trade union representative, Margaret Firth. She told him that the respondent should try and accommodate him in a job that he was able to do.[39]There was conflicting evidence before us as to whether the claimant had been asked to move to bag tipping and refused, or not. Mr Deery’s evidence was that he had been approached by the claimant and his trade union representative and asked if he could accommodate the claimant in his area, in response to which he said he could. Mr Deery also said that he had then gone to see Mr Joshi with the claimant and said, ‘I can accommodate the claimant in my area, can I keep him’.[40]This is inconsistent with the evidence of the claimant that he could not do bag tipping because of his back pain and refused to do so. On balance we prefer the evidence of Mr Deery. We find that the claimant did not refuse or object to doing bag tipping, because he did subsequently end up working in bag tipping for the rest of the shift. We also accept the respondent’s evidence that bag tipping is generally lighter work than work on the Caljan machine, and that there were roles within bag tipping that did not involve any heavy lifting.[41]It was agreed that the claimant would spend the rest of the shift working in bagtipping. Mr Deery then contacted the staff resourcing team to tell them that the claimant would in fact be working for the remainder of his shift, which was due to end at 6pm.[42]Mr Deery and the claimant went into the manager’s room to speak to Mr Joshi. Mr Deery told Mr Joshi that he would keep the claimant working in his area for the remainder of the shift.[43]The claimant alleges that during this conversation Mr Joshi said to him “You should be doing any job during your overtime” and that when he asked whether if someone had a health issue they would be accommodated in other types of jobs that they could do, Mr Joshi replied, “It doesn’t happen in my shift” and that in future the claimant needed to be ready to do any job during overtime.[44]Mr Joshi admitted that he had told the claimant that staff completing overtime were expected to complete a variety of tasks in order to deal with the work that needed to be done. The claimant told him that other people doing overtime were able to complete jobs on letters, which involves sitting down and sorting through letters. Mr Joshi explained that overtime is not normally required for letters on the late shift, except around Christmas when the volume of letters increases.[45]We find on balance that Mr Joshi did say to the claimant on 1 June that in future he needed to be ready to do any job during overtime. The words that the claimant alleges Mr Joshi said are in fact very close to the ones that Mr Joshi admitted saying.[46]We find that the reason Mr Joshi made this comment was because Mr Joshi thought that the claimant was refusing or reluctant to do some duties. In his witness statement Mr Joshi said that he believed this because John Deery and the claimant had gone to his office and told him that the claimant did not want to do bag tipping. We do not accept his evidence on this evidence on this issue. It is contradicted by John Deery’s evidence that he had offered to take the claimant into bag tipping as a solution to the problem that the claimant found himself in, having walked away from the Caljan area and the duties allocated to him by Mr Lloyd. It is also contradicted by the fact that the claimant did spend the rest of the shift working in bag tipping without any complaint. We find that Mr Joshi is mistaken in his recollection and that in fact the only work that the claimant had refused to do that day was on the wing of the Caljan machine.[47]The claimant’s evidence about his conversation with Mr Joshi was corroborated by Mr Deery whose evidence was that Mr Joshi said to the claimant ‘you should be doing any job during your overtime’. It is also consistent with the respondent’s evidence that when working overtime staff need to be able to do the work that is available. The respondent will try to accommodate any health needs and to make adjustments for disabilities, but this is dependent on work being available for them to do.[48]Overtime is scheduled when the respondent needs extra staff due to high volumes of work, or because of sickness absence. The respondent has an obligation to provide postal services 6 days a week and needs to ensure that it has sufficient staff to provide those services. The normal expectation is that those doing overtime will be required to do whatever is required, and to work in various roles in different work areas, although they would not have to do something that they are not able to do. Overtime is diffident from ordinary duties because it is used to cover excess work that needs to be done, so is only available on an ‘as needed’ basis.[49]Those scheduled to work overtime work alongside and in addition to those performing their normal duties. Permanent staff working on a shift are therefore assigned their usual roles, and overtime and agency staff are used to fill in the gaps where extra resource is needed. It is inevitable therefore that those working overtime will need to be more flexible, and that there is less scope for restricting where they work. When working overtime a member of staff is only working temporarily, and it is understandable therefore that those working their normal or permanent duties are given priority. They are less likely to be moved during a shift than agency and overtime workers.[50]On 1 June the claimant worked for the first part of his shift on the Caljan machine, and then for the remainder of the shift in bag tipping. He worked the full shift. The Law Discrimination arising from disability.
The Law
[51]Section 15 of the Equality Act 2010 states that: “(1) A person(a) (A) discriminates against a disabled person(b) (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.[52]In a claim under section 15, no comparator is required, and the claimant is merely required to show that he has suffered unfavourable treatment and that the reason for that treatment was something arising because of his disability.[53]In Secretary of State for Justice and another v Dunn EAT 0234/16 the then president of the EAT, Mrs. Justice Simler, identified four elements that must be made out for a claimant to succeed in a complaint under section 15: 1. There must be unfavourable treatment; 2. There must be something that arises in consequence of the claimant’s disability; 3. The unfavourable treatment must be because of (i.e. caused by) the something that arises in consequence of the disability; and 4. The respondent must be unable to show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.[54]In Pnaiser v NHS England and another [2016] IRLR 170 the EAT held that when determining complaint of discrimination arising from disability, Tribunals should: 1. Identify whether the claimant was treated unfavourably, and by whom; 2. Decide what caused that treatment, focusing on the reason in the mind of the alleged discriminator, whilst reminded itself that motive is irrelevant; 3. Decide whether the reason for the treatment was something arising in consequence of the claimant’s disability, which may involve a range of causal links but which is an objective question; and 4. Consider whether the respondent knew of the disability – not whether is knew of the ‘something arising’ from the disability.[55]There is no statutory definition of ‘unfavourable treatment’ but the courts have held that it is similar to the concepts of disadvantage and detriment. Is it something that a reasonable person would complain about?[56]When considering an employer’s defence under section 15, the Tribunal must determine firstly whether the employer had a legitimate aim, and secondly whether its actions were a proportionate means of achieving that aim. That requires a consideration as to whether what the employer did was a reasonably necessary means of achieving the aim (Homer v Chief Constable of West Yorkshire [2010] UKSC 15) and balancing the reasonable needs of the employer against the discriminatory effect of the employer’s actions on the employee (Land Registry v Houghton and others UKEAT/0149/14).
Conclusions
[57]The following conclusions are reached on a unanimous basis.[58]The claimant alleges that there were two acts of discrimination arising from disability on 1 June 2023: Mr Lloyds threatening to cancel his overtime shift and Mr Joshi telling him that he must be ready to do any job if he was doing overtime on his shift.[59]We find on balance, for the reasons set out above in our findings of fact, that Mr Lloyds did threaten to cancel the claimant’s overtime shift (albeit implicitly) and that Mr Joshi did tell the claimant words to the effect that he must be ready to do any job if he was doing overtime on his shift. The factual allegations are therefore made out.[60]The first question to be considered in a discrimination arising from disability claim is whether the claimant was treated unfavourably. There is no definition of unfavourable treatment in the Equality Act 2010, but the Equalities and Human Rights Commission’s Code of Practice on Employment (2011) states that it means ‘put at a disadvantage’. It is widely accepted that the concept of unfavourable treatment in section 15 of the Equality Act is similar to the concepts of ‘detriment’ and ‘disadvantage’ used elsewhere in the discrimination legislation.[61]We are satisfied in this case that the comment made by Mr Lloyd was unfavourable treatment because it could have resulted in the claimant losing the rest of his overtime shift and the associated pay. That put the claimant at a disadvantage. We are also satisfied that Mr Joshi’s comment to the effect that the claimant must be ready to do any job if he was doing overtime on his shift put the claimant at a disadvantage. It was a clear indication that unless the claimant was able to do any job (which the claimant could not, because of his disability) he would not be able to do overtime on Mr Joshi’s shift. Both comments were, in the Tribunal’s view, unfavourable treatment.[62]We have then gone on to consider what caused the treatment in question and whether the cause of the treatment was the something arising in consequence of the claimant’s disability that the claimant relies upon for the purposes of this claim, namely his inability and/or refusal to do bag-tipping.[63]We have found above that the claimant did not in fact refuse to do bag tipping duties on 1 June. Rather, what he refused to do was to work on the wing of the Caljan machine. He did in fact work in bag tipping for much of his shift.[64]In light of that, it follows that the comments made by Mr Lloyd and Mr Joshi on 1 June were made in connection with the claimant’s reluctance and/or refusal to work on the wing of the Caljan machine, and nothing at all to do with bag tipping. Mr Lloyd had not discussed the possibility of the claimant working on bag tipping when he made the comment about overtime. The threat to cancel overtime was therefore made because of the claimant’s reluctance and/or refusal to work on the wing of the Caljan machine.[65]At the time Mr Joshi made his comment that the claimant must be ready to do any job if he was doing overtime on his shift, the claimant and his trade union representative had approached Mr Deery and asked if the claimant could work in bag tipping. Mr Deery and the claimant went to see Mr Joshi to get his approval for the claimant to move to bag tipping. There was certainly no reluctance or refusal to do bag tipping at that stage. Mr Joshi’s comments were made because the claimant had refused to work on the wing of the Caljan machine, and as a result, needed to find somewhere else to work for the remainder of the shift.[66]It does seem to the Tribunal that there was a connection between the claimant’s disability and the words that were used by Mr Lloyd and Mr Joshi on 1 June. However the connection to the disability was not the claimant’s inability or reluctance to do bag tipping, which is the ‘something arising from disability’ relied upon for this claim. Rather, in the case of Mr Lloyd, the threat to cancel overtime was made because the claimant was reluctant and/or refusing to do duties on the wing of the Caljan machine. In the case of Mr Joshi, the comments were made because the claimant needed to find alternative duties having refused to work on the wing of the Caljan machine.[67]It is clear that the claimant’s inability or reluctance to do certain duties was linked to his disability, but we have to make our decision based on the pleaded case and the issues as previously identified. It is not for the Tribunal to decide a case based upon a different ‘something arising from disability’ to that relied upon by the claimant and identified at case management stage. To do so would be to ‘step into the arena’ and make a case on behalf of the claimant that he has not made himself. That would be an error.[68]The only ‘something arising from disability’ relied upon by the claimant in this case was the refusal and/or inability to do bag tipping. That did not cause the unfavourable treatment in question. The claim for discrimination arising from disability therefore fails at the causation stage.[69]We have nonetheless considered whether, if the claimant had established that the unfavourable treatment was because of something arising from disability, the respondent would have been able to establish that its actions were a proportionate means of achieving a legitimate aim. It is worth noting here that it was not necessary for us to determine the question of knowledge of disability in this case, because that was conceded by the respondent.[70]The legitimate aims relied upon by the claimant in defence of this claim were ensuring that the respondent is adequately staffed to meet its universal service obligation to provide postal services 6 days a week. We accept that, given the nature of the respondent’s operations, this is a legitimate aim. It cannot be said that it is not legitimate for an organisation to want to meet its obligations and the purpose for which it has been set up and continues to operate.[71]We have then considered whether the comments made were a proportionate means of achieving those aims. That involves considering whether the comments were reasonably necessary and balancing the needs of the respondent against the needs of the claimant. It can also involve considering whether there was something less discriminatory that the respondent could have done.[72]Whilst the respondent was not obliged to make the comments in question, we accept that the motivation of both Mr Lloyd and Mr Joshi was to try to explain to the claimant that staff working overtime were normally required to do the work available and that if they could not do the work, they may not be able to do overtime. Overtime is only used where there is an excess of work which can not be performed by the regular staff. They were also concerned to ensure that staff doing overtime were able to do a range of duties, so that the respondent could meet its universal service obligation.[73]There was no suggestion by either Mr Lloyd or Mr Joshi that the claimant would not be able to do overtime in the future. The claimant was able to finish his shift on 1 June as alternative work was found for him. He suffered no loss of pay as a result. The discriminatory effect of the comments on the claimant were not, therefore significant. They did not prevent him from finishing the shift and being paid for it, or from working overtime in the future.[74]We accept the respondent’s evidence that the respondent will try to make reasonable adjustments for those working overtime, but that there may be more limited scope to make adjustments when someone is working overtime than when working normal duties. The claimant accepted in evidence that when doing overtime at Leeds mail centre, the work available is on an ‘as needs’ basis and that overtime is based upon what work needs to be done at the time. The claimant also accepted that the work available may change from shift to shift and that different shifts may have different requirements. He also accepted that he knew, when applying for overtime the week before 1 June, that the work available on 1 June was on the Caljan machine dealing with inward parcels. The claimant knew he would be working on Caljan that day.[75]For the above reasons the claim for discrimination arising from disability is not well founded. It fails and is dismissed.