Mr A Booth v Delstar International Ltd T/a SWM International: 1807548/2019

EMPLOYMENT TRIBUNALS

Case No 1807548/2019

Between

Mr S Healy, of CounselClaimant

Ms R Mellor, of CounselRespondent

Before

Employment Judge JM Wade

Date 16 October 2023

JUDGMENT

[1]The claimant’s unlawful deduction from wages complaint is dismissed on its withdrawal before me today.

[2]The Tribunal has jurisdiction to determine the claimant’s claims: he has established that he was entitled to present these proceedings within Section 18A of the Employment Tribunals Act 1996.

[3]It is just and equitable to extend time to 20 December 2019 for the presentation of factual complaints 1 to 3 as alleged Equality Act contraventions.

REASONS

[1]This has been a remote hearing to which the parties consented. The form of remote hearing was Skype for Business. A face to face hearing was not held because Presidential Guidance had directed that could not occur until July at the earliest. The Regional Judge had directed conversion to this Skype hearing to determine limitation issues and other matters arising.

[2]The parties said this about the process: they considered the Skype hearing to have been satisfactory and fair in circumstances of having the evidence of only one witness (the claimant) to hear.

[3]This judgment was delivered on an extempore basis but I provide these written reasons today from memory and without reference to the recording of the proceedings in order to assist the parties (it is not currently clear how transcription of judgments delivered at such hearings is to operate in this Tribunal).

[4]The documents before me were the pleadings and orders in the case, and a core bundle of relevant documents of including grievances and the like. I also had the claimant’s witness statement providing evidence in support of me setting a just and equitable time limit and allowing all claims to proceed. I also heard oral evidence from him: he was subject to cross examination by Ms Mellor on the contents of his statement. The claimant suffers from visual and memory impairment. Yesterday we conducted a “test-bed” hearing with all parties present to discuss and test the technology. Today’s substantive hearing was recorded.

The Issues

[5]In February of this year an Employment Judge identified that a one day public hearing would address: clarity in the claims; whether the Tribunal had jurisdiction to determine the claims in view of the Early Conciliation provisions; whether the Tribunal could consider the claims given the statutory time limits; and whether sums sought by the claimant properly fall within the definition of “wages”.

[6]In preparation for this hearing Mr Healy’s skeleton argument, and Ms Mellor’s concession on behalf of her client, narrowed those issues.

[7]The skeleton precisely identified the complaints from the pleadings; the deductions from wages complaint was not pursued by the claimant; the respondent was satisfied that the claimant had complied with the ACAS conciliation provisions, or at least accepted on the information in the bundle that this was not a case of the Patel1 kind, because it was clear there were communications to the claimant by both “SWM” and “Delstar” and he could have been unclear about the correct name of the employing company.

[8]I indicated jurisdiction remains a matter for me, however, even if the advocates are content the EC provisions have been observed. Findings of fact about the broad chronology

[9]The claimant enjoyed long and stable employment with Smith & Nephew at its Gilberdyke site near Hull back to 1994 or so. From at least 2007 he had occupied the post of manufacturing technician.

[10]On or around 1 January 2015 Smith & Nephew sold the division in which he worked to an American group, of which the respondent is one such company. The division traded as “SWM”, and there were various communications setting out transfer of the claimant’s terms and conditions and so on referring to both SWM and Delstar.

[11]It is fair to say that alongside a defined benefit pension scheme the claimant’s terms and conditions were such that they offered considerable comfort should life take a turn for the worse, whether that be ill-health or otherwise.

[12]The claimant did encounter ill-health, an embolism, a mini stroke, a kidney condition and impairment to his vision and memory. That series of events and treatment resulted in considerable absence from work from February 2017, such that the claimant was eventually considered by occupational health to be unlikely to be able to return to his post.

[13]The chronological factual complaints that he presents are as follows: – 13.1. in the latter part of 2017 and early 2018 a failure to apply for income protection benefit for him; 13.2. on 30 January 2018 and 5 February 2018, refusing to allow family members to accompany him at grievance meetings; 13.3. on 5 February 2018, the respondent attempting to dismiss him; 1

[2019] UKEAT 0286

– 18 - 1309 13.4. and throughout and continuing to the present day, the respondent failing to make pension contributions of 13.5% of his earnings, but instead, contributing only 7%.

[14]The legal complaints are various forms of disability discrimination. The factual territory covered by the documents before me is considerably more complex (and to some extent covering a great deal of irrelevant territory), but the claimant’s pleaded complaints are clear and concise.Before the meetings above in January and February 2018 the claimant had raised complaint and grievance about a number of matters relating to his treatment and that explains the breadth in the documents.

[15]In April 2018, on the advice of his Unison full-time official, he raised further grievances including addressing the income protection issue and the alleged refusal to permit family members, his wife, to accompany him.

[16]The claimant was informed around 14 September 2018 that his income protection claim had been made and would be backdated to 7 August 2017. He was also permitted to have family members present in meetings; but he had been without pay for a considerable length of time and he considers this and other treatment has worsened or caused further injury to his health.

[17]The outcome of his appeal against aspects of his grievance determination took from October 2018 to October 2019 to be finally communicated in writing.

[18]He received a call from his union representative in September 2019, informing him that he would receive an outcome in writing (and I infer, that it was not what he wished); he immediately commenced ACAS early conciliation identifying the name of his employer to ACAS as SWM International Ltd, which was his belief at the time, at the Gilberdyke address,.

[19]From that early conciliation notification on 10 September 2019, the claimant received a certificate on 15 October 2019. He had previously, certainly around August 2019 indicated his intention to seek legal advice beyond that available through his union; his union representative, the full-time official had retired, during this period, and he had been without advice for some 4 months or so.

[20]The claimant knew or believed that the respondent may be committing contraventions of the Equality Act during 2018 and 2019, but took advice that he must pursue the internal procedures first. He was in difficulty accessing legal advice beyond that available to the union because of a lack of funds.

[21]In relation to the pension contribution issue, the claimant was unable to obtain his original Smith & Nephew contract of employment from the respondent employer, and he felt that throughout, the measures in place to protect him in the circumstances he faced were not observed by the respondent. 22. 2 days before his claim was presented by solicitors on 20 December 2019, they sought early conciliation on his behalf also with the company they had identified as the likely employer, Delstar International Ltd, identifying an address in Belfast. The respondent was named in the claim form as Delstar International Ltd trading as SWM International and a Bristol address was also identified, with the claimant specifying his place of work at Gilberdyke.

[23]The second early conciliation certificate was not issued until 6 January 2020, and its number does not appear in the claim form. Discussion and Conclusions

[25]I have considered for myself the provisions of Section 18A of the Employment Tribunals Act 1996. I consider the claimant has complied with them in the providing of information to ACAS and the provision by ACAS of a certificate to him identifying the respondent company prior to his instituting of proceedings. The difference in the words used to identify the respondent to ACAS in the first certificate and on the claim form, was the use of a trading, divisional, or badging name, with the claimant being very clear to both ACAS and on the claim form that all he sought was to identify his employing company as he knew it (and as it had been communicated to him). The Tribunal has jurisdiction to determine the complaints (subject to limitation). The second certificate, albeit a belt and braces approach, is to me a red herring. I agree with the advocates that there is no prohibition on the Tribunal determining any complaints between the parties which survive limitation.

[26]As to that I was properly directed to the Limitation Act factors. The length of and reasons for the delay: the first three allegations are some 15 or 16 months or so out of time working from a limitation date of 11 June 2019 and possibly longer for the first allegation; the reason for delay is the seeking resolution through internal procedures relying on trade union advice, and when that became unavailable, independent legal advice. The facts of the allegations are well documented and not likely to be greatly in dispute; this will largely be a case of applying the law to those facts. The allegations are sparse and focussed. The respondent has adduced no evidence that it will be particularly prejudiced or that any evidence will be unavailable – this is not a case where the parties are relying on memory alone as is often seen in lengthy, stale Equality Act allegations about conduct or comments.

[27]There may well be particular documents (from Smith & Nephew) going to the reason why in relation to the in time allegation, which are not available, but that complaint and the background to it is going to be heard in any event.

[28]I do take into account the respondent’s conduct in taking a year or so to determine the grievance appeal, which included complaints akin to these pleaded allegations. I also take into account that as soon as he learned an outcome would be with him in writing and was not to be in his favour, the claimant acted promptly to contact ACAS as he must do.

[29]The fixing of a just and equitable time limit is a matter of my discretion, pursuant to the Equality Act. I cannot properly address the alternative means by which these complaints may have been presented in time - conduct over a period - because to do that I would have to determine the allegations. There is not any suggestion that the handling of the grievance appeal was itself an act of discrimination.

[30]I take into account that the limitation period for personal injury complaints is three years, and breach of contract complaints, six years; the claimant pursues complaints which relate to considerable sums to him, when one takes into account the compounding of pension contributions in a defined contribution scheme, in the circumstances in which he finds himself, which perhaps are pursuable in a different forum. Equally, his suggestion of further ill health and a theme (although not expressly pleaded) of personal injury caused by alleged contraventions further emphasises the importance of these proceedings between the parties.

[31]There can be a fair hearing of these discreet complaints - it was not suggested otherwise. I also take into account that the claimant presents with disability throughout this period, although he was able to communicate by email and lodge grievances and so on. Nevertheless, it is clear he required support to raise these issues and in all the circumstances I exercise my discretion, exceptionally, to fix a just and equitable time limit of 20 December (when the claims were presented) in relation to the complaints related to factual allegations 1 to 3.

RELEVANT LAW

[32]The burden of proof is set out at s136 EQA for all provisions of the EQA, as follows: 136 Burden of proof … (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. … (6) A reference to the court includes a reference to - (a) an employment tribunal; …

[33]The Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

stated that it is important not to make too much of the role of the burden of proof provisions. Those provisions will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. However, they are not required where the Tribunal is able to make positive findings on the evidence one way or the other. FINDINGS OF FACT

Background

[34]The claimant was originally employed by Smith & Nephew Extruded Films Limited (“Smith & Nephew”) on 4 January 1994 as a Cutinova Manufacturing Technician, based at Smith & Nephew’s Gilberdyke site. The site was involved in the manufacture of extruded film products. Smith & Nephew recognised Unite the Union at the Gilberdyke site.

[35]The claimant was eligible to participate in benefits including:35.1 life assurance; and

35.2 membership of Smith & Nephew’s Final Salary Pension Scheme (the “Final Salary Scheme”).

[36]The purpose of the Final Salary Scheme was to provide its members with a pension calculated on a proportion of each member’s salary. The Final Salary Scheme also contained ill health early retirement provisions.

[37]Smith & Nephew also operated a Stakeholder Pension Scheme (the “Stakeholder Scheme”). Employees who joined Smith & Nephew after 2002 could participate in the Stakeholder Scheme, but could not join the Final Salary Scheme. The Stakeholder Scheme was a far less valuable benefit than the Final Salary Scheme. Employees built up a ‘pot of money’ under the Stakeholder Scheme, consisting of employer and employee pension contributions. They may be able to either draw down monies from their pension or use those monies to buy an annuity when they retire. However, they will not benefit from a guaranteed annual pension under the Stakeholder Scheme. Income protection insurance

[38]Smith & Nephew’s corporate group had a group income protection insurance policy which covered some of its employees. The policy was insured by UNUM (a third party insurer).

[39]We considered an extract from the Smith & Nephew handbook regarding income protection cover which stated: “Income Protection Depending on your position within the Company and whether you are a member of the Stakeholder Pension Scheme, your income may be protected under the UNUM Provident Income Protection Scheme. This means that if you are unable to work due to illness or injury, Smith & Nephew have arranged that, after 26 weeks, 50% of your salary (less state benefits) will be paid to you, until you are able to return to work or retire…Further information is available from the UK Benefits Manager.”

[40]The claimant believed that he was covered by Smith & Nephew’s income protection insurance. However, we find that the claimant’s belief was mistaken. We find that the claimant was not covered by Smith & Nephew’s income protection insurance for the following key reasons:40.1 none of the versions of the claimant’s terms and conditions of employment stated that he was entitled to the benefit of any income protection insurance;

40.2 the schedule of employees (provided by Smith & Nephew to the respondent as part of their 2015 sale of the business to the respondent) included 25 Manufacturing Technicians amongst the staff listed. Six of the Manufacturing Technicians (including the claimant) were members of the Final Salary Scheme and were not entitled to income protection insurance. The remaining 19 Manufacturing Technicians were members of the Stakeholder Scheme. We have concluded that Manufacturing Technicians were only eligible to receive the benefit of income protection insurance if they were members of the Stakeholder Scheme;

40.3 we accept Mrs Davis’ evidence that some senior staff who were members of the Final Salary Scheme had also negotiated income protection cover as part of their remuneration and benefits package, including the Business Development Manager and the Product Development & Technical Manager. We note that those senior staff were also eligible for other benefits, such as private medical insurance; and

40.4 the claimant’s responses to cross-examination questions suggested that he did not understand the difference between income protection insurance and life assurance (to which he was entitled). He appeared to have regarded these benefits as one and the same. January 2015 - Transfer of the claimant’s employment to the respondent

[41]The respondent was in negotiations with Smith & Nephew to acquire Smith & Nephew’s extruded film business during 2014. Smith & Nephew and the respondent consulted with employees regarding the transfer of the business following their announcement on 18 November 2014 that the respondent would acquire the Gilberdyke factory and its assets. The employment of the majority of the staff at the Gilberdyke factory (including the claimant) were due to transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE Legislation”) to the respondent.

[42]Smith & Nephew and the respondent held one to one meetings with individual employees. Many of the employees were accompanied to these consultation meetings by their Unite union representatives. Catherine Davis met with the claimant on 11 December 2014 to discuss the transfer and the impact on the claimant’s employment.

[43]Smith & Nephew provided a schedule of transferring employees to the respondent. The schedule set out the employees’ key terms of employment and benefits. The transfer took place with effect from 1 January 2015.

[44]The claimant received a letter headed “Your first week with Delstar” from the respondent dated 23 December 2014. This was a generic letter to employees and it stated that benefits would be ‘transferred smoothly’, including life assurance, Unum (permanent health) and car insurance. It stated that employees would receive an individual ‘welcome letter’ on 5 January 2015, which would confirm employees’ main terms and conditions of employment.

[45]The claimant’s individual welcome letter confirmed that he would remain on his existing terms and conditions of employment, but that his new employer was the respondent with effect from 1 January 2015. The last part of the letter contained a short summary of the claimant’s terms. There was a row headed ‘Other’ which was blank for the claimant. We accept Mrs Davis’ evidence that this row was intended to refer to employees’ benefits, such as medical insurance.

[46]The respondent did make changes to the claimant’s pension arrangements. The respondent did not operate a final salary pension scheme. Instead, the claimant and all other transferring employees who were previously members of the Final Salary Scheme were included in the respondent’s defined contribution pension scheme with enhanced pension contributions (as set out in the table below). Respondent’s maximum Respondent’s maximum contributions (standard rate) contributions (ex-Smith & Nephew Final Salary Scheme members) Employer pension 7% 13.5% contribution rate Employee pension 3% 3% contribution rate February 2016 - Respondent’s introduction of income protection insurance cover for all employees

[47]The respondent’s senior directors discussed the possibility of providing the Unum income protection insurance cover (the “Unum Scheme”) to all employees of the respondent towards the end of 2015. The directors agreed that this benefit would be provided to all employees from 1 February 2016.

[48]Mrs Davis contacted Finch (the respondent’s employee benefits broker) and provided employee schedules to Finch, setting out three groups of employees for administrative purposes:48.1 Group 1 – former Smith & Nephew employees who transferred to the respondent with Unum income protection insurance cover;

48.2 Group 2 – two employees who worked for SWM’s European operations, but lived in the UK; and

48.3 Group 3 – all remaining employees of the respondent (including the claimant).

[49]Mrs Davis held a staff meeting on 18 January 2016 to discuss the extension of the Unum Scheme to all employees. The claimant attended but stated that he did not recall the contents of that meeting because he thought he was already covered by that benefit.

[50]With effect from 1 February 2016, employees were covered by the Unum Scheme set out in the table below, subject to meeting the terms of the scheme. Group 1 Group 2 Group 3 (including the claimant) Insured earnings* 50% 50% 50% Employer pension 13.5% 7% 7% contribution Employee pension 3% 3% 3% contribution *calculated by reference to an employee’s basic annual salary day on the day prior to incapacity

[51]The key terms of the Unum Scheme included:51.1 Unum would pay these benefits to the respondent (who would then make the appropriate payments to the employee and the pension scheme);

51.2 benefits were subject to employees meeting the relevant definition of ‘incapacity’, which would require satisfactory medical evidence; and

51.3 there was a 6 month deferred period beginning on the date of the employee’s incapacity before the respondent could receive benefits under the Scheme in respect of a particular employee.

[52]There were no restrictions as to the date on which an application under the Unum Scheme could be made. There was nothing in the Unum Scheme terms to prevent the respondent from applying for income protection benefit on behalf of an employee either:52.1 whilst the employee was in receipt of company sick pay; and/or

52.2 before the end of the 6 month deferred period (provided that the employee’s absence was likely to continue beyond the end of the deferred period).

[53]The definition of ‘incapacity’ under the Unum Scheme which was later considered in relation to the claimant was as follows: “Definition A (i) If a member is not required by the terms governing the employment relationship to hold a licence or certificate which is issued only when the member meets required medical standards, the member is incapacitated if Unum is satisfied that the member is – (a) unable by reason of their illness or injury to perform the material and substantial duties of the insured occupation, and is (b) not performing any occupation, except as provided under paragraph 5.3 (Proportionate benefit)…”

[54]The definition of “Proportionate benefit” was as follows: “Benefit may be paid in respect of a member who, although incapacitated, is working in their normal occupation on a reduced basis, or working in a different and less well paid occupation”. Claimant’s ill health and sick pay

[55]The claimant experienced serious difficulties with his health from late 2016 onwards and was absent on sick leave. He was told that he had a pulmonary embolism and was later diagnosed with kidney disease. The claimant returned to work for a short period in late January 2017, but was absent from work from 8 February 2017 when he suffered a ‘mini stroke’. The claimant then suffered what he described as a ‘life changing stroke’ in late March 2017. The claimant did not return to work and remains absent on sick leave.

[56]The claimant’s prognosis following his stroke in March 2017 was unclear. The claimant needed time to recover from his stroke. In addition, the claimant’s six month treatment plan for his kidney disease was postponed due to his stroke.

[57]Mrs Davis emailed Paul Ainsley (whose position at that time was Plant Manager) on 5 May 2017, stating: “I called Andy yesterday. He had a very pronounced stutter and reports being mentally tired very easily… Andy also reports medical professionals are telling him his kidneys have stabilised but he does need the treatment. He has to now wait a month before he can commence the chemo he was supposed to start when he had his stroke. In all, Andy remains extremely poorly and there is absolutely no way we will see him any time soon. He still has a lot of company sick pay to run due to his long service but I’m expecting to put in a UNUM application for him when it runs out later this year.”

[58]The claimant was entitled to 43 weeks’ contractual company sick pay, which ended on 8 October 2017. During this period, the respondent paid to the claimant (or paid pension contributions on his behalf):58.1 his normal salary;

58.2 his full employer pension contribution of 13%;

58.3 his full employee pension contribution of 3%.

[59]The respondent then paid the claimant discretionary sick pay from 8 October 2017, consisting of:59.1 50% of his normal salary;

59.2 half of his employer pension contribution – i.e. 6.75%; and

59.3 half of his employee pension contribution – i.e. 1.5 %.

[60]We accept Mrs Davis’ evidence that the respondent intended that the claimant’s discretionary sick pay would continue until their application to Unum for income protection benefit for the claimant had been dealt with. Her letter to the claimant of 17 November 2017 mentioned their discussions regarding his sick pay and stated: “Your CSP entitlement gave you full pay up to end of week 40 (8/10/2017) and since that date for the time being we are giving you 50% pay on a discretionary basis. The next review of that will be on review of your future capacity for work and/or the outcome of the UNUM application that we will make for you following your appointment with Occupational Health.” Occupational health report

[61]Mrs Davis telephoned the claimant and spoke with him and his wife on 7 November 2017 to discuss his current status. At that time, the claimant’s contractual sick pay had expired and she intended to apply on his behalf to the Unum Scheme for income protection benefit as soon as possible. Mrs Davis told the claimant that she would need assistance from Ian Watkinson (occupational health physician) to prepare the application.

[62]Mrs Davis attempted to arrange for Mr Watkinson to visit the claimant at home in order to prepare an occupational health report. She wrote to the claimant on 17 November 2017, offering dates for this visit. Mrs Davis also prepared the referral form on 23 November 2017. Her final comments on the referral form stated: “Andy’s wife Lisa has been a great support to us and Andy in assisting with liaison with us as his employer and we now feel that a formal report on Andy’s current and future capacity for work would be useful. Also, Andy has run out of company sick pay but we have a permanent health insurance policy (UNUM) and need to apply for this for Andy, who may need assistance to provide information on his condition to the provide[r] so we would like to ask for your support in this if you can please Ian”.

[63]Mr Watkinson visited the claimant on 7 December 2017 and prepared his report. The report included the following comments in answer to Mrs Davis’ questions: “In my opinion, Mr Booth is unfit for work and he will not be fit in the foreseeable future. There appears to be no information available regarding the prognosis for Mr Booth’s kidney condition. He has long term impairment of his vision and short term memory. These have not improved to date….I expect that his visual and short term memory impairments will not fully resolve, although they could possibly improve to some degree over the longer term… …At any time a return to work becomes feasible Mr Booth will require a temporary period of reduced hours and/or duties. I advise that he is re-referred to occupational health at that stage. I believe that it is unlikely that Mr Booth will provide his employer with a reliable and efficient service in the long term. In my opinion, a tribunal would be likely to qualify Mr Booth as disabled within the terms of the Equality Act 2010. In my opinion, there are no available adjustments, adaptations or restrictions that are likely to make a return to work feasible at this stage. In my opinion, it is likely that Mr Booth would be unfit to sustain any role at this stage and early retirement through ill health would be the best option at this stage.”

[64]Mr Watkinson also noted that: “Mr Booth is also concerned regarding the effect of his inability to work upon his finances.”

[65]Mrs Davis called the claimant’s home number, spoke to Mrs Booth and asked how the respondent should provide a copy of the report and the claimant’s Christmas present. They agreed that Mrs Davis and James Fox (the new Plant Manager, following Mr Ainsley’s promotion to Plant Director), would visit the claimant on 21 December 2017. The visit took place, but there was no discussion regarding the occupational health report because the claimant needed time to read it and consider its contents.

[66]Throughout this period, the claimant believed that Mrs Davis would take steps to apply to the Unum Scheme for income protection on his behalf. Meeting to discuss occupational health report

[67]Mrs Davis called the claimant to arrange a meeting on 30 January 2018 to discuss the occupational health report with him and with Mr Fox. She spoke to the claimant and his wife. Mrs Booth was invited to attend the meeting, but decided not to attend because Mick Millar (Unite representative at the Gilberdyke site) was able to attend the meeting.

[68]Mrs Davis’ letter of 25 January 2018 to the claimant inviting him to the meeting at the Gilberdyke site was headed ‘Re: Occupational Health Referral’ and stated: “As arranged we now need to invite you in to discuss the medical report and your future capacity for work. Please be aware that your future employment with us will be discussed in this meeting.” Mrs Davis’ preparations for the meeting

[69]We accept Mrs Davis’ evidence that she intended to discuss the occupational health report with the claimant. She wanted to obtain his feedback on Mr Watkinson’s conclusions regarding the claimant’s prognosis.

[70]Mrs Davis also wanted to discuss what might happen next with the claimant. She stated in evidence that she believed that the claimant was not eligible to receive income protection benefit under the Unum Scheme at that time.

[71]We accept Mrs Davis’ evidence that she mistakenly believed that the purpose of the Unum Scheme was to provide a means for the respondent to keep paying the employees sick pay, pending an employee’s return to work. She later stated in her email dated 21 March 2018 to Malcolm Hancock (Regional Organiser for Unite) that: “…it is important to point out what the policy is and what it isn’t. This is not a longterm disability policy covering our employees as insured parties…Instead it is a policy that covers SWM (not the employee) and pays SWM in order to allow us to continue to pay a partial salary to employees after the typical Company Sick pay would run out… Accordingly, we have made use of the policy from time to time as to employees who have an expectation to return to work. However, we have not used it for employees who may be classed as permanently disabled and have no expectation or ability to return to work. It is not reasonable to expect the company to hold open his job for an employee for a guaranteed indefinite period of potentially numerous future years of incapacity. Under the circumstances, it is not appropriate to engage this policy until Andrew returns to work because, if his medical report, is accurate, he will not be able to return to work at any time in any capacity. This is why we have not done so.”

[72]We also note Mrs Davis’ evidence that:72.1 she had limited experience of permanent health insurance or income protection policies, despite her 20 years’ experience in HR;

72.2 she had not seen a copy of the Unum Scheme terms; and

72.3 she did not speak to Unum or to Finch (the respondent’s brokers) regarding the claimant’s eligibility for income protection benefit.

[73]Mrs Davis believed that the respondent may need to consider terminating his employment because of her mistaken belief that he was not eligible for income protection benefit under the Unum Scheme.

[74]Mrs Davis emailed Mr Millar (copied to Mr Fox) on 25 January 2018 regarding the meeting on 30 January and stated: “We are concerned about [the claimant’s] future capacity for work and will need to discuss his employment with us. Depending on how the meeting goes we may need to adjourn and may even make a decision to terminate his employment on grounds of capability (incapacity).” However, Mr Millar did not tell the claimant and Mrs Booth about his email at that time.

[75]Before the meeting with the claimant, Mrs Davis had obtained Mr Ainsley’s authorisation (as Plant Director) for a potential termination and settlement of the claimant’s employment with an ex gratia payment. Mrs Davis prepared a brief document for Mr Fox which set out two scenarios and sets of financial figures in case this matter was raised during the meeting:75.1 “Dismissal on grounds of capability…Right of Appeal to Paul Ainsley” - £10,952.69 (less deductions); and

75.2 “Suggest settlement” - £22,016.58 “but only on settlement agreement”. Meetings on 30 January and 5 February 2018

[76]The meeting took place on 30 January 2018. It was adjourned and continued on 5 February 2018. None of the witnesses could provide written notes of the meeting and there was some confusion as to which parts of the discussion took place on which date.

[77]We find that the key points discussed on 30 January 2018 related to the occupational health report prepared by Mr Watkinson in December 2017. The claimant said that he did not accept Mr Watkinson’s opinion that the claimant would not be able to work again although he had been given similar advice from his doctors. The claimant became upset and Mrs Davis decided to adjourn the meeting to 5 February 2018.

[78]There was no discussion regarding the Unum Scheme or any potential termination of the claimant’s employment at the meeting on 30 January 2018. We accept the claimant’s evidence that the meeting ended amicably.

[79]Mrs Davis did not send any further invitation letter to the claimant for the adjourned meeting on 5 February 2018. Mr Millar attended this meeting with the claimant. Mrs Booth was unable to attend this meeting because of work commitments. We accept Mr and Mrs Booth’s evidence that they believed that the purpose of the meeting on 5 February 2018 was to discuss the occupational health report and not to discuss terminating his employment.

[80]Mrs Davis told the claimant at the meeting on 5th February that the Unum Scheme ‘was not going to be an option after all’. The reason she said this was because Mrs Davis and Mr Fox had considered the occupation health report and the claimant’s comments on this. They had concluded that the claimant was unlikely to be able to return to work and that the respondent could not apply for income protection benefit.

[81]Mr Fox and Mrs Davis discussed the possibility of reaching a settlement with the claimant and discussed the figures prepared by Mrs Davis. They said that the claimant would have seven days to accept the settlement offer. The claimant asked what would happen if he did not accept the settlement. Mr Fox and Mrs Davis said that there might be a capability process, which could result in the termination of the claimant’s employment, but that he would have seven days to appeal against any termination.

[82]The claimant asked to see the piece of paper with the figures. Mr Fox and Mrs Davis left the room so that the claimant and Mr Millar could discuss the settlement figures. We accept the claimant’s evidence that at this point his brain ‘shut down’ and that he walked out of the room. Mr Millar went to tell Mrs Davis and Mr Fox that the claimant had left. Mr Millar asked Mrs Davis if he should go after the claimant and Mrs Davis said that he should. Mr Millar then drove the claimant home but the claimant was unable to recall any discussions with Mr Millar. When Mrs Booth returned home, the claimant told her that ‘they were dismissing me’.

[83]We accept the claimant’s evidence that he experienced uncertainty and anxiety because of the discussions on 5 February 2018. The claimant was understandably worried about his financial position because he had a family to support and a mortgage to pay. The claimant was also concerned about the impact of the financial worries on his health because he had been told that worrying about things could lead to further damage whilst he was recovering from his stroke. ‘Appeal’ letter – 12 Feb 2018

[84]The claimant believed he had been dismissed at the meeting on 5 February 2018. Mrs Booth accepted in her oral evidence that the respondent did not dismiss the claimant on 5 February 2018. However, she wrote a letter to Mr Ainsley which purported to appeal against the claimant’s dismissal on the claimant’s behalf because he was unable to use a computer at that time.

[85]We find that the respondent did not in fact dismiss the claimant at the meeting on 5 February 2018. The respondent continued to pay the claimant discretionary sick pay and did not issue any written termination of employment.

[86]Mrs Davis wrote to the claimant on 14 February 2018, inviting him to an ‘Issues Resolution’ meeting. She did not state in her letter that the claimant remained employed by the respondent and had not been dismissed. Mrs Davis said that this was because she thought it would be better to deal with any questions at a meeting, rather than by letter.

[87]In the meantime, the claimant sought further assistance from Unite. Malcolm Hancock (Unite Regional Organiser) became involved. He emailed Mrs Davis on 15 February 2018 and stated that: “I am not really sure why Andy’s wife Lisa sent the email to Paul Ainsley appealing against the dismissal because I have had a conversation with Andy to point out that a dismissal has not taken place at this point in time and that he does not need to worry about appealing within seven days until such a time as written confirmation of the dismissal is received from the Company…For whatever reason they have somewhat jumped the gun here. I will once again clarify the point with them.”

[88]Mr Ainsley emailed Mrs Booth later on 15 February 2018, stating: “The reality however is, as indicated by medical professionals, that he will not be able to fulfil the role he is employed to do, and we don’t have any suitable alternatives. We have offered a settlement over and above statutory requirements in recognition of Andy’s situation, but this is conditional on a mutual agreement between both parties.” Meeting on 12 March 2018

[89]The Issues Resolution meeting was rearranged from 21 February 2018 to 12 March 2018, so that Malcolm Hancock (Regional Organiser) could attend. The invitation letter stated that: “we…hope we can help to increase your understanding and resolve some of your and Lisa’s concerns”.

[90]The meeting took place at the Gilberdyke site. Mr and Mrs Booth, Mr Hancock, Mr Fox and Mrs Davis attended. No notes were taken of this meeting.

[91]We accept Mrs Davis’ evidence that the previous meetings that she had attended with Mr and Mrs Booth were amicable and constructive. However, this meeting was quite different. We find that:91.1 Mr and Mrs Booth were very upset before the meeting started because of the previous discussions regarding Mrs Davis’ belief that the claimant would not be covered by the Unum Scheme and the potential termination of Mr Booth’s employment; and

91.2 Mr Fox and Mrs Davis were also aware that this would be a difficult meeting, because Mr Booth walked out of the meeting on 5 February 2018 and because of the subsequent correspondence.

[92]Mrs Davis talked about occupational health report. She said ‘it must have been difficult to hear’ that the claimant may not be able to return to work. All of the witnesses accepted that there was confusion on Mrs Booth’s part and that she believed that Mrs Davis was referring to Mr Booth’s physical hearing. We find that Mrs Booth responded angrily to this, stating that there was nothing wrong with Mr Booth’s hearing. However, we find that Mrs Booth did not swear, as alleged by Mrs Davis. Mrs Davis’ own evidence was that she thought that Mrs Booth either stated that there was nothing wrong with Mr Booth’s ‘bloody hearing’ or ‘fucking hearing’. We find that there is a significant difference between those two expressions and that if either had been used, then Mrs Davis would have had a clearer recollection of the words used.

[93]We accept Mrs Davis’ evidence that she was concerned by Mrs Booth’s behaviour but that she felt she was able to manage it. The meeting continued and there were detailed discussions regarding the Unum Scheme, as referred to in Mr Hancock’s follow up email to Mrs Davis of 15 March 2018.

[94]A further ‘Issues Resolution’ meeting was scheduled for 18 April 2018 with Mrs Davis and Mr Fox, however this did not proceed because the claimant raised a grievance on 16 April 2018. The respondent invited Mrs Booth to attend this meeting, as well as Mr Hancock. Mr Hancock’s correspondence with Mrs Davis regarding the Unum Scheme

[95]Mrs Davis obtained a copy of the Unum Scheme policy after the meeting on 12 March 2018 and sent a copy to Mr Hancock. Mr Hancock emailed Mrs Davis on 15 March 2018, asking her to clarify several points relating to the Unum Scheme.

[96]Mrs Davis initially repeated her view that the claimant was not eligible to receive any benefit under the Unum Scheme in her email of 21 March 2018 (as set out above). However, she then sought legal advice from the respondent’s internal legal team and realised that she had made a mistake.

[97]Mrs Davis was unable to recall when she told Mr Hancock of her mistake. She did not communicate her mistake directly to the claimant because communications between Mrs Davis and Mr and Mrs Booth had deteriorated. We find that Mrs Davis did not tell Mr Hancock of her mistake until after she saw a copy of the claimant’s grievance letter on 16th April 2018 because:97.1 we find it highly likely that Mr Hancock would have informed the claimant promptly of Mrs Davis’ change of view regarding his eligibility for cover under the Unum Scheme;

97.2 the claimant’s grievance letter did not mention Mrs Davis changing her mind regarding the Unum Scheme application; and

97.3 there was no further correspondence between Mrs Davis and the claimant regarding the Unum Application until Mrs Davis wrote to the claimant on 9 May 2018, enclosing the application form and asking for his consent to make the application.

[98]There was a short delay whilst the claimant obtained his medical records and completed the application form. Mrs Booth assisted the claimant to fill in the form and the claimant signed it on 4 June 2018. Unfortunately, Unum initially requested the claimant’s medical records from 2018 (rather than 2016). This led to a further delay, before the correct medical records were provided.

[99]Unum made an award under the Unum Scheme relating to the claimant, as set out in their letter to Finch (the respondent’s employee benefits broker) of 14 September 2018. The letter stated that the claimant’s award would be backdated to 7 August 2017 (i.e. the end of the six month deferred period). The letter stated that the respondent would receive the following payments going forwards in respect of the claimant’s income protection benefit:99.1 50% of salary;

99.2 7% of salary (in relation to employer’s pension contributions); and

99.3 3% of salary (in relation to employee’s pension contributions). Claimant’s grievance and hearing on 9 August 2019

[100]The claimant raised a grievance in a document dated 16 April 2018. The claimant’s grievance was wide-ranging and included:100.1 several matters which took place before his sickness absence, such as abusive Facebook posts from colleagues, complaints regarding working practice and health and safety issues; and

100.2 matters relating to the respondent’s then refusal to apply for income protection benefit for him under the Unum scheme and the respondent’s handling of the meetings on 30 January and 5 February 2018.

[101]The respondent arranged for a grievance hearing to take place on 9 August 2018 with Mr Fox. Mrs Davis did not attend this meeting at the claimant’s request. Lesley McGovern (Senior Administrator) attended to take notes of the meeting.

[102]The respondent’s grievance policy stated: “It is acknowledged that there is the right to accompaniment at Hearings and Appeal”. The policy did not provide any further details as to the categories of individuals permitted to accompany employees to grievance or grievance appeal meetings.

[103]The invitation letter from Mr Fox to the claimant stated: “You are entitled to bring along a Trade Union Representative or work colleague to accompany you in the meeting. As your chosen representative is Malcolm Hancock Unite Area Official, we have liaised with his office in order to identify a suitable date.”

[104]The claimant replied to this letter. He stated that he would attend with Mr Hancock, Mrs Booth and Mr Wharham (a work colleague). The claimant said that he did not want Ms McGovern to attend because he believed that she had a conflict of interest.

[105]Mr Fox responded, stating that Ms McGovern had no conflict of interest. He stated: “As per my invite letter, you are entitled to one rep to this meeting and this must be either a Trade Union Representative or a work colleague…Your wife Lisa is welcome to sit in our reception area whilst she waits for you until the meeting has finished”

[106]The claimant emailed Mr Hancock and said that “my condition in relation to my disability of short term memory loss and often loosing the thread of a conversation. My wife was with good reason and entitled to be there as previous meetings.” He did not write again to Mr Fox before the meeting.

[107]Neither Mr Fox nor Mr Hancock gave evidence during the hearing of this claim. We are unable to establish whether this issue was discussed before the hearing. However, neither Mr Hancock nor the claimant asked during the grievance hearing to adjourn it on the basis that Mrs Booth was not permitted to attend.

[108]We accept Mrs Davis’ evidence that the respondent’s normal practice is to permit family members to attend meetings unless they are likely to be disruptive. Mrs Davis’ witness statement said that Mr Fox did not want Mrs Booth to attend the grievance hearing because he was concerned regarding her behaviour at the meeting on 12 March 2018, although she confirmed in her oral evidence that Mr Fox did not consult with her regarding the issue of Mrs Booth’s attendance at the hearing before the hearing took place.

[109]We do not accept Mrs Davis’ evidence that the claimant’s father would have been permitted to attend the grievance hearing if the claimant had requested. Mr Fox’s letters do not suggest that the claimant could bring another family member or friend. They state that the claimant may only bring one representative.

[110]We accept the claimant’s evidence that Mrs Booth had helped him to prepare the grievance, that she had given him a file of documents and that he struggled to find the relevant papers without her. We accept the claimant’s evidence that he had not met with Mr Hancock before the grievance hearing and that Mr Hancock did not have as much knowledge of his grievance as Mrs Booth. Mrs Davis also agreed during cross examination that Mrs Booth would have been able to provide ‘emotional support’ to the claimant in a way that Mr Hancock could not.

[111]However, the claimant was unable to provide specific examples of the documents which he would have referred to or any further evidence that he would have been able to provide during the grievance hearing if Mrs Booth had attended during his oral evidence. The three sets of notes of the grievance (taken by Mr Fox, Ms McGovern and Mr Hancock) were very detailed and suggested that the claimant’s concerns had been discussed in detail.

[112]Mr Fox carried out further investigations into the claimant’s grievance and issued an outcome letter on 22 October 2018. The outcome letter dealt with all points raised by the claimant. It included an acceptance by Mr Fox that the respondent should have applied for income protection benefit for the claimant under the Unum Scheme at an earlier stage.

[113]The claimant later appealed against the grievance outcome. He also raised a second grievance regarding health and safety concerns. Mr Fox invited Mrs Booth to attend the second grievance hearing. The respondent also invited Mrs Booth to attend the appeal hearing. In the event, the claimant’s father attended both hearings.

[114]We do not need to make any further findings of fact regarding these matters because they do not form part of this claim. APPLICATION OF THE LAW TO THE FACTS

[115]We applied the law to our findings of facts as set out below. We have first dealt with the issue of disability status and then turned to the legal complaints made in relation to each of the factual complaints, i.e.:115.1 the respondent’s delay in applying to the Unum Scheme for income protection benefit on behalf of the claimant;

115.2 that the respondent ‘attempted to dismiss’ the claimant at the meeting on 5 February 2018;

115.3 the respondent’s refusal to permit Mrs Booth to attend the grievance hearing on 9 August 2018; and

115.4 the respondent’s payment of employer pension contributions at 7%, rather than 13.5%, on behalf of the claimant. DISABILITY STATUS When did the respondent acquire knowledge of the claimant’s disability?

[116]We have concluded that the respondent acquired knowledge of the claimant’s disability by early May 2017. Mrs Davis’ email of 5 May 2017 makes it clear that she was aware of the impact of the claimant’s stroke on his health and the fact that he was awaiting chemotherapy treatment for his kidney disease. The contents of that email demonstrate that the respondent was aware that the claimant had a physical impairment which had a substantial adverse effect on the claimant’s ability to carry out normal day to day activities.

[117]Mrs Davis’ email also states that she expects to apply to Unum for income protection benefit at the end of his 43 week company sick pay, on the basis he would not be capable to return to work at that point in time. This means that she was aware that the adverse effect of the claimant’s condition was long term (i.e. likely to last 12 months or more) as at early May 2017. A) RESPONDENT’S DELAY IN APPLYING FOR INCOME PROTECTION a. Did the respondent treat the claimant unfavourably by delaying the application for income protection?

[118]We found that the respondent could have applied for income protection benefit under the Unum Scheme on behalf of the claimant at any time from May 2017 onwards. The application could have been made after May 2017 because it was likely that his absence would continue beyond the six month deferred period (i.e. beyond 8 August 2017), although the respondent would not have received any payment for the claimant’s absence until after 8 August 2017.

[119]However, the unfavourable treatment that the claimant has complained of did not commence at the time that the application could have been made. The claimant complains of two difficulties that he faced due to the respondent’s delay:119.1 Anxiety and uncertainty – we found that up until the meeting on 5 February 2018, the claimant believed that the respondent intended to apply for income protection benefit under the Unum Scheme on his behalf. We found that the claimant did not experience uncertainty and anxiety caused by the respondent’s delay until Mrs Davis told him at the meeting on 5 February 2018 that she believed that he was not eligible for the benefit because the occupational health report stated that he was unlikely to be able to return to work. This anxiety and uncertainty continued up until the claimant was informed in late April or early May 2018 that Mrs Davis was mistaken and that the respondent would make the application on his behalf.

119.2 Financial disadvantage – the claimant’s financial disadvantage started on 8 October 2017 (when his contractual sick pay ended) and ended on 14 September 2018 when Unum awarded him backdated cover. Mrs Davis’ evidence was that the respondent paid employer pension contributions of 6.75% and employee pension contributions of 1.5% into the respondent’s pension scheme on behalf of the claimant during that period, rather than the 7% employer contribution and 3% employee pension contribution under the Unum scheme. that he was absent due to long term sickness was the reason why the respondent did not apply for income protection cover for the claimant until after 23 March 2018.

[120]We have considered the EAT’s decision in the Sheikholeslami case, referred to in the section on ‘Relevant Law’ above. We note that:120.1 the first issue is whether the respondent treated the claimant unfavourably because of an identified ‘something’ and that this involves an examination of the respondent’s state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found;

120.2 the second issue is whether that something arose in consequence of the claimant’s disability.

[121]In relation to the first issue, we have concluded that Mrs Davis’ delay in applying for income protection benefit under the Unum Scheme was due to her view that the scheme did not apply to employees on long term sickness absence who were unlikely to return to work. The key reasons for our decision are:121.1 Mrs Davis initially intended to make an application. She changed her mind after she received the occupational health advice that the claimant would not be fit for work for the ‘foreseeable future’ due to his medical conditions.

121.2 Mr Hancock later challenged Mrs Davis’ interpretation of the Unum Scheme rules. Mrs Davis’ email response to Mr Hancock of 21 March 2018 stated (with our underlining added for emphasis): “Accordingly we have made use of the policy from time to time as to employees who have an expectation to return to work. However, we have not used it for employees who may be classed as permanently disabled and have no expectation or ability to return to work.”

121.3 Mrs Davis sought legal advice after this email exchange and realised she had made a mistake. The claimant’s prognosis did not change materially throughout this period.

[123]We accept that making applications that would have a reasonable likelihood of being accepted may be ‘a legitimate aim’.

[124]However, we find that the respondent’s treatment of the claimant was not a proportionate means of achieving that aim. The reason for the respondent’s delay was Mrs Davis’ mistaken belief as to the terms of the Unum scheme. Mrs Davis admitted that she did not read the terms of the scheme and that she did not contact Unum and/or Finch regarding the terms until Mr Hancock challenged her on this in March 2018. In addition, the claimant received lower employer and employee pension contributions as part of his discretionary sick pay than he would have received under the Unum Scheme.

[125]The claimant’s complaint of discrimination arising from disability in relation to this factual complaint is upheld. Indirect discrimination (Equality Act 2010 section 19) a. Did the respondent operate the following PCP: not applying for income protection for those employees who were permanently ill (i.e. unlikely to return to work)?

[126]We concluded that the respondent did operate a PCP of not applying for income protection for employees who were permanently ill and unlikely to return to work. Until Mrs Davis realised her mistake in late March 2018, she would have applied the same PCP to any employee who was absent on sick leave and who may have met the definition of ‘incapacity’ under the Unum Scheme. b. If so, did the respondent apply this PCP to the claimant?

[127]The respondent did apply this PCP to the claimant. c. Did the respondent apply the PCP to non-disabled persons or would it have done so?

[128]The respondent was not considering any other applications for income protection at that time. However, it would have applied this PCP to non-disabled persons, albeit that it is difficult to envisage a non-disabled person in such circumstances. We note that any employee who was permanently ill (i.e. unlikely to return to work) and who was likely to meet the ‘incapacity’ criteria in the Unum Scheme was highly likely to be regarded as having a ‘disability’ for the purposes of s6 of the EQA. d. Did the PCP put disabled persons at a particular disadvantage when compared with non-disabled persons, in that the claimant contends that he experienced uncertainty and anxiety for several months because he did not have the benefit of income protection during that period?

[129]We have concluded that the PCP did put disabled persons at a particular disadvantage when compared with non-disabled persons. This is because disabled persons as a group were far more likely than non-disabled persons to be eligible to receive the benefit of income protection cover under the Unum Scheme. e. Did the PCP put the claimant at that disadvantage?

[130]The claimant was put at that disadvantage. He experienced uncertainty and anxiety because of the delayed application. He also received lower pension employee and employer contributions during that period. f. Was the PCP a proportionate means of achieving a legitimate aim?

[131]We have concluded that the PCP was not a proportionate means of achieving a legitimate aim for the reasons set out in relation to the discrimination arising from disability complaint.

[132]The claimant’s claim of indirect discrimination in relation to this factual complaint succeeds. B) ‘ATTEMPTING TO DISMISS’ THE CLAIMANT ON 5 FEBRUARY 2018 a. Did the respondent treat the claimant unfavourably by ‘attempting to dismiss’ the claimant at the meeting on 5 February 2018?

[133]We have concluded that the events at the meeting on 5 February 2018 amounted to unfavourable treatment. The claimant was told that he was not eligible to receive the benefit of the Unum Scheme and was offered a settlement package based on the termination of his employment. At the time of this meeting the claimant’s health was poor as set out in our findings of fact.

[135]We have concluded that the unfavourable treatment was not due to something arising in consequence of the claimant’s disability. Rather, it arose from Mrs Davis’ mistaken belief that the claimant was not eligible for income protection benefit under the Unum Scheme and that the respondent therefore needed to consider other options, such as a settlement.

[136]The claimant’s claim of discrimination arising from disability in relation to this factual complaint fails. C) RESPONDENT’S REFUSAL TO PERMIT MRS BOOTH TO ATTEND THE GRIEVANCE HEARING ON 9 AUGUST 2018 Failure to make reasonable adjustments (sections 20 and 21 Equality Act 2010) a. Did the respondent operate a provision, criterion or practice (“PCP”) of refusing to permit family members to accompany employees to meetings?

[137]We have concluded that the respondent did not operate a PCP of refusing to permit family members to accompany employees to meetings. The key reasons for our conclusion are that:137.1 the respondent’s grievance policy does not specify whether or not family members are permitted to accompany employees to meetings;

137.2 we accepted Mrs Davis’ evidence that the respondent’s normal policy is to permit family members to attend meetings, except where they may be disruptive;

137.3 the grievance hearing was the only hearing to which Mrs Booth was not invited (or permitted) to attend. She was invited to attend meetings in 2017 and in early 2018. We note that Mr Fox specifically invited Mrs Booth to attend the second grievance hearing and that the grievance appeal manager also specifically invited Mrs Booth to attend.

[138]The claimant’s complaint of failure to make reasonable adjustments in relation to this factual complaint fails. Indirect discrimination

[139]The claimant’s complaint of indirect discrimination in relation to this factual complaint also fails because we have concluded that the respondent did not operate a PCP of refusing to permit family members to accompany employees to meetings. claimant by not permitting him to be accompanied by a family member to the meetings on 9 August 2018?

[140]We have concluded that the respondent treated the claimant unfavourably by refusing his request to be accompanied by Mrs Booth at the meeting on 9 August 2018. The respondent did not suggest that another family member, such as the claimant’s father, could attend the meeting instead of Mrs Booth. The wording of Mr Fox’s correspondence makes it clear that he would only have permitted one representative to attend the meeting. the claimant brought a grievance which related to matters arising from his disability and under the respondent’s standard policy only co-workers and/or TU representatives were permitted to accompany employees at meetings.

[141]We found that part of the claimant’s grievance related to his disability. However, we have concluded the fact that the claimant raised a grievance was not something arising in consequence of his disability. We have also concluded that Mrs Booth’s behaviour at the meeting on 12 March 2018 was not something arising in consequence of the claimant’s disability.

[142]The claimant’s claim in relation to discrimination arising from disability in relation to this factual complaint fails. D) DIFFERENCE IN PENSION CONTRIBUTIONS claimant as follows: reducing the claimant’s employer pension contributions from 13.5% (when working full time) to 7% (whilst in receipt of income protection benefit under the Unum Scheme)?

[143]We have concluded that the payment of 7% employer pension contributions as part of the claimant’s income protection benefit under the Unum Scheme did not amount to unfavourable treatment for the following key reasons:143.1 we note that the Supreme Court in Williams confirmed that the decision to grant the claimant in that case ill health early retirement under the University’s pension scheme could not amount to ‘unfavourable treatment’. They concluded that there is nothing intrinsically unfavourable or disadvantageous about such a decision. Instead, the claimant’s complaint was about the level of payment that he received under the ill health early retirement pension under the University’s pension scheme rules;

143.2 similarly, the decision by Unum that the claimant met the definition of ‘incapacity’ under the Unum Scheme cannot amount to ‘unfavourable treatment’. The claimant’s real complaint here is about the amount of employer pension contribution that is paid into the pension scheme on his behalf under the Unum Scheme, rather than the award of the income protection benefit itself.

[144]We do not accept the respondent’s representative’s submissions that we should distinguish Williams in these circumstances. In particular:144.1 the fact that Williams concerns ill health early retirement and the claimant’s claim concerns income protection insurance benefit is not sufficient to distinguish Williams from the current case. Both cases involve a decision to award a benefit which the individual would not have received, if they had not met the threshold criteria under the scheme. In both cases, the complaints are about the amount of the payment paid to the individuals under the respective rules of the schemes. Also, both cases relate to long term benefits designed to protect employees against a complete loss of income, which could continue for the remainder of their working life;

144.2 the respondent’s representative is correct in pointing out that the fact that 7% of the employer pension contributions is underwritten by Unum is irrelevant. We agree that it was the respondent’s decision to seek insurance for 7% of employer pension contributions for Group 3 (into which the claimant fell), rather than insurance for 13.5% of employer pension contributions. However, in both this case and in Williams, decisions had to be made regarding the level of payment of any benefit awarded;

144.3 the respondent’s representative pointed to paragraph 28 of the Supreme Court’s judgment which stated that the only basis on which Mr Williams was entitled to ill health early retirement was by reason of his disabilities. However, the Court of Appeal’s judgment in Williams makes it clear that the criteria for ill health early retirement under the University’s pension scheme was in fact whether a member is ‘permanently incapable of carrying on his or her occupation’ – i.e. not disability per se under the EQA. It is possible (albeit highly unlikely) that an individual may not be able to work as a university lecturer, but still not meet the definition of disability under the EQA. Definition A(a) of the Unum Scheme contains similar wording: “the member is incapacitated if Unum is satisfied that the member is unable by reason of their illness or injury to perform the material and substantial duties of the insured occupation.” As the respondent’s representative correctly points out, the Unum Scheme’s definition of incapacity does not require ‘permanent’ incapacity. However, the number of non-disabled individuals who would meet that criteria after the 6 month deferred period who would not be viewed as disabled at that time that Unum evaluates their condition is likely to be very limited.

[145]The claimant’s claim in relation to discrimination arising from disability in relation to this factual complaint fails.

CONCLUSION

[146]We have concluded that the complaints of(i) discrimination arising from disability and

(ii) indirect discrimination made by the claimant in relation to the respondent’s delay in applying for income protection benefit under the Unum Scheme on his behalf succeed.

[147]We have concluded that all remaining complaints made by the claimant in relation to disability discrimination under the Equality Act 2010 fail and are dismissed.

CONCLUSION

[1]The claimant is awarded the sums set out below in relation to his complaints of(i) discrimination arising from disability and

(ii) indirect discrimination made by the claimant in relation to the respondent’s delay in applying for income protection benefit under the Unum Scheme on his behalf.

[2]The sums awarded are as follows:2.1 £4000 (inclusive of any interest) for injury to feelings;

2.2 £1327.50 in respect of the claimant’s financial losses; and

2.3 £167.30 in respect of interest on the claimant’s financial losses. NOTES

[3]The claimant requested a breakdown of the interest on his injury to feelings award. The Tribunal’s interest calculation was as follows: Injury to feelings award: £3250 Calculation dates: 5th February 2018 (i.e. the date on which the act of discrimination started) – 4th December 2020 (i.e. the date of the Remedies Hearing) Number of days: 1033 days Interest rate: 8% Interest calculation: £3250 x 0.08 x 1033/365 = (£3985.84 - £3250) = £735.84 Case Number: 1807548/2019A JUDGMENT having been sent to the parties on 4 December 2020 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided: EXTENDED REASONS Background and evidence

CONCLUSION

[1]The claimant brought complaints of disability discrimination which were considered at the liability hearing of this claim on 5-9 October 2020. The Tribunal’s reserved judgment from the liability hearing dated 19 October 2020 was sent to the parties on 26 October 2020 (the “Liability Judgment”). The Tribunal stated in the Liability Judgment that:1.1 the claimant’s complaints of

(i) discrimination arising from disability and

(ii) indirect discrimination made by the claimant in relation to the respondent’s delay in applying for income protection benefit under the Unum Scheme on his behalf succeeded (the “Unum Scheme Complaint”); and

1.2 all remaining complaints made by the claimant in relation to disability discrimination under the Equality Act 2010 failed and were dismissed.

[2]The Tribunal’s findings at this remedy stage must be read and viewed alongside its reasons set out in the Liability Judgment.

[3]The remedy hearing of this claim took place on 4 December 2020 with the parties and their representatives attending via CVP. We considered the following evidence during the hearing:3.1 the joint file of documents, additional documents and witness statements from the liability hearing;

3.2 a joint file of remedies documents; and

3.3 a remedy witness statement an oral evidence from the claimant.

[4]We also heard very helpful oral submissions from both parties’ representatives during the hearing. Remedy issues

[5]We discussed the claimant’s schedule of loss in detail with both parties at the start of the hearing. The parties’ representatives confirmed that they had reached agreement on the claimant’s financial loss arising out of the Unum Scheme Complaint for the sums of:5.1 £1327.50 in respect of the claimant’s financial losses; and

5.2 £167.30 in respect of interest on the claimant’s financial losses.

[6]As a result, the sole issue for the Tribunal to determine was the quantum of any nonfinancial loss suffered by the claimant because of the Unum Scheme Complaint.

Findings of fact

[7]These findings of fact are in addition to and should be read alongside the Tribunal’s findings of fact set out in the Liability Judgment.

[8]The relevant findings in the Liability Judgment can be summarised as follows:8.1 Ms Davis informed the claimant in late 2017 that the respondent intended to apply to Unum for income protection benefit for him. She said that the claimant would need an occupational health assessment, which was arranged for December 2017;

8.2 Ms Davis received the occupational health assessment in mid-December 2017. She wanted to discuss the contents of the assessment with the claimant once he had chance to consider its contents. At that point, Ms Davis mistakenly believed that the respondent could not apply for income protection benefit on behalf of the claimant unless the claimant was able to return to work at some point in future;

8.3 Ms Davis did not inform the claimant of her mistaken belief at that point in time. She did not tell the claimant that she believed that the respondent could not apply for income protection benefit on his behalf until she met with the claimant on 5 February 2018;

8.4 Starting with the meeting on 5 February 2018, the claimant suffered anxiety and uncertainty regarding his financial situation. The claimant raised a grievance in a document dated 16 April 2018 relating to the Unum Scheme Complaint and many other matters, which resulted in the postponement of the meeting between the respondent and the claimant arranged for 18 April 2018. The claimant received a letter Ms Davis dated 9th May 2018 which attached an Unum application form for the claimant to complete;

8.5 Ms Davis had realised her mistake following discussions with the claimant’s union representative and the respondent’s legal advisers in March 2018. However, she did not tell the claimant directly that she had made a mistake because communications had deteriorated between Ms Davis and the claimant after their meeting on 12 March 2018; and

8.6 There were further delays in processing the claimant’s application from 9 May 2018 onwards which were not within the respondent’s control. These included the completion of Unum’s application form, the provision of medical records to Unum and Unum’s review of the application. These delays may have happened regardless of the date on which the respondent applied for income protection benefit on behalf of the claimant.

[9]We note that the claimant had suffered from serious ill health since late 2016, as set out in the Liability Judgment. The respondent’s occupational health report dated 7 December 2017 provided details of the claimant’s condition including: “Mr Booth appeared quite frustrated during the assessment. He has been upset by some of the comments made by his GP and other doctors; particularly by the lack of a clear prognosis and statements that he will not work again. … In my opinion, Mr Booth is unfit for work and he will not be fit in the foreseeable future. There appears to be no information available regarding the prognosis for Mr Booth’s kidney condition. He has long term impairment of his vision and short term memory. These have not improved to date…I expect that his visual and short term memory impairments will not fully resolve, although they could possibly improve to some degree over the longer term...”

[10]We also accept that the claimant’s state of health was particularly poor as at February 2018. The claimant’s GP’s letter dated 27 February 2018 provided details of the claimant’s condition including: “Mr Booth has had a number of difficulties over the past year…His memory is very poor. He gets short term memory problems and can’t remember where he is…He has a certificate of visual impairment…His anxiety is bad, he worries a lot and can’t shake things off easily…”.

[11]Any individual in the claimant’s situation would have been concerned regarding their financial circumstances and their ability to support their family. However, we accept that the claimant was also concerned about the impact of his additional anxiety and uncertainty regarding the Unum Scheme Complaint on his ongoing recovery from his stroke.

[12]However, it is clear from the claimant’s witness statement and his oral evidence at the remedy hearing that the claimant’s evidence of his upset and distress goes beyond matters relating to the Unum Scheme Complaint. The claimant remains aggrieved about other matters, including issues regarding the handling of his grievance in 2018/2019 and his ongoing dispute regarding his pension contributions. For example:12.1 the claimant said in his oral evidence that he thought Ms Davis did understand the income protection policy and that she had deliberately not applied to Unum on his behalf, despite the Tribunal’s findings on this issue;

12.2 the claimant referred to his grievance in his witness statement and stated during oral evidence that his grievance hand not been dealt with properly.

Applicable law

[13]Awards of compensation in claims of discrimination are governed by section 124 of the Equality Act 2010 which gives to the Tribunal the same power to grant any remedy which could be granted in proceedings in tort before the civil courts.

[14]The purpose of an award for injury to feelings is to compensate the Claimant for injuries suffered as a result of the discriminatory treatment, not to punish the wrongdoer. In accordance with Ministry of Defence v Cannock

[1994] ICR 918

, the aim is to award a sum that, in so far as money can do so, puts the Claimant in the position he or she would have been had the discrimination not taken place. Compensation based on tortious principles aims to put the Claimant, so far as possible, into the position that he would have been in had the discrimination not occurred – essentially a “but for” test in causation when assessing damages flowing from discriminatory acts.

[15]The EAT held in Corus Hotels Plc v Woodward [2006] UK

EAT/0536/05

that an Employment Tribunal should not allow its feelings of indignation at the employer’s conduct to inflate the award made in favour of the Claimant. The EAT reiterated in Komeng v Creative Support Ltd that the Tribunal needs to consider the impact of the discriminatory behaviour on the individual affected, rather than the seriousness of the conduct of the respondent.

[16]The Tribunal was referred to the Vento guidelines (derived from Vento v Chief Constable of West Yorkshire

[2003] ICR 318

) and to the guidance given in that case where reference was made to three bands of awards. Sums within the top band should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory treatment. The middle band should be used for serious cases which did not merit an award in the highest band. Awards in the lower band are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. The decisive factor is the effect of the unlawful discrimination on the Claimant.

[17]The bands originally set out in Vento have increased in their value due to inflation and, a further uplift of 10% given to general damages pursuant to the case of Simmons v Castle

[2012] EWCA Civ 1039

. The Presidential Guidance stated that the lower and middle band for claims brought between 6 April 2019 and 5 April 2020 were as follows:17.1 Lower band: £900 - £8,000;

17.2 Middle band: £8,800 - £26,300; and

17.3 Higher band: £26,300-£44,000.

[18]The Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 sets out the Tribunal’s power to award interest for injury to feelings awards. Regulation 3(1) states that interest is to be calculated as simple interest which accrues from day to day. The current rate of interest is 8% and is to be calculated from the date of the act of discrimination complained of until the date on which the award is made (Regulation 6).

Conclusions

[19]The Tribunal applied the law to its findings of fact and reached the conclusions set out below.

[20]Whilst the Vento guidelines are of help in characterising the severity of the acts of discrimination, the Tribunal must assess the level of upset and distress caused to the claimant by the discrimination found. Assessing the level of appropriate compensation is a matter of careful judgment and estimation. The claimant was understandably distressed due to the serious ill health that he had suffered and continued to suffer from late 2016 onwards. He was also distressed because of several aspects of his treatment by the respondent, including treatment that the Tribunal found to be non-discriminatory.

[21]The claimant’s Counsel submitted that the claimant was seeking an injury to feelings award in the lower end of the middle band of Vento (in the region of £12,500). The respondent’s Counsel submitted that an appropriate award would be in the lower end of the lower band of Vento (in the region of £2000-£3000).

[22]On balance the Tribunal considers that any award ought to be assessed in the lower Vento band but at the lower end of that band. The key reasons for our conclusion include:22.1 We recognise that the claimant was upset and distressed but that the reasons for his distress were not solely related to the Unum Scheme Complaint. The causes of his distress included:22.1.1 the claimant’s serious ill health issues which had been ongoing since late 2016 and which understandably caused him significant ongoing concerns; and

22.1.2 other matters relating to his employment with the respondent that formed part of his disability discrimination claim, but which were not upheld by the Tribunal as acts of unlawful discrimination.

22.2 We have seen the medical evidence of the claimant’s condition referred to in our findings of fact. However, the medical evidence does not specifically refer to any exacerbation of the claimant’s existing medical conditions resulting from the Unum Scheme Complaint. The claimant’s doctor’s letter of 27 February 2018 refers to his difficulties ‘over the past year’ and largely mirrors the symptoms reported in the occupational health report of 7 December 2017.

[23]The Tribunal considers an award of £4,000 (inclusive of interest) to be a fair assessment of an amount which is aimed at compensating the Claimant rather than punishing the Respondent. This award reflects the significant degree of upset suffered by the claimant and also the Tribunal’s finding as to the actual act of discrimination which caused or contributed to it.

[24]The claimant’s Counsel asked the Tribunal to provide a breakdown of the calculation of the interest element of the injury to feelings award. The Tribunal’s interest calculation was as follows: Injury to feelings award: £3250 Calculation dates: 5th February 2018 (i.e. the date on which the act of discrimination started) – 4th December 2020 (i.e. the date of the Remedies Hearing) Number of days: 1033 days Interest rate: 8% Interest calculation: £3250 x 0.08 x 1033/365 = (£3985.84 - £3250) = £735.84

[25]However, as stated above, the amount of interest was included in the £4,000 injury to feelings award made to the claimant.

Background

[26]The respondent accepted that the claimant’s long term sickness absence was ‘something arising’ from his disability (see paragraph 122 of the Liability Judgment).

[27]The claimant’s remitted DAFD Complaints therefore succeed and are upheld.

[28]The parties agreed that the provision, criterion or practice had been applied to the claimant i.e.: not applying for income protection for those employees who were permanently ill (i.e. unlikely to return to work) (the “PCP”).

[29]The parties’ dispute relating to this complaint was limited to the pool for comparison. The claimant’s representative contended that the pool consisted of all of the respondent’s employees who were absent on long term sick leave, regardless of whether or not they were ‘permanently ill’. He stated that the reason for this contention was that all such respondent’s employees would be eligible to receive PHI benefits under the scheme if they met all of the other scheme criteria.

[30]The claimant’s representative stated that statistical evidence is not always required in this case. He stated that employees in the comparator group could include a range of individuals, such as:30.1 individuals who were not disabled for the purpose of the Equality Act 2010 (e.g. suffering from an orthopaedic injury but were likely to recover within a 12 month period);

30.2 individuals who were disabled but whose conditions may have periods of relapse and recovery (e.g. multiple sclerosis, chronic depression and anxiety).

[31]The respondent’s representative contended that the pool consisted of all of the respondent’s employees who had been were on long term sickness absence and who were ‘permanently ill’ and who did not have the claimant’s medical condition. She referred to paragraph 4.18 of the Code of Practice which states that:31.1 the pool consists of the group that the PCP would affect (either positively or negatively); and

31.2 excludes those who are not affected by the PCP.

[32]The respondent’s representative stated that anyone who was likely to return to work would not, therefore, be affected by the PCP and should be excluded from the pool for comparison. She submitted that the claimant was not place at a particular disadvantage because of the PCP – Mrs Davis would have treated any other employees who were permanently ill in the same manner.

[33]We note that it is settled law that the 'pool' of individuals upon whom the effect of the provision, criterion or practice is evaluated must be populated by persons whose circumstances are the same, or not materially different from the claimant. This is set out in section 23(1) of the Equality Act 2010 which states that on a comparison of cases s19 (indirect discrimination) there must be 'no material difference between the circumstances relating to each case'. (In relation to indirect discrimination this means that the comparison must be with those who (apart from the particular protected characteristic) are in circumstances that are the same or not materially different: see Pendleton v Derbyshire County Council

[2016] IRLR 580

, EAT.

[34]We do not accept that the claimant’s representative’s submission regarding the pool for comparison. It was a material circumstance of the claimant’s situation that he was on long term sick leave and was ‘permanently ill (i.e. unlikely to return to work)’. The comparison must therefore be made between those employees on long term sick leave who were ‘permanently ill (i.e. unlikely to return to work)’ and:34.1 who had the same medical conditions as the claimant (i.e. also suffered from the claimant’s disability); and

34.2 who did not have the same medical conditions as the claimant (whether they were disabled or not for the purposes of s6 of the Equality Act 2010).

[35]In any event, the claimant did not provide any statistical evidence regarding this pool. He provided a recent GP’s letter dated 18 July 2023 (the “2023 GP Letter”) and also relied on the medical evidence provided previously at the Liability and Remedies Hearings. We note that the 2023 GP Letter states: “There is no doubt that all of these conditions together would have had a significant impact on anybody in terms of employment. I don't know the ins and outs of his job and what he did day in and day out. Again I am not an occupational health doctor, but the significant co-morbidities he now suffers from I believe would significantly affect anybody.”

[36]However, the 2023 GP Letter does not provide any evidence regarding the impact of the PCP on the claimant or others who were permanently ill.

[37]The claimant’s remitted complaint of indirect disability discrimination therefore fails and is dismissed. Remedy for remitted complaints

[38]The respondent’s representative accepted that if the claimant’s remitted indirect disability discrimination complaint failed, but his remitted discrimination arising from disability complaint (relating to delay) succeeded, then the Tribunal’s injury to feelings award set out in the Remedy Judgment would stand.

[39]The question for the Tribunal is therefore what additional injury to feelings award (if any), should be made in relation to our decision to uphold the Dismissal Complaint.

[40]The claimant submitted the following additional evidence which we have taken into account when determining remedy:40.1 the 2023 GP Letter; and

40.2 the claimant’s photographs of his skin condition. He also relied on the witness statements and evidence provided at the Liability and Remedies Hearings.

[41]Both representatives agreed that the correct approach to awarding injury to feelings would be for the Tribunal to:41.1 consider what the total injury to feelings award would have been, if awarded at the time of the Remedies Hearing;

41.2 deduct the amount previously awarded in the Remedy Judgment and paid by the respondent; and

41.3 award interest on the balance of the injury to feelings award.

[42]The claimant’s representative submitted that the award should be at the top of the lower band of Vento (i.e. around £8000 based on the Vento bands in force at that time).

[43]The respondent’s representative submitted that the Tribunal’s previous award of £3250 plus interest was the correct award for both the Delay Complaint and the Dismissal Complaint because:43.1 the witness statement submitted by the claimant for the Remedies Hearing demonstrated that a large part of the overall upset that the claimant experienced was due to his perception of the handling of the grievance process and the lack of payment of the payment of his pension contributions at what he thought was the correct rate;

43.2 the claimant’s witness statement did not separate out the injury to feelings that he suffered under each of the Delay Complaint and the Dismissal Complaint because he experienced the same ‘turmoil’ under both heads of claim.

[44]We note the findings made in our Remedy Extended Reasons: “22. On balance the Tribunal considers that any award ought to be assessed in the lower Vento band but at the lower end of that band. The key reasons for our conclusion include:22.1 We recognise that the claimant was upset and distressed but that the reasons for his distress were not solely related to the Unum Scheme Complaint. The causes of his distress included:22.1.1 the claimant’s serious ill health issues which had been ongoing since late 2016 and which understandably caused him significant ongoing concerns; and

22.3 We found that the Unum Scheme Complaint related to a one-off act by the respondent, albeit one that had consequences that continued for around 3 months. We also found that the act resulted from Ms Davis’ mistaken belief regarding the claimant’s eligibility for income protection benefit under the Unum Scheme, rather than any deliberate action on the part of Ms Davis to prevent the respondent from applying for income benefit on behalf of the claimant. 23 The Tribunal considers an award of £4,000 (inclusive of interest) to be a fair assessment of an amount which is aimed at compensating the Claimant rather than punishing the Respondent. This award reflects the significant degree of upset suffered by the claimant and also the Tribunal’s finding as to the actual act of discrimination which caused or contributed to it.” 24 We have concluded that the claimant should be awarded £6000 for injury to feelings in total for the upheld discrimination arising from disability complaints (i.e. both the Delay and Dismissal Complaints). This amount is inclusive of the £3250 injury to feelings award already made in the Remedy Judgment. 25 In making this award, we have taken into account the relevant law summarised in the Remedy Extended Reasons. The key reasons for making the increased injury to feelings award are:

25.1 the 2023 GP Letter and the photographs of the claimant’s skin condition do not assist us because they do not provide any medical evidence in relation to the Dismissal Complaint specifically (as opposed to any other distress that the claimant suffered);

25.2 the claimant was given the opportunity at the Remittal preliminary hearing to request to submit an additional remedies statement and medical evidence and chose not to do so, despite being represented on a pro bono basis by Mr Croxford KC at that hearing;

25.3 however, we concluded that the respondent’s conduct complained of in the Dismissal Complaint did have a significant impact on the claimant’s injury to feelings, over and above that caused by the conduct in the Delay Complaint. In particular, in our Liability Judgment we concluded that:25.3.1 when the claimant attended the meetings on 30 January and 5 February 2018, the respondent had not informed him that:25.3.1.1 they no longer intended to apply to the Unum scheme for PHI benefit on the claimant’s behalf; nor

25.3.1.2 that one potential outcome of the meeting was the termination of the claimant’s employment. Although Mrs Davis had informed the claimant’s union representative that this was a possibility, neither the claimant nor Mrs Booth were aware of this (otherwise Mrs Booth would have attended the meetings). See paragraphs 74 to 79 of the Liability Judgment;

25.3.2 the discussions at the meeting caused the claimant’s brain to ‘shut down’ to the point that he was unable to recall the discussions at the meeting and believed that he was being dismissed, which led Mrs Booth to write a letter appealing against his dismissal to Mr Ainsley (paragraphs 81 to 88);

25.3.3 we also found at paragraph 83: “We accept the claimant’s evidence that he experienced uncertainty and anxiety because of the discussions on 5 February 2018. The claimant was understandably worried about his financial position because he had a family to support and a mortgage to pay. The claimant was also concerned about the impact of the financial worries on his health because he had been told that worrying about things could lead to further damage whilst he was recovering from his stroke.” 26 We previously awarded interest on the £3250 injury to feelings award made in the Remedy Judgment. The respondent has already paid the amount of £4000 set out in the Remedy Judgment. 27 The balance of the injury to feelings award is therefore £2750. The interest on the balance of that injury to feelings award is £1242, calculated as set out below: Balance of injury to feelings award: £2750 Employment Judge Deeley Employment Judge Deeley Dated: 16 October 2023

119.2 Financial disadvantage – the claimant’s financial disadvantage started on 8 October 2017 (when his contractual sick pay ended) and ended on 14 September 2018 when Unum awarded him backdated cover. Mrs Davis’ evidence was that the respondent paid employer pension contributions of 6.75% and employee pension contributions of 1.5% into the respondent’s pension scheme on behalf of the claimant during that period, rather than the 7% employer contribution and 3% employee pension contribution under the Unum scheme. b. If so, was such unfavourable treatment due to something arising in consequence of the claimant’s disability? The claimant relies on the following as the “something arising” in consequence of his disability: the fact that he was absent due to long term sickness was the reason why the respondent did not apply for income protection cover for the claimant until after 23 March 2018.

120.2 the second issue is whether that something arose in consequence of the claimant’s disability.

[122]Turning to the second issue, the respondent has already accepted that the claimant’s sickness absence was ‘something arising’ from his disability. This must be correct in light of the medical evidence provided at the time. c. If so, can the respondent show that treatment was a proportionate means of achieving a legitimate aim? The respondent will rely on the following aim: to only make applications that were understood to have a reasonable likelihood of being accepted (e.g. that an employee’s ill health would continue beyond the 26 week deferral period under the Unum policy or that otherwise met the policy requirements) and to make appropriate enquiries to establish this, to include receiving and responding to representations from the claimant’s union. The respondent states that the delay was proportionate to this aim because the respondent continued to pay the claimant any entitlement he would have received under the policy as discretionary sick pay. 123.We accept that making applications that would have a reasonable likelihood of being accepted may be ‘a legitimate aim’. 124.However, we find that the respondent’s treatment of the claimant was not a proportionate means of achieving that aim. The reason for the respondent’s delay was Mrs Davis’ mistaken belief as to the terms of the Unum scheme. Mrs Davis admitted that she did not read the terms of the scheme and that she did not contact Unum and/or Finch regarding the terms until Mr Hancock challenged her on this in March 2018. In addition, the claimant received lower employer and employee pension contributions as part of his discretionary sick pay than he would have received under the Unum Scheme.

[125]The claimant’s complaint of discrimination arising from disability in relation to this factual complaint is upheld. Dismissal Complaint 2. The Tribunal’s conclusions relating to the Dismissal Complaint were set out at paragraphs 133 to 136 of the Liability Judgment: Discrimination arising from disability (section 15 EQA) a. Did the respondent treat the claimant unfavourably by ‘attempting to dismiss’ the claimant at the meeting on 5 February 2018?

[134]We also found that the respondent discussed what might happen if the claimant refused the settlement (i.e. that his employment may be terminated after a capability process). The respondent did not forewarn the claimant that a settlement package or any potential capability process might be discussed during the meeting. b. If so, was such unfavourable treatment due to something arising in consequence of the claimant’s disability? The claimant relies on the following as the “something arising” in consequence of his disability: the fact that he was absent due to long term sickness was the reason why the respondent decided to consider terminating the claimant’s employment at the meeting on 5 February 2018.

[136]The claimant’s claim of discrimination arising from disability in relation to this factual complaint fails. 3. The ET’s conclusions relating to the Indirect Discrimination Complaint are set out at paragraphs 126 to 132 of the ET Judgment as follows: Indirect discrimination (Equality Act 2010 section 19)a. Did the respondent operate the following PCP: not applying for income protection for those employees who were permanently ill (i.e. unlikely to return to work)? 126 We concluded that the respondent did operate a PCP of not applying for income protection for employees who were permanently ill and unlikely to return to work. Until Mrs Davis realised her mistake in late March 2018, she would have applied the same PCP to any employee who was absent on sick leave and who may have met the definition of ‘incapacity’ under the Unum Scheme.

b. If so, did the respondent apply this PCP to the claimant? 127 The respondent did apply this PCP to the claimant.

c. Did the respondent apply the PCP to non-disabled persons or would it have done so? 128 The respondent was not considering any other applications for income protection at that time. However, it would have applied this PCP to non-disabled persons, albeit that it is difficult to envisage a non-disabled person in such circumstances. We note that any employee who was permanently ill (i.e. unlikely to return to work) and who was likely to meet the ‘incapacity’ criteria in the Unum Scheme was highly likely to be regarded as having a ‘disability’ for the purposes of s6 of the EQA.

d. Did the PCP put disabled persons at a particular disadvantage when compared with non-disabled persons, in that the claimant contends that he experienced uncertainty and anxiety for several months because he did not have the benefit of income protection during that period? 129 We have concluded that the PCP did put disabled persons at a particular disadvantage when compared with non-disabled persons. This is because disabled persons as a group were far more likely than non-disabled persons to be eligible to receive the benefit of income protection cover under the Unum Scheme.

e. Did the PCP put the claimant at that disadvantage? 130 The claimant was put at that disadvantage. He experienced uncertainty and anxiety because of the delayed application. He also received lower pension employee and employer contributions during that period.

f. Was the PCP a proportionate means of achieving a legitimate aim? 131 We have concluded that the PCP was not a proportionate means of achieving a legitimate aim for the reasons set out in relation to the discrimination arising from disability complaint. 132 The claimant’s claim of indirect discrimination in relation to this factual complaint succeeds. Annex 2 - extracts from Employment Appeal Tribunal’s judgment 1. Judge Keith’s conclusions on the remitted Delay and Dismissal Complaints are set out at paragraphs 28 to 33 of the EAT Judgment: “Conclusions – Appeal and Cross Appeal - Section 15 EqA 28. There are aspects of both representatives’ submissions with which I agree. I accept Mr Croxford's submission that part of the ET’s error flowed from its failure to consider the fuller set of guidance provided at para 31 of Pnaiser, rather than the briefer recitation of Sheikholeslami. Both Presidential decisions are, of course, correct, but Pnaiser explores in more detail the two aspects of causation, namely the ‘because of’ stage involving A’s explanation for the treatment (and conscious and unconscious reasons for it) and the ‘something arising in consequence’ stage, which requires consideration of whether, as a fact, the something was as a consequence of the disability. They may be answered in any order, but analysis of both is required. Pnaiser also discusses two other issues – the problem of multiple causes in the ‘because of’ analysis, and a chain of links in the ‘something arising’ analysis. 29. In its analysis of the dismissal claim, the ET referred at paragraph 135 to it having arisen from the manager’s mistaken belief about the terms of the Unum policy alone. I accept Mr Croxford’s challenge that there is no analysis of possible multiple causes. However, I also accept Ms Mellor’s submission that there is a second error, which might have been identified more clearly, had the Pnaiser guidance been adopted. This is that the ET was not consistent in how it defined the ‘something arising.’ A lack of consistency meant that both stages of the section 15 analysis were undermined. 30. In the List of Issues, the ‘something’ was defined at item 2(b)(i) “the fact that he was absent due to long term sickness.” This was for the delay and dismissal claims (items 2(b)(i)(a) and (b)). It did not refer to permanent incapacity. The ET reiterated this, at para b, after para 119, where it stated “The claimant relies on the following as “something arising”…the fact that he was absent due to long term sickness.” At paragraph 120, the ET found that the manager’s delay was due to her view that the Unum scheme did not apply “to employees who were on long term sickness absence who were unlikely to return to work….” The two are not necessarily inconsistent or mutually exclusive, but they are also not the same. The ET then returned to the original definition of ‘something’ at paragraph 122. In relation to the dismissal claim, at paragraph 134b, the ET referred to the claimant’s reliance on “the following as something arising in consequence of his disability: the fact that he was absent due to long-term sickness was the reason why the respondent decided to consider terminating the claimant's employment at the meeting on 5 February 2018.” In contrast to the delay claim, the ET did not refer to the manager’s belief that the Unum policy did not apply to those employees who were unlikely to return to work, in the dismissal claim. Instead, the ET referred to the belief that “the claimant was not eligible for income protection benefit under the Unum scheme,” and stopped there, without referring to the likelihood of return to work. The ET did not explain why the same belief caused one unfavourable treatment, but not another, and how the findings on permanent incapacity related to the ‘something’ relied on for the purposes of the delay claim. 31. In summary, the ET erred in focussing on a single cause (the manager’s belief at the ‘because of’ stage) when analysing the dismissal claim, while making findings in the delay claim which did not correspond to the ‘something’ relied on. These two errors, in combination, explain why the ET reached different decisions, which the representatives accepted could not both be correct. 32. I have considered whether it is appropriate to preserve either of the ET's conclusions. I conclude that it is not appropriate to do so. The issue of causation needs to be addressed with findings on the common, accepted ‘something arising’, namely the claimant’s absence due to long term sickness absence, not permanent incapacity, and the ET needs to consider whether there are multiple causes. This is not a case where the facts only lend themselves to one conclusion. It is appropriate that the ET should consider each of these two claims afresh. 33. The claimant's appeal and Delstar's cross-appeal in relation to the section 15 EqA delay and dismissal claims both succeed. The ET’s conclusions on both are not safe and cannot stand. I remit both issues to the ET to consider again, as the representatives have urged me to.” 2. Judge Keith’s conclusions on the remitted Indirect Discrimination Complaint are set out at paragraphs 36 to 39: Discussion and Conclusions (Section 19 EqA) 36. In contrast to section 15 claims, the PCP was stated as “not applying for income protection for those employees who were permanently ill, i.e. unlikely to 37. I accept Ms Mellor’s submission that while the ET asked itself about two comparator groups, disabled and non-disabled people, that was not a correct comparison, as it reflected the section 20 EqA test, not the section 19 test. It is worth returning to the relevant statutory provisions. Section 19 EqA states: “Section 19 Indirect discrimination

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

(3) The relevant protected characteristics are— …. Disability…” 38. Section 6(3) EqA states: “6 Disability (3)In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.” 39. The meaning of section 19, when read with section 6(3), is clear. There is a requirement of a PCP of potentially general application, not just to those sharing a claimant’s disability. The group of people, of which the claimant is a member, must have the same disability as the claimant. There needs to a comparison between that group and those who do not share that disability. The comparator group may include those without any disabilities, and those with disabilities which are not the same as the claimant’s. The comparison is not between people with disabilities and those without, which is a different requirement under the section 20 duty to make adjustments (where a PCP puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled). Both the claimant’s group and the comparator group may be hypothetical, because of the word, “would”, in subsections 2(a) and (b) of section 19. However, that does not avoid the need to analyse whether those in the claimant’s group would be put to a particular disadvantage (without falling into the trap of asking “why”, as it is often difficult to identify complex causes). While statistical evidence may not be available, the impact on one person, with the same disability, may not necessarily be the same as the impact on another. For example, it may be, depending on the evidence, that a proportion of those who share the claimant’s disability, a pulmonary embolism and kidney disease, would have still been viewed as likely to return to work, during the time period when the PCP was applied. While it is not a requirement that the PCP puts every member of the claimant’s group at a particular disadvantage, the ET had not asked that question, or gone on to consider whether those with the same disability would be viewed as more unlikely ever to return to work, when compared with those with different disabilities or no disabilities at all. That, ultimately, was the flaw in Mr Croxford’s reformulated PCP. It assumed that people with disabilities were more likely to be put to particular disadvantage than those without disabilities, without making a comparison between the two appropriate groups. As a consequence, the ET erred in its assessment of group disadvantage. It is no answer to point to a person who is not disabled, who had an absence lasting or likely to last more than 26 weeks (the deferral period under the Unum scheme) but less than twelve months, who would not be put to a particular disadvantage. While that person would be one member of the comparator group, it ignored other group members, including those with different disabilities, in comparison to those sharing the claimant’s disability. Contrary to Mr Croxford’s submissions, the ET’s analysis was not consistent with Ryan, because of the flaw in the ET’s analysis of group disadvantage. The ET will therefore need to revisit this analysis when assessing the section 19 EqA claim. I therefore also allow this part of Delstar’s cross-appeal against the ET’s decision on the section 19 claim. EMPLOYMENT TRIBUNALS Claimant: Mr A Booth Respondent: Delstar International, Limited Heard at: Leeds Employment Tribunal Before: Employment Judge Deeley, Ms Lancaster and Mr Taj On: 27 (in public) and 29 September (in chambers) 2023 Representation Claimant: Mr L Baynham (Pupil barrister) Respondent: Ms R Mellor (Counsel) 1. The claimant’s complaints of discrimination arising from disability (s15 Equality Act 2010) relating to:

1.1.1 the delay in applying for income protection for the claimant (paragraph 2(a)(i) of the List of Issues); and

1.1.2 the ‘attempt to dismiss’ the claimant at the meeting on 5 February 2018 (paragraph 2(a)(iii) of the List of Issues); and succeed and are upheld. 2. The claimant’s complaint of indirect disability discrimination (s19 Equality Act 2010) relating to the alleged PCP of “not applying for income protection for those employees who were permanently ill (i.e. unlikely to return to work)” (paragraph 5(a)(ii) of the List of Issues) fails and is dismissed. 3. The claimant is awarded an additional £2750 for injury to feelings plus interest of £1242, totalling £3992. This additional injury to feelings award has been calculated as follows: Additional injury to feelings award: £2750