Employment Judge HoptonRepresented himself for claimantDate 22 September 2025
JUDGMENT
[1]The complaint of unfavourable treatment because of something arising in consequence of disability is well-founded and succeeds.[2]The complaint of failure to make reasonable adjustments for disability is well-founded and succeeds.[3]The complaint of indirect disability discrimination is not well-founded and is dismissed.[4]A remedy hearing will be listed in due course.
REASONS
Findings of fact
[5]We spent the morning of the first day discussing preliminary matters. Hearing length[6]The hearing had originally been listed for four days but had been amended to 3 days to fit in with the tribunal's list. With the agreement of the parties I decided to hear evidence and submissions on liability only. Adjustments[7]The claimant explained that he didn't anticipate needing any particular adjustments, but he might need 20 to 30 minutes to recover if he became suddenly fatigued. Ms English did not require any adjustments and neither did the respondent witnesses. We took regular breaks throughout the hearing. Claimant’s applications[8]The claimant had sent three applications to the tribunal. Where necessary, I made decisions on these and gave full reasons at the hearing so only deal with them briefly here.[9]The first application concerned the accuracy of the bundle. The respondent’s bundle contained some errors and the claimant had prepared an alternative bundle. With Ms English’s agreement, we used the claimant’s bundle instead of the respondent’s bundle during the hearing.[10]The claimant initially had some concerns about Mr Simon's witness statement but withdrew his application for a witness order after we had discussed the issue.[11]The claimant also had an application for specific disclosure which I granted. However, during the hearing it became apparent that the respondent was unable to comply with the majority of the disclosure order as they no longer had access to the documents, and was only able to provide one additional document (the new document). As the claimant only had access to the new document after evidence had been concluded, I gave both parties the opportunity to give further evidence. However, the parties sensibly took the view they could deal with the matter in their submissions rather than recalling any witnesses. List of issues[12]The list of issues was as set out in Employment Judge Webster’s Case Management Order dated 28 February 2025.[13]To properly reflect the claimant’s claim, an additional point was added to the list of unfavourable treatment: at 2(iii) A reduced ability to attend site. The respondent had no objection to this addition.[14]In written submissions, the respondent had raised the issue of time limits. This was the first time the issue of time limits had been raised. It was not in the defence or in the list of issues and did not appear to have been brought up with any previous preliminary hearings. The respondent made an application to amend its defence that any acts or omissions that occurred before the 9th of August would be out of time.[15]I decided that although the Selkent factors had not been made out, as it was a jurisdictional point I felt obliged to include it as an issue on the basis that if the claim is out of time regardless of the respondent's position on that, the tribunal will not have jurisdiction to hear it. I therefore added this as an issue.
Law
[16]The parties agreed that the list of issues was otherwise correct. Documents and evidence heard[17]I had available to me the claimant’s bundle of 506 pages and some additional pages consisting of: the claimant’s exhibit SM1; 28 pages of additional disclosure numbered 507 – 534; and the new document which was an additional email from Erica Ammoscato to Peninsula attaching a job description. I had witness statements from the claimant, Erica Ammoscato (HR Administrator), James Barrie (HR Advisor) and Thomas Simon (Senior Manager). I heard evidence from all the witnesses. Ms English also provided written submissions. The respondent chose not to call Mr Kirsten, the Cummins account manager or Mr Rupani the claimant’s initial recruiting manager. I understand that they have left the respondent which is why they were not called. This meant they did not have the opportunity to provide their own evidence to the tribunal. Where necessary to do so, I have had to draw conclusions about their actions based on the other evidence before me.[18]I found all the witnesses to be honest and credible. I believe that they told me the truth as they remembered it. But it is possible to be honest and credible and mistaken or to misremember things, particularly with a gap of two years between the incident and the evidence and particularly when you are being asked to remember something in the context of a tribunal claim on one side or the other. Although there have been a number of occasions where I have concluded on the balance of probabilities that the facts were different to those explained by some of the witnesses, I did not find any of the witnesses to be deliberately dishonest.
Findings of Fact
[19]I have limited my findings of fact to those relevant to the issues in the case. This means that even where facts are disputed between the parties, I have not made findings unless they are relevant to the issues. Claimant’s initial recruitment[20]The claimant applied for a role with the respondent in March 2023. He was initially recruited on a “project hire” basis, which meant that he was recruited for a specific project. After two successful interviews he was invited to an interview with the client (Tenneco) of the project which had been identified for him. However, Tenneco decided that the claimant did not have quite the right skill set for the role and it did not approve him for the project.[21]During his interviews, the claimant was asked about whether he was able to relocate to Manchester and he confirmed he would be able to do that.[22]After the Tenneco project had fallen through, Mr Rupani then told the claimant that rather than being recruited on a project hire basis, he would instead be employed on a “direct hire” basis which meant that he was employed directly by Alten rather than for a specific project and would be allocated to projects as and when needed. Although there was no difference between project hire or direct hire employees after they had joined the company, a direct hire contract was a more beneficial route into the company compared to a project hire route because it did not require specific sign off from a client before an employment contract could be issued.[23]In order to be taken on as a direct hire, the hiring manager had to put together a business case to support the direct hire route rather than the project hire route. The business case for the claimant’s hire was not available to the tribunal. In response to a question, Mr Simon said that he did not think much of the business case for making the claimant a direct hire. Nevertheless, the process was that a business case had to be presented before a direct hire was permitted, so it must have been thought by some in the respondent that there was a high likelihood that the claimant would be easy to place in suitable roles.[24]On 1 August 2023 the claimant had a meeting about a project for a client called Cummins. This was a project that several respondent employees were already assigned to. The claimant was provided with a job description for the role. This specified a requirement to work on site “on average 1-2 days per week (negotiable). Occasional travel to the test sites will be necessary (10% of the time)”. The respondent believed the claimant would be a good fit with the role and a meeting with the client was set for 7 August 2023.[25]On 4 August 2023, the claimant requested an occupational health (OH) assessment. On 7 August 2023 the claimant disclosed to the respondent that he had the disability of multiple sclerosis (MS). He said in an email to Erica Ammoscato that “I have a disability called multiple sclerosis. It is an autoimmune disorder, and I receive immunosuppressive therapy for this. As a result, I am an at an increased risk of serious illness, ICU admission and mechanical ventilation if I contract COVID-19. It also means I have problems getting the COVID-19 vaccine. I would like to understand what adjustments could be made to accommodate me at Alten.” The respondent therefore knew about the claimant’s disability from that date.[26]Later that day, the claimant attended a meeting with Mr Rupani, Mr Kirsten and Ms Ammoscato to discuss his disability. Mr Kirsten said he would contact Cummins and check their requirements about location. Mr Rupani told the claimant that he was no longer being employed on a direct hire route but that he would return to being a project hire provided that he secured a project. He reiterated this by email on 16 August 2023, saying “after I was made aware of your health condition, the only option remains of you going back to a project hire, which means if we find a project which is suitable to your needs, then we move forward with bringing you in.”[27]The meeting that the claimant was due to attend on 7 August with Cummins was cancelled. There was some inconsistency between the respondent witnesses as to whether the meeting was cancelled by Cummins or by the respondent. As Mr Kirsten, the Cummins project manager was not a witness, none of the witnesses had direct knowledge of who had cancelled the meeting, and none were sure.[28]It seems more likely to me that the reason for the cancellation was the claimant’s disclosure of his disability and request for reasonable adjustments, and that the respondent cancelled the meeting because it did not want the claimant to meet the client, given the adjustments that he would require. The reason I think this is more likely, is that Mr Rupani’s immediate decision to change the claimant’s status from direct hire to project hire suggested that he did not believe the claimant would be able to do the Cummins role. If Mr Rupani had been prepared to discuss reasonable adjustments with Cummins, there would have been no reason to change the claimant’s recruitment status at that stage. The fact that his first reaction was to put the claimant on a less advantageous recruitment path, rather than to propose discussing the issue with Cummins in the forthcoming call, suggests that he had no intention of discussing the reasonable adjustments with them. The other aspects that make me think that the respondent cancelled the Cummins call are the timing of the cancellation (in that it was the same day as the claimant had disclosed his disability) and the fact that the claimant was not told at the time that Cummins had caused the cancellation.[29]On 8 August the respondent asked the claimant for a medical report and he sent to Ms Ammoscato a letter dated 2 December 2020 from his Consultant Neurologist which was the most recent report he had even though it was written over two years previously.[30]On 14 August, the claimant was sent a letter from Mr Rupani, dated 10 August 2023, which asked for his consent to acquire the OH report. This letter concluded by saying, “I feel it is only fair to forewarn you that if the evidence indicates that you are unlikely to work on site in the reasonably near future we may, unfortunately, have to consider not to proceed with your employment. I do hope this does not turn out to be the case.”[31]On 16 August Mr Rupani sent the claimant an email confirming that he was being moved from the direct hire back to the project hire route. He said “after I was made aware of your health condition, the only option remains of you going back to a project hire, which means if we find a project which is suitable to your needs, then we move forward with bringing you in.” In his witness statement, Mr Barrie said in his witness statement, “from recollection, it is correct that [Mr] Rupani, one of the previous Business Managers removed the Direct Hire route.” He confirmed in his oral evidence that the claimant was moved off the Direct Hire route onto the Project Hire route and that the Project Hire route would be less advantageous from the claimant’s perspective of trying to gain employment.[32]In his witness statement, Mr Barrie went on to say that “Thomas Simon took the approach that Stuart was on a Direct Hire route as confirmed by [Mr] Rupani on the 31st July 2023 by opening up all potential projects for Stuart to start on and kick-start his employment into the company.” Mr Simon confirmed this in his evidence, saying that, in practice, the claimant remained on a direct hire route because the contracts being issued to him did not refer to a specific project. Although I accept that he was provided with a contract that was usually used for direct hires, Mr Rupani unequivocally transferred the claimant to the project hire route, confirming this in writing, and the reality was that the respondent was not prepared to hire the claimant until there was a suitable project available. This was made clear by the way that the start date of his contract was pushed back on three occasions. On one of these occasions, the respondent’s meeting notes record Mr Simon asking, “to give me more time in finding you a project, are you open for us to push your start date back?” This question was not consistent with his assertion that the claimant was on a Direct Hire route as someone on a Direct Hire route would not have needed a project in order to be given a start date.[33]On 21 August, Mr Kirsten told the claimant that Cummins required Alten engineers to be on site. He said, “I had another call with them last week and they explained that due to the multiple projects running in parallel they demand permanent employees and external resources (as our consultants) to be on site to follow the prototype building phases, and react quickly to constant change requirements.”[34]Mr Kirsten was not a witness so I did not have the benefit of his evidence. None of the witnesses knew if he had spoken to Cummins about making reasonable adjustments for the claimant. Although Mr Kirsten clearly spoke to Cummins about their on-site requirements, I cannot conclude from his email on 21 August 2023 that he actually had meaningful conversations with Cummins about the claimant’s requirement for reasonable adjustments and how they might be able to accommodate him having a reduced on-site presence or separate space. I think if he had had a conversation along those lines, he would have told the claimant and he would have explained specifically why the adjustment the claimant had suggested (for others to cover his on-site work, or for an isolated space) was not feasible. I have therefore concluded that Mr Kirsten did not speak to Cummins about the adjustments the claimant required. OH report[35]There was some delay in obtaining the OH report. This was due to the fact that the respondent did not have an OH provider and was unfamiliar with the process. Ms Ammoscato’s inexperience in obtaining OH reports led to her requesting additional, unnecessary consent from the claimant. Although this added slightly to the delay, there was no ulterior motive on her part. Although the claimant had filled in the initial forms on 15 August 2023, the respondent did not receive the report until 4 October 2023. The respondent was not prepared to discuss reasonable adjustments with the claimant until it had the OH report.[36]The OH report provided some information about MS generally, stating: “Multiple sclerosis is a lifelong condition that affects the brain and nerves. There are many possible symptoms of multiple sclerosis. Common symptoms include tiredness, vision problems and problems with walking or balance”. It also gave more details of how MS affected the claimant and specified that the condition was making him immune suppressed and that he should be kept away from large groups or individuals so that he did not get COVID or any other minor ailments that would affect his immunity.[37]The report suggested a number of adjustments. These included:a. various adjustments to the immediate work environment such as an adjustable chair and desk:b. Working from home where possible apart from when the claimant has to visit other sites where he may have to wear a respirator whilst going around where necessary.c. Providing the option to work from home where possible.d. Take a flexible approach to working hours.e. Managing work volume.f. Considering the physical working environment.[38]In addition, the claimant had for some time been suggesting that his reduced ability to attend site could be accommodated by on-site work being managed between the project team, so that he would not need to attend site or by providing him with an isolated workspace on site. In his evidence, Mr Simon agreed that it may well have been possible for on-site work to be managed between the project team and that they had done something similar for people before. In his oral evidence he described this as “perfectly reasonable”. He felt that it was unlikely that most engineering workplaces would be able to accommodate an isolated workspace however. Mr Barrie also suggested in his oral evidence that it was possible the reasonable adjustments could have been made although he emphasised the respondent’s wariness of putting the claimant in an unsafe situation.[39]The claimant had been sent a contract of employment with a start date of 2 October. He had not signed this due to his (incorrect) understanding that he had to sort out his reasonable adjustments first. From the point at which the respondent received the OH report, this start date kept being pushed back. On 21 September it was changed from 2 October to 18 October. On 12 October it was moved to 6 November. Roles suitable for the claimant[40]On 12 October 2023, the claimant had a meeting with Mr Simon and Mr Barrie about the OH report and the reasonable adjustments suggested by the OH report and the claimant. At that meeting Mr Simon said that he believed the Cummins role had been “canned” by the client. Neither Mr Simon nor Mr Barrie had direct knowledge of what had happened to the Cummins role. Mr Kirsten, the account manager had those conversations with the client. From his general experience working at the respondent, Mr Barrie believed it might have been the case that the client had not been prepared to wait, so another respondent engineer had been appointed to the role. Mr Simon said that he could not remember the conversation he had with Mr Kirsten specifically, but he believed he must have been satisfied at the time that Mr Kirsten had checked that the role had definitely gone. Mr Simon could not remember the discussion at all (for which I do not criticise him as it was two years ago), and he was relying only on the fact he could not remember anything anomalous about the situation. For that reason, on balance, I prefer Mr Barrie’s explanation. It seems more likely that the respondent had wanted to keep the Cummins opportunity and had placed another engineer into the role than that it had disappeared without any explanation.[41]Mr Simon became responsible for looking for roles for the claimant. He explained that he spoke to all the account managers and that he was looking for roles that matched the claimant’s skill set (which was as a CFD (Computational Fluid Dynamic) engineer). He said that he did not discuss reasonable adjustments with the account managers because he didn’t want it to have a bearing on their decision. He explained that they did not have many CFD roles at that time, but he acknowledged that the claimant had good soft skills and had interviewed well, so he might have been able to take on a project where he was not 100% aligned to what the client required.[42]Mr Simon also suggested to the claimant that he look on the respondent’s job website for suitable roles.[43]On 18 October 2023 the claimant sent Mr Simon and Mr Barrie a job advert, posted on the respondent’s website, for an Aerothermal Engineer. He received no substantive response to his enquiry until a meeting with Mr Barrie and Mr Simon on 1 November.[44]At the meeting on 1 November, Mr Simon explained that the Aerothermal Engineer role had “disappeared” and told the claimant that his employment would not go ahead as there were no suitable projects for him. This was confirmed by letter on 2 November 2023.[45]The Aerothermal engineer role was still advertised on the respondent website on 20 November 2023 and was re-advertised on 18 December 2023. Mr Simon suggested the continued and re-advertising of the role could be down to reasons such as: incompetence by the recruitment team or hope that the role would come back. He explained the job boards were frequently not up to date. I find this explanation unconvincing because Mr Simon had suggested the claimant check the website, the advert was available for such a long time and was actively readvertised in December. I find it more likely that the role or a very similar one was available and that the respondent did not put the claimant forward for that role because of the reasonable adjustments he required.[46]The claimant discovered that three other individuals took on roles similar to roles he could have applied for. One CAE/CFD engineer took on a role at Accelera by Cummins in September 2023. This role looked very similar to the role for which the claimant was initially earmarked. In addition, the CAE/CFD engineer had a very similar skill set to the claimant and they and the claimant shared the same engineering profile, both as CFD engineers. Two other engineers (both describing themselves as mechanical engineers) worked on the same project: one from August 2023 in a slightly different role to the role the claimant applied for, and the other from March 2023.[47]Although the mechanical engineers worked on the Accelera project, one’s skill set, and the other’s timing, mean that it is unlikely that they took on roles for which the claimant could have been considered. However, the CAE/CFD engineer’s role does appear to have been suitable for the claimant.[48]I found Mr Simon’s assertion that there were not many CFD roles available inconsistent with: the respondent’s earlier decision to take on the claimant as a direct hire; the continued advertisement/re-advertisement of the aerothermal engineer role; and the appointment of the CAE/CFD engineer to the Cummins role in September 2023. I have therefore concluded that it was not accurate for the respondent to say that there would be no projects available that met the claimant’s skill set in the “foreseeable future”. It appears that there were roles, at least one with Cummins in September, and the Aerothermal engineer role or something similar, but they were not being discussed with the claimant. Mr Simon confirmed that he did not have any discussions with clients about reasonable adjustments and that he was not aware that any of the account managers did either.[49]Ms English said that the claimant had given mixed messages about his ability to attend site, saying he could go in if needed, and that he was open to relocation but couldn’t go into site much because of his condition. I found, however, that the claimant was consistent in the reasonable adjustments he requested from the respondent. He was also consistent in his evidence before the tribunal, that he would be able to go on site, provided it was safe. He was consistent in his explanation of what that meant, which was that it would depend on the site and the working arrangements, and is something that would need to be discussed regarding each potential workplace. In any event, even if the claimant had been inconsistent about his needs, no adjustments were ever discussed with any of the respondent’s clients, so any inconsistency can have had no impact on the respondent or its ability to find the claimant a role.[50]Regarding the PCPs listed in the list of issues, Mr Barrie and Mr Simon admitted the respondent had the PCPs. They said that the PCPs were not applied to the claimant because he didn’t get that far with a role. Law Discrimination arising from disability[51]Section 15 of the Equality Act 2010 provides that: (1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.[52]Section 136 provides that: 136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(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.[53]In the context of a section 15 claim, section 136 means that if a claimant can show the following, the burden of proof shifts to the respondent: g. They have been subjected to unfavourable treatment h. That they are disabled and the employer knew about the disability i. There was a link between the disability and the “something” that is the ground of the unfavourable treatment j. Some evidence from which it could be inferred that the “something” was the reason for the treatment[54]In the case of Secretary of State for Justice and anor v Dunn EAT 0234/16 the EAT identified that: k. there must be unfavourable treatment l. there must be something that arises in consequence of the claimant’s disability m. the unfavourable treatment must be caused by (b), and n. the alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.[55]The EHRC Employment statutory code of practice confirms that no comparator is required for a section 15 claim and that it is “only necessary to demonstrate that the unfavourable treatment is because of something arising in consequence of the disability” (paragraph 5.6). The code also explains that for someone to have been treated “unfavourably”, they must have been put at a disadvantage. Even if an employer thinks that they are acting in the best interests of a disabled person, they may still treat that person unfavourably (paragraph 5.7).[56]In British Telecommunications plc v Robertson EAT 0229/20 the EAT held that a tribunal must clearly address whether the “something” relied on by the claimant arose in consequence of the disability.[57]No direct linkage is required between the disability and the issue that attracts the unfavourable treatment. All that is required is a loose connection between the unfavourable treatment and the “something” (Risby v London Borough of Waltham Forest EAT 0318/15). Reasonable adjustments[58]The Equality Act 2010 provides that: 20 Duty to make adjustments … (3) The first requirement is a requirement, where a provision, criterion or practice of [the employer] puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. 21 Failure to comply with duty(1) A failure to comply with the first, […] requirement is a failure to comply with a duty to make reasonable adjustments.(2) [An employer] discriminates against a disabled person if [it] fails to comply with that duty in relation to that person.[59]The claimant must identify the reasonable adjustments required, but after he has done so, the burden of proof shifts to the respondent to show that the disadvantage would not have been eliminated and/or that the adjustment was not one that was reasonable to make.[60]The Court of Appeal confirmed in Smith v Churchills Stairlifts plc 2006 ICR 524, CA that it is for the tribunal to determine objectively whether or not an adjustment would be reasonable. A tribunal should look at the proposed adjustment from the view of the claimant and the employer and determine whether the adjustment would have been a reasonable one to make.[61]Regarding the overlap between reasonable adjustment claims and section 15 claims, in Griffiths v Secretary of State for Work and Pensions 2017 ICR 160, CA, Lord Justice Elias said, “An employer who dismisses a disabled employee without making a reasonable adjustment which would have enabled the employee to remain in employment — say allowing him to work part-time — will necessarily have infringed the duty to make adjustments, but in addition the act of dismissal will surely constitute an act of discrimination arising out of disability. The dismissal will be for a reason related to disability and, if a potentially reasonable adjustment which might have allowed the employee to remain in employment has not been made, the dismissal will not be justified.” Indirect discrimination[62]Section 19 of the Equality Act provides that:(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.[63]Section 6(3) states that "in relation to the protected characteristic of disability... a reference to persons who share a protected characteristic is a reference to persons who have the same disability".[64]The EHRC Statutory code of practice on employment clarifies at 4.16 that “It is important to be clear which protected characteristic is relevant. In relation to disability, this would not be disabled people as a whole but people with a particular disability – for example, with an equivalent level of visual impairment.” Time limits[65]Section 123 of the Equality Act 2010 provides that: 123 Time limits (1) … proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; Conclusions Time limits
Conclusions
[66]The respondent contends that acts that occurred before 9 August 2023 are out of time. If correct, this would include the removal of the direct hire route (which the respondent says did not happen in any case) and the cancellation of the Cummins meeting. The claimant argues these were part of a series of continuing acts of discrimination.[67]The removal of the direct hire route was confirmed in writing on 16 August 2023, so it is not out of time. In any event, regarding whether or not the acts of discrimination were continuing acts, I agree with the claimant. The acts of alleged discrimination, including the removal of the direct hire route and the cancellation of the Cummins meeting all stemmed from the claimant’s disclosure of his disability on 7 August 2023. The different acts of discrimination were therefore part of the same conduct which extended over a period and are therefore in time. Discrimination arising from disability (section 15 Equality Act 2010)[68]I have found as facts that the respondent:a. ended the direct hire route for the claimant on 7 August 2023 (and confirmed this in writing on 14 August 2023);b. cancelled the claimant’s meeting with its client, Cummins, on 7 August 2023;c. Did not put the claimant forward for a role with Cummins after that date;d. Did not propose the claimant for the Aerothermal Engineer position after that date.[69]This was unfavourable treatment because it meant the claimant did not secure the Cummins role, it made it more difficult for him to access roles and ultimately meant that he did not secure a role.[70]The claimant had:a. an increased risk of serious illness or of contracting COVID-19;b. the potential need for the respondent or its clients to accommodate his disability, for example by making reasonable adjustments; andc. a reduced ability to attend site.[71]These all arose in consequence of his disability, as evidenced by his doctor’s letter, his own explanation to the respondent in August 2023 and the respondent’s OH report.[72]The reason for the claimant’s reduced ability to attend site was his increased risk of serious illness or of contracting COVID-19. The unfavourable treatment was a direct result of the need for the respondent or its clients to accommodate the claimant’s disability and his reduced ability to attend site. Before the claimant disclosed his disability, the respondent was moving quickly to appoint him into a role. It clearly saw a lot of promise in the claimant because it was prepared to take him on as a direct hire and to have taken that risk it cannot have envisaged much difficulty in him securing a role. The claimant was offered a call with the client within a couple of hours of showing an interest in the Cummins role.[73]However, as soon as the claimant disclosed his disability, things changed. The respondent was not prepared to discuss reasonable adjustments with Cummins, which is why it cancelled the call on 7 August 2023.[74]The respondent’s letter of 10 August states “if the evidence indicates that you are unlikely to work on site in the reasonably near future we may, unfortunately, have to consider not to proceed with your employment” (emphasis in the original). Mr Rupani’s email of 16 August stated, “after I was made aware of your health condition, the only option remains of you going back to a project hire, which means if we find a project which is suitable to your needs, then we move forward with bringing you in.” The respondent felt that it would be too difficult to find a role for the claimant which is why it ended the direct hire route.[75]The respondent did not propose the claimant for the Aerothermal Engineer position because it was not prepared to discuss reasonable adjustments with its clients. For the same reason it did not propose him for another Cummins role, or any other roles with any client.[76]The respondent argues that is treatment of the claimant was a proportionate means of achieving a legitimate aim. It states as its legitimate aim, “to ensure that all employees were able to carry out their role safely and appropriately in an efficient and safe manner.”[77]This is a legitimate aim. However, failing to put the claimant forward for any roles, cancelling the meeting with Cummins, failing to discuss reasonable adjustments with any clients and removing the claimant from the direct hire route was not an appropriate and reasonably necessary way to achieve that aim. The respondent could have achieved its aim in a less discriminatory way, such as by exploring with Cummins (and other clients) what reasonable adjustments the claimant needed and involving him in that discussion. This would not have disadvantaged the respondent and would have significantly helped the claimant.[78]The complaint of discrimination arising from disability is therefore well founded and succeeds. Failure to make reasonable adjustments (section 20 & 21 Equality Act 2010)[79]The respondent knew that the claimant was disabled by reason of MS from 7 August 2023, when he disclosed his disability. The respondent agrees it had the following PCPs:a. The respondent required employed engineers to work to a specified framework of hours / workload / targets etc or be subject to performance or other management procedures; andb. The respondent required engineers to work on-site (as and when required) or be subject to performance or other management procedures.[80]As the claimant did not secure a role with the respondent, PCP (a) did not put the claimant at a substantial disadvantage. Although the PCP would certainly have applied to the claimant, it was not something that influenced the respondent’s actions in the time period during which the claim is about. Aside from the OH proposed reasonable adjustments to targets, there was little if any evidence before the tribunal which suggested that the claimant would be at any disadvantage in terms of hours, workload or targets.[81]However, PCP (b) put the claimant at a substantial disadvantage compared to someone without MS. The claimant’s impaired autoimmunity meant he was at higher risk of serious illness, particularly if he contracted COVID-19. Attending site was therefore much more dangerous to his health than it would be for someone without MS. The respondent knew this because the claimant told the respondent that was the case by email on 7 August 2023 and discussed it with the respondent subsequently.[82]The respondent could have taken the steps set out by the claimant and in the OH report, namely:a. Keeping away from large groups or individualsb. Working from home apart from when he had to visit other sitesc. Permitting wearing a respirator when he visited sites;d. Managing on-site work between the project team to reduce the claimant’s need to attend sitee. Providing an on-site isolated work space.[83]It was reasonable for the respondent to have taken all those steps. The only adjustments the claimant really asked for were (d) and (e). Mr Simon confirmed that (d) was “perfectly reasonable” and they had done something similar before. Mr Barrie also confirmed it would have been possible. It may have been harder to implement (e) but I cannot conclude it would have been unreasonable because other than Mr Simon’s comments that he felt it would be difficult, there was no evidence from Cummins or any other of the respondent’s clients to show it would have been unreasonable in a particular workplace. The respondent has therefore not satisfied the burden of proof that (e) would not have been a reasonable adjustment. The other adjustments relating to workplace, proposed by OH (a-c) would also have been possible as they are very similar to the adjustments the claimant requested and would not have required any more from the respondent than (d) or (e).[84]Although the respondent would have had to talk to its clients about accommodating those adjustments, that would also have been a reasonable step. The respondent put forward no evidence that it discussed reasonable adjustments with Cummins or any other client, so there is no evidence that the adjustments would have been so hard to achieve, or detrimental for the respondent or the client that they would have been unreasonable.[85]The respondent suggests that the claimant knew he would have to work on site and that working on site was a key requirement of the roles for which he applied. It suggests in its grounds of resistance that the claimant did not disclose his disability immediately in order “to lure [the respondent] into the belief the claimant could meet the requirements of the role”. I found this a surprising assertion that demonstrated the respondent’s lack of understanding of its duty to consider reasonable adjustments for a disabled candidate. The requirement is to take reasonable steps to avoid the disadvantage to the disabled person. I did not have sufficient evidence to conclude on-site work was a key requirement, but if it had been, it is entirely possible to apply a reasonable adjustment to a key requirement (for example, covering on-site work between the team) particularly in the context that two of the respondent witnesses felt it was a feasible adjustment to make. Whether or not the claimant knew of a requirement to work on site is therefore irrelevant, because the claimant’s knowledge of a particular aspect of the role does not relieve the respondent of the duty of considering reasonable adjustments if these are appropriate.[86]As the respondent did not take any of the steps set out above, at any point, the question of when it should have taken them is academic. However, for completeness, it would have been reasonable for the respondent to put into place the adjustments the claimant requested on 7 August 2023 on that date. The claimant provided a clear and clearly reasoned request for adjustments on that date which the respondent should have discussed with Cummins in the 7 August meeting. Although it was reasonable for the respondent to commission an OH report, it was not reasonable for it to wait two months before implementing any adjustments, when the claimant was clear about what he required and why, and they were adjustments that the respondent was able to accommodate.[87]The respondent failed to implement those or any reasonable adjustments. The claim for failure to make reasonable adjustments therefore succeeds. Indirect discrimination (section 19 Equality Act 2010)[88]The claimant points to the same PCPs as above for his claim of indirect discrimination.[89]Both PCPs applied to the claimant and to all employees, which included people who did not have MS.[90]The OH report states that “Multiple sclerosis is a lifelong condition that affects the brain and nerves. There are many possible symptoms of multiple sclerosis. Common symptoms include tiredness, vision problems and problems with walking or balance.”[91]The claimant confirmed in his evidence that MS could be an extremely varied condition.[92]Other than the claimant’s answer to one question, and the brief two sentences in the OH report, there was no evidence before the tribunal about how people with MS would be affected by the PCP. Particularly given that variety in symptoms was emphasised in the evidence, there is therefore not enough evidence for me to conclude that the PCP put people with MS (as a group) at a particular disadvantage when compared with people who did not have that condition.[93]The complaint of indirect discrimination therefore does not succeed because a group disadvantage has not been established. Approved by:
REMEDY
[1]The respondent is ordered to pay the claimant the sum of £34,073.16 as compensation for discrimination arising from disability and failure to make reasonable adjustments.[2]The detailed calculation appears in the reasons. The award includes interest, past loss of income and pension contributions, and £20,000 for injury to feelings.[3]The tribunal makes a recommendation in these terms: by 31 January 2026, the respondent must write the claimant an apology which acknowledges the tribunal’s findings. The apology should be signed by one of the respondent’s directors.
REMEDY
[1]In the liability judgment promulgated on 30 September 2025, the claimant succeeded in his claims of discrimination arising from disability and failure to make reasonable adjustments. That judgment contains full reasons. Documents and evidence[2]The claimant had prepared a bundle of documents and I also referred to material in the original hearing bundle. The claimant gave evidence about loss and mitigation issues. He had prepared a remedy statement and an addendum to that. The respondent had submitted written submissions and I heard oral submissions from both parties.[3]The claimant made detailed and lengthy submissions. I thank him for his clear and well-argued points, excellent preparation and careful approach to documents.[4]Mr Williams made short submissions in which he acknowledged that what happened to the claimant should not have happened and gave the respondent’s sincere apologies. He outlined the steps the respondent has taken since the liability hearing to change its approach, including commissioning an independent review of how it can support candidates with disabilities. Findings of fact[5]The liability judgment sets out the findings of fact on discrimination. Additional facts from the remedy hearing are set out here.[6]The claimant agreed in cross examination that his loss period for past loss ended with his employment with his new employer in March 2024. He made it clear that the claim he has characterised as ‘future loss’ related to the respondent’s conduct of the tribunal proceedings from June to September 2025.[7]The claimant gave evidence on the impact on him of dealing with the tribunal proceedings, and the effect this had had on his health and mental wellbeing including the worsening of his existing conditions.[8]The claimant explained that one of the key things for him was feeling responsible for the experience of future disabled applicants to the respondent. He spoke frankly about a distressing incident he had experienced in childhood, and why it was so important to him to ensure that what had happened to him did not happen to others.[9]The claimant explained the impact the discrimination had had on his health, and provided evidence from his treating physicians. It was not straightforward to distinguish between the evidence relating to injury to feelings resulting from the original discrimination, and that arising from the tribunal process. I have therefore drawn conclusions based on the claimant’s written and oral evidence, and the medical evidence provided. The respondent did not challenge the medical evidence. A letter from the claimant’s Therapeutic Counsellor dated 6 November 2025 refers to the impact of “work-related discrimination”. I have concluded that this letter therefore refers to the impact of the original discrimination. The letter explains that the claimant experienced a number of symptoms, including: re-experiencing the trauma, including intrusive, unwanted memories, constant fear and anxiety, sleep disturbance, and physical reactions. It referred to negative thoughts and emotions, loss of confidence, panic attacks when facing a job interview situation, and other issues.[10]The letter from the consultant dated 10/11/2025 focused more on the impact of the employment tribunal proceedings. I have therefore not relied on this as evidence of injury to feelings resulting from the original discrimination.[11]The claimant obtained a new role in March 2024 earning at least the same salary as that which he would have earned with the respondent. The respondent did not dispute the claimant’s evidence on earnings in his schedule of loss. Mitigation[12]The claimant has a duty to mitigate his loss. The burden is on the respondent to show he did not. The claimant mitigated his loss by obtaining a new role in March 2024. The respondent did not challenge the claimant’s evidence or suggest he had not sufficiently mitigated his loss.[13]The claimant received £3,294.82 in universal credit between 2 October 2023 and 12 March 2024. The recoupment rules do not apply to discrimination claims. Interest[14]Interest is payable on tribunal awards at 8% per annum. For injury to feelings this runs from the date of injury and ends on the date of this judgment. In the liability judgment I found that the respondent did a number of discriminatory acts on 7 August 2023. This was the date of the first act of discrimination against the claimant, so interest on injury to feelings runs from 7 August 2023 (869 days). For loss of earnings this is calculated from the “mid-point” to the date of calculation. The mid-point is the day which falls half-way through the period beginning with 2 October 2023 and ending on the judgment date (22 December 2025) (813 days). Tax[15]Neither party made submissions on the tax arrangements of the award. As the claimant’s claim related to a failure to provide him with employment, and he was never employed by the respondent, his losses seem unlikely to be said to be related to the termination of employment. It is not therefore appropriate to gross up the award for tax.
Law
[16]Section 124(3) Equality Act 2010 sets out the circumstances under which the tribunal can make a declaration, an award for compensation, and recommendations: (1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1). (2)The tribunal may— (a)make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; (b)order the respondent to pay compensation to the complainant; (c)make an appropriate recommendation. (3)An appropriate recommendation is a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate.[17]In Essa v Laing Ltd [2004] EWCA Civ 2, the Court of Appeal held that there is no test of reasonable foreseeability when calculating loss arising from discrimination. The loss must flow directly and naturally from the discriminatory act. It also held that psychiatric injury and injury to feelings are the same type of harm.[18]Compensation for discrimination can only be awarded if it is directly attributable to the act of discrimination. There must therefore be a direct causal link between the discrimination and the loss claimed (Coleman v Skyrail Oceanic Ltd [1981] IRLR 398). What remedy should be awarded? Claimant’s request for recommendations[19]The claimant has asked the tribunal to make a number of recommendations. The requested recommendations that relate directly to the claimant are: 19.1. A director-signed acknowledgement and apology. 19.2. To provide the claimant with a named point-of-contact for 12 months in case he wishes to make any future approach to the respondent. 19.3. To provide an early reasonable adjustments meeting if the claimant chooses to re-engage with the respondent.[20]The other recommendations do not relate directly to the claimant, but concern issues such as how the respondent handles applications from disabled candidates, a review of his recruitment and its approach to litigation.[21]I accept the claimant’s explanation about how an apology from a director of the respondent would help him and would reduce some of the adverse effect of the discrimination. This is particularly the case given the respondent’s apparent total lack of understanding of its duty to consider reasonable adjustments, for example, saying in its grounds of resistance, that the claimant tried “to lure [the respondent] into the belief that the claimant could meet the requirements of the role”. This caused the claimant considerable distress. I will therefore make an order that, by 31 January 2026, the respondent must send the claimant, an apology, signed by one of the respondent’s directors, which acknowledges the tribunal’s findings.[22]I am not going to make a recommendation regarding any future contact the claimant may have with the respondent. From the evidence I have heard, it does not seem to me that that would reduce the adverse effect of the discrimination. I consider that the tribunal findings (which are published publicly on the internet), the apology, and the assurances that Mr Williams gave to the tribunal about the respondent’s new approach to disabled applicants (which I have recorded in this judgment and which will therefore also be published publicly) should be sufficient to give the claimant assurance that he will be treated fairly if he chooses to apply to the respondent in the future. These should also go some way to alleviating the claimant’s concerns about other disabled applicants, which I address further below.[23]Regarding the other recommendations requested, the Employment Tribunal used to have the power under section 124(3) to make wider recommendations for the purpose of “obviating or reducing the adverse effect of any matter to which the proceedings relate(a) on the complainant or(b) on any other person.” If that provision were still in force, I could consider making some of the wider recommendations the claimant requests. However, the reference to “any other person” was repealed in 2015. Section 124(3) now specifies that any recommendation must obviate or reduce the adverse effect on the complainant. I understand the claimant’s arguments about how the recommendations would reduce the adverse effect on him, and I am grateful to him for his frankness explaining some of the background to his feelings around this. However, the legislation was changed specifically to benefit only the complainant. If I were to make the recommendations the claimant requests, they would only directly benefit future disabled applicants to the respondent which would go against the purpose of the legislation. It would, in effect, be a recommendation to obviate or reduce the adverse effect on another person, through the back door. I do not therefore make any other recommendation. As the claimant’s employment has terminated, the recommendations requested would not obviate or reduce the adverse effect on him directly, and the legislation does not permit me to make recommendations for any other reason. Through his actions in bringing this claim, the claimant has ensured that there is a public record of the discrimination and the outcome, as I have outlined above, which seems highly likely to help future disabled applicants. I hope this will bring some comfort to him in terms of his feelings of responsibility towards others. Past loss[24]The tribunal should consider what would have happened but for the discrimination. The claimant’s contract with the respondent was originally due to start on 2 October 2023. His loss therefore starts from that date. The respondent said that the claimant would probably have been made redundant in around 7 December 2023 in any event as there was little work for him. For the reasons set out in the liability judgment, I found that there were in fact suitable roles available for the claimant at that time. The claimant was offered a direct hire contract. But for the discrimination, it is likely that the claimant would have worked for the respondent for at least the term of the Cummins contract. That role, undertaken by another engineer, lasted until 17 March 2025. In fact, the claimant has mitigated his loss and acquired a new role at at least the same salary before that date. That new role broke the chain of causation. The claimant’s past loss therefore runs until 10 March 2024. Injury to feelings[25]An injury to feelings award should compensate the claimant, not punish the respondent and I must have regard to the current Vento bands. The claimant has suffered injury to feelings as a direct result of the discrimination. It is therefore appropriate to make an award for injury to feelings. I consider that this should be in the middle Vento band. As soon as the respondent found out that the claimant was disabled, it removed him from discussions with a client about a specific project and transferred him to a less advantageous recruitment stream. The respondent failed to engage with the reasonable adjustments the claimant requested and did not make any attempt to discuss reasonable adjustments with clients. This meant the claimant was not placed into the role he had been anticipating or considered for alternative suitable roles. Even at the stage of producing its amended grounds of resistance as part of tribunal proceedings, the respondent insisted, in effect, that it was the claimant’s fault that the discrimination had occurred (para 12.8 amended GOR). I accept the claimant’s oral and documentary evidence, referred to above, of the impact of the discrimination on him. This impact has been severe. Although the discrimination took place over a relatively short period, it had a significant impact on the claimant in that it was the direct cause of him failing to obtain a role that he wanted, and that he had legitimately expected to be appointed to. The respondent must take the claimant as it finds him, and in this case, the claimant was considerably affected by the respondent’s failures. The discrimination has caused him to lose sleep, re-experience the trauma, experience intrusive, unwanted memories, fear and anxiety and negative thoughts and emotions. It has damaged his confidence in applying for other jobs, facing panic attacks at a job interview situation, for example. For these reasons, I make an award of £20,000. This reflects the severity of the impact on the claimant, and takes into account the relatively short timescale over which the discrimination occurred. Loss arising from the tribunal process: generally[26]The claimant has argued that he should also be awarded a sum for the period June – September 2025 because he was experiencing so much stress from the tribunal process at that point that he was unable to work or look for another job. He has also argued that he should be awarded a sum in compensation for personal injury arising from the tribunal process. As these two claims rely on the same legal principles, I have addressed them together.[27]I am not able to award the claimant any compensation for any injury or loss he has suffered as a result of the tribunal proceedings. The loss must flow directly from the discrimination. I understand the claimant’s position that his state of mind in that period was directly related to the discrimination he suffered in that, if he had not experienced the discrimination, there would have been no need for tribunal proceedings. However, this connection is too remote. The tribunal proceedings are separate from the discrimination. Loss arising from the tribunal process: personal injury[28]Tribunal proceedings can be stressful, particularly for an unrepresented party. I do not doubt the claimant’s evidence that the tribunal process did have an impact on his health, and that to some extent the respondent’s failure to comply with some directions, and some of their correspondence with the claimant, exacerbated this impact. I address the conduct of the litigation in my conclusions on aggravated damages. However, I am not able to make an award for personal injury which has occurred as a result of the litigation process, as this did not flow directly from the discrimination. Loss arising from the tribunal process: loss of earnings[29]Regarding the loss of earnings for the period June to September 2025, for the same reasons, I cannot award damages for losses sustained due to the tribunal process (which the claimant categorises as “future loss”). Aggravated damages[30]The claimant has asked the tribunal to make an award of aggravated damages. He explained how much the tribunal process had affected him, and his feeling that this was down to the respondent’s conduct of the proceedings.[31]For reasons of brevity, I have not set out in detail all of the allegations the claimant makes about the respondent’s conduct. However, I address the points the claimant makes in his written remedy statement. The claimant refers to: 31.1. shifts in the respondent’s amended grounds of resistance, 31.2. an unsuccessful strike out application on 7 May 2024 31.3. unreasonable communications by the respondent’s representative including venting and copying witnesses and cost warnings.[32]It is relatively common for parties’ views to change slightly as amended particulars of claim or grounds of resistance are produced. I have commented on some of the wording used in the respondent’s amended grounds of resistance above, and taken it into account in the injury to feelings award. I can see from EJ Stewart’s letter of 21 May 2024 that the respondent’s strike out application was “premature and disproportionate”. I also note from EJ Brown’s CMO dated 24 June 2025 that due to the respondent’s delay with documents the final hearing had been delayed, and that the respondent had breached the tribunal’s order by providing its legitimate aim 19 days late. EJ Brown did not consider on 24 June 2025 that the respondent had conducted the proceedings unreasonably. She noted that the respondent had corresponded very regularly with the Claimant in an effort to resolve disclosure issues and agree the bundle. She refused the claimant’s strike out application accordingly.[33]I understand the claimant’s perspective about the conduct of litigation, and, as mentioned above, I accept his evidence about the impact it had on his health. I also acknowledge the respondent’s perspective, as explained by Mr Williams, that they were receiving multiple communications per day from the claimant and that it was not proportionate to deal with them all.[34]It is common for parties to have very different perspectives about how the other is handling the litigation. I note this without in any way intending to diminish the claimant’s experience.[35]The bar for awarding aggravated damages is high, and in essence, the overriding objective requires a relatively pragmatic view. In general, aggravated damages can be awarded where the actions of a party are “high-handed, malicious, insulting or oppressive”. In this case, although some of the respondent’s actions/inactions breached tribunal orders, and although some of its actions caused the claimant considerable stress, looked at objectively, the respondent’s actions were not outside what is relatively common in proceedings before the employment tribunal. Despite the impact they had on the claimant, I therefore do not award aggravated damages in this case. Calculation Net weekly basic pay: £515.62 Gross weekly basic pay: £623.08 Weekly pension contribution (6%): £37.38 For past loss: Earnings: 2 October 2023 to 11 March 2024: 23 weeks at £11,859.26£515.622 October 2023 to 11 March 2024: 23 weeks at £37.38£859.74 Less universal credit (£3,294.82) Total past financial loss £9424.18 Interest at 8%: 813/2 x 0.08 x 1/365 x 9424.18 £839.66 Total compensatory award £10,263.84 For injury to feelings Injury to feelings award £20,000 Interest at 8%: 869 x 0.08 x 1/365 x 20,000 3,809.32 23,809.32 Total award (Injury to feelings and compensatory) 34,073.16 Approved by: