Mr M Lovett v Master Butchers Epsom Ltd: 2300338/2023

EMPLOYMENT TRIBUNALS

Case No 2300338/2023

Between

Mr Martin LovettClaimant

Master Butchers Epsom Ltd RECORD OF A PRELIMINARY HEARINGRespondent

Before

Employment Judge Abbott

In person for claimant

Ms Hafiza Suleman (instructed by solicitor) for respondent

Date 2 October 2024

JUDGMENT

[1]At the relevant times the claimant was a disabled person as defined by section 6 of the Equality Act 2010 because of depression and anxiety.

[2]The complaints of failure to make reasonable adjustments and harassment can therefore proceed.

[3]The hearing listed for 15, 16 and 17 May 2024 will go ahead as listed.

REASONS

[1]This hearing was listed for the Tribunal to determine whether or not theclaimant was a disabled person within the meaning of the Equality Act 2010. The parties were notified of the hearing on 23 January 2024.

[2]The respondent failed to attend the hearing. The clerk called the respondenttwice and emailed. Someone at the respondent said they would assign someone new to the case, but no one attended or contacted the Tribunal. They were told the hearing would start at 1030am.

[3]The Tribunal decided to proceed in the absence of the respondent under rule47 of the Employment Tribunal Rules which allows the Tribunal to proceed with the hearing in the absence of a party, having considered any information which is available to it and after reasonable enquiry.

The evidence

[4]The Tribunal had the benefit of some limited medical evidence which the claimant had sent into the Tribunal and also heard oral evidence from the claimant. The findings of fact on the balance of probability The claimant relies on depression and anxiety.

[6]The claimant has suffered with his mental health, on and off, all of his life butwas diagnosed with depression in his late teens/early twenties, around 2000. He recalls having low moods as a child for no apparent reason. As a young adult, the claimant’s symptoms became unbearable. Things would happen to him which should not have been insurmountable, but his depression would not allow him to deal with them.

[7]Sometimes he manages to function relatively normally, but at other times,when he is having a depressive “episode” he cannot. If anything, stressful happens, that is likely to be a trigger for a depressive episode. He describes the episodes as occurring irregularly but with some frequency.

[8]When he has an episode, the claimant is very tired and sleeps for 13-14 hourseach day. He has mood swings. In those times, anything beyond necessity is too much and he cannot work. The claimant says he has trained himself over the years to be able to do “the basics”. He can look after the children and keep the house tidy, but working is out of the question, particularly as the anxiety makes his handshake. As a butcher he cannot therefore work as it is too dangerous.

[9]Though he is able to do the basics, those basics are done with great difficulty.He would also need to gear himself up to perform everyday tasks such as the dishes. The claimant becomes tired very quickly as he is forcing himself to do things he doesn’t want to do. At the end of the day his whole-body aches with the effort of performing minor tasks.

[10]The claimant also described that he would be unable to get on a train duringan episode and would have to “steady himself” for over an hour before an activity such as taking the children to the park.

[15]There is no hard and fast rule over how regularly the claimant will have an episode and be unable to work, or over how long the episode will last. By way of example, the claimant did not have any time off two years ago but needed three weeks off a year ago. He is currently signed off sick from work and has been for the last five months. This is typical of the pattern that has recurred over the years. Medical history

[16]The claimant’s medical records first refer to depression in 2005.

[17]In June 2010, the doctor has written: “He has been feeling low for the last 3 weeks, not sleeping well. PMH od depression 5 years ago was on antidepressant,started him on Citalopram.”

[18]In February 2011 the doctor has written: “History of recurrent depression.Been feeling low last few months. Acutely exacerbated by recent events…. Can’t remember last time he ate or slept (in last 4 days as opposed to longer term). Has had counselling in the past with good effect – feels he desperately needs some form of talking therapy again. Citalopram helped in the past – restarted today.”

[19]The medical records show that he consulted the doctor again in November2014 when the claimant reported, inter alia, trouble concentrating; thoughts that he would be better of dead or of self-harming; feeling a failure; and feeling down depressed and hopeless.

[20]The claimant does not often see his doctor as there is nothing they can do,other than prescribe medication and/or therapy. He has taken citalopram in the past, but is currently taking mirtazapine, which was prescribed approximately three years ago. He is unsure of the effect of the medication. He has also tried therapy, including Cognitive Behavioural Therapy. The claimant’s condition is a lifelong condition from which he will always suffer. The law: Disability Discrimination: is the claimant disabled?

[21]S6 EqA 2010 [The burden of proof is on a claimant to show that;] (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P'sability to carry out normal day-today activities.

[22]Schedule 1, para 2 EqA 2010 Long-term effects(1) The effect of an impairment is long-term if— (a) it has lasted for at least12 months, 3 (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.

(2) If an impairment ceases to have a substantial adverse effect on aperson's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

[23]Recurring condition: Likely to recur means’ that ‘it could well happen’ (paraC3 of the Equality Act 2020 Guidance). The Guidance (para C6) states that the effects are to be treated as long term if they are likely to recur beyond 12 months after the first occurrence (see para C6). The example is given of a young man with bipolar affective disorder, a recurring form of depression. His first episode occurred in months one and two of a 13month period. The second episode took place in month 13. This will satisfy the requirements of the definition of disability in respect of the meaning of ‘long-term’ because the adverse effects have recurred beyond 12 months after the first occurrence and are therefore treated as having continued for the whole period.

[24]By contrast, the Guidance gives an example of a woman who has twodiscrete episodes of depression within a ten-month period. Even though she has experienced two episodes of depression, she will not be covered by the Act. This is because, as at this stage, the effects of her impairment have not yet lasted more than 12 months after the first occurrence, and there is no evidence that these episodes are part of an underlying condition of depression that is likely to recur beyond the 12- month period. However, if there was evidence to show that the two episodes did arise from an underlying condition of depression the effects of which are likely to recur beyond the 12-month period she would satisfy the long-term requirement.

[25]In Swift v Chief Constable of Wiltshire Constabulary

2004 ICR 909

, EAT, the EAT emphasised that the question for the tribunal is not whether the impairment itself is likely to recur but whether the substantial adverse effect of the impairment is likely to recur. It suggested that four questions should be asked:a. Was there at some stage an impairment which had a substantialadverse effect on the claimant's ability to carry out normal day-today activities?

b. Did the impairment cease to have such an effect and, if so, when?

c. What was the substantial adverse effect?

d. Is that substantial adverse effect likely to recur?

[26]The likelihood of the recurrence of a disability must be assessed at thedate of the act of discrimination, and the tribunal must disregard recurrences that take place after the alleged discriminatory act (McDougall v Richmond Adult Community College

[2008] IRLR 227

[27]In Sullivan v Bury Street Capital Ltd

[2021] EWCA Civ 1694

, although the tribunal found that there was a substantial adverse effect on the employee's ability to carry out normal day-to-day activities during episodes lasting from May to September in 2013 and from April to July in 2017, the Court of Appeal held that it was entitled to find that in neither case was it likely that the substantial adverse effect would continue for at least 12 months or recur so as to constitute a substantial and long-term adverse effect within the meaning of the EqA 2010.

[28]Schedule 1, para 5 EqA 2010: Effect of medical treatment:(1) An impairment is to be treated as having a substantial adverse effecton the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect.

(2) “Measures” includes, in particular, medical treatment and the use of aprosthesis or other aid.

(3) Sub-paragraph (1) does not apply— (a) in relation to the impairment ofa person's sight, to the extent that the impairment is, in the person's case, correctable by spectacles or contact lenses or in such other ways as may be prescribed; (b) in relation to such other impairments as may be prescribed, in such circumstances as are prescribed.

[29]Substantial adverse effect/ day to day life: the word substantial meansmore than minor or trivial (s212 EqA 2010).

[30]The activities affected must be "normal". The Guidance states atparagraph D3: "In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities."

[31]Timing of assessment: the time at which to assess disability is the date ofthe alleged discriminatory act (Cruickshank v VAW Motorcast Ltd

2002 ICR 729

, EAT). This includes the question of how long an impairment is likely to last (McDougall v Richmond Adult Community College

2008 ICR 431

, CA), which should also be determined at the relevant date rather than the date of the tribunal hearing. Anything that occurs after the date of the discriminatory act will not be relevant (Equality Act 2010 Guidance, para C4).

[32]Impairment: In the case of J v DLA Piper

2010 ICR 1052

, EAT, the EAT identified the correct approach to determining disability; (para 40) Accordingly in our view the correct approach is as follows:(1) It remains good practice in every case for a tribunal to stateconclusions separately on the questions of impairment and of adverse effect (and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it) as recommended in Goodwin.

(2) However, in reaching those conclusions the tribunal should notproceed by rigid consecutive stages. Specifically, in cases where there may be a dispute about the existence of an impairment it will make sense, for the reasons given in para. 38 above, to start by making findings about whether the claimant's ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings.

(3) These observations are not intended to, and we do not believe thatthey do, conflict with the terms of the Guidance or with the authorities referred to above.

Conclusions

[33]The Tribunal reminds itself that the relevant date for the purpose of this assessment is December 2022 when the claimant faced disciplinary proceedings. Impairment

[34]The claimant has a mental impairment of depression and anxiety. This is evidenced by the claimant’s medical records which show depression in 2005; 2010; 2011 and 2014. Whilst there was no reference to anxiety in the medical records, the claimant’s evidence that anxiety was a mental impairment was accepted, as he explained that he becomes anxious when taking the children to the park or when taking a train journey, and that he cannot work because his hands shake. Adverse effect

[35]The effect of the claimant’s anxiety and depression on his day-todayactivities is a substantial adverse effect. The anxiety and depression are considered cumulatively as they go hand in hand.

[36]During a depressive episode, working becomes impossible: anxietymakes his hands shake and he is unable to catch a train. He sleeps 13-14 hours per day. Whilst he has learnt to function on a day-to-day basis, he needs to push himself every day to perform normal day to day activities such as washing up. Those activities make him exhausted. He is unable just to go to the park with the children as it would take him over an hour to prepare himself for the trip.

[37]The Tribunal concludes that that is a substantial adverse effect on theclaimant’s day to day activities. Medication

[38]The claimant has tried a number of different medications, including citalopram, which he said did not suit him. He is currently on mirtazapine. Long term/recurring

[39]The claimant’s condition is a recurring condition which has asubstantial adverse effect during depressive episodes and those episodes are likely to recur, as they have over a number of years.

[40]At various times, the claimant’s depression and anxiety has had asubstantial adverse effect on the claimant’s ability to carry out normal day to day activities. This includes in 2005; 2010; 2011; and 2014. Although there is no specific evidence as to recurrences during the period 20142023 the Tribunal is satisfied that the claimant’s evidence that the episodes recur irregularly but frequently is accepted. In particular, he was prescribed mirtazapine around three years ago.

[41]In between depressive episodes the claimant can function relativelynormally.

[42]The Tribunal finds that the substantial adverse effect is likely to recur,as it already has done on numerous occasions throughout the claimant’s life and that these episodes are part of an underlying condition of depression that is likely to recur beyond the 12-month period.

[1]The Claimant claims a failure to make reasonable adjustments and disabilityrelated harassment.

[2]He also claimed that unlawful deductions were made from his final salary payments, and that the Respondent did not provide him with written terms that complied with section 1 of the Employment Rights Act 1996. We were able to give judgment on these claims, both of which succeeded, at the conclusion of the hearing in May 2024 and we awarded the Claimant the total sum of £1913.70.

[3]We heard evidence from the Claimant and from Mr Stephen Pawson, owner of the Respondent, and his daughter Ms Natasha Darko-Pawson. Progress of the hearing

[4]Although the hearing had been listed for three days commencing on 15 May 2024, we were not able to start the evidence on the first day. The Claimant had requested a video hearing due to his depression and anxiety. This application had been granted. At the start of the hearing on 15 May it transpired that although the Respondent had provided him with an electronic copy of the file of documents, they had not also provided him with a hard copy. This was a breach of the case management directions. The Claimant only had one device which he was using to log in to the video hearing and he was not able to access the file at the same time. We discussed various ways of overcoming this issue with the parties. Eventually Mr Turpin made the kind offer to travel to the Claimant’s home and deliver a paper file of the documents on the afternoon of 15 May. We therefore adjourned the hearing until 10am on 16 May at which point the Claimant had received the file. As one of the three allocated days listed for hearing the claim was wasted, we reserved our position in relation to costs. A further complication had arisen by that point.

[6]At a hearing on 23 April 2024 Judge Rice-Birchall had found that the Claimant was a disabled person at all relevant times as defined by section 6 of the Equality Act 2010 because of depression and anxiety.

[7]During the evening of 15 May 2024 (the end of the first day listed for hearing, although before evidence had commenced) the Respondent made an application for reconsideration of that decision. That application was just within the time limit. The tribunal read the application on the morning of 16 May 2024 – the second day of hearing. The application had not been mentioned at the start of the hearing on 15 May. Further delay was caused as a result.

[8]The tribunal considered how to proceed at that point and sought the submissions of the parties. We considered adjourning the entire case pending reconsideration of the decision on disability. We concluded however that this was not in the interests of justice. The Claimant’s employment ended in 2022. If the case was adjourned, it would be many months before it could be relisted. Both parties were ready to proceed with the evidence. The eventual decision of the tribunal was that we should hear all the evidence in the case. Having heard evidence and submissions, the tribunal was able to deliver a judgment on the money claims. We reserved our decision in relation to the disability discrimination claim pending reconsideration of the earlier decision that the Claimant was a disabled person.

[9]The outcome of the reconsideration decision, which confirmed the finding that the Claimant was at all material times a person with a disability, was issued to the parties on 16 September 2024. Facts and

Conclusions

[10]The facts we have found and the conclusions we have drawn from the evidence of both parties is as follows.

[11]The Respondent is in business as a butcher’s shop. The Claimant is an experienced butcher/manager.

[12]It is not in dispute that around September 2022 the Claimant and Mr Pawson met on two occasions to discuss offering the Claimant a role as butcher/manager at the shop.

[13]It is agreed that the two of them discussed terms. It is however the Claimant’s case (as set out in his verbal evidence but not his witness statement) that during this conversation Mr Pawson spoke about one of his children who has a disability. The Claimant says that he made a comment that he understood the situation as he had struggled with lifelong depression.

[14]Mr Pawson said that he could not recall the Claimant telling him this. If he had been told, he would have made a note of it as he would take such a matter seriously due to his own family situation. He agreed that one of his children does have a disability. He said that he recalled making a note of this discussion but he had not disclosed it as part of the tribunal proceedings, and did not now know where it was.

[15]We have today seen an extract from Mr Pawson’s daybook which refers to his meeting with the Claimant and records the terms discussed but makes no reference to him having depression.

[16]The Claimant makes no reference to having a disability in his ‘letter before action’ to the Respondents which we have seen at page 55 of the bundle. He did not provide an account of this alleged conversation with Mr Pawson in his witness statement.

[17]On balance we prefer the evidence of Mr Pawson, who states clearly in his witness statement that he was not aware that the Claimant had a disability. The Claimant made no mention of the alleged conversation in the coffee shop in his witness statement, nor was it referred to in his ET1. We place weight upon Mr Pawson’s verbal evidence that if the Claimant’s depression had been disclosed to him, he would have remembered this as he has a child with a disability. Despite the very late disclosure we also note the record of his first meeting which makes no mention of the Claimant having a long-term health condition.

[18]On 25 September 2022 the Respondent sent the Claimant an offer of employment which included some terms as to his role, hours and pay but did not comply with the requirement to give written particulars under section 1 of the Employment Rights Act 1996. The Claimant says that he was never given a full statement of his employment terms. The Respondent has not demonstrated that he was provided with one.

[19]The Respondent’s verbal evidence was that they have a company handbook which contains policies relating to sick pay, internet use and other matters. We were showing an extract from this handbook. There is no mention of a policy there relating to use of the internet. The Claimant says that he did not see any handbook until the extract was disclosed as part of these proceedings. The Respondent did not produce any evidence to show that a copy of any handbook was given to the Claimant, or that he was shown where it could be found. We find it more likely than not that the Claimant was not given a copy of the handbook nor directed to one prior to the termination of his employment.

[20]The Claimant commenced employment as a butcher/manager on 3 October 2022. We find that he had overall responsibility for the day to day running of the shop and management of staff.

[21]The Claimant’s working arrangements were somewhat unclear. It was not in dispute that he worked in the shop from Tuesday to Saturday. His evidence was that after a few weeks a decision was made to close the shop on Mondays, and that he worked from home on this day, contacting clients to discuss potential catering orders. Mr Pawson said that the shop was not formally open to the public on Mondays after a trial of this in Mid-November but that the Claimant often attended the shop on this day as he used the time to provide training to the apprentice. The door could either be locked or open and a member of the public would be able to see that the lights were on in the shop and could go in to purchase something if needed and staff were available. We find that the Respondent’s evidence on whether the Claimant was required to attend the shop on Mondays was very unclear.

[22]It is the Respondent’s evidence that they asked the Claimant a number of times to carry out a stock-take, especially in the run up to the Christmas period. Their case is that on or around the 23 November 2022 the Claimant was advised that he must carry out a stock-take before ordering any further food, but that after this he placed a further order for around £600. We have seen the invoice for this order which is dated 29 November 2022.

[23]The Claimant’s evidence is that he was told to do a stock-take and agreed to carry it out the following Wednesday 30 November but was not told that he could not order any food before that had taken place.

[24]On 29 November Ms Darko-Pawson messaged the Claimant and expressed her unhappiness about the food order. He replied that he had agreed to do the stock-take by the following Wednesday and was not aware of any instruction not to order any more meat until then.

[25]Having noted this email, we find on balance that the Respondent has not demonstrated that the Claimant was instructed not to place any further orders. The documentary evidence does not support such a conclusion.

[26]On the 25 November 2022 the Claimant sent a letter of resignation, suggesting that he felt that it would be better if he sought work elsewhere. He gave one week’s notice to end on 2 December 2022.

[27]The Claimant would usually have worked on Saturday 26 November 2022. Despite some confusion as to dates, having considered the evidence we accept that whether or not he worked, he was paid for that day.

[28]In parts of the witness statement the Respondent asserted that the Claimant had not attended work on Monday 28 November due to a train strike. They later clarified that the train strike had been on 7 November, but that the Claimant was not at work on 28 November for an unspecified reason. It appears that the Claimant was paid for that day.

[29]On 29 November 2022 the Claimant notified the Respondent around 6.45am that he would not be in work as his partner was very unwell. On this same day, Ms Darko-Pawson messaged him about the stock-take.

[30]In the meantime, another issue had arisen. An external contractor who was installing a new till system contacted the Respondent in a Whatsapp message to say ‘I hope Neil is not the joker who was typing “donkey porn” on the laptop part way through the checks I was doing last week”. Neil was the apprentice in the business.

[31]Ms Darko-Pawson made enquiries into this matter. She spoke to the contractor and to Neil and accessed the CCTV in the shop. She formed a view that the Claimant had been involved in viewing animal porn on the laptop.

[32]At 3.09pm on 29 November Ms Darko-Pawson emailed the Claimant for a second time. He was called to a disciplinary hearing on 30 November at 9.30am. The enclosed letter refers only to the allegation that the Claimant had participated in accessing porn through a company laptop.

[33]The letter states that the disciplinary procedure was enclosed but this was not in the tribunal bundle and has never been shown to us. We were told however and accept that the Respondent operates on the basis that staff should be given at least 24 hours’ notice of a disciplinary hearing. Such notice was not provided in this communication.

[34]In his email sent at 17.27 on the 29 November 2022 the Claimant objected to this saying he had insufficient time to prepare for the hearing. He stated that the Company were aware that he had a disability and raised a grievance. He said that he was suffering with depression, stress and anxiety and was going off sick that day.

[35]The Respondent agreed to move the hearing to 3pm on the afternoon of 30 November 2022. The Claimant did not attend.

[36]The Claimant has not provided a sickness certificate in relation to his absence from work nor in relation to the period immediately following the termination of his employment. We note from the GP records that are in the bundle that he did not consult his doctor between June 2022 and June 2023.

[37]On 1 December Ms Darko-Pawson advised the Claimant that the disciplinary hearing had taken place and that the allegations against the Claimant had been substantiated. However, the Respondent would take no further action as the Claimant had already resigned. She went on to say that they would be ‘reviewing the overspend in the business’ and therefore the Claimant’s December pay was under investigation, but he would be paid for November as normal.

[38]The Claimant’s employment ended on 2 December 2022. The Claimant’s new employment

[39]During questioning by the Respondent, the Claimant accepted that prior to handing in his notice he had reached a verbal agreement to start working for another company, Classic Fine Foods Limited. He says that after his employment with the Respondent ended, he had a couple of weeks off as he was feeling unwell due to the matters referred to below. He worked for this company under a fixed term contract for around a year on a salary of £40,000. When asked about documentation relating to this position, he says that he had none. He says that he regularly deletes emails that are three months old. The offer was a verbal one, he was not given any written terms and he had destroyed or not kept all his payslips.

[40]The Respondent suggested that the Claimant may in fact have started work for Classic Fine Foods Limited prior to the date when his employment with the Respondent terminated. We were not showing any evidence of this. Nevertheless, we considered that the Claimant should have disclosed details of his new employment for inclusion in the file of documents. Such information was relevant to any claim for loss of earnings (which the Claimant later confirmed he was not pursuing) and for injury to feelings (as the Claimant was asserting that he was not well enough to commence his new job for around two weeks).

[41]At the end of the hearing on 17 May 2024 we therefore made an order that the Claimant should disclose information about all wages received by him from Classic Fine Foods Limited, plus any forms P45 and P60 related to this employment. The Claimant applied to vary this order arguing that it unnecessary, but that application was rejected by Judge Perry on 19 June 2024. We have today seen a copy of a payslip provided by the Claimant which he says shows that during his first month of employment with Classic Fine Foods Ltd he only received a proportion of his monthly salary. He says that this supports his case that he did not start work for them on or before 1 December 2022. The Claimant has provided none of the other information ordered by the tribunal including his forms P45 and P60. The Disability Claims

[42]As stated above, it had previously been decided that the Claimant was at all material times a person with a disability under the Equality Act 2020.

[43]Judge Rice-Birchall noted that the Claimant had experienced intermittent depressive episodes going back to at least 2005 and concluded that: ‘The claimant’s condition is a recurring condition which has a substantial adverse effect during depressive episodes and those episodes are likely to recur, as they have over a number of years.’

[44]We turn to the specific claims made by the Claimant. Failure to make reasonable adjustments.

[45]The Claimant alleges that the Respondent failed to make reasonable adjustments in relation to calling him to a disciplinary hearing on 30 November 2022.

[46]Under section 20 of the Equality Act 2010 an employer may have a duty to make reasonable adjustments where a ‘provision, criterion or practice [PCP]…puts a disabled person at a substantial disadvantage in relation to a 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’.

[47]Having considered the evidence provided by the Respondent we find that they operated a provision criterion or practice of requiring staff to attend a disciplinary hearing upon 24 hours’ notice if there were allegations of misconduct against them.

[48]We have considered whether the invitation to attend placed the Claimant at substantial disadvantage in comparison with others who did not have his disabilities.

[49]It is likely that anyone called to a disciplinary hearing to answer allegations that they had accessed obscene and pornographic material whilst at work might feel anxious and stressed. We accept however that a person with a history of depression and anxiety might experience greater adverse effects than someone who did not have a similar mental illness. We accept that it is possible that the effects would have been greater if a person was given only a short time to prepare for the hearing. In the case of the Claimant, his medical history makes it clear that he had experienced depressive episodes during periods of stress. We find it more likely than not that being called to a disciplinary hearing to face a serious allegation at short notice risked triggering a depressive episode such as the Claimant had experienced in the past (although we have been provided with no information about the symptoms, severity or duration of this episode). In all the circumstances we find that this requirement placed him at a substantial disadvantage.

[50]Under paragraph 20 of Schedule 8 of the Equality Act 2010 no duty to make reasonable adjustments arises if the employer did not know and could not reasonably be expected to know that a person a) has a disability and b) ‘is likely to be placed at the disadvantage’ referred to in section 20(3) of the Act.

[51]It is the Respondent’s case that they were not aware and could not have been aware that the Claimant had a disability.

[52]We have considered the question of knowledge. For the reasons set out above we have concluded that the Claimant has not demonstrated that he told the Respondent that he had long term depression prior to the start of his employment. The Respondent was therefore not aware of the Claimant’s condition prior to sending out the invitation to attend a disciplinary hearing on 29 November 2022.

[53]The Claimant did not have any sickness absence related to his depression prior to the end of November 2022. Nor is there any other evidence of matters that might have suggested to the Respondent that he had an underlying and longterm mental illness.

[54]We therefore conclude that the only evidence that any information concerning the Claimant’s depression was communicated to the Respondent is in the email he sent them on 29 November 2022 in reply to that invitation.

[55]In that email the Claimant stated that the Respondent was ‘aware’ that he suffered from ‘clinical depression and anxiety’. As set out above we find that this email was the first occasion when the Respondent was made aware of this.

[56]He goes on to say that ‘Consequently I am now suffering with depression, stress and anxiety’.

[57]We draw two inferences from this. First, we find that the Claimant was putting the Respondent on notice that he had a mental impairment. Second, we place weight on the phrase ‘I am now suffering…’. This suggests that immediately prior to the notice of the disciplinary hearing, the Claimant had not been experiencing symptoms. He was however informing the Respondent that receipt of notice had triggered an episode of depression and anxiety. This is consistent with the finding of Judge Rice-Birchall about the nature of the illness he suffers from and its intermittent but nevertheless recurring effects.

[58]We have considered this evidence carefully in light of paragraph 20 of Schedule 8. We have taken into account the guidance set out in Seccombe v Reed in Partnership Limited and Gallop v Newport City Council.

[59]We conclude that although it is more likely than not that the invitation to attend a discplinary hearing did indeed trigger symptoms of anxiety for the Claimant, his email dated 29 November was simply not sufficient to put the Respondent on notice that he had a disability. The effect of the email dated 29 November was to notify the Respondent that the Claimant had suffered from mental illness in the past and that the invitation letter had made him unwell again. At this point the Respondent had no information about how long the condition had lasted, how often he had been unwell, the effects of the condition nor its severity. He did not provide any medical evidence.

[60]Further, there had been no prior indications that the Claimant would be particularly vulnerable if required to attend a disciplinary hearing nor that a hearing at short notice would be particularly difficult for him.

[61]Although in other circumstances an employer might have been expected to make further enquiries at this point, we find that in this case the Respondent could not reasonably be expected to do so. We note that they are a small business with limited resources. It is also crucial to note that the Claimant had already resigned, and his employment was due to end just three days later. It was not reasonable to expect the Respondent to have sought more detailed information about the Claimant’s condition at this point.

[62]We therefore find that the Respondent did not know and could not be expected to know, as at 29 November, that the Claimant had a disability and that calling him to a hearing at short notice would place him at a substantial disadvantage. They lacked the requisite level of knowledge for the duty to make adjustments to apply.

[63]If we are wrong on our interpretation of the email of 29 November, and if i) the Respondent was made aware that the Claimant had a condition that amounted to a disability and that ii) calling the Claimant to a disciplinary hearing at short notice did place him at a substantial disadvantage, what finding would we make in relation to the claim that there was a failure to make adjustments?

[64]First, we find that it was reasonable for the Respondent to call the Claimant to a disciplinary hearing in relation to the allegation made by their contractor. At this point they were not aware of his depression and anxiety. However once made aware of a disability, if they had realised that calling him to a hearing at short notice would be very difficult for him, are there steps that it would have been reasonable for them to take to alleviate any disadvantage caused to him?

[65]It was not reasonable to expect them to cancel the disciplinary process as there were legitimate concerns that required investigation. However, we have asked ourselves whether it would have been reasonable for the hearing to be postponed for a longer period.

[66]We find that giving 24 hours’ notice or less of a disciplinary hearing to face allegations of gross misconduct is short notice that would often be considered unreasonable under the ACAS Code of Practice. The Claimant was well within his rights in requesting a longer period. The Respondent’s concession in moving the hearing back by six hours was minimal and did little to mitigate any adverse effects.

[67]However, we remind ourselves that in considering whether it is reasonable to make an adjustment we must also consider whether it would be effective in removing any disadvantage.

[68]Paragraph 6.28 of the Equality and Human Rights Commission Code of Practice on Employment, under the heading of reasonable adjustments, states that one of the factors that might be taken into account in deciding if an adjustment would be reasonable is: ‘whether taking any particular steps would be effective in preventing the substantial disadvantage’.

[69]The Claimant had resigned, and his employment was due to end two days after the date scheduled for the hearing. He was understandably stressed and anxious about the hearing, but we find that it would not have been reasonable for the Respondent to cancel the hearing or move the hearing to a date after his employment had ended, at which point he would have had no duty to cooperate whatsoever.

[70]We draw an adverse inference from the fact that the Claimant has failed to provide full documentary evidence about the dates of his employment with Classic Fine Foods Limited. His allegation that he was unwell for a couple of weeks after his employment ended as a result of a recurrence of his symptoms of depression and anxiety is unsupported by any medical evidence and we take into account that he has failed to comply with a specific order to provide further information about this including his forms P45 and P60. Although there is no evidence to suggest that he started his new job prior to 3 December, in light of this failure we find it more likely than not that he started work shortly after his employment with the Respondent had ended. The payslip produced today indicates that he was working for Classic Fine Foods for much of December. We find that the Claimant had little incentive to attend a hearing prior to 2 December, and none after that date. Even if the hearing date had been moved by a couple of days, it is more likely than not that the Claimant would not have attended, and the outcome would have been the same.

[71]We also find that the Claimant failed to demonstrate that he suffered continuing ill-health symptoms after his employment ended which delayed him taking up his new role.

[72]To conclude: even if made aware by the email of 29 November 2022 that the Claimant was a person with a disability who had been placed at a substantial disadvantage by the decision to call him to a disciplinary hearing at short notice, any steps taken to delay the hearing would not have removed that disadvantage. The Respondent did not therefore fail to take any reasonable steps and the claim under section 20 fails. Disability-related harassment

[73]The Claimant alleges that the threat to withhold his salary violated his dignity and created an intimidating environment related to his disability contrary to section 26 of the Equality Act 2010.

[74]This claim does not succeed. We note that the Respondent threatened to review the December salary, but this was not in any way related to the Claimant’s stress and depression, which the Respondent became aware of on 29 November 2022. As the Claimant himself said a number of times, he believed that the Respondent was retaliating against him because he had resigned. He did not assert in his evidence that the Respondent’s actions were related to his depression. There is nothing to link the email of 1 December to the Claimant’s mental health. The case has not been made out.