Mr F J Da Silva Pereira v Gatwick Group Services Ltd: 2301619/2023 and 3305309/2023
EMPLOYMENT TRIBUNALS
Case No 2301619/2023, 3305309/2023
Between
Mr F J Da Silva PereiraClaimantGatwick Group Services Ltd RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge Truscott KCMr M Eiras (instructed by lay representative) for claimantMs H Kendrick (instructed by solicitor) for respondentDate 12 August 2024
JUDGMENT
[1]The complaint of unfair dismissal is not well-founded and is dismissed.[2]The complaint of direct age discrimination is not well-founded and is dismissed.[3]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.[4]The complaint of failure to make reasonable adjustments for disability is not wellfounded and is dismissed.[5]The complaint of unauthorised deductions from wages is not well-founded and is dismissed.
REASONS
Reasons having been given orally at the hearing, written reasons were requested by the claimant after the hearing. The following reasons are provided.
Background
[1]The claimant was employed by the respondent from 1 October 2012 until 12 January 2023. At the time of his dismissal, he was employed as a as a Ramp Team Leader, in which role he was in charge of a team of loading staff to load and offload aircraft.[2]For the claimant’s first claim, early conciliation started on 2 February 2023 and ended on 16 March 2023. The claim form was presented on 11 April 2023. This is for case number 2301619/2023.[3]For the claimant’s second claim, early conciliation started on 11 April 2023 and ended on 12 April 2023. The claim form was presented on 12 May 2023. This is for case number 3305309/2023.[4]The claim is about what happened after the claimant suffered an accident at work which caused or exacerbated a back condition, including his dismissal for incapacity.[5]The claims were conjoined at a preliminary hearing held on 21 March 2024 before EJ Truscott.[6]Although the first claim form also includes Mr Haigh and Mr Wyatt as respondents, the claim form was never served on them as individual respondents nor was there any ACAS conciliation in respect of those individuals. The claimant confirmed that his claims were against the respondent rather than against those two individuals. The issues as agreed between the parties and as set out in the case management orders[7]It was confirmed with the parties at the outset of the hearing that the issues as set out in the record of the case management discussion before EJ Truscott was the agreed list of issues, which was as follows: TIME LIMITS
Background
[1]Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 3 November 2022 may not have been brought in time.[2]Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:a. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?b. If not, was there conduct extending over a period?[3]If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?[4]If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:a. Why were the complaints not made to the Tribunal in time?b. In any event, is it just and equitable in all the circumstances to extend time?[5]There is no dispute that the claimant was dismissed.[6]What was the reason or principal reason for dismissal? The respondent relies on the potentially fair reason of incapacity. The claimant does not dispute this.[7]Did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case.[8]The claimant alleges the following. Did they happen and, if they did, does this make the dismissal unfair?a. The respondent took too long to have a consultation with the claimant about his incapacity and did not start the consultation until about 22 February 2022, which was 10 months after the accident.b. The respondent failed to offer the claimant alternative employment which he would be able to undertake.c. The respondent did not offer the claimant light duties which he would have been able to undertake, including when it was recommended by a medical practitioner.d. The respondent failed to provide minutes of consultation meetings with the claimant, although they were requested.e. A recommendation from BA health service that the claimant return to work on a 3-week gradual basis was not implemented.f. The respondent failed adequately to consult with the claimant. REMEDY FOR UNFAIR DISMISSAL[9]If there is a compensatory award, how much should it be? The Tribunal will decide:a. What financial losses has the dismissal caused the claimant?b. Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?c. Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?d. If so, should the claimant’s compensation be reduced? By how much?[10]What basic award is payable to the claimant, if any? DISABILITY[11]The claimant relies on mild degenerative changes to his spine including the facet joints of the spine and a mild disc bulge with annular tear. The respondent concedes that the claimant was disabled for the purposes of section 6 of the Equality Act 2010 over the relevant period. DIRECT AGE DISCRIMINATION (EQUALITY ACT 2010 SECTION 13)[12]The claimant’s age group is 50’s and he compare his treatment with people in the age group 25 to 35.[13]Did the respondent do the following things:a. The claimant was not given the opportunity to return to work; the respondent denies this.b. The claimant was dismissed.[14]Was that less favourable treatment? The tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse that someone else would have been treated.a. The claimant says they were treated worse than Toby, a ramp agent, and Beef, a ramp team leader.b. If so, was it because of age? 1[15]The respondent accepts that, if found to be true, the alleged treatment would amount to a detriment.[16]Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aim was to ensure that all staff attended work.[17]The Tribunal will decide in particular:a. Was the treatment an appropriate and reasonably necessary way to achieve those aims.b. Could something less discriminatory have been done instead.c. How should the needs of the claimant and the respondent be balanced? DISCRIMINATION ARISING FROM DISABILITY (EQUALITY ACT 2010 SECTION 15)[18]Did the respondent treat the claimant unfavourably by dismissing the claimant?[19]Did the following things arise in consequence of the claimant’s disability:a. He was off work sick; therefore, he was furloughed; therefore, the respondent did not engage with him about his incapacity; therefore, steps were not taken to get him back to work which could have been and he was dismissed for incapacity.b. He could not undertake his normal duties as a ramp team leader.[20]Was his dismissal because of any of those things?[21]Was the treatment a proportionate means of achieving a legitimate aim? The respondents says that its aim was to maintain an effective and reliable staffing base though the provision of workforce with a regular and sustainable level of attendance. The Tribunal will decide in particular:a. Was the treatment an appropriate and reasonably necessary way to achieve those aims.b. Could something less discriminatory have been done instead.c. How should the needs of the claimant and the respondent be balanced?[22]Did the respondent know, or could it reasonably have been expected to know that the claimant had the disability? From what date? REASONABLE ADJUSTMENTS (EQUALITY ACT 2010 SECTIONS 20 & 21)[23]Did the respondent know or could it reasonably have been expected to know that the claimant had a disability? From what date?[24]A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs:a. If employees were furloughed, the respondent made no investigations into any sickness issues.b. Requiring employees to undertake their usual role.[25]Did this put the claimant at a substantial disadvantage compared to someone who did not have the claimant’s disability:a. The claimant was unable to return to work.b. The claimant was not offered a suitable alternative role.[26]Did the respondent know, or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?[27]What steps could have been taken to avoid the disadvantage? The claimant suggests:a. The respondent could have engaged with the claimant about his incapacity during the furlough period.b. The respondent should have offered the claimant the roles of dispatcher or towing.[28]Was it reasonable for the respondent to have to take those steps?[29]Did the respondent fail to take those steps? REMEDY FOR DISCRIMINATION[30]Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?[31]What financial losses has the discrimination caused the claimant?[32]Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?[33]What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?[34]Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?[35]Was there a new intervening act which broke the chain of causation between the respondent’s detrimental action and the claimant’s loss?[36]Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?[37]Did the respondent or the claimant unreasonably fail to comply with it?a. If so, is it just and equitable to increase or decrease any award payable to the claimant?b. If so, by what proportion, up to 25%? UNLAWFUL DEDUCTION OF WAGES[38]Did the respondent make a deduction from the claimant’s wages that were unauthorized? The respondent denies this and say that all deductions were authorized by the claimant pursuant to his employment contract.[39]If so, by how much? The claimant alleges that he is owed £2,403.38. Evidence 8. The Tribunal had the benefit of a bundle of documents and witness statements from the claimant as well as from Mr Haigh, Ramp and Ground Service Equipment Manager; Mr Thistleton, Head of Human Resources; Mr Wyatt, Operations and Performance Manager and Ms Pritchard, Payroll Manager on behalf of the respondent. 9. On the first day of the hearing, the respondent indicated that it had been served with the recordings of various meetings between the respondent and the claimant shortly before the hearing. The respondent had not had the opportunity to listen to them and they were not available to the respondent when preparing its witness evidence. 10. The Tribunal informed the claimant that it would not have time to listen to many hours of recordings. The claimant was encouraged to prepare short extracts of the recordings where there was a dispute and which it wanted the Tribunal to hear and to send them to the respondent for them to listen to before the end of day 1. 11. The claimant did so, and the respondent listened to those extracts. Of the extracts provided, the respondent identified that some could be agreed in that the content was not in dispute in relation to what the claimant said in his statement. In others, there was a dispute and the Tribunal listened to those short extracts and the claimant was cross examined on them. Those were the extracts which were admitted into evidence. Findings of fact relevant to the issues 12. The claimant was employed by the respondent (and its predecessors) from 2012. He was employed as a ramp team leader. As such, he was in charge of a team of loading staff to load and offload aircraft correctly. The claimant did not have any direct reports, but he led a team allocated to him on a dayto-day basis to perform the allotted tasks. His line manager was Ian Haigh. 13. The Tribunal finds that the claimant, in his role as a ramp team lead, needed to be flexible as his skills may have been required elsewhere in the business depending on the needs of the respondent from time to time. The roles to which he could have been allocated all required a degree of heavy physical work. 14. The respondent has an Employment Guide which deals with absence management. It states that: “once an employee has been continuously absent from their role for 21 days, they are considered long term sick and may be referred to OH.” 15. It continues: “Where it is clear from the OH report that the employee will not be able to return to work in any capacity within a ‘reasonable timescale’, line managers should consider termination of employment; A ‘reasonable timescale’ depends on the circumstances of the individual and their role but in any event, should not normally exceed six months; An initial long-term absence meeting will be held after approximately one-month of absence; Subsequent meetings will be held; usually at the end of the three months of absence and as often as necessary; At the end of each meeting, the employee will be sent a letter confirming the discussion; If the employee is capable of suitable alternative employment, the line manager will assist them to identify suitable alternative employment; and If the employee has not been successful in obtaining another role after being continuously absent for a prolonged period (usually in the excess of five months), then dismissal in these circumstances will be for incapacity reasons.” 16. The claimant was furloughed during the initial period of covid but had been brought back to work on flexible furlough. This meant that he would be paid full pay for the hours which he worked (which were less than his contracted hours) but was paid 80% of pay for his remaining (unworked) basic hours. 17. Whilst he was on flexible furlough, and on April 17 2021, the claimant strained his back whilst working and produced a fit note to state that he was not fit for work. The option, on the fit note, which states “you may be fit for work taking account of the following advice” was crossed out. 18. The claimant remained absent until he was then furloughed again from 20 May 2021 until 30 September 2021, as a result of which the claimant did not use up his company sick pay entitlement, which was 14 weeks full pay and 14 weeks half pay, as he received furlough pay. 19. The claimant was referred to Occupational Health (OH) whilst he was furloughed, but in respect of his hearing loss. 20. The claimant had not been required to produce fit notes whilst he was furloughed, as he was not treated as absent due to sickness but on furlough. Once furlough ended, a fit note was required. 21. The claimant’s furlough period ended on 30 September 2021 which was when the government’s furlough scheme ended A fit note was submitted which covered 1 October – 14 November 2021. In fact, the claimant remained continuously absent until his dismissal on 12 January 2023. 22. The claimant was referred to OH who produced a report, on 8 December 2021, which confirmed that he was unable to return to work and that, although no timescale could be given, they were confident that he would recover to a level to allow him to return. 23. The claimant submitted a fit note for the period 1 -12 January 2022 which stated that he was not fit to work. 24. On 12 January 2022, an advisory fitness for work report assessed the claimant as able to return to work on amended duties, namely avoiding repetitive movements and lifting/pulling/pushing weight. A statement of fitness for work from the claimant’s GP confirmed that the claimant could return to work on light duties. 25. Repetitive movement and handling weight was a fundamental part of his role. Accordingly, the respondent decided that light duties could not be offered. This is a consistent approach across the respondent’s organisation as the work is of a nature in which they say light duties are just not possible. Ian Haigh explained this to the claimant who understood and said that his GP had told him that if he were to continue in his role it would harm his health. At this stage, the respondent still believed that the claimant would be able to return to his original role. 26. A further BAHS referral was made on 21 January 2022. BAHS is British Airways Health Services which was the respondent’s then OH provider. Mr Haigh spoke with BAHS on 26 January 2022 and agreed that the respondent could not provide light duties as all jobs in the sector required repetitive movement and heavy lifting. A further referral was agreed to see what roles the claimant could perform, and it was agreed that the claimant’s GP would be contacted for further information. 27. On 26 January 2022, Ian Haigh wrote to HR (James Carter) to confirm that he had discussed with OH the fact that there could be no light duties. 28. On 4 February 2022, the claimant’s GP issued a statement of fitness for work which indicated that the claimant was able to return to work on amended duties and that repetitive movements and heavy lifting should be avoided. 29. On 9 February 2022, the claimant wrote to HR to request a welfare meeting and to ask what holiday he had accrued. 30. On 10 February 2022, a BAHS assessment concluded that the claimant was able to return to work in his usual role with a phased return. The report said: “We discussed his overall fitness for return to work taking into consideration the report from the physio and GP. We agreed he would be fit to return to work on 13/03/2022 on a graded rehab plan over 3 weeks – hours can be discussed locally with you. He is aware of his own limitations and of fitness levels required for working in the ramp. If he is struggling with any aspects of the role, I would be happy to review. “ 31. Ian Haigh contacted the claimant on the same day and offered to discuss the assessment with him in a welfare meeting. Welfare meeting: 22 February 2022 32. A welfare meeting was held on 22 February 2022. The claimant was represented by his trade union representative. The OH report was discussed but the claimant’s evidence was that he had not seen it in advance of the meeting. 33. Despite the fact that the fit note said that the claimant was ready to return to work on a phased return, the claimant did not agree with that, and asked for alternative duties, in contradiction of the report, which suggested that he could return to work on a phased return, or, in other words, on gradually increasing hours. 34. The claimant confirmed that he did not consider himself fit to return to work in an email of 14 March 2022 and said that he believed he should have alternative duties rather than a phased return. Again, the respondent’s position was, and remained, that there could be no light duties (confirmed by BAHS) and that the claimant needed to be fit for physical work including loading and offloading bags from planes. 35. On 15 March 2022, the claimant provided a new statement of fitness for work which stated that he was unable to return to work in his job role and asked instead for alternative duties. As that was in contrast with what had been recommended by BAHS, he was referred back to OH again. 36. That BAHS assessment was made on 10 May 2022 and confirmed that the claimant was unfit to return to work with no timescale for a return. Welfare meeting: 1 June 2022 37. A welfare meeting took place on 1 June 2022 between the claimant, Ian Haigh and Tony Thistleton. The claimant was supported by his union representative Lee Bristow. The claimant was informed that, if he continued to be unfit for work, it was likely that he could be dismissed from his employment and was informed of the consequences of that, as regards benefits. 38. The claimant attended a further OH assessment on 24 August 2022 which concluded that he was still unfit to attend work in his role. No recommendations were given, and the report confirmed that no light duties were available. 39. On 6 September 2022, the claimant was asked, by the respondent, for his consent for his medical records to be provided to the respondent. The claimant gave that consent.[40]On 13 September 2022, the claimant submitted a statement of fitness for work which stated that he was not fit for work.[41]On 12 October 2022, a further OH report was received, this time considering the claimant’s medical records. The OH report stated that the claimant was still unfit to return to work and would be unable to recommence his role soon.[42]On 19 October 2022, the claimant was invited to an ill health capability review meeting, at which he was put on notice of his possible dismissal if he remained unable to return to work in the near future.[43]A further ill health capability review meeting took place on 16 November 2022 at which Ian Haigh, Tony Thistleton, the claimant, and his union representative were present. It was confirmed that the claimant was unable to return to his role. The respondent offered to search for alternative positions.[44]Accordingly, on 18 November 2022 the respondent wrote to the claimant to identify six roles which were potentially available to the claimant, subject to OH approval. The job descriptions for each of those roles were also sent. The claimant was specifically told that he would need to see OH to consider whether any role was suitable considering his injuries.[45]The claimant rejected all of the roles outright and said they had been offered with ‘malicious intent’. He asked for confirmation of what he would receive as an exit package should his employment be terminated.[46]On 12 January 2023, the claimant attended a meeting at which he was dismissed with ten weeks’ notice. He was paid in lieu of all accrued, but untaken, holiday. The decision to dismiss the claimant was confirmed in writing on 23 January 2023.[47]The claimant appealed against the decision to dismiss him. The appeal was heard by Peter Wray.[48]The appeal outcome letter was sent to the claimant on 21 March 2023, responding to the points made. In responding, Mr Wray had the claimant’s personnel file and reviewed the OH reports. Mr Wray did not uphold the claimant’s appeal against dismissal.[49]The claimant contested deductions from his final salary. Monies had been deducted from his final pay figure due to overpaid wages because of sick pay and he had not received the full amount of pay indicated in his exit package. Law[50]An employee has the right under section 94 ERA not to be unfairly dismissed (subject to certain qualifications and conditions set out in ERA). Reason for Dismissal[51]When a complaint of unfair dismissal is made, it is for the employer to prove that it dismissed the claimant for a potentially fair reason, namely a reason falling within Section 98(2) ERA or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the claimant held.[52]A reason relating to the employee’s capability or capacity is a potentially fair reason falling within Section 98(2). Fairness[53]If the respondent proves that it dismissed the claimant for a potentially fair reason, the Tribunal must then decide if the employer acted reasonably in dismissing the employee for that reason applying the test in section 98(4) ERA.[54]Section 98(4) ERA provides that “the determination of the question whether(a) the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances including the size and administrative resources of the employer’s undertaking the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and(b) shall be determined in accordance with equity and the substantial merits of the case”.[55]The leading case on fairness in ill-health dismissals made clear that the employer should establish the true medical position and consult with the employee before deciding whether to dismiss (East Lindsey District Council v Daubney [1977] ICR 566).[56]When investigating the medical position, an employer should be judged by the standards of the reasonable employer, not by the standards of whether it left no stone unturned.[57]Case law has also established that in cases of long-term absence, fairness will also include considering the availability of alternative employment.[58]An employer should consider whether there is any suitable alternative employment before taking the decision to dismiss. However, it is not under a duty to create a job where none exists.[59]For unfair dismissal law purposes, the question of whether or not it is reasonable for an employer to waive or otherwise modify a certain aspect of the job so as to avoid dismissal will be a question of fact and degree. In Garricks (Caterers) Ltd v Nolan [1980] IRLR 259, the EAT agreed with an employment tribunal that a dismissal was unfair where the employer failed adequately to consider whether the requirement for Mr Nolan to carry out a small aspect of his job, namely heavy lifting, could be waived permanently. Regard was had to the fact that the lifting duties were minimal and could easily have been done by another employee without inconvenience to the employer.[60]Assuming a tribunal is satisfied that an employer has followed a fair procedure, the final question will be whether the employer can be expected to keep the employee's job open any longer.[61]In O'Brien v Bolton St Catherine's Academy [2017] EWCA Civ 145, Underhill LJ said: "The argument "give me a little more time and I am sure I will recover" is easy to advance, but a time comes when an employer is entitled to some finality.”[62]In DB Schenker Rail (UK) Ltd v Doolan [2010] UKEAT/0053/09, the EAT invoked the relevance of the Burchell test to ill-health dismissals, since the employer must show:a. It had a genuine belief that ill-health was the reason for dismissal.b. It had reasonable grounds for its belief; andc. It carried out a reasonable investigation.[63]In applying section 98(4), the Tribunal must also ask itself whether dismissal was a fair sanction for the employer to apply in the circumstances. The test is an objective one. It is irrelevant whether the Tribunal would have taken the same course had it been in the employer’s place, similarly it is irrelevant that a lesser sanction may have been reasonable. Section 98(4) requires the Tribunal to decide whether the employer’s decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted (Iceland Frozen Foods Ltd –v- Jones 1982 IRLR 439). Direct age discrimination[64]Section 13(1) EqA provides: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[65]Section 23(1) EqA requires that there be no material difference between the circumstances relating to each case.[66]The Tribunal is aware that the burden of proving the discrimination complaint rests on the employee bringing the complaint. However, it has been recognised that this may well be difficult for an employee who does not hold all the information and evidence that is in the possession of the employer and because it relies on the drawing of inferences from evidence. The concept of the “shifting burden of proof” was developed to deal with this. The concept is discussed in a number of cases and is set out in s136 EA which states that: “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 [but] if A is able to show that it did not contravene the provision then this would not apply.”[67]In the case of Laing v Manchester City Council (EAT) ICR 1519 the EAT spelt out how the burden of proof provisions should work in practice: “First, the onus is on the complainant to prove facts from which a finding of discrimination, absent an explanation, can be found. Second, by contrast, once the complainant lays that factual foundation, the burden shifts to the employer to give an explanation. The latter suggests that the employer must seek to rebut the inference of discrimination by showing why he has acted as he has. That explanation must be adequate, which as the courts have frequently had cause to say does not mean that it should be reasonable or sensible but simply that it must be sufficient to satisfy the Tribunal that the reason had nothing to do with race.”[68]In every case, the Tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] IRLR 572: “this is the crucial question.” It was also his observation that in most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator. If the Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, then that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial.[69]As Elias J stated in Laing, in some cases it is still appropriate to go right to the heart of the question of whether or not the claimant’s protected characteristic was the reason for the treatment: “The focus of the Tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer [age] discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious [racial] discrimination, then that is the end of the matter. It is not improper for a Tribunal to say, in effect, “There is a nice question as to whether or not the burden has shifted, but we are satisfied here that, even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race.” Whilst…. it will usually be desirable for a Tribunal to go through the two stages suggested in Igen, it is not necessarily an error in law to fail to do so.” Comparators[70]The Tribunal firstly needs to assess if the actual comparators are correct comparators in accordance with the law. In Shamoon it was stated that: “A comparison of the cases of persons of a different sex…must therefore be such that all the circumstances which are relevant to the way they were treated in the one case are the same, or not materially different, in the other.”[71]At paragraph 116 of Shamoon, Lord Scott of Foscote held as follows: “…I would readily accept that it is possible for a case of unlawful discrimination to be made good without the assistance of any actual comparator. …. But in the absence of comparators of sufficient evidential value some other material must be identified that is capable of supporting the requisite inference of discrimination. Discriminatory comments made by the alleged discriminator about the victim might, in some cases, suffice. Unconvincing denials of a discriminatory intent given by the alleged discriminatory, coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision, might in some cases suffice. But there is nothing of that sort in the present case, or, at least, no reference to anything of that sort was made by the Industrial Tribunal.”[72]In Madarassy v Nomura International plc [2007] ICR 867, CA, Mummery LJ stated that: ‘The bare facts of a difference in status and a difference in treatment only indicates a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent has committed an unlawful act of discrimination’.[73]In Strathclyde Regional Council v Zafar [1997] 1 WLR 1659 at paragraph 12, Lord Browne-Wilkinson said: “…It cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances.[74]If it has been established that the claimant was treated less favourably because of age, the next stage is to consider whether the treatment was a proportionate means of achieving a legitimate aim. It is for the employer to prove justification. Knowledge of disability[75]Where the protected characteristic is disability, the employer’s knowledge of the disability is relevant to the question of whether the employer treated the employee less favourably on the grounds of that protected characteristic. The requisite knowledge that the employee is disabled may be actual or constructive and is of the facts constituting the disability, namely (as also clarified by the Equality Act 2010 ( EqA), Sch 1) a physical or mental impairment, and that the impairment has a substantial and long-term adverse effect on the employee's ability to carry out normal day-to-day activities.[76]Provided that the employer has actual or constructive knowledge of such facts, it need not be shown that the employer was aware, as a matter of law, that these facts meant the employee was a ‘disabled person’ within the meaning of the legislation.[77]It is for the employer to make its own judgment as to whether it considers the employee to be disabled, and not to simply rely on the opinion of an adviser.[78]Knowledge of disability in one part of an organisation, or on the part of one individual in an organisation, does not mean that that knowledge can be imputed to the organisation generally, or to any or all of its employees, for all purposes, and in particular in the context of deciding whether there has been direct discriminatory conduct.[79]If there was too high a standard for triggering constructive knowledge, that would reward ignorance and put the emphasis back on the process of what was done or not done and why. It would defeat the object of the legislation. Failure to make reasonable adjustments[80]The claimant also brings a claim of in respect of the respondent’s alleged failure to make reasonable adjustments. The EqA, at section 20, provides that: “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes a person on whim the duty is imposed is referred to as A. (2) The duty comprises the following three requirements: (3) The first requirement is a requirement, where a provision, criterion or practice of A’s 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.”[81]The requirement must put the disabled person at a ‘substantial disadvantage in comparison with persons who are not disabled’ which the statute defines as something that is ‘more than minor or trivial’, see: s. 212(1) EqA 2010. The Tribunal is under an obligation to identify the nature and extent of the disadvantage to which the claimant is subjected with some degree of precision. As substantial disadvantage must be established via a comparison of ‘persons who are not disabled’, the duty to make reasonable adjustments will only be triggered if it is established that the relevant PCP causes greater disadvantage to the disabled claimant than it does to nondisabled people, not generally, but in relation to persons to whom the requirement is applied.[82]Substantial means more than minor or trivial.[83]The claimant bears the burden of establishing a prima facie case that the duty to make reasonable adjustments has arisen and that there are facts from which it could reasonably be inferred — absent an explanation — that the duty has been breached.[84]Section 21 then provides: “(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.[85]Once satisfied that the s. 20 duty has potentially been triggered, the tribunal will turn its mind to what adjustments could and should have been made. It will need to identify the ‘step’ or ‘steps’, if any, the employer could reasonably have taken to prevent the claimant suffering the disadvantage in question. Again, the onus falls on the claimant, not the employer, to identify in broad terms the nature of the adjustment that would ameliorate the substantial disadvantage. Having done so, the burden then shifts to the employer to show that the disadvantage would not have been eliminated or reduced by the proposed adjustment and/or that the adjustment was not a reasonable one to make.[86]In Smith v Churchill's Stairlifts plc [2006] IRLR 41, the Court of Appeal held that the test of reasonableness is objective and to be determined by the tribunal. This is a rare example of legislation that requires tribunals to substitute their own opinion for that of the employer and to decide if the employer's time and resources should be spent in a particular way. Reasonableness[87]The test of reasonableness in this context is an objective one and, per the EHRC Code, [6.23]: ‘…will depend on all the circumstances of each individual case.’[88]A step that is easy for the employer to take is more likely to be reasonable than one that is difficult.[89]Likewise, low cost and low disruption adjustments are also more likely to be reasonable than those which are expensive as compared to the failing to make the adjustment and given the circumstances of the employer, and as compared with adjustments which are disruptive. Knowledge[90]For the duty to arise, the respondent must have actual or constructive knowledge of both disability and of the substantial disadvantage alleged, see: Sch. 8, Para 20(1) EqA 2010. S15: discrimination because of something arising from disability[91]Section 15 of the Equality Act 2010 (EA) states that “a person discriminates against a disabled person if:a. he treats the disabled person unfavourably because of something arising from, or in consequence of, that disabled person’s disability, andb. he cannot show that the treatment is a proportionate means of achieving a legitimate aim, andc. he knew, or could reasonably have been expected to know, that the disabled person had the disability.”[92]This provision is of relevance where a disabled person is treated unfavourably because of something arising from, or in consequence of, his disability, such as the need to take a period of disability-related absence, rather than because of the disability itself.[93]Unfavourable treatment is different from a 'detriment'. It means placing a hurdle in front of, or creating a particular difficulty for, or disadvantaging a person.[94]The Tribunal must determine first whether the employer treated the employee unfavourably because of an identified ‘something’, and second, whether that ‘something’ arose in consequence of the employee's disability?[95]The first question involves an examination of the employer’s state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of the employer's attitude to the relevant ‘something’. The second question involves an examination of whether there is a causal link between the employee’s disability and the relevant ‘something’. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.[96]In Pnaiser v NHS England and another [2016] IRLR 170, the EAT summarised the proper approach to claims for discrimination arising from disability as follows:a. The tribunal must identify whether the claimant was treated unfavourably and by whom.b. It then has to determine what caused that treatment, focusing on the reason in the mind of the alleged discriminator, possibly requiring examination of the conscious or unconscious thought processes of that person, but keeping in mind that the motive of the alleged discriminator in acting as he or she did is irrelevant.c. The tribunal must then determine whether the reason was "something arising in consequence of [the claimant's] disability", which could describe a range of causal links. That stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.d. The knowledge required is of the disability; not knowledge that the "something" leading to the unfavourable treatment was a consequence of the disability.[97]It is necessary simply to establish that the claimant’s disability was a significant influence on the unfavourable treatment, or a cause which is not the main or the sole cause but is nonetheless a significant cause of the unfavourable treatment). A ‘significant’ influence is required, not a mere influence. What is required is an influence or cause that operates on the mind of a putative discriminator, whether consciously or subconsciously, to a significant extent and so amounts to an effective cause. Anything less would be insufficient.[98]If it has been established that the disabled person was treated unfavourably because of something arising from, or in consequence of, his disability, the next stage is to consider whether the treatment was a proportionate means of achieving a legitimate aim. It is for the employer to prove justification.[99]As to proportionality, the Employment Code of Practice notes that the measure adopted by the employer does not have to be the only possible way of achieving the legitimate aim, but the treatment will not be proportionate if less discriminatory measures could have been taken to achieve the same objective (see para 4.31). Claims of unfair dismissal and disability discrimination[100]The tests for unfair dismissal and discrimination should be considered separately as they are different tests. This was highlighted by the EAT in Perratt v City of Cardiff Council EAT 0079/16 when it held that an employment tribunal had erred in treating the claimant’s unfair dismissal claim as ‘parasitic’ on her claims for failure to make reasonable adjustments and discrimination arising from her disability. Time limits[101]Section 123 EqA sets time limits within which claims of discrimination must be brought.[102]A discrimination claim must normally be brought before the end of “the period of three months starting with the date of the act to which the complaint relates”.[103]Acts occurring more than three months before the claim is brought may still form the basis of the claim if they are part of “conduct extending over a period”, and the claim is brought within three months of the end of that period.[104]In Hendricks v Metropolitan Police Commissioner [2002] EWCA Cov 1686, the Court of Appeal stated that the test to determine whether a complaint was part of an act extending over a period was whether there was an ongoing situation or a continuing state of affairs in which the claimant was treated less favourably. A tribunal should consider the allegations “in the round” and ask whether, on the facts, the employer was responsible for an ongoing situation where the claimant was treated less favourably.[105]Pursuant to section 123(1(b) EA 2010, the tribunal can extend time for bringing a discrimination claim by such period as it thinks just and equitable. Unlawful deduction of wages[106]An employer shall not make a deduction from wages of a worker employed by him unless—a. the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, orb. the worker has previously signified in writing his agreement or consent to the making of the deduction.
Conclusions
[107]There is no dispute that the claimant was dismissed.[108]The respondent relies on the potentially fair reason of incapacity. The claimant does not dispute this. The Tribunal finds that this was the reason for the claimant’s dismissal, the claimant having been absent from work since April 2021, which totalled some seventeen months on sick leave in addition to the period of furlough, with no prospect of a return to work.[109]On the reasonableness of the dismissal, the Tribunal deals first of all with the claimant’s specific points.[110]The claimant alleges that the respondent took too long to have a consultation with the claimant about his incapacity and did not start the consultation until about 22 February 2022, which was 10 months after the accident.[111]The claimant refers to the fact that a referral to Occupational Health was not made until January 2022, following the accident in April 2021. The first referral was made in December 2021.[112]Nonetheless the Tribunal considers that, if anything, delaying the start of the process was to the claimant’s advantage as it permitted him additional pay, the delay being caused by being put on furlough, a time when, in any event, very little was happening in terms of process and procedure as the business was operated with a skeleton staff. Delaying the start of the process also meant that the claimant was not dismissed until almost two years after his accident when the respondent’s long term sickness process envisages dismissal after six months. The claimant was unable to point to any disadvantage or unreasonableness in the respondent’s approach.[113]In any event, it was considered by the respondent, during the early period of the claimant’s sickness absence, that the claimant’s injury was likely to be a short-term injury only, which is why no initial welfare meeting was held. The respondent believed they were assisting the claimant and giving him additional pay and additional time to recover by putting him on furlough. The claimant was a good ramp team lead, and the Tribunal concludes that the respondent wanted him to return to work.[114]The Tribunal does not find that the respondent took too long to have the consultation, and, further, does not find that the length of time taken to have the full consultation was unfair or outside the band of reasonable responses of a reasonable employer, to render the dismissal unfair. To the contrary, the delay demonstrates that the respondent was not in any rush to commence the long-term absence process which led to the claimant’s dismissal.[115]The claimant further argues that the respondent failed to offer him alternative employment which he would be able to undertake. However, six alternative positions were offered to the claimant in the November prior to his dismissal, which the claimant refused simply by saying that he felt they had been offered with ‘malicious intent’. In cross examination, he gave various explanations for his refusing these roles including that he could not do the job or that the job advert was out of date. However, the jobs were all subject to OH input and a further referral to confirm that the claimant was fit to perform the role in question. The Tribunal finds that the claimant simply did not wish to pursue any of the alternatives offered.[116]One of the roles was the role of dispatcher which was one of the job roles the claimant had said he wanted previously. In evidence he explained that he turned that role down because there was a date on the advert which made it look as though the job advert was out of date, but that was an erroneous date and the claimant did not make any enquiries about it, which could have reassured him. The Tribunal finds that the claimant did not pursue, or show any interest, in an alternative role and dismissed the job offers, which were genuinely made in order to try to avoid the claimant losing his job. The respondent has not acted outside the band of reasonable responses of a reasonable employer in offering the claimant these alternative roles.[117]The claimant alleges that the respondent did not offer the claimant light duties which he would have been able to undertake, including when a medical practitioner recommended it.[118]The Tribunal accepted the respondent’s evidence that, in their business, in which almost all roles are physical, they cannot offer light duties. It would be unmanageable to have people unable to do parts of their role in the context of loading and unloading aircraft, which requires a person to be physically fit. This opinion was shared by OH who confirmed that there were no light duties in the claimant’s role. Again, this was not outside the band of reasonable responses in the context of the respondent’s business and the jobs for which it employed the claimant.[119]It is accepted that the respondent failed to provide minutes of consultation meetings with the claimant, although they were requested. The claimant says that this undermined the transparency of the dismissal process. However, it transpired, at the outset of the hearing, that the claimant had, in any event, recorded the meetings (without the respondent’s knowledge) and so had a record of them.[120]The Tribunal was surprised that the minutes were not available to the Tribunal, particularly as Mr Thistleton confirmed that he had taken notes. He said the reason they had not been disclosed was because his handwriting was illegible, but that would not have prevented the notes being typed up and made available. Similarly, it is best practice for a brief note of any meetings with an employee, in particular where an employee s being told that a time is approaching when they may face dismissal, to be made available or, at very least, for that meeting to be confirmed by a brief letter summarising what was discussed. This was also in contrast to the respondent’s own procedures which stated that minutes would be made available.[121]However, the Tribunal does not consider that this procedural failing by the respondent was such to be outside the band of reasonable responses so as to render the dismissal unfair. In particular, after the November meeting, the respondent wrote to the claimant to confirm the alternative job roles available and to set out the exit package should none of the roles be taken up or be suitable. That made it clear to the claimant what the alternatives were and the next steps in the process being followed by the respondent.[122]The claimant relies on the fact that a recommendation from BAHS, that the claimant return to work on a 3-week gradual basis, was not implemented. However, this was not implemented because BAHS had recommended that the claimant was fit to return to his job as ramp team leader with no adjustments other than a phased return, and the claimant himself had said that he was not ready to return to work to that role. In fact, Mr Haigh stated in evidence that he was keen to get the claimant back to work and it is clear to the Tribunal that he was trying to facilitate the phased return.[123]Further, the Tribunal is satisfied that respondent did not fail adequately to consult with the claimant following his return from furlough and prior to dismissal. The respondent had a number of meetings with the claimant in which he was warned that dismissal could be a possible option if he continued to be unfit for work. Any allegation made by the claimant that the ACAS code was not complied with is not upheld by the Tribunal. The respondent consulted with the claimant, warned him of the potential consequences of his continuing to be unfit for work and took OH advice.[124]Overall, the claimant’s dismissal was within the band of reasonable responses of a reasonable employer. The respondent consulted with the claimant over a number of occasions and made it clear what the outcome was likely to be if he remained unfit to perform his role. They warned him in advance that dismissal was likely if he continued to be absent and sought numerous OH referrals. In particular. The respondent’s policy provided that dismissal could be considered after six months, but the claimant was given much longer to recover and get back to work (seventeen months not including the period of furlough).[125]The claimant’s claim of unfair dismissal fails and is dismissed. Direct Age Discrimination[126]The claimant described his age group as 50’s and he compared his treatment with people in the age group 25 to 35.[127]The Tribunal does not accept that the claimant was not given the opportunity to return to work by the respondent. The respondent offered the claimant alternative employment which the claimant refused to consider.[128]The Tribunal does however find that the claimant was dismissed and that this was a detriment.[129]The claimant says he was treated worse than Toby, a ramp agent, and Brian, a ramp team leader known as “Biff”. However, the Tribunal heard in evidence from the claimant, that Brian was in fact older than the claimant and in his 50s and therefore could not be a comparator for age discrimination purposes. The claimant conceded that Biff was not a relevant comparator.[130]The claimant says that Toby was moved from the ramp to the tow team after he broke his leg but was unable to give any information on Toby’s period of employment, his sickness absences or when he was allegedly transferred. The respondent’s evidence, which was accepted, was that he had always been on tow team and had considerably different periods of sickness absence as well as a different type of injury.[131]The Tribunal further heard that Toby left the respondent’s employment in August 2022, probably by reason of redundancy. In this regard he was treated less favourably that the claimant because his employment ended sooner.[132]The Tribunal is satisfied that Toby was not a relevant comparator, and that the claimant was not treated worse than someone else in materially the same circumstances was treated[133]The claimant’s dismissal was not less favourable treatment.[134]In any event, the claimant was unable to say why he felt his dismissal was because of his age other than to say that it was his opinion. In any event, the Tribunal finds no evidence to suggest that the claimant was dismissed because of his age but rather was dismissed because he was absent from work and there was no indication that he would be fit to return at the time of dismissal.[135]There are no facts from which the Tribunal can conclude that the claimant was discriminated against because of his age.[136]The claimant’s claim of direct age discrimination fails and is dismissed. The claimant’s disability[137]The claimant relies on mild degenerative changes to his spine including the facet joints of the spine and a mild disc bulge with annular tear. The respondent concedes that the claimant was disabled for the purposes of section 6 of the Equality Act 2010 over the relevant period.[138]The respondent knew of the disability from February 2022 when it became apparent that this was a long-term injury, as evidence from the OH report from that period. Prior to that, the respondent had considered it to be a short term, rather than a long-term condition which would last, or could reasonably have been expected to last, twelve months or more. Discrimination arising from disability[139]It is accepted that the unfavourable treatment is the dismissal that arises out of the claimant’s inability to perform his normal role as ramp team lead and his consequent sickness absence. The Tribunal finds that the respondent did treat the claimant unfavourably by dismissing him.[140]It is further accepted that the claimant’s sickness absence and his inability to undertake normal duties arose in consequence of his disability.[141]However, it was not a consequence of sickness that he was furloughed, as many employees were furloughed at that time, not just those who were absent for sickness.[142]The Tribunal does accept that, as a result of being put on furlough, the respondent did not have welfare meetings and long-term absence meetings with the claimant. However, following furlough, there were multiple OH referrals and meetings with the claimant, but he was still not fit to work when he was dismissed, having been offered, and declined, the possibility of alternative work. The lack of welfare meetings during furlough was not unfavourable to the claimant as it gave him longer to recover. In any event the claimant was still unfit at the end of this period. Consequently, his dismissal was not because of any of those things.[143]Although it is accepted by the Tribunal that the claimant was dismissed because he was unable to perform his duties as a ramp team leader, it is also relevant that the claimant refused to consider alternative employment suggested by the respondent.[144]The Tribunal finds that the claimant’s treatment by the respondent was a proportionate means of achieving a legitimate aim. The respondent says that its aim was to maintain an effective and reliable staffing base though the provision of workforce with a regular and sustainable level of attendance. The Tribunal finds it to be a legitimate aim to ensure attendance at work by its employees to perform the work to be done.[145]The respondent’s response was proportionate in circumstances in which the claimant had been absent for a considerable period and there was no prospective date for a return to work. He was not fit for work until months after his dismissal, and indeed had still not returned to work by the time of the Tribunal. Further, the respondent offered the claimant alternative roles which he failed to pursue. The respondent is not required to create a position for the employee, nor is it expected to bump employees out of their job. There was, at the relevant time no relevant alternative employment that the claimant could have done other than that offered by the respondent, which the claimant declined to consider.[146]The treatment was an appropriate and reasonably necessary way to achieve the aim of ensuring employees attend work because the treatment, in this case dismissal, was in line with the respondent’s absence policy which provides for dismissal in circumstances in which an employee has been absent for more than six months and there is no prospect of a return to work.[147]Whilst it would have been less discriminatory for the claimant to have been given an alternative role, the claimant declined to engage with the roles identified by the respondent. By raising the possibility of alternative roles with the claimant, the respondent balanced the needs of the claimant and the respondent.[148]Other than considering alternative roles, there was no less discriminatory alternative. The only alternative suggested by the claimant was that they should have continued to employ him for longer or offer him light duties which were not available. Failure to make reasonable adjustments[149]The Tribunal accepts that the respondent should have known or was reasonably expected to know that the claimant had a disability. As much is noted on some of the OH reports from February 2022. In any event, knowledge is not denied, certainly by the time of the claimant’s dismissal and any conversation pertaining to dismissal.[150]The Tribunal finds that the respondent did not operate the PCP of: If employees were furloughed, the respondent made no investigations into any sickness issues.[151]In fact, during furlough, the claimant did attend OH but for his hearing. Further, when an employee is furloughed, they are not expected to work.[152]In any event, this PCP, if applied, was to the claimant’s advantage, rather than disadvantage, because it gave him longer to recover and more pay. The claimant was not able to demonstrate any substantial disadvantage of the application of such a PCP. Whilst the claimant said that early intervention may have got him back to work, there was no evidence to indicate that this could have been the case, especially as, by the time of the Tribunal hearing, the claimant still had not returned to work.[153]It is accepted by the Tribunal and the respondent that it applied a PCP of requiring employees to undertake their usual role and that this caused a substantial disadvantage to the claimant as it meant that he was unable to return to work.[154]Although this meant that the claimant could not return to his role as a ramp team leader, he was offered alternative roles which may have been suitable. However, the claimant refused to engage with those roles even though one of them was the role of dispatch which he had indicated previously he would have been interested in. It is not accepted that the claimant was not offered a suitable alternative role.[155]The Tribunal finds that the respondent knew, or could it reasonably have been expected to know, that the claimant was likely to be placed at the disadvantage.[156]As respects steps which could have been taken to avoid the disadvantage, the claimant suggests that the respondent could have engaged with the claimant about his incapacity during the furlough period. However, the claimant was still unfit to attend work even after having seen the specialist after the termination of his employment. It is unclear to the Tribunal how this would have avoided or reduced any substantial disadvantage. It was not reasonable for the employer to take that step in any event as the employees on furlough were not expected to work and the respondent did not have the resource during that time to proactively manage sickness absence.[157]The claimant further suggests that the respondent should have offered the claimant the roles of dispatcher or towing. However, the role of dispatcher was offered by the respondent for consideration by the claimant and it was turned down by the claimant 9on the basis that the roes were offered with ‘malicious intent’. A role in the tow team was not available in November when roles were offered and, in any event, the claimant did not engage with the respondent or indicate that he might be interested in other role. Although the claimant did ask for a role in tow team earlier on in the process, he was at that stage still unfit for work and the respondent was still working towards the claimant returning to his role on the ramp, which was still, in their view, a possibility at that time. The respondent does not have to create roles for an employee which do not actually exist.[158]Further, the respondent could not actually offer the roles without OH advising that the claimant was fit to perform the roles.[159]The respondent took all steps which were reasonable.[160]The claimant’s claim that the respondent has failed to make reasonable adjustments fails and is dismissed. Unlawful deduction from wages[161]The respondent did not make a deduction from the claimant’s wages that was unauthorized.[162]The claimant alleges he is owed £2403.38 in wages, but the claim was unclear, and the claimant was unable to explain why he thought he was owed that sum.[163]The respondent deducts sick pay one month in arrears. The respondent explained repeatedly to the claimant that the deductions made related to the claimant’s sickness absence in December 2022 and January 2023 but the claimant raised a grievance and, on 21 March 2023, the claimant and the respondent met to discuss and go through each of the claimant’s payslips from the previous twelve months.[164]The claimant seems to suggest that he should have received the figures set out in gross as his exit package in full without deductions. The letter setting out the exit payments was silent as to whether it was net or gross or subject to deductions, but at no point did the respondent give any indication that it would be a gross payment free from any authorised deductions.[165]The claimant received the correct amount of pay. All deductions were authorized by the claimant pursuant to his employment contract.[166]The claim that the respondent made unauthorised deductions from the claimant’s salary fails and is dismissed.[167]As all claims have failed, the Tribunal has not gone on to consider time limits.