Mr S Jackson v Lidl Great Britain Ltd/Lidl UK GmbH: 2302259/2019

EMPLOYMENT TRIBUNALS

Case No 2302259/2019

Between

Mr S JacksonClaimant

Lidl Great Britain Ltd/Lidl UK GmbHRespondent

Before

Employment Judge Webster

In person for claimant

Ms Williams (instructed by Solicitor) for respondent

Date 3 September 2020

JUDGMENT

[1]The claimant’s claim for indirect sex discrimination is dismissed upon withdrawal.

[2]The claimant’s application to amend his equal pay claim to include the comparator Laura Johnson.

[1]After all the matters set out below had been discussed, we agreed that two preliminary hearings were necessary in the above case. Firstly, a Stage One Equal Value Hearing was listed on 1 June 2020 to provide directions for the claimant’s Equal Pay claim.

[2]Secondly, a preliminary hearing was listed for 2 days on 2 and 3 September 2020 for the purposes of determining the following points:(i) Was the claimant disabled for the purposes of the Equality Act 2010? The claimant is relying on the condition of dyslexia. Case Number: 2302259/2019 2

(ii) The claimant is bringing several claims of discrimination relating to religious or philosophical belief. The claimant relies upon the philosophical belief of Stoicism. The hearing will be to determine whether Stoicism is capable of being a philosophical belief and if so, whether the claimant has a religious or philosophical belief in Stoicism.

(iii) The respondent may apply for some or all of the claimant’s claims to be struck out because they have no prospect of success and/or be subject to a deposit order because they have little prospect of success. If the respondent makes any such application then these shall be determined at this preliminary hearing.

(iv) To list and make any necessary case management orders in preparation for the final hearing. The complaints

[3]By a claim form presented on 9 June 2019, the claimant brought complaints of wrongful dismissal, unpaid wages, direct and indirect discrimination on grounds of sex, race and religion or belief, an equal pay claim, and victimisation claims. The respondent defended the claims. The claimant withdrew the claim for indirect discrimination on grounds of sex during today’s hearing. In essence they arise out of the claimant’s dismissal and his treatment in the lead up to his dismissal. The issues

[4]I now record that the issues between the parties which will fall to be determined by the Tribunal are as follows:

[5]Wrongful dismissal/unauthorised deduction from wages The date that the claimant’s contract was terminated is in dispute. The respondent states it was 6 February 2019. The claimant claims it ought to have been 8 February 2019 due to a contractual clause on termination in his contract of employment.5.1 What was the date of termination of his contract of employment?

5.2 Was claimant paid until his date of termination?

5.3 If no, does the failure to pay the claimant until his date of termination amount to a breach of contract and/or an unauthorised deduction from his wages.

[6]Disability 6.1. Does the claimant have a physical or mental impairment, namely dyslexia? 6.2. If so, does the impairment have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities? 6.3. If so, is that effect long term? In particular, when did it start and: 6.3.1. has the impairment lasted for at least 12 months? Case Number: 2302259/2019 3 6.3.2. is or was the impairment likely to last at least 12 months or the rest of the claimant’s life, if less than 12 months? N.B. in assessing the likelihood of an effect lasting 12 months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood. See the Guidance on the definition of disability (2011) paragraph C4. 6.4. Are any measures being taken to treat or correct the impairment? But for those measures would the impairment be likely to have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities?

[7]Section 13: Direct discrimination on grounds of disability 7.1. Has the respondent subjected the claimant to the following treatment falling within section 39 Equality Act, namely: 7.1.1. Being accused of saying “Asians are Greasy” at the end of October 2018 7.1.2. Being dismissed partly or entirely because of the above comment 7.2. Has the respondent treated the claimant as alleged less favourably than it treated or would have treated the comparators? The claimant relies on Laura Johnson, Phoebe Phillips or Ms G Hall and/or a hypothetical comparator. 7.3. If so, has the claimant proved primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic? 7.4. If so, what is the respondent’s explanation? Does it prove a nondiscriminatory reason for any proven treatment?

[8]Section 15: Discrimination arising from disability 8.1. The allegation of unfavourable treatment as “something arising in consequence of the claimant’s disability” falling within section 39 Equality Act:8.1.1 Accusing the claimant of saying “Asians are greasy”,

8.1.2 Requiring the claimant to communicate in a way that cannot be misinterpreted; and

8.1.3 Dismissing the claimant. The claimant states that his use of language and way of communicating arise out of his dyslexia. No comparator is needed. 8.2. Does the claimant prove that the respondent treated the claimant as set out in paragraph 8.1 above? 8.3. Did the respondent treat the claimant as aforesaid because of the “something arising” in consequence of the disability? Case Number: 2302259/2019 4 8.4. Does the respondent show that the treatment was a proportionate means of achieving a legitimate aim? 8.5. Alternatively, has the respondent shown that it did not know, and could not reasonably have been expected to know, that the claimant had a disability?

[9]Section 13: Direct discrimination on grounds of sex 9.1. Has the respondent subjected the claimant to the following treatment falling within section 39 Equality Act, namely: 9.1.1. On 6 December 2018 Laura Johnson said “women are superior to men and all men are all autistic” 9.1.2. On 6 December 2018 Phoebe Phillips said “Men aren’t all autistic that’s rude to autistic people, it’s just what people say instead of the truth which is men have no social skills or awareness.” 9.1.3. Investigating the claimant for saying “this woman” and subsequently subjected to disciplinary action as a result. 9.1.4. Failing to investigate and/or discipline Laura Johnson, Phoebe Phillips or Ms G Hall, about their sexist language. 9.2. Has the respondent treated the claimant as alleged less favourably than it treated or would have treated the comparators? The claimant relies on the following comparators Laura Johnson, Phoebe Phillips and Ms G Hall. 9.3. If so, has the claimant proved primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic? 9.4. If so, what is the respondent’s explanation? Does it prove a nondiscriminatory reason for any proven treatment?

[10]Direct discrimination on grounds of race The claimant identifies as white British. 10.1. Has the respondent subjected the claimant to the following treatment falling within section 39 Equality Act, namely: 8.1.1 During a conversation in early October 2018 about cricket with Jess Matsebula, the claimant was told that he had ‘white privilege’ and Ms Matsebula walked away from the claimant in the middle of the conversation. 10.2. Has the respondent treated the claimant as alleged less favourably than it treated or would have treated the comparators? The claimant relies on the a hypothetical comparator. 10.3. If so, has the claimant proved primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic? Case Number: 2302259/2019 5 10.4. If so, what is the respondent’s explanation? Does it prove a nondiscriminatory reason for any proven treatment?

[11]Direct discrimination on grounds of religion or philosophical belief The claimant identifies as a Stoic. He claims that this is an ethical set of principles and guidelines that guides his life.11.1 Is Stoicism capable of being a religion or philosophical belief?

11.2 Was it the claimant’s religion or philosophical belief at the relevant time?

11.3 Has the respondent subjected the claimant to the following treatment falling within section 39 Equality Act, namely:11.3.1 Requiring people to behave in a prescribed emotional way during disciplinary proceedings?

11.3.2 Dismissing the claimant

11.4 Has the respondent treated the claimant as alleged less favourably than it treated or would have treated the comparators? The claimant relies on a hypothetical comparator.

11.5 If so, has the claimant proved primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic?

11.6 If so, what is the respondent’s explanation? Does it prove a nondiscriminatory reason for any proven treatment?

[12]Section 19: Indirect discrimination on grounds of religion or belief 12.1. Did the respondent apply the following provision, criteria and/or practice (‘the provision’) generally, namely requiring all staff to communicate in a way that cannot be misinterpreted by colleagues. 12.2. Does the application of the provision put other Stoics at a particular disadvantage when compared with persons who do not have this protected characteristic? 12.3. Did the application of the provision put the claimant at that disadvantage in that:(i) he was dismissed

(ii) his treatment during the disciplinary process in that he was told that his emotional response to the situation was not acceptable. 12.4. Does the respondent show that the treatment was a proportionate means of achieving a legitimate aim? Case Number: 2302259/2019 6

[13]Section 27: Victimisation 13.1. Has the claimant carried out a protected act? The claimant relies upon the following: 13.1.1. Reporting to Ms Hall that Ms Farrant had said “There are too many white men on the board” in or around end of July/beginning of August 2018 13.1.2. Submitting a grievance on 24 December 2018 13.2. If the action in13.1.1 was a protected act, has the respondent carried out any of the treatment set out in paragraph 13.2 identified below because the claimant had done a protected act? 13.2.1. Steadily increasing the claimant’s workload from the week after he made the above disclosure 13.2.2. Being told on a number of occasions that he could not say certain things 13.2.3. Being repeatedly criticized for work that fell outside the remit of his role 13.2.4. Ms Hall investigating a complaint against the claimant despite knowing it was false 13.3. If the action in

13.1.2 above was a protected act, has the respondent carried out any of the treatment set out in paragraph 13.3 below because the claimant had done a protected act? 13.3.1. Failing to properly investigate the claimant’s grievance 13.3.2. Failing to include a witness statement in the original investigation pack send to the claimant during the disciplinary process 13.3.3. Failing to organize another meeting following the failure set out in paragraph 13.3.2 above 13.3.4. Giving the claimant a disciplinary warning on 6 December 2018 despite no proper process being followed

[14]Time/limitation issues 14.1. The claim form was presented on 9 June 2019. The ACAS Early Conciliation lasted between 18 April 2018 and 9 May 2018. Accordingly some of the acts relied upon by the claimant are potentially out of time, so that the tribunal may not have jurisdiction. 14.2. Does the claimant prove that there was conduct extending over a period which is to be treated as done at the end of the period? Is such conduct accordingly in time? Case Number: 2302259/2019 7 14.3. Was any complaint presented within such other period as the employment Tribunal considers just and equitable?

[15]Equal Pay15.1 The claimant was employed as a Social Media Consultant. The claimant states that he was paid less than two female colleagues namely Sarah Catterick and Laura Johnson. Ms Catterick was employed as a Consumer Communications Consultant. Ms Johnson was employed as a Corporate Communications Consultant. The claimant claims that his role was like work or work of equal value to the roles performed by Ms Johnson and Ms Catterick.

15.2 Did Ms Catterick and Ms Johnson perform like work or work of equal value?

15.3 If yes were they paid more than the claimant?

15.4 if yes, can the respondent show that the difference in pay was not related to sex? Judicial mediation

[16]I raised the possibility of this case being considered for an offer of judicial mediation. I explained how the process operates.

[17]The claimant expressed interest in this matter being dealt with by way of judicial mediation. The respondent wished to consider the possibility of judicial mediation and will let the Tribunal know within seven days of this preliminary hearing if it is interested in participation. I made the following case management orders by consent. ORDERS Made pursuant to the Employment Tribunal Rules 2013 1. Amended response/Further information1.1 The respondent is allowed, should it wish to do so, to present a draft amended response, setting out the respondent’s factual assertions in connection with the claim as now understood on or before 23 February 2020.

1.2 The respondent is ordered to set out, in writing, whether and if so on what basis, it intends to apply for any or all of the claimant’s claims to be struck out or subjected to a deposit order on or before 23 February 2020. 2. Disclosure of documents Case Number: 2302259/2019 8

2.1 The parties are ordered to give mutual disclosure of documents relevant to the issues identified above (apart from the Equal Pay claim) by list and copy documents so as to arrive on or before 12 March 2020. This includes, from the claimant, documents relevant to all aspects of any remedy sought.

2.2 Documents relevant to remedy include evidence of all attempts to find alternative employment: for example a job centre record, all adverts applied to, all correspondence in writing or by e-mail with agencies or prospective employers, evidence of all attempts to set up in self-employment, all pay slips from work secured since the dismissal, the terms and conditions of any new employment.

2.3 This requires the parties to disclose all documents and evidence (including any recordings) relevant to the issues which are in their possession, custody or control, whether they assist their case, assist the other side’s case or appear neutral.

2.4 The parties shall comply with the date for disclosure given above, but if despite their best attempts, further documents come to light (or are created) after that date, then those documents shall be disclosed as soon as practicable in accordance with the duty of continuing disclosure. 3. Statement of compensation/schedule of loss

3.1 The claimant is ordered to provide to the respondent and to the Tribunal, so as to arrive on or before 17 February 2020, a properly itemised statement of what compensation he is seeking (also called a schedule of loss).

3.2 The claimant is ordered to include information relevant to the receipt of any state benefits. 4. Medical and expert evidence/admissions re disability 4.1 The claimant is ordered to prepare a statement on or before 12 March 2020 which describes the effect his dyslexia has on his ability to carry out day to day activities and on his every day life. He should set out whether he receives any treatment for this condition or uses any equipment or tools to offset his condition. If so he should set out what that treatment is or what those devices or tools do and how his condition would affect him if he did not receive that treatment or use those tools or devices. 5. Bundle of documents for the Preliminary Hearing on 2 and 3 September

5.1 It is ordered that the respondent has primary responsibility for the creation of the single joint bundle of documents required for the preliminary hearing.

5.2 The respondent is ordered to provide to the claimant a full, indexed, page numbered bundle to arrive on or before 23 April 2020

5.3 The respondent is ordered to bring sufficient copies (at least three) to the Tribunal for use at the hearing, by 9.30 am on the morning of the hearing. Case Number: 2302259/2019 9 6. Witness statements for the Preliminary Hearing on 2 and 3 September

6.1 It was agreed that the only witness evidence for this hearing would be given by the claimant.

6.2 It is ordered that oral evidence in chief will be given by reference to typed witness statements from parties and witnesses.

6.3 The witness statements must be full, but not repetitive. They must set out all the facts about which a witness intends to tell the Tribunal, relevant to the issues that will be determined by the tribunal at the preliminary hearing only. They must not include generalisations, argument, hypothesis or irrelevant material.

6.4 The facts must be set out in numbered paragraphs on numbered pages, in chronological order.

6.5 If a witness intends to refer to a document, the page number in the bundle must be set out by the reference.

6.6 It is ordered that witness statements are exchanged so as to arrive on or before 29 July 2020. CONSEQUENCES OF NON-COMPLIANCE

[1]Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996.

[2]The Tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.

[3]An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative. ____________________ Employment Judge Webster 9 February 2020 Case Number: 2302259/2019/V 1 EMPLOYMENT TRIBUNALS Claimant Mr S Jackson Represented by in person Respondents Lidl Great Britain Ltd Represented by Mrs G Williams (solicitor) Before: Employment Judge Cheetham QC Hearing held on 2 & 3 September 2020 at London South Employment Tribunal by Cloud Video Platform

[1]The Claimant’s philosophical belief in Stoicism qualifies as a belief within the Equality Act 2010 s.10.

[2]The Claimant was a disabled person within the Equality Act at the relevant time.

[3]The Claimant’s application to strike out the response is dismissed.

[4]The Respondent’s application to strike out/seek a deposit order in respect of some of the Claimant’s complaints succeeds as follows:(i) the complaint of direct disability discrimination is struck out as having no reasonable prospect of success;

(ii) the complaint of direct discrimination because of religion or belief in respect of the allegation of requiring people to behave in a proscribed emotional way during disciplinary proceedings is struck out as having no reasonable prospect of success;

(iii) deposit orders (as set out in the separate Order) are made in respect of the claim for discrimination arising from disability; the remaining allegation of direct discrimination because of religion or belief and the claim of indirect discrimination because of religion or belief. Case Number: 2302259/2019/V 2

REASONS

[1]This has been a remote hearing on the papers, which the parties have not objected to. The form of remote hearing was: V - video. A face to face hearing was not held because it was not practicable and the issue of the future determination of the claim could be resolved from the papers. The documents that I received were those contained in the Tribunal case file.

[2]At a Preliminary Hearing on 31 January 2020, EJ Webster listed this hearing to consider the following:(i) whether Stoicism qualifies as a philosophical belief within the Equality Act 2010 s.10;

(ii) whether the Claimant was a disabled person within the Equality Act at the relevant time;

(iii) the Claimant’s application to strike out the response; and

(iv) the Respondent’s application to strike out/seek a deposit order in respect of some of the Claimant’s complaints.

[3]I heard evidence from the Claimant, who had prepared a witness statement on the issue of his philosophical beliefs and who gave his evidence on that and all other issues clearly and cogently. There was a hearing bundle containing all of the relevant documents, including the applications and the Claimant’s impact statement. I am grateful to both the Claimant and Mrs Williams for their helpful and courteous approach to the hearing. The Claimant’s philosophical belief

[4]S.10 of the Equality Act defines the protected characteristic of religion or belief. Under s.10(2) belief is defined as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”.

[5]In Grainger plc and ors v Nicholson

[2010] ICR 360

, the Employment Appeal Tribunal provided guidance of general application on the meaning and ambit of philosophical belief. Drawing upon case law decided under

Article 9 ECHR

, Burton J held that a belief can only qualify for protection if it: a) is genuinely held b) is not simply an opinion or viewpoint based on the present state of information available c) concerns a weighty and substantial aspect of human life and behaviour d) attains a certain level of cogency, seriousness, cohesion and importance, and e) is worthy of respect in a democratic society, is not incompatible with human dignity and is not in conflict with the fundamental rights of others. Case Number: 2302259/2019/V 3

[6]In Gray v Mulberry Company (Design) Ltd

[2019] ICR 175

EAT, Choudhury P. expressed the view that the proper approach to the application of the Grainger criteria was “to ensure that the bar [was] not set too high, and that too much [was] not demanded, in terms of threshold requirements, of those professing to have philosophical beliefs”. Nevertheless, in assessing cogency and coherence, he commented that: “One can readily envisage a scenario whereby a claimant professes a profound belief as to an important aspect of her life but seeks to apply that belief in a haphazard, arbitrary or random fashion such that it cannot be said that her belief has attained any measure of cogency or coherence.”

[7]Thus, in applying the Grainger criteria, and the fourth criterion in particular (which Choudhury P. considered could be regarded as the ‘overarching criterion’), the focus should be on the manifestation of the belief. Cohesion, in his view, is to be understood in the sense of being intelligible and capable of being understood. If, for example, a belief is expressed in relation to one act or omission but inexplicably not expressed in relation to another which is very similar, then it would be open to a tribunal to conclude that the belief was unintelligible and lacking a certain level of cogency or coherence.

[8]The Claimant had prepared a detailed witness statement explaining Stoicism and he gave evidence orally, from which I would make these findings of fact.

[9]The Claimant has a strong interest in philosophy and a thorough knowledge of the particular philosophical belief system known as Stoicism. He believes that there is an objective moral reality to which we are subject and that there are several ethical “values” to which he must adhere as a consequence of this belief. He identifies these values as wisdom, courage, moderation and justice.

[10]The way his philosophical beliefs manifest themselves in his daily life is harder to define. His evidence – which I accept - was that: “… when considering whether any act I perform is in and of itself an ethical and therefore permissible one, the act itself and its adherence to principles and virtues is the subject which must be considered, as opposed to determining the ethical nature of an act in a utilitarian or consequentialist manner. This belief system underpins almost every act that I perform in my life...”.

[11]From his description of the philosophy and of his own thought patterns, it may appear to an independent observer to be an emotionally narrow set of beliefs and indeed the Claimant said that it was inconsistent with Stoicism to display emotions. He described himself as not being a “consequentialist”, by which he meant that the consequences of what he says or does would not prevent him from saying or doing that thing. He told me that, “The realisation that the consequence of what I say would cause offence would not stop me from saying it”. Explaining further, he said: “In interpersonal relationships, it would not be the potential for offence that prevented me from saying something”. Case Number: 2302259/2019/V 4

[12]Given that his job is in communications, one can see the potential for conflict, but that is a separate issue. Considering the Claimant’s evidence carefully and also the contextual evidence from this claim, it is clear to me that the Claimant does try to adhere to his philosophical belief in Stoicism in his daily life and that he believes this requires him to behave in a particular way towards others. As far as I can judge, his beliefs guide and, to an extent, dictate what he says and does.

[13]The values which he seeks to follow are in many ways similar to the values many other people will hold, whether they are derived from a religion, a philosophy or some inherent belief in how one should behave. There is nothing unique about them, but I accept that they are important to the Claimant. He is striving towards what Stoics would term “apatheia”, which might be seen as a state of equanimity.

[14]I consider the Claimant serious in his views and also that he applies them consistently and with a single-minded logic. From his communications with his employers, it would appear that at times he has an unrealistic and even naive expectation that others will easily use and understand terms such as “deontological” and “epistemology”, but these are terms that he uses and that define the parameters of how he chooses to live.

[15]Applying the guidelines in Grainger, I would draw the following conclusions. As a starting point, there can be no dispute that Stoicism as a philosophical belief system has been with us for about 2,300 years. The Claimant provided reference to its founder, Zeno of Citium, and there have been many others who have written about Stoicism, such as Aurelius and Seneca.

[16]Is the Claimant’s belief genuinely held? In my view, the Claimant’s philosophical beliefs based upon Stoicism are genuinely held. Mrs Williams made the fair point that the Claimant had listed Stoicism as just one of a number of philosophical definitions in writing to his employer, but I accept his evidence that Stoicism was the only moral belief system he named. 17. Am I satisfied that this is not simply an opinion or viewpoint, based on the present state of information available? I am satisfied that this is not simply an opinion. I accept the Claimant’s evidence that he has had a strong interest in and adherence to this philosophical belief system for a number of years and that it transcends merely holding an opinion.

[18]Does it concern a weighty and substantial aspect of human life and behaviour? Plainly it does. Stoicism is just one of innumerable schools of thought attempting to answer the most profound questions that we ask and the Claimant has further demonstrated this through his contextualisation of Stoicism alongside the major religions.19. Does this belief attain a certain level of cogency, seriousness, cohesion and importance? If this is the overarching criterion, then one must be sufficiently convinced by the manifestation of this belief, as that will demonstrate its Case Number: 2302259/2019/V 5 cogency, seriousness, cohesion and importance. Based upon my findings above, the Claimant applies his belief consistently and it is an important part of his life. It is relevant that he is striving to achieve a state of equanimity, because that suggests a guiding purpose, which gives cohesion to his beliefs.

20. Is it worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others? This is the question that has concerned me most, because of the relegation of consequence to the periphery. Is a conscious disregard of the consequence of saying or doing something where that might - or probably will - cause offence inconsistent with the values of a democratic society?

[21]There is no fundamental right not to be offended. If one takes as an example harassment under the Equality Act 2010 s.26, that gives a person who has been caused offence by unwanted conduct a cause of action, subject to the limitations in that section. It does not, however, create a right not to be offended; rather, it creates a remedy if that offence occurs.

[22]Clearly there will be beliefs that, although genuinely held, would not be worthy of respect in a democratic society, such as a belief founded upon racial superiority. However, it does not seem to me that the Claimant’s belief in Stoicism can be considered in this way. The fact that he is driven in what he says and does by consideration of whether the action is right or wrong, rather than by what may be the consequence, may indeed cause offence, but that does not make the Claimant’s Stoicism unworthy of respect in a democratic society, incompatible with human dignity or in conflict with the fundamental rights of others.

[23]My conclusion is therefore that the Claimant’s philosophical belief in Stoicism comes within the statutory definition under s.10 of the Equality Act. The Claimant’s disability.

[24]Pursuant to section 6(1) of the Equality Act 2010, disability is defined as a physical or mental impairment which has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.

[25]There is no issue that the Claimant is dyslexic, nor that this is a condition that can amount to a disability. The agreed focus of the evidence and submissions was its effect on his ability to carry out day-to-day activities. There was no independent evidence, such as a diagnosis or test results. The Claimant told me – and I accept – that he has been unable to get tested by the British Dyslexia Society, since tests appear to be unavailable at present.

[26]Therefore, the only evidence was from the Claimant himself, but I found him to be a truthful witness and I accept his self-description as accurate and unexaggerated. The day-to-day effect of his dyslexia was set out in the Case Number: 2302259/2019/V 6 impact statement and, as described, provided a clear list of ways in which the impact of his dyslexia has been significant. These included slower reading and writing, frequent errors and error blindness, difficulty with sequential processing and word substitutions.

[27]Mrs Williams did not challenge that evidence as such. What she pointed to was the precision and accuracy with which the Claimant had composed the lengthy written arguments sent to the Respondent, his impact and witness statement and other documents. She pointed to his fluency at this hearing.

[28]In my view those observations, although correct, are of limited assistance. As the Claimant submitted, if a person has dyslexia, that does not mean they are incapable of writing accurately, but that they will need more time and space to do so. The documents to which Mrs Williams referred were documents which were capable of being written and re-written, read and re-read.

[29]I appreciate that it is often difficult to state at what point the condition of dyslexia, which is shared by many people, crosses the line to be classed as a disability. However, the statutory test requires asking whether it has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities and, in my judgment, that is the case with the Claimant. I accept his self-description and that the impact is substantial and therefore I conclude that he was disabled at the relevant time by reason of his dyslexia. The Claimant’s application to strike out the response

[30]The Claimant applied on 14 July 2020 to strike out the response for non-compliance with the tribunal’s orders. That was because EJ Webster had given a direction for service of information by the Respondent, which should have been done by 26 June. In fact, it was not done until 17 July, although the Respondent provided an explanation. Striking out would be a wholly disproportionate sanction for a minor failure to comply with directions and the application is dismissed. The Respondent’s application to strike out complaints/seek a deposit order

[31]With regard to the disability discrimination claim, this is brought as both direct discrimination and discrimination arising from disability.

[32]With regard to the direct discrimination, the treatment was:(i) being accused of saying “Asians are greasy” at the end of October 2018; and

(ii) being dismissed partly or entirely because of the above comment.

[33]With regard to the discrimination arising from disability, the treatment was: Case Number: 2302259/2019/V 7(i) accusing the Claimant of saying “Asians are greasy”;

(ii) requiring the Claimant to communicate in a way that cannot be misinterpreted; and

(iii) dismissing the Claimant.

[34]Mrs Williams submitted that the reason why the Claimant was subjected to disciplinary proceedings was because he failed to apologise sufficiently. That is what the dismissal letter makes clear and what contributed to his dismissal. It cannot be formulated as direct discrimination, because he was not dismissed for being dyslexic. At most it would come within s.15, but the sanction was for the failure to apologise, not the words used.

[35]The Claimant’s position was that, as a dyslexic, he mixed up his words. An apology was the consequence of his mixed words, which was not his fault. He was being penalised for not apologising (or not apologising sufficiently), but that was the consequence of something he had not intended. When asked whether that was merely unfair, rather than discriminatory, he disagreed and said this arose from his disability, because if he was not dyslexic, the situation would not have arisen. As to the requirement to communicate in a particular way, he said that this was something which, as a Stoic, he could not do.

[36]I agree with Mrs Williams that, on any view, this is not direct discrimination and I strike out that complaint as having no reasonable prospect of success.

[37]However, although I think the s.15 complaint has little reasonable prospect of success, I cannot say it has no reasonable prospect of success. There is some confusion in the documentation over whether an apology was given and there may be an argument that this arose from the disability, which would then raise the issue of justification Therefore I am making it the subject of a deposit order, which I will set out in a separate Order.

[38]Turning to the complaint of discrimination because of religion or belief, the treatment for the claim of direct discrimination was:(i) requiring people to behave in a proscribed emotional way during disciplinary proceedings; and

(ii) dismissing the Claimant.

[39]The indirect discrimination claim is formulated around a practice of requiring all staff to communicate in a way that cannot be misinterpreted by colleagues.

[40]I cannot see how “requiring people to behave in a proscribed emotional way during disciplinary proceedings” in the context of this claim could amount to direct discrimination. It does not allege that the Claimant was treated in this way because of his Stoicism, but rather that there was a practice applied to everyone. If anything, it would amount to indirect discrimination, but I am not asked to make any amendments. I agree with Mrs Williams that there Case Number: 2302259/2019/V 8 is no reasonable prospect of that complaint of direct discrimination succeeding and I agree with her that it should be struck out.

[41]The remaining allegation of direct discrimination and the complaint of indirect discrimination seem to me to have little reasonable prospect of success. Nevertheless, I accept that there are references in the dismissal letter and other documents to behaviours that the Claimant would say are inextricably linked to his philosophical beliefs and it may be necessary to hear evidence to decide the issues. That being the case, I am making a deposit order in respect of the religion and belief discrimination claims also.

[42]Finally, there is the equal pay claim. Although there are parallel directions and a hearing listed in January to deal with this claim, Mrs Williams made her application to strike out the claim on the basis that there is a self-evident difference between the Claimant and his comparators, as shown in their respective CVs.

[43]A material factor defence under the Equality Act s.69 will operate to prevent a sex equality clause from applying only if the employer can show that the variation between the claimant’s contract and the comparator’s contract is due to a factor that is “material” and that reliance on that factor is neither direct sex discrimination nor unjustified indirect sex discrimination. In Rainey v Greater Glasgow Health Board [1987] ICR, HL, Lord Keith stated that: “The difference [i.e. the factor explaining the pay differential] must be “material”, which I would construe as meaning “significant and relevant”.”

[44]In CalMac Ferries Ltd v Wallace and anor

[2014] ICR 453

, EAT, Underhill P. said: “Where a pay disparity arises for examination, it is not sufficient for an employer to show why one party is paid as one party is. The statute requires an explanation for the difference, which inevitably involves considering why the claimants are paid as they are, on the one hand, and separately, why the comparator is paid as he is.” In other words, simply because a factor is potentially capable of constituting a material factor for the purposes of s.69 does not mean that it will always be sufficient; it must be of actual significance and relevance to the particular case.

[45]There are two comparators. Laura Johnson has a degree in Public Relations and over 9 years’ experience relevant to her role. Sarah Catterick also has a degree, which is in Business with Marketing, and about 9 years’ relevant experience. The Claimant has an HND in Natural Sciences, rather than a degree, and what he describes in his CV as “3 years at the forefront of Social and a year as Insight Analyst”. Mrs Williams submitted that this shows a clear basis for a material factor defence.

[46]The Claimant said that there should not have been a difference in pay where there is a perceived ability to carry out the same or an equivalent role. He also said that his experience was with a direct competitor in an equivalent role and that his HND, although not a degree, was of more use in a technological role. Case Number: 2302259/2019/V 9

[47]I am not convinced that the difference in respect of the educational qualifications is significant, because I can see that the Claimant’s HND in Natural Sciences might have additional benefits equivalent to those of a degree. The difference in the amount of experience is more significant and is potentially capable of explaining the difference, but I cannot say at this stage that was of actual significance and relevance. Put another way, I cannot say this claim has no or little reasonable prospect of success and this part of the application is dismissed.

[48]I have set out in a separate case management order the directions for the final hearing.