S Box v East Kent Road Car Company Ltd (T/a Stagecoach South East): 2302293/2022
EMPLOYMENT TRIBUNALS
Case No 2302293/2022
Between
S BoxClaimantEast Kent Road Car Company Ltd (T/a Stagecoach South East)Respondent
Before
Employment Judge Rice-Birchall; Ms Effeny; Mr NewlynMr Kediyal (instructed by counsel) for respondentDate 26 November 2024
JUDGMENT
[1]The complaint of breach of contract/wrongful dismissal in relation to notice pay is not well-founded and is dismissed.[2]The complaint of unfair dismissal is not well-founded. The claimant was not dismissed by the respondent.[3]The complaint of direct disability discrimination is not well-founded and is dismissed.[4]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.[5]The complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed. JUDGMENT (dated 26 November 2024) having been sent to the parties on 27 November 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The claimant commenced employment on 1 September 2015 as a semiskilled fitter. He was dismissed on 23 February 2022 but became a shunter following the appeal process. His claim was presented on 11 July 2022 after a period of early conciliation between 10 May 2022 and 20 June 2022. He claims unfair dismissal and disability discrimination. The issues are set out below.[2]The claimant has Asperger’s syndrome. The Tribunal had the benefit of an impact statement which explained in detail how this affected the claimant. The claimant was treated as a vulnerable witness. It was agreed that the style and content of questions should be in accordance with the Presidential Guidance on Vulnerable Parties and Witnesses in Employment Tribunal Proceedings and that there should be regular breaks. It was further agreed that the claimant should be accompanied, whilst he was giving his evidence, by his brother. Further, even though this was a remote hearing, Mr Kediyal agreed to attend the Ashford Tribunal in person so that he could cross examine the claimant face to face to avoid additional stress for the claimant.[3]In the event, the claimant gave evidence for a full day and was able to properly respond to the questions put to him.
The Issues
[4]The issues had not been finalised before the hearing despite two preliminary hearings. Although the parties were pragmatic about the issues, there was one issue, which related to the claimant’s pay, which the claimant wanted to include as an issue and which the respondent did not agree. That issue became the subject of an amendment application which, for reasons given orally at the hearing, was refused. Those reasons included that the amendment was not clear and concise and was not capable of being responded to by the respondent, and that the amendment had not been sought at the two preliminary hearings which had already been held.[5]The issues the Tribunal will decide are set out below.
The Issues
[1]Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 11 February 2022 may not have been brought in time.1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period? 1.1.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?[2]Unfair dismissal2.1 Was the claimant dismissed? It is noted that he was re-employed in a lower paid role following his appeal. This question is likely to turn on what was decided and/or agreed at the appeal and the circumstances of the claimant’s re-employment as a shunter; and whether the tribunal decides there was a dismissal and reengagement on different terms or the claimant agreed to a demotion instead of a dismissal and the original contract continued.2.2 What was the reason or principal reason for dismissal? The respondent says the reason was conduct: specifically misconduct.2.3 Did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant?[3]Remedy for unfair dismissal3.1 Does the claimant wish to be reinstated to their previous employment?3.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?3.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.3.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.3.5 What should the terms of the re-engagement order be?3.6 If there is a compensatory award, how much should it be? The Tribunal will decide:3.6.1 What financial losses has the dismissal caused the claimant?3.6.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?3.6.3 If not, for what period of loss should the claimant be compensated?3.6.4 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?3.6.5 If so, should the claimant’s compensation be reduced? By how much?3.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?3.6.7 Did the respondent or the claimant unreasonably fail to comply with it?3.6.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?3.6.9 If the claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct?3.6.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?3.6.11 Does the statutory cap apply?3.7 What basic award is payable to the claimant, if any?3.8 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?[4]Wrongful dismissal / Notice pay4.1 What was the claimant’s notice period?4.2 Was the claimant paid for that notice period?4.3 If not, was the claimant guilty of gross misconduct? / did the claimant do something so serious that the respondent was entitled to dismiss without notice?[5]Disability 5.1 The respondent admits that the claimant was a disabled person as a result of Asperger’s syndrome at all material times.[6]Direct disability discrimination (Equality Act 2010 section 13)6.1 Did the respondent do the following things:6.1.1 Failure to arrange for the claimant to attend a college course (between 2015 and 2021);6.1.2 Involving the claimant in fraudulent activity around time-sheets (through Mr Duffy) in about 2019;6.1.3 Require the claimant to work for five months without a day off (annual leave) (in about 2019-2020);6.1.4 Require the claimant to work for twelve months at night on his own (July 2020-July 2021) when unqualified to do so;6.1.5 Disciplining the claimant for not completing a third torque test in November 2021;6.1.6 The way in which the disciplinary hearing in November 2021 was arranged (through Mr Hunter).6.1.7 Dismiss the claimant from his job as Trainee Mechanic without carrying out a proper and diligent investigation.6.1.8 Send the claimant on the PSV Inspection Course, when he was inexperienced and did not have any basic imi qualifications or level 3 NVQ Engineering PSV.6.1.9 Fail to follow ACAS guidance during the Fan sheet disciplinary process,6.1.10 Fail to follow ACAS guidance during the wheel torque incident6.1.11 Fail to follow ACAS guidance during the entire disciplinary process for the alleged misconduct of 21/1/2022.6.1.12 Treat the claimant appropriately and with a duty of care following the death of his grandmother.6.2 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 s/he was treated worse than someone else would have been treated. The claimant has not named anyone in particular who he says was treated better than he was.6.3 If so, was it because of disability?[7]Discrimination arising from disability (Equality Act 2010 section 15)7.1 Did the respondent treat the claimant unfavourably by:7.1.1 Failure to arrange for the claimant to attend a college course (between 2015 and 2021);7.1.2 Involving the claimant in fraudulent activity around time-sheets (through Mr Duffy) in about 2019;7.1.3 Requiring the claimant to work for five months without a day off (annual leave) (in about 2019-2020)7.1.4 Requiring the claimant to work for six months at night on his Own (July 2020-July2021)7.1.5 Disciplining the claimant for not completing a third torque test in November 20217.1.6 The way in which the disciplinary hearing in November 2021 was arranged (through Mr Hunter).7.1.7 Dismissing the claimant from his job as Trainee Mechanic without carrying out a proper and diligent investigation.7.1.8 Send the claimant on the PSV Inspection Course, when he was inexperienced and did not have any basic imi qualifications or level 3 NVQ Engineering PSV.7.1.9 Fail to follow ACAS guidance during the Fan sheet disciplinary process,7.1.10 Fail to follow ACAS guidance during the wheel torque incident7.1.11 Fail to follow ACAS guidance during the entire disciplinary process for the alleged misconduct of 21/1/2022.7.1.12 Treat the claimant appropriately and with a duty of care following the death of his grandmother.7.2 Was this because of something arising in consequence of the claimant’s disability? The claimant can be suggestible; defer to authority; be easily influenced or manipulated; have difficulty saying “no” and asserting boundaries; has a need for an advocate; and went into a dissociative state on occasion following his grandmother’s death7.3 Was the treatment a proportionate means of achieving a legitimate aim? The respondent relies on: health and safety; business needs and safety; and/or operational efficiency.7.4 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date? The respondent has stated that it knew of the claimant’s disability from 14 August 2015.[8]Reasonable Adjustments (Equality Act 2010 sections 20 & 21)8.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?8.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP: 8.2.1 A policy or practice of only allowing a colleague or trade union representative to accompany a member of staff at a disciplinary hearing.8.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability?8.4 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?8.5 What steps could have been taken to avoid the disadvantage? The claimant suggests: 8.5.1 That his father could have been permitted to accompany him at the disciplinary and dismissal hearings.8.6 Was it reasonable for the respondent to have to take those steps and when?8.7 Did the respondent fail to take those steps?[9]Remedy for discrimination9.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?9.2 What financial losses has the discrimination caused the claimant?9.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?9.4 If not, for what period of loss should the claimant be compensated?9.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?9.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?9.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?9.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?9.9 Did the respondent or the claimant unreasonably fail to comply with it?9.10 If so is it just and equitable to increase or decrease any award payable to the claimant?9.11 By what proportion, up to 25%?9.12 Should interest be awarded? How much?[10]Breach of Contract10.1 Did this claim arise or was it outstanding when the claimant’s employment ended?10.2 Did the respondent do the following: 10.2.1 Fail to pay the claimant for his notice period.10.3 Was that a breach of contract?10.4 How much should the claimant be awarded as damages? Evidence 6. The Tribunal had the benefit of three bundles of documents labelled A (core documents), B (Inspection documents) and C (correspondence between the parties) which contained extensive documentary evidence. There was also a diagram supplied by the claimant to which the Tribunal was referred, which was a separate document. 7. There were witness statements from the claimant and from Mr George Box (the claimant’s father) on behalf of the claimant. Both also gave oral evidence before the Tribunal. 8. The respondent presented witness statements from Mr Rick DuChesne (Workshop Manager and Investigating Officer); Mr Phil Hunter (Engineering Manager and Dismissing Officer); Mr Grahame Patterson (then Fleet Engineer and First Stage Appeal Officer); and Mr Mark Wallis (then Engineering Director and Final Stage Appeal Officer). Those witnesses also attended the Tribunal remotely (by CVP) to give their oral evidence. Although the Tribunal did not refer to them, the respondent’s solicitors had provided two witness statements pertaining to their conduct of the matter. 9. The Tribunal found all witnesses to be honest and seeking to assist the Tribunal. The fact remains that all of the events being discussed happened more than two years ago, and human memory is notoriously unreliable. The Tribunal therefore gave greater wight to contemporaneous documentary evidence where appropriate. 10. The Tribunal preferred the respondent’s evidence generally, in particular on their processes and procedures as regards bus inspections, as the witnesses were consistent and had greater experience and knowledge of those processes and procedures than the claimant and/or his father, given that the claimant had not inspected a bus since February 2022 and the claimant’s father had never inspected a bus. Facts The respondent
Facts
[11]The respondent is a bus service provider operating across Kent and East Sussex. The respondent’s disciplinary procedure[12]The respondent’s disciplinary procedure is agreed with Unite the union. The Tribunal considers that agreed disciplinary procedures are more likely than not to form part of employees’ terms and conditions of employment. Whilst not specifically referenced in a written contract, the disciplinary procedure was referenced each time the claimant was disciplined. The Tribunal is satisfied it was a contractual document and did not dispute that in submissions or evidence.[13]Paragraph C.3 of that procedures states: “In the case of any reported suspected misconduct an employee may be interviewed by his supervisor and required to give a written explanation (including any extenuating circumstances) within two working days of being issued with the relevant documentation.”[14]Paragraph C4 states that, at any disciplinary enquiry, the employee may, if he/she wishes, be represented by either a representative of the Trade Union employed by the Company or a fellow employee.[15]Paragraph C12 of the disciplinary procedure provides: “In some cases it may be necessary to employ other measures than those detailed in C.11, such as voluntary termination of employment or temporary or permanent removal of an employee to a grade or roster more suitable to his/her capabilities”.[16]The procedure allows for two appeals in respect of a decision to dismiss.[17]The procedure was followed as regards the disciplinary processes relating to the claimant. The claimant’s role and qualifications[18]The claimant was employed in the position of semi-skilled fitter in the respondent’s Folkestone Depot from 7th September 2015. Although he applied for an apprenticeship, he was offered, and accepted, a semi-skilled fitter role. The offer letter made the role conditional on a medical. That medical, dated 14 August 2015, stated that the claimant: “Had Aspergers and is easily distracted by noises. He has difficulty writing things down but has no difficulty understanding or verbalising information.”[19]The scope of the claimant’s role as a semi-skilled fitter was to carry out the inspection, diagnosis, maintenance, and repair of the respondent’s vehicles which included buses, vans, coaches and cars.[20]Although the claimant did not have a written contract of employment, all employees have a contract of employment which, if not written, may be made up of an offer letter; oral terms and implied terms.[21]When the claimant joined the respondent, he already had a light vehicle qualification which related to cars (RVQ) and a level 2 IMI in hybrid vehicles.[22]In January 2016, the claimant attended a course on Electronic Braking Systems (EBS) and Electronic Level Controls (ELC).[23]The claimant was mentored by Nathan. If Nathan was not available, then other members of staff would be available. The claimant was being trained “on the job” with a view, ultimately, to him working alone. Mr Hunter would also discuss work with the claimant, including asking him questions to check his understanding, in order to teach the claimant about the vehicles and processes. The NVQ[24]The claimant alleged that he was told in his interview that, within two months of the commencement of his employment, he would begin the NVQ Level 3 training (NVQ). However that was not confirmed in the letter which offered the claimant employment. The claimant needed his NVQ in order to become a fully trained fitter, rather than a semi-skilled fitter. The Tribunal finds that the claimant may have misunderstood what was being said to him, as apprentices do start their NVQ, usually within two- three months, but there is no such accepted timeframe for those taken on as semi-skilled fitters. Nonetheless, it was something which the respondent knew the claimant wanted to work towards.[25]In early 2016, the claimant was informed that the assessor for the NVQ had been taken ill.[26]Whilst the claimant did ask from time to time about the NVQ, the respondent did not call the claimant’s managers at the time as witnesses as they had left the organisation long ago. The claimant does however recall being told that the assessor was ill and the Tribunal finds that that was a contributing factor to the delay in the claimant starting his NVQ.[27]The claimant’s NVQ course commenced in March 2020 but a week later the claimant was furloughed, at his request, as his father was vulnerable. The claimant completed the NVQ after his alleged dismissal around September 2022.[28]Once the claimant was on the course, his tutor offered to meet him more often so that he could complete the course more quickly. The respondent had arranged for the assessor to work with the claimant. PSV Inspection course[29]In February 2017, the claimant completed the PSV inspection course and passed. It required a pass mark of 80% and the claimant scored 82%.The claimant believed that he should have had the NVQ to attend this course but there was no evidence to suggest that that was the case. Passing the course meant that the claimant was qualified to inspect a bus. Shift work[30]The claimant was moved to shift work in around February 2019 because there were not enough fitters and Mr Rai had moved to be a deputy manager elsewhere. “Jonny” had also left. The claimant had been asked to move to shifts because of the staff shortage. He was paid overtime to make up for the difference in pay, an arrangement made with his manager Mr Duffy, against whom we understand that there were later allegations of fraud (none of which involved the claimant as far as the Tribunal is aware).[31]There was no evidence before the Tribunal as to the arrangement made by Mr Duffy with the claimant as regards the overtime payments. “Trevor” was also moved to shifts. When Mr Rai returned, the claimant returned to days.[32]Around late 2019, the claimant was moved to nights as there was a shortage of staff on the nightshift, and Shane was complaining about working nights. There was a business need to cover the shift. The claimant was on nights from October 2019 to March 2020 and was frequently alone because Shane went off sick. The claimant said he did complain about doing nights but couldn’t remember when he complained or to whom he complained.[33]When the claimant came back from furlough in July 2020, he was put on permanent nights and was eventually taken off permanent nights in July 2021. Mr Duchesne commented that, if other employees went on holiday who were doing nights the claimant would volunteer to do nights. Further, the claimant’s evidence suggested that he liked to do nights to be away from Mr Hunter. Shane leaving created a shortage on nights and the claimant felt, when asked to work nights, that he couldn’t say no.[34]Although the claimant alleged he was not permitted to take any holiday around 2019-2020, the holiday records demonstrated that the claimant had taken all of his annual leave entitlement. According to the records in the bundle, the claimant appeared, by way of example, to have taken a weeks’ leave 27-31 January 2020 and 10-14 February 2020.[35]There was no evidence that the claimant ever requested holiday which was turned down. However, the Tribunal understands that the employees were put into holiday groups to ensure that there were always adequate staff available and this may have impacted on any employee’s’ ability to take holiday given the business requirements.[36]Around October 2021 there was a new pay tier structure. Under that structure, the claimant was paid a little more hourly than previously. The claimant was in the lowest tier as a semi-skilled, rather than a skilled fitter. Mr Hunter explained the pay process and the matrix that had been completed for each person which resulted ultimately in their place on the pay scale. Mr Hunter also explained to the claimant and others what they needed to do to move up the scale. Written Warning- August 2021[37]In a staff meeting in July 2021 the claimant and his colleagues were told that the Folkestone depot had the highest rate of buses overheating and that they should pay specific attention to the intake test by visually inspecting the air intake for debris and by completing the air intake sheet.[38]The claimant says he discussed the matter with his colleagues who, despite the official instruction, told him that “it was a load of b””ll””cks” and so he kept on not doing the test and throwing away the air intake sheets which had been his practice for approximately five years, on the basis that his colleagues had told him just to put a number in the box for the test. As the claimant did not want to lie, he threw away the sheets.[39]On 30th July 2021, the respondent’s Engineering Manager, Mr Howard, met with the claimant to discuss an issue with missing paperwork. The respondent’s employee, Mr Rai was also in attendance as a witness. Mr Howard told the claimant that he had found nine service sheets completed by the claimant with air flow check sheets missing. Mr Howard explained that air flow check sheets were put in every service sheet pack and the respondent expected them to be completed. The claimant could not account for the missing air flow check sheets. Mr Howard said to the claimant that he believed the missing air flow check sheets had not been completed and were just thrown away. The claimant nodded. Mr Howard reiterated the importance of the airflow checks and that the air intake test would reduce the risk of breakdown from overheating. He told the claimant that due to the missing air flow check sheets, he was suspending the claimant with pay pending investigation.[40]In the investigation notes the claimant is specifically recorded as stated that didn’t want Mr Hunter to be the disciplining officer at the disciplinary hearing. Nonetheless Mr Hunter was approached by Mr Howard to be the disciplinary manager, on the basis that Mr Howard had conducted the investigation. During the meeting the claimant specifically asked if anyone other than Mr Hunter could carry out the disciplinary hearing.[41]The claimant’s suspension was confirmed in a letter from Mr Howard to the claimant dated 2nd August 2021.[42]Mr Hunter, the respondent’s hearing Manager, wrote to the claimant on 9th August 2021 inviting the claimant to attend a disciplinary hearing on 12th August 2021 regarding the missing air flow check sheets. The claimant was advised of his right to be accompanied by a work colleague or trade union representative at the disciplinary meeting. Mr Hunter also acknowledged that the claimant has Asperger’s Syndrome and invited the claimant to let him know if there was any assistance he would need during the disciplinary process. The invitation letter enclosed the notes of the investigation meeting with Mr Howard and a list of service sheets with the airflow test missing.[43]The claimant says that, after receiving that letter, he called Mr Hunter and said he wanted his father present at the disciplinary hearing. Mr Hunter explained to the claimant what the policy said about accompaniment but then sought advice from HR.[44]The disciplinary hearing took place on 12th August 2021. The claimant was accompanied by Mr Rai. In fact, the claimant arrived unrepresented and Mr Hunter arranged for Mr Rai to accompany the claimant as a trade union representative. The hearing was conducted by Mr Hunter and Mr Robertson took notes. The claimant admitted to not carrying out air flow checks and to throwing away the incomplete air flow service check sheets.[45]The claimant said that when he started, no-one carried out the checks but just completed the sheet and he got rid of the sheet because he didn’t want to lie. The claimant did not feel able to say that Mr Rai had told him how to complete the sheets, which was just to put a number on as no one looked at the sheets, as Mr Rai was there with him.[46]The claimant admitted that, after a recent audit, everyone had been told about the need to carry out proactive maintenance. He said he had still decided not to do the air flow checks because nobody had specifically told him that he had to and he thought it was ok not to do them, but admitted that he had been told to complete everything on job cards and that this included air flow check sheets.[47]After reviewing everything, including that the claimant had admitted not doing air flow checks even though he had been told after the recent audit to complete all paperwork but had not followed that instruction, Mr Hunter issued the claimant with a written warning that would remain on his file for 12 months.[48]The written warning was confirmed in a letter to the claimant dated 12th August 2021. The claimant was informed of his right to appeal but did not do so.[49]The sanction letter was hand delivered by Mr Hunter to the claimant’s home. Final Written Warning- November 2021[50]Following an investigation, Mr Hunter wrote to the claimant on 17th November 2021 inviting him to another disciplinary hearing on 19th November 2021 with regard to the claimant’s failure to carry out wheel torques according to the respondent’s policy, which is that the evening engineer does the wheel torques.[51]The claimant was informed of his right to be accompanied at the hearing by a workplace colleague or trade union representative. Mr Hunter also acknowledged that the claimant has Asperger’s Syndrome and invited the claimant to let him know if there was any assistance he would need during the disciplinary process. The claimant says he doesn’t recall receiving this letter, but Mr Hunter says that he put it in the claimant’s cubby hole, which the Tribunal accepts.[52]The hearing took place on 19th November 2021. The claimant was accompanied by John Roberts, a trade union representative, although the claimant was not a member of the trade union at that time. Mr Roberts attended at the request of Mr Hunter. The hearing was conducted by Mr Hunter and Ms Evans took notes.[53]Although the claimant said he did not receive the disciplinary invitation letter and was called into the meeting out of the blue, the minutes of the disciplinary hearing do not reflect that as the claimant confirmed that he knew why he was there and that procedure had been followed. He also confirmed in his oral evidence to the Tribunal that the minutes were accurate.[54]The claimant’s explanation was that as the bus had been put back into the same place as it had been, the claimant assumed that the bus hadn’t been out on the road, when in fact it had and needed with wheel torques doing.[55]Mr Hunter decided to issue the claimant with a final written warning because the claimant had not followed policy: if he had physically checked the odometer reading he would have known the bus had moved and needed checking.[56]The final written warning was confirmed in a letter to the claimant dated 19th November 2021. The reason for Mr Hunter’s decision was that the claimant had “failed to carry out the stage 3 retorque to the rearside wheelnuts on 15182 on three consecutive nights with no justified reason for this omission” and the previous written warning on file for a conduct issue justified a final written warning. The final written warning was to remain on the claimant’s file for 12 months. The letter states specifically that any further misconduct could result in dismissal. The claimant confirmed that he was aware that any further misconduct could result in his dismissal as that was explained to him at the end of the disciplinary hearing.[57]The claimant was informed of his right to appeal the decision but he did not do so. In fact, the claimant never told his parents about this disciplinary process at all as he persuaded himself that he would not commit any further misconduct and it would not be a problem. Death of grandmother[58]The claimant had a day off at the beginning of January 2022 due to a stomach upset. He was due to work early, and to supervise run out which is a particularly busy time of day as drivers notice faults which need repairing before the buses start their day. The claimant called in sick.[59]When he attended work the next day, he alleges that Mr Hunter was angry with him for missing run out. The Tribunal finds that Mr Hunter was not angry with the claimant but the claimant may have perceived him to be angry with him.[60]Because the claimant had a good attendance record, Mr Hunter allowed the claimant to take a days’ leave rather than lose a day’s pay which is what would happen if he had taken a day’s sick leave.[61]The claimant describes that, as a result, he was fearful of taking more time off, but the Tribunal finds that there was no basis for this fear and that the claimant may have misread Mr Hunter’s actions and words.[62]Sadly, the claimant’s grandmother died unexpectedly on or around 18 January 2022. The claimant texted Mr Duchesne to tell him that his grandmother had died but Mr Duchene did not receive the text that day.[63]Mr Hunter had a short conversation with the claimant to pass on his condolences on or around 19 January 2022. The Tribunal accepts that Mr Hunter was not aware that the claimant had a problem with him. Mr Hunter asked the claimant if there was anything he needed and asked the claimant to let him know when the funeral was so he could take time off.[64]The next day, 20 January 2022, the claimant was absent from work, The claimant’s absence was marked as authorised absence as the claimant was on bereavement leave. This was accepted by Mr Hunter. The fact that the claimant’s absence was authorised absence explains why he di not have a return to work interview, which he should have had if he had been off sick.[65]The claimant was also absent 26, 27 and 28 January and his absence was marked as authorised absence. Dismissal[66]It is common ground that on 21 January 2022, the claimant inspected bus 19029 (the bus). He said he chose to do that task as his grandmother had recently died and that particular task would mean he didn’t need to be around many people.[67]Whilst inspecting a bus, the claimant completed a service sheet on which he would identify any faults. It is a complex sheet with many numbers which relate to different aspects of the bus which must be checked during the inspection. The Tribunal accepted the respondent’s evidence that it is vital that, if any aspect of the check for a particular number has not been carried out, that must be notified on the sheet so that it is clear that the inspection is not complete.[68]One of the numbers on the service sheet is number 45, which relates to the axle and the kingpins, amongst other things, some of which needed the bus to be jacked up to check. The claimant had identified some faults in this area and had checked the box to state that repairs needed doing, and had then done the repairs and signed the bus off as fit for service. It was accepted by the claimant that he could not recall jacking up the bus to inspect the kingpin.[69]Accordingly, the bus was put on the road. Two drivers reported an ABS light fault which resulted in some further work, but the bus was still not right.[70]It came to Mr Duchesne’s attention on 3rd February 2022 that the bus the claimant had inspected on 21st January 2022 had a serious fault that the claimant had not identified in the Inspection Record he completed.[71]Mr Duchesne spoke to the claimant the same day and advised him that he was suspending him pending an investigation, though he did not tell the claimant, at that time, what it was about. The Tribunal find that it would have been better had the claimant been informed of the reason for the suspension.[72]The claimant’s suspension was confirmed in a letter to him from Mr Duchesne dated 3rd February 2022. The letter stated that it was for “not correctly recording a serious defect on inspection”. The claimant was told that an investigation was being carried out into the allegation that he had failed to correctly record a serious defect during an inspection. He was advised that suspension was not a form of disciplinary sanction against him nor did it indicate that disciplinary action would necessarily follow. The claimant was reminded of the respondent’s Employee Assistance Programme.[73]On 7th February 2022, Mr Duchesne, with the assistance of another fitter, confirmed that the kingpin in the nearside front wheel assembly had 50mm play. The tolerance is 8mm. Mr Duchesne prepared a note of his investigations and took a short video on his phone.[74]Mr Hunter wrote to the claimant on 11th February 2022 inviting the claimant to a disciplinary hearing on 16th February 2022 to consider the allegation that the claimant had not correctly recorded a serious defect. Enclosed with the letter were Mr Duchesne’s investigation notes. The claimant was informed of his right to be accompanied at the hearing by a workplace colleague or trade union representative. Mr Hunter also acknowledged that the claimant had Asperger’s Syndrome and invited the claimant to let him know if there was any assistance he would need during the disciplinary process.[75]Following email correspondence with the claimant’s father, in which the claimant’s father, Mr Box, sought to persuade Mr Hunter to allow him to represent his son, which Mr Box considered a reasonable adjustment, and following taking advice from the respondent’s people team, Mr Hunter confirmed to the claimant that he could be accompanied to the hearing by a professionally qualified person with knowledge of Asperger’s Syndrome. Mr Hunter also confirmed that the video clip would be available for him to view prior to the hearing.[76]The claimant prepared a statement which was sent to Mr Hunter on 22 February 2022. That statement stated that the claimant could not recall the inspection he carried out on bus 19029 on 21st January 2022; that, during 21st January 2022, he had ‘seizures’; that he had a routine for inspections and that it was clear that he inspected the nearside front wheel because he noted the cotter pin was loose; that he could not explain why he may have missed 50mm lateral play in the kingpin if it was present and that there were circumstances when even the most experienced mechanic can miss 50mm lateral play in a kingpin when using a pry bar test; that his grandmother who he was very close to had passed away on 18th January 2022 and he felt like he could not take bereavement leave on 19th January 2022 and attended work as normal; that, on 20th January 2022, the claimant could not get out of bed and called in saying he would be absent for personal reasons; Bus 19029 had been off road for 5 months.[77]The claimant stated that, at the start of his shift on 21st January 2022, he noticed bus 19029 over a pit without any paperwork and knew his managers were being pressed to get the vehicle back on the road. He took his own initiative to conduct an inspection on bus 19029 to get things started even though he was not qualified to do so without supervision; he was constantly interrupted by drivers during the inspection; he was sick at work on 22nd and 23rd January 2022 and believed his sickness was brought on by grief; that he requested that CCTV footage be examined to show that he had jacked up the nearside front wheel and for copies of previous inspection reports for bus 19029 because 50mm lateral play on a kingpin would have taken a long time given that the maximum play is 8mm; that signs of wear should have been noted in previous inspections by qualified mechanics. If not, there was a problem with the inspection process or the problem was masked; that some of the damage could have happened after the claimant’s inspection on 21st January 2022 especially if the bus had been involved in an accident or curbed; and he asked why it was that on 24th January 2022, a mechanic tightened the cotter pin but did not notice the movement in the kingpin; and how it had been tightened with 50mm play in the kingpin?[78]The disciplinary hearing took place on 23rd February 2022. The hearing was conducted by Mr Hunter with Ms Evans taking notes. The claimant was accompanied by Mr Shields of Unite and his sister was also in attendance to provide welfare support to the claimant.[79]After going over everything that was discussed with the claimant during the disciplinary hearing and taking everything into account, Mr Hunter’s conclusions were that: he was satisfied that the claimant knew that as the cotter pin was loose, he needed to check the king pin closely; the claimant was aware that this was a safety critical item and the implications of failing to record the defect; the claimant’s grandmother’s bereavement was upsetting for him; the claimant had perceived some conversations with him and the workshop manager that were different to the intention; and the claimant had the accredited FTA training and was able to talk through an inspection with good practice.[80]Mr Hunter decided, having considered all the evidence and having taken the claimant’s explanations into account, that he was satisfied that the claimant had committed the allegation of failure to correctly record a serious defect. In view of the final written warning on the claimant’s file and having been unable to find any mitigating factors for a lesser sanction, Mr Hunter decided to terminate the claimant’s employment.[81]The claimant’s dismissal was confirmed in a letter to him dated 23rd February 2022.The claimant was notified of his right to appeal. First appeal[82]The claimant’s union representative lodged an appeal on the claimant’s behalf on 23rd February 2022 on the grounds of ‘severity of award’. The appeal was to be heard by the respondent’s Fleet Engineer, Mr Patterson. A letter was sent from Mr Patterson to the claimant on 2nd March 2022 inviting the claimant to attend an appeal hearing on 7th March 2022.[83]The appeal hearing took place on 7th March 2022. The claimant was accompanied by Mr Shields and Mrs Mayer of Unite Union. Ms Davis took notes. The claimant’s sister again attended to provide welfare support to the claimant.[84]At the appeal, Mrs Mayer spoke for the claimant. She clarified that the claimant was appealing on a number of grounds including: breach of procedure- the invite to the disciplinary hearing did not say that a sanction up to and including dismissal was a possibility; severity of award; mitigationthe claimant’s grandmother had just died and he felt that he could not take time off work; and the claimant had worked whilst unwell.[85]Mr Patterson investigated the points raised in the appeal and confirmed his findings in a letter to the claimant dated 18th January 2022. Mr Patterson came to the following conclusions:a. the claimant had attempted to notify the workshop manager by text that his grandmother had died but the workshop manager had not seen that text before speaking to the claimant when he attended for work on 19th January 2022. The claimant asked the workshop manager if he wanted the claimant to go home. The workshop manager told the claimant that he was not sending him home but that if he felt he needed to go home he should let the workshop manager know. The claimant was not put under any pressure to stay at work and did not mention anything about bereavement leave;b. the claimant was absent on 20th January 2022. When he returned to work on 21st January 2022, Mr Hunter spoke to the claimant informally in the smoking area to discuss how he was and to pass on his condolences. He also discussed the claimant’s previous day’s absence and said that he was willing to let the claimant have that as holiday. The claimant agreed and was grateful. Mr Hunter went on to say that he knew the claimant would need time off for the funeral and asked that he be kept informed so the claimant could take bereavement leave for this;c. in light of this conversation there did not seem to be any reason for the claimant to be concerned about bereavement leave especially as, having checked his attendance record, his attendance was good;d. the claimant contacted the workshop manager on the Saturday when he was feeling ill at work. The workshop manager asked if the claimant could stay on until cover arrived and the claimant agreed to do this. The claimant did not tell the workshop manager he was being sick or having panic attacks;e. there was misunderstanding on both sides regarding what has been said and the context of those conversations;f. the management team had shown consideration regarding the claimant’s welfare and situation;g. it was a busy morning on 21st January 2022 with interruptions from drivers but that was no different than usual;h. the claimant took it upon his own initiative to inspect bus 19029. He was therefore aware and focused on what was happening around him and what was required;i. the claimant was informed in his final written warning that a repeat of similar misconduct or any other instance of misconduct could result in his dismissal and the invite to the disciplinary said that it would be carried out in accordance with the Disciplinary Policy. The fact that the letter inviting the claimant to the disciplinary did not say that a sanction ‘up to and including dismissal’ was possible had no bearing on the decision that was taken.[86]Mr Patterson could find no reason to overturn the outcome and decided that the decision to dismiss was sound. The claimant was informed of his further right to appeal this outcome. Final appeal[87]The claimant lodged a further appeal and a final stage appeal hearing took place on 27th April 2022. The hearing was conducted by the respondent’s Engineering Director, Mr Wallis. The claimant was accompanied by J Nobbs and T Shields of Unite and by his sister for welfare support.[88]Mr Wallis made it clear at the outset of the meeting that if the union made statements or representations on the claimant’s behalf, unless those were corrected, they would be taken as the claimant’s views.[89]Mrs Nobbs said that whilst the incident could not be denied, the appeal was against the severity of the award. Mr Wallis explained and the claimant understood that the severity of the issue could have led to an infringement of the respondent’s operating licence and the ramifications of this could have been extensive.[90]There was discussion about the claimant being distracted on the day in question and how he felt he couldn’t take time off for his grandmother’s bereavement as a result of a conversation he’d had with Mr Hunter.[91]Mr Wallis adjourned to speak to Mr Hunter. It was established that Mr Hunter’s recollection of the conversation was different to the claimant’s. Mr Wallis was also able to establish with the claimant that he had sufficient training to undertake the tasks he was undertaking and had conducted them on several occasions.[92]Mr Wallis adjourned again to review and make his decision.[93]During the adjournment, Mrs Nobbs approached Mr Wallis to discuss the potential of offering the claimant alternative employment. Mr Wallis agreed to offer the position of a Shunter at the Thanet Depot as a reflection of the claimant’s attendance and service with the respondent.[94]Although the letter confirming the outcome of the appeal hearing was not sent until some five or so weeks after the hearing (31 May 2022), the Tribunal considers it to be an accurate record of what was discussed. It says: “During the adjournment Ms Nobbs came to see me and we discussed the potential of alternative employment should the decision from the previous appeal be upheld. The position of a Shunter at the Thanet depot was offered as a reflection of your attendance and service with the company. After a number of discussions it was agreed that the following would be proposed as alternative employment…”[95]The letter continues to set out the role at Thanet and then records that, in fact, the claimant had started in post though Mr Wallis was not advised of his acceptance of the role.[96]The claimant did commence that role and continues to be employed as a Shunter at the respondent’s Thanet Depot as at the date of the Tribunal hearing. As far as the Tribunal is aware, the respondent paid the claimant for the period between the original dismissal and his commencement as a Shunter at the rate of a Semi-Skilled Fitter. The claimant was also able to complete his Level 3 NVQ.[97]The claimant confirms that he did accept the role because he wanted to complete his NVQ, which was also part of the agreement though not recorded in the letter. Law Was there a dismissal?
Law
[98]Section 94(1) of the Employment Rights Act 1996 (‘ERA 1996’) provides that an employee has the right not to be unfairly dismissed by their employer.[99]Section 95(1)(a), ERA 1996 provides that an employee is dismissed by their employer if “the contract under which he is employed is terminated by the employer (whether with or without notice)”. The burden is on the claimant to prove dismissal, and only then does the burden shift to the respondent.[100]If an employee is dismissed but that sanction is reduced on appeal to, for example, demotion, the effect of the decision on appeal is to revive the contract of employment so as to treat the employee as if he or she had never been dismissed for the purposes of an unfair dismissal claim: Roberts v West Coast Trains Ltd [2004] EWCA Civ 900. In Roberts, Mr Roberts was summarily dismissed by West Coast Trains (WCT) for gross misconduct. WCT's disciplinary procedures had been agreed with the unions and formed part of Mr Roberts' contract. On appeal, Mr Roberts' dismissal was reduced to a demotion and the intervening period between the original dismissal date and appeal decision date treated as one of suspension without pay. Mr Roberts claimed unfair dismissal and WCT successfully argued that the outcome of the appeal meant that there had been no dismissal. Mr Roberts appealed unsuccessfully to the EAT and to the Court of Appeal.[101]The EAT held that, as Mr Roberts' demotion resulted from the application of a contractual power, the demotion did not involve a termination of the original contract. However, in reaching that conclusion the EAT was not saying that a demotion could never in any circumstances give rise to a dismissal. It observed that: a demotion could give rise to a dismissal "if there are significant changes in terms and conditions of employment, at least, if there is no contractual power to effect the demotion which is accepted by an employee"; and, in some cases, the demotion may give grounds for the employee to allege constructive dismissal (although that had not been argued by Mr Roberts).[102]The Court of Appeal reiterated the following points: the internal appeal decision in Mr Roberts' case did not create a new contract for a new position: it was a question of giving effect to a decision to apply a different sanction on appeal than had been applied in the first instance. The sanction applied on appeal was one specified in the existing contract. Within that existing contract it was possible to demote Mr Roberts without terminating his existing contract and without making an offer to enter into another contract re-engaging him into a different position; and, this general rule does not apply where a contractual disciplinary policy provides that the sanction of demotion can only take effect with the employee’s agreement and the employee does not accept the demotion.[103]The general rule in Roberts was reviewed and affirmed by the Court of Appeal: Patel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1689. Unfair Dismissal[104]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[105]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.[106]A reason relating to the employee’s conduct is a potentially fair reason falling within section 98(2).[107]Where an employer alleges that its reason for dismissing the claimant was related to conduct, the employer must prove that at the time of the dismissal it genuinely believed the claimant had committed the conduct in question and that this was the reason for dismissing the claimant.[108]The test is not whether the Tribunal believes the claimant committed the conduct in question but whether the employer believed the claimant had done so. Fairness[109]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.[110]Section 98(4) ERA provides that “the determination of the question whether: 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 shall be determined in accordance with equity and the substantial merits of the case.[111]The Employment Appeal Tribunal (EAT) set out guidelines as to how this test should be applied to cases of alleged misconduct in the case of British Home Stores Limited –v- Burchell 1980 ICR 303. The EAT stated that what the Tribunal should decide is whether the employer who discharged the employee on the grounds of the misconduct in question “entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. First of all, there must be established by the employer the fact of that belief, that the employer did believe it. Secondly that the employer had in its mind reasonable grounds upon which to sustain that belief and thirdly that the employer at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, has carried out as much investigation into the matter as was reasonable in all the circumstances of the case.[112]The concept of a reasonable investigation can encompass a number of aspects including: making proper enquiries to determine the facts, informing the employee of the basis of the problem, giving the employee an opportunity to make representations on allegations made against them and put their case in response and allowing a right of appeal.[113]In 2009, ACAS issued its current code of practice on disciplinary and grievance procedures. The Tribunal must take into account relevant provisions of the code when assessing the reasonableness of a dismissal on the grounds of conduct (section 207(3) TULRCA).[114]Under the Code, employers should give employees an opportunity to put their case before any decisions are made. The Code identifies the need for a disciplinary meeting. It also provides that, when notifying an employee of a disciplinary meeting, the notification should contain sufficient information about the alleged misconduct and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. Furthermore, at the meeting the employer should explain the complaint against the employee and go through the evidence that has been gathered.[115]The Code also states that an employee who is not satisfied by the outcome of disciplinary proceedings should appeal and should be allowed to do so by the employer. It goes on to state that appeals should be heard without unreasonable delay and should be dealt with impartially (wherever possible by a manager who has not previously been involved in the case).[116]Even if procedural safeguards are not strictly observed, the dismissal may be fair. This will be the case where the specific procedural defect is not intrinsically unfair and the procedures overall are fair (Fuller – v- Lloyds Bank 1991 IRLR 336 EAT). Furthermore, defects in the initial disciplinary hearing may be remedied on appeal if, in all the circumstances, later stages of a procedure are sufficient to cure any earlier unfairness.[117]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 or not 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. Rather 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). This “range of reasonable responses” test applies equally to the procedure by which the decision to dismiss is reached (Sainsbury’s Supermarkets Limited –v- Hitt 2003 IRLR 23).
Remedy
[118]If a claim of unfair dismissal is well founded, the claimant may be awarded compensation under Section 113(4) ERA. Such compensation comprises a basic award and a compensatory award, calculated in accordance with sections 119 to 126 ERA.[119]So far as the compensatory award is concerned, ERA provides that the amount of compensation shall be such amount as is just and equitable based on the loss arising out of the unfair dismissal. In Polkey – v- A E Dayton Services Limited 1987 ICR 142 the House of Lords stated that the compensatory award may be reduced or limited to reflect the chance that the claimant would have been fairly dismissed in any event had a fair procedure been followed. The right to be accompanied[120]The statutory right to be accompanied is set out in section 10 of the Employment Relations Act 1999. It provides that an employer must permit an employee to be accompanied to a disciplinary hearing by either a trade union representative or another of the employer’s workers.[121]The ACAS Code of Practice on Discipline and Grievance states as follows: “Allow the employee to be accompanied at the meeting 13. Workers have a statutory right to be accompanied by a companion where the disciplinary meeting could result in:• a formal warning being issued; or• the taking of some other disciplinary action• the confirmation of a warning or some other disciplinary action (appeal hearings) 14. The statutory right is to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker. Employers must agree to a worker's request to be accompanied by any companion from one of these categories. Workers may also alter their choice of companion if they wish. As a matter of good practice, in making their choice workers should bear in mind the practicalities of the arrangements. For instance, a worker may choose to be accompanied by a companion who is suitable, willing and available on site rather than someone from a geographically remote location. 15. To exercise the statutory right to be accompanied workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. A request to be accompanied does not have to be in writing or within a certain timeframe. However, a worker should provide enough time for the employer to deal with the companion's attendance at the meeting. Workers should also consider how they make their request so that it is clearly understood, for instance by letting the employer know in advance the name of the companion where possible and whether they are a fellow worker or trade union official or representative. 16. If a worker's chosen companion will not be available at the time proposed for the hearing by the employer, the employer must postpone the hearing to a time proposed by the worker provided that the alternative time is both reasonable and not more than five working days after the date originally proposed. 17. The companion should be allowed to address the hearing to put and sum up the worker's case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker's behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case.”[122]Reasonable adjustment may be needed for a worker with a disability. For example the provision of a support worker or advocate with knowledge of the disability and its effects.” Burden of proof[123]S.136 EqA 2010 provides:(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[124]The guidance set out in Igen v Wong [2005] ICR 9311, CA (approved by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054, SC and Efobi v Royal Mail Group Ltd [2021] ICR 1263, SC) still sets out the correct approach to interpreting the burden of proof provisions. In particular:a. it is for the claimant to prove on the balance of probabilities facts from which the Tribunal could conclude that the employer has committed an act of discrimination, in the absence of an adequate explanation (para 79(1), see also Ayodele v Citylink Ltd and anor [2018] ICR 748, CA at paras 87 - 106);b. it is unusual to find direct evidence of discrimination and ‘[i]n some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”’ (para 79(3));c. therefore the outcome of stage 1 of the burden of proof exercise will usually depend on ‘what inferences it is proper to draw from the primary facts found by the tribunal’ (para 79(4));d. ‘in considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts’ (para 79(6));e. where the claimant has satisfied stage 1 it is for the employer to then prove that the treatment was in no sense whatsoever on the grounds of the protected characteristic on the balance of probabilities’ (para 79(11)-(12)).[125]In Igen v Wong the Court of Appeal cautioned tribunals ‘against too readily inferring unlawful discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground’ (para 51).[126]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 indicate 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 had committed an unlawful act of discrimination’ (para 58).[127]S.13 EqA 2010 provides: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[128]It is not enough for treatment to be different in order to be ‘less favourable’, but the claimant does not have to experience actual disadvantage (see Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065, HL).[129]The Equality and Human Rights Commission Employment Statutory Code of Employment (the ‘Employment Code’) provides: 3.5 The worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated – or would have treated – another person.[130]Treatment can be ‘because of’ a protected characteristic if it is inherently discriminatory.[131]However, more commonly treatment is found to be ‘because of’ a protected characteristic not because it is inherently discriminatory, but because the conscious or subconscious reason the alleged perpetrator is treating someone less favourably is the protected characteristic.[132]In such cases the focus in determining whether there has been direct discrimination is on the motivation, intention and knowledge of the decision maker (knowledge of others cannot be imputed) (Gallop v Newport City Council (No.2) [2016] IRLR 395). The protected characteristic must be the conscious or subconscious reason for treatment.[133]For treatment to be ‘because of’ a protected characteristic, the characteristic does not have to be the only or main reason for treatment, it only has to be an effective cause (Nagarajan v London Regional Transport [1999] ICR 877, HL).[134]In the context of direct disability discrimination, it is not necessary for the decision maker to have actual knowledge of a specific condition or cause of a disability or that the individual as a matter of law satisfies the test under s.6 EqA 2010. The question is whether they the alleged perpetrator has knowledge of the underlying facts which amount to the disability (ie., the presence of an impairment with a long-term and substantial adverse effect on the individual’s ability to carry out normal day-to-day activities): Urso v Department for Work & Pensions [2017] IRLR 304 paras 52 – 60. Failure to make reasonable adjustments[135]S.20 EqA 2010 provides:(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 whom 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.[136]Schedule 8, para 20 provides: (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.[137]The term ‘provision, criterion or practice’ (‘PCP’) should be construed widely to include any informal policies, criteria, conditions or prerequisites (para 4.5 of the Employment Code).[138]S.212 EqA states that: ‘“substantial” means more than minor or trivial’. It is necessary for the Tribunal to identify the substantial disadvantage faced by a claimant (Environment Agency v Rowan [2008] ICR 218, EAT) as a result of any PCP. The proper comparator for the purposes of identifying if an employee is put to a substantial disadvantage in comparison with persons who are not disabled should be identified by reference to the specific disadvantage relied on (Griffiths v Work and Pensions [2017] ICR 160, CA at paras 20 and 21).[139]An employee must show on the balance of probabilities that they were in fact put to the substantial disadvantage relied on and the Tribunal must have regard to the overall picture, not just medical evidence. The focus of the Tribunal should be on the result of the adjustment or lack of adjustment, not on the process followed by an employer (Royal Bank of Scotland v Ashton [2011] ICR 632, EAT at paras 20 – 24 and authorities cited therein).[140]In considering whether an adjustment was reasonable, the Tribunal must consider whether the adjustment contended for would or could have removed the disadvantage (Romec Ltd v Rudham [2007] 7 WLUK 408 at para 38), although it does not need to be guaranteed to be a success (Griffiths at para 29).[141]In Tarbuck v Sainsbury’s Supermarkets Ltd UKEAT/0136/0, an employee claimed that the employer's failure to discuss steps to be taken to eliminate her disadvantage in the competition for alternative jobs in a redundancy exercise amounted to a failure to make reasonable adjustments. The EAT held that, while an employer would be wise to consult with a disabled employee in order to be better informed, the test of reasonableness related to what the employer did or did not do, not what it considered. The EAT held that the duty to make reasonable adjustments does not impose a duty on the employer to discuss with an employee what steps it might reasonably take.[142]S. 15 EqA 2010 provides:- (1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2)Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the[143]In relation to causation, in Basildon & Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14, EAT, Langstaff P held that there were two distinct steps to the test to be applied by tribunals in determining whether discrimination arising from disability has occurred:a. Did the claimant's disability cause, have the consequence of, or result in, "something"?b. Did the employer treat the claimant unfavourably because of that "something"?[144]As to the discriminators alleged motivations, Simler P in Secretary of State for Justice and anor v Dunn EAT 0234/16 said the following: ‘[Counsel for the claimant asserts] that motive is irrelevant. Moreover, he submits that the claimant did not have to prove the reason for the unfavourable treatment but simply that disability was a significant influence in the minds of the decision-makers. We agree with him that motive is irrelevant. Nonetheless, the statutory test requires a tribunal to address the question whether the unfavourable treatment is because of something arising in consequence of disability… [I]t need not be the sole reason, but it must be a significant or at least more than trivial reason. Just as with direct discrimination, save in the most obvious case, an examination of the conscious and/or unconscious thought processes of the putative discriminator is likely to be necessary’.[145]It is not necessary for an employer to be aware that the "something" arises in consequence of the employee's disability for it to be liable under section 15, if it treats the employee unfavourably because of that "something". The test is an objective one. In City of York Council v Grosset [2018] EWCA Civ 1105, an employee was dismissed for misconduct. The employer was liable under section 15 even though it was not aware that the employee's actions were due to their disability. Time limits under Equality Act 2010[146]Section 123(1)(b) EqA 2010 relevantly provides that “proceedings on a complaint…may not be brought after the end of…such other period as the employment tribunal thinks just and equitable”.[147]The burden is on the claimant to persuade the Tribunal that it is just and equitable to extend time: Robertson v Bexley Community Centre [2001] UKEAT 1516/00, [2003] IRLR 434.[148]Parliament has given the Tribunal the widest possible discretion, and the Tribunal is not required or instructed to have regard to any specific list of factors: Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 at §18.[149]Factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh): Morgan at §19.[150]The Tribunal is required not to leave a significant factor out of account: Southwark London Borough Council v Afolabi [2003] EWCA Civ 15 at §33.[151]It is useful, albeit not necessary, for the Tribunal to consider the list of the factors specified in section 33(3) of the Limitation Act: British Coal Corporation v Keeble [1997] IRLR 336.[152]Understood in its proper context (as set out in Jones v Secretary of State for Health and Social Care [2024] EAT 2 at §31), time limits are to be observed strictly in the Tribunal. There is no presumption that time will be extended unless it cannot be justified, quite the reverse. The exercise of that discretion is the exception rather than the rule: Robertson v Bexley Community Centre [2003] EWCA Civ 576 at §25.[153]The Tribunal may consider the merits of the claimant’s case: Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132.[154]This is essentially a question of fact and judgment for the Tribunal to determine in all the circumstances after hearing evidence and argument on it: Robertson v Bexley Community Centre [2003] EWCA Civ 576 at §23. Conclusions Was the claimant dismissed?
Conclusions
[155]This question turns on what was decided and/or agreed at the appeal and the circumstances of the claimant’s re-employment as a Shunter.[156]The Tribunal finds that the respondent’s disciplinary procedure was a contractual procedure, agreed with the union, which provided for the possibility of demotion as an alternative sanction to dismissal pursuant to Clause 12 (which states that alternative sanctions may be considered).[157]Effectively, this means that, when the claimant was offered the role of shunter, he was reinstated, which nullified his dismissal and restored continuity of employment. The respondent acted consistently with this, as they have paid back pay and retained continuity of employment. Although the claimant suggested that there was some discrepancy as regards holiday, no evidence was given in this regard. In any event, the claimant started in the new job and therefore consented to it which has the effect of him agreeing to a demotion instead of a dismissal, and the original contract continuing.[158]In any event, the Tribunal considers that the effect of reinstatement should be the same whether the respondent’s disciplinary procedure was contractual or non-contractual, as the effect of the claimant embarking on an appeal under an agreed process is that he effectively consented to the matter being reconsidered by the employer, and to the possibility of the sanction being revoked and moderated. In this case the claimant was appealing the severity of the sanction and so, effectively, in the respondent giving him the opportunity to move to an alternative grade was upholding the appeal By pursuing an appeal under a process which allows for the revocation of the dismissal, and the offering of an alternative role, the claimant is deemed to have consented to such an outcome. The effect of this is that the dismissal has “vanished” and the claimant is unable to bring an unfair dismissal claim.[159]In this case, the claimant actually returned to work for the respondent in the new role, indicating his consent to it.[160]If the Tribunal is wrong on that, then the demotion amounts to an offer to re-engage the claimant on new terms and the claimant's original dismissal will stand. In that case, the claimant would have been dismissed for the purposes of bringing an unfair dismissal claim. The Tribunal, accordingly, sets out below, its findings as regards unfair dismissal, for the avoidance of doubt. Unfair dismissal Reason for dismissal[161]The respondent says the reason was conduct, specifically that the claimant failed to comply with the respondent’s instructions or policy of how a bus inspection should be recorded, and, notably, that serious defects should be notified within the inspection form. The claimant did not suggest that the reason for dismissal was another reason. The Tribunal is satisfied that this was the reason for dismissal and also relies on the fact that the claimant already had a written warning and a final written warning, both for conduct. Did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant?[162]In the circumstances, the respondent acted reasonably in treating that as a sufficient reason to dismiss the claimant. This is because the claimant had already been awarded a written warning as well as a final written warning which were live, and which had not been appealed. Those warnings were also for misconduct, and specifically for failure to comply with the respondent’s instructions or policy. It is significant that the claimant’s misconduct had health and safety implications for other employees of the respondent and, indeed, for the general public.[163]The respondent, acting through Mr DuChesne, carried out a reasonable investigation. The scope of the investigation was “into not correctly recording a serious defect” as noted contemporaneously by Mr DuChesne. The claimant was the only person to inspect the bus in question and to certify it as ready to go back onto the road. The Tribunal finds that the previous inspections, referred to at length by Mr Box, were not relevant. The purpose of the investigation was to find out whether a serious defect had not been properly dealt with during an inspection, and whose responsibility that was. Whether the fault had already been present was not relevant to the investigation.[164]The respondent, acting through Mr Hunter, adopted and followed a reasonable procedure in conducting the claimant’s disciplinary hearing. The claimant was invited for a hearing in which he was accompanied by both his trade union representative and his sister (as an adjustment) for moral support. The Tribunal will consider the respondent’s duty to make reasonable adjustments as regards accompaniment in due course. The Tribunal finds that there was no unreasonable delay.[165]The suggestion that Mr Duchesne or Mr Hunter had a conflict of interest is not credible. The fact that Mr Duchesne had ticked the inspection sheet to confirm that it had properly filled in, or that the boxes had been ticked, was not the same as Mr Duchesne confirming that the inspection had been correctly carried out. The claimant’s suggestion that Mr Duchesne was responsible for the mistake is not accepted by the Tribunal.[166]Further, the disciplinary procedure did not, as suggested by the claimant, require the respondent to carry out an investigatory interview with the claimant, rather it provided that the respondent may carry out such an interview. In the Tribunal’s experience it is not uncommon for there not to be an investigatory interview in circumstances such as this in which the issues at stake are clear. The disciplinary hearing was the claimant’s chance to explain himself and the respondent did not act outside of the band of reasonable responses by not inviting the claimant to an investigatory interview.[167]If the claimant was dismissed, his dismissal was within the range of reasonable responses available to a reasonable employer. The Tribunal finds that the previous inspection records of “the bus”, referred to at length by Mr Box, were not relevant. The fact is that, for some reason, the claimant failed to record a serious defect in the bus when he signed off the inspection records, regardless of whether that defect had been missed off records, or had been noted previously. He was unable to provide an explanation for his actions.[168]The suggestion made by Mr Box during the hearing, that Mr DuChesne was involved in a “stitch up”, was far-fetched and lacked any evidential basis. In particular that theory was never presented to the respondent during the disciplinary process for them to comment on. In particular, the Tribunal considers that the suggestion that Mr DuChesne may have told the claimant not to jack up the bus was not suggested at any time by the claimant himself, including during the actual disciplinary process, in his claim form, in his witness statement or even in his oral evidence. There was no evidence before the Tribunal on which to base such a finding. The Tribunal notes, in particular, that there was a statement taken from the claimant by Mr Box in as stress free circumstances as possible (Mr Box says he used relaxation and memory recall techniques at Simon’s speed) and it was not mentioned in there either.[169]To the extent that there was any procedural unfairness, then the Tribunal finds that a fair dismissal would have happened in any event. Wrongful dismissal / Notice pay/ breach of contract[170]The claimant was not dismissed and so no notice pay was due. The respondent has made all appropriate payments to the respondent. Disability[171]The respondent admitted that the claimant was a disabled person as a result of Asperger’s syndrome at all material times. Allegations of discrimination[172]The claimant relies on the same allegations for each of the direct disability claim and the discrimination arising from claim. Level 3 NVQ allegation[173]The claimant says he was promised, when he commenced employment with the respondent, that he would begin a college course towards achieving his Level 3 NVQ within two months. However, the Tribunal finds that that promise was not made. That may have been said to a person engaged as an apprentice, for whom there was no guarantee of a job at the end of the apprenticeship, but the claimant was employed as a semi-skilled fitter, and so no promise was made to commence the course in such short order. In any event, the claimant was on a probation period for six months. Nonetheless, it did take the respondent from 2015 until 2020 to enrol the claimant on the course.[174]However, the Tribunal finds that there is no evidence that a comparator would be treated differently. Although we know that Trevor, one of the claimant’s colleagues, started his NVQ before the claimant, he was employed longer than the claimant. There is no evidence on which to base an assumption that the claimant was treated less favourably than a relevant comparator, and no evidence to suggest that the delay was because the claimant was disabled.[175]In any event, the Tribunal is satisfied that at least part of the delay was caused by the illness of the tutor.[176]There are no facts from which to conclude that the delay related to the claimant’s disability.[177]The alleged something arising is that the claimant can be suggestible; defer to authority; be easily influenced or manipulated; have difficulty saying “no” and asserting boundaries; has a need for an advocate; and went into a dissociative state on occasion following his grandmother’s death.[178]There was no medical, or indeed any other, evidence before the Tribunal to demonstrate that these were things that arose from the claimant’s disability. The Tribunal was unable to make a finding that these were something arising from the claimant’s disability. The claimant has failed to satisfy the Tribunal that those things arose in consequence of his disability. All claims of discrimination arising from fail on this basis.[179]In any event, there was no evidence before the Tribunal to suggest that the delay in the claimant starting the NVQ was caused by anything other than the lack of availability of assessors. There was no evidence to suggest that the delay was because of something arising from claimant’s disability, as alleged.[180]This allegation was made between approximately 2 and 7 years out of time (from the date on which the NVQ was commenced). The Tribunal sets out below its findings on continuing act/ whether it is just and equitable to grant an extension of time. The fraud allegation[181]This allegation was not clearly addressed by the claimant in his evidence and is not made out. It relates to the alleged payment of overtime to the claimant to make up for a difference in shift pay between a fitter and a semiskilled fitter. Other than the claimant’s written and oral testimony, there was no evidence pertaining to this allegation, and no evidence whatsoever to suggest that any fraud had been committed. Mr Duffy had left the respondent’s employment some time ago and did not give evidence.[182]The allegation related to 2019 and was roughly three years out of time. The time off allegation[183]This allegation is not made out. There was, in fact, evidence before the Tribunal that the claimant did take annual leave in January and February 2020.[184]The allegation relates to 2019-2020 and is approximately 2 – 3 years out of time. The night shift allegation[185]The allegation is that the claimant was required to work for twelve months at night on his own between July 2020 and July 2021, when he was unqualified to do so.[186]The Tribunal is satisfied that the allegation cannot be upheld as there was no requirement for the claimant to have his level 3 NVQ, as alleged, in order to be able to work the night shift alone. In fact, the respondent was consistent that the claimant was qualified to work alone. The Tribunal accepts the respondent’s evidence in this regard.[187]In any event the Tribunal finds that the claimant was content to work the night shift and had on occasion volunteered to do so, for example when people went on holiday. The Tribunal is satisfied that the claimant was not in any way forced to work the night shift, though he may have felt pressured to assist the respondent once Shane went off sick. Feeling pressured is not the same as being forced, or required, to do it.[188]To the extent that the claimant was pressured to work the night shift, this was because he was available and was young, as suggested by Mr Box, and not because of disability, or because of something arising from[189]There was no evidence from which the Tribunal could conclude that the claimant’s treatment was because of disability or something arising from[190]The allegation is approximately 6-18 months out of time. The final written warning allegation (third torque test)[191]This allegation is made out in that the respondent did discipline the claimant for not completing a third torque test by giving him a final written warning.[192]The reason for Mr Hunter’s decision was that the claimant had “failed to carry out the stage 3 retorque to the rear side wheel 193. nuts on 15182 on three consecutive nights with no justified reason for this omission” and the previous written warning on file for a conduct issue justified a final written warning. The final written warning was to remain on the claimant’s file for 12 months[194]The Tribunal is satisfied that this is not less favourable treatment as the Tribunal considers that a comparator in the same circumstances as the claimant would be treated the same way regardless of disability. Mr Wallis confirmed that he knew of someone being disciplined recently for missing the same test, and his evidence in this regard was accepted by the Tribunal.[195]There are no facts from which the Tribunal could conclude that the claimant was disciplined because of his disability. In any event, the Tribunal is satisfied that the claimant was disciplined because he missed the torque test and not because of his disability.[196]There was no evidence to suggest that the claimant was disciplined because of something arising from disability and no evidence was put forward in that regard.[197]Had it been, the respondent has satisfied that Tribunal that disciplining the claimant by way of a final written warning, in circumstances in which the claimant already had a live written warning on file, was a proportionate means of achieving a legitimate aim, namely safety to public and business needs.[198]This allegation is approximately three months out of time. The November 2021 hearing allegation[199]The claimant alleged that Mr Hunter called him out of the blue into a disciplinary hearing having arranged union representation for the hearing. The Tribunal, in this regard, preferred Mr Hunter’s evidence that the invitation letter was put in the claimant’s “cubby hole”. This is on the basis that the Tribunal finds that the claimant was trying to keep this disciplinary issue from his parents, as they did not find out about it until the subsequent disciplinary process which led to the claimant’s dismissal, and may therefore not have acknowledged the letter.[200]The Tribunal finds that, on the balance of probabilities, the claimant did receive the invitation to hearing but did not want to show his parents it and disposed of it. Further, the minutes of the meeting, as referred to above, give no indication that the claimant did not consider that process had been properly followed or was surprised by the meeting.[201]The respondent accepts that Mr Hunter arranged union representation for the claimant, but that was in order to assist him and to ensure that he had representation.[202]The allegation is not made out.[203]There are not facts from which the Tribunal could conclude that the[204]This allegation is approximately three months out of time. Dismissal allegation[205]The allegation that the claimant was dismissed without a proper and diligent investigation is not made out for the reasons set out above in the context of unfair dismissal[206]This allegation is in time. PSV Inspection course allegation[207]The allegation is made out in the sense that the respondent did send the claimant on the course when he was relatively inexperienced and did not have his level 3 NVQ. The Tribunal notes that the claimant was due to re-take the course in 2022 and still alleged that he was unqualified to do so, some five years later.[208]The claimant was sent on the course in February 2017 and so the allegation is five years out of time.[209]This was not less favourable treatment. The Tribunal is satisfied that a relevant comparator without the claimant’s disability would be treated the same way.[210]The treatment was not “less favourable” as it was providing further training for the claimant. The respondent would not have sent him on the course if they did not consider he was able, demonstrated by the fact that the claimant passed the course.[211]It was not a detriment to be sent on the course as the claimant passed it and was able to conduct inspections as a result.[212]The Tribunal is satisfied that the claimant was not sent on the course because of something arising from his disability. Again, no evidence or submission was put forward in this regard.[213]The claimant was sent on the course in February 2017 and so the allegation is five years out of time. Fail to follow ACAS guidance (written warning) allegation[214]The claimant alleges that the respondent failed to follow ACAS guidance by refusing to allow the claimant’s father to represent him at the disciplinary hearing.[215]In refusing to allow the claimant’s father to represent him at the disciplinary hearing, the Tribunal concludes that the respondent did not fail to follow ACAS guidance, as the guidance (online) requires reasonable adjustment and gives, as examples, the provision of a support worker or advocate with knowledge of the disability and its effects. In this case, the claimant’s sister was allowed to attend with the claimant.[216]It says: “The employee or worker must usually choose their companion from one of the following: someone they work with; a workplace trade union representative who's certified by their union to act as a companion; an official employed by a trade union. Employers might allow companions who do not fall within the above categories. For example, a partner or legal representative. Under discrimination law, employers must make reasonable adjustments for disabled employees. This might mean allowing someone else to be their companion. For example, a support worker or someone with knowledge of the disability and its effects.[217]None of the guidance suggested that the respondent should allow the claimant’s father to attend and represent him. Refusing a request by the claimant for his father to represent him does not equate to the respondent failing to following ACAS guidance or acting unreasonably. The respondent took steps to ensure the claimant was supported whilst going through the[218]The ACAS guidance talks about a companion. Mr Box clearly wanted to attend as a representative which is not what the guidelines indicate. It is clear to the Tribunal, and would have been clear to the respondent, that Mr Box wanted to speak for the claimant and that he felt he should be able to represent the claimant. However the Tribunal considers that the ACAS guidance is not focussed on representation, rather accompaniment and support, which, in this case, was provided.[219]The respondent has not failed to follow the ACAS Code or guidance.[220]In the case of this written warning, which concerned the air intake tests, the claimant argued that it was the hearing manager who decided who would accompany the claimant, and that the presence of that person had a detrimental effect on the claimant being unable to tell the truth about who told him to falsify records, as it was, in fact, Mr Rai who was accompanying the claimant.[221]In reality, the respondent did not know that. They were doing their best to ensure that the claimant had someone to accompany him in circumstances in which he would have attended unaccompanied. If the claimant had felt unable to speak, he could have raised an appeal, which he failed to do.[222]There are no facts from which the Tribunal could conclude that the[223]This allegation relates to August 2021 and is approximately six months out of time. Fail to follow ACAS guidance (final written warning) allegation[224]On this occasion, the claimant did not inform his parents of the disciplinary proceedings or the outcome and did not request to be accompanied by a family member or indeed make any request for representation or accompaniment. In any event, union representation was arranged.[225]The allegation is not made out.[226]There are no facts from which the Tribunal could conclude that the[227]The allegation is approximately three months out of time. Fail to follow ACAS guidance during disciplinary process for the alleged misconduct (21/1/2022).[228]Again this relates to the alleged failure to make reasonable adjustments as regards accompaniment/representation.[229]The allegation is not upheld in that ACAS guidance was followed in that regard and the claimant’s sister was allowed to accompany him throughout the process as well as his trade union representative. The claimant had no right to be represented by his father in the disciplinary process and the respondent sought to ensure that the claimant was appropriately accompanied and supported.[230]There are no facts from which the Tribunal could conclude that the[231]The allegation is in time. Allegation regarding the claimant’s treatment following the death of his grandmother[232]The Tribunal does not uphold this allegation, which appears to be based on an allegation that the claimant believes he should have been sent home when he attended work after the death of his grandmother.[233]It is the responsibility of an employee, particularly in an environment in which there is machinery, pits, vehicles moving and so on to ensure they are only at work when fit to be so. It is not the responsibility of the employer to send an employee home if they say they are fit for work unless there are obvious indications that they are unfit. The fact that the claimant may find it more difficult to say that he is unfit for work is not something the respondent should be held responsible for, they had no reason to believe other than that the claimant hadn’t chosen to come and was fit to be there The allegation is not upheld.[234]There are no facts from which the Tribunal could conclude that the[235]The allegation is in time. 8. Reasonable Adjustments (Equality Act 2010 sections 20 & 21)[236]The respondent knew that, at all material times, the claimant had the[237]The respondent did have a policy or practice of only allowing a colleague or trade union representative to accompany a member of staff at a disciplinary hearing.[238]There was no evidence that this put the claimant at a substantial disadvantage compared to someone without the claimant’s disability. Again, there was no medical evidence before the tribunal in this regard and no specific disadvantage was put forward by the claimant.[239]The claimant suggests that his father could have been permitted to accompany him at the disciplinary and dismissal hearings in order to avoid the disadvantage.[240]In this case, the respondent sought to avoid any disadvantage by allowing the claimant’s sister to attend the hearings with him for moral support. The Tribunal finds that allowing the claimant’s sister to attend the hearing with the claimant, in addition to his trade union representation, was a reasonable adjustment.[241]It is clear from the documentary evidence of the hearing that the claimant was, indeed, represented by the trade union, as they made representations and submissions on his behalf.[242]It would not be reasonable for an employee to be able to demand a specific person, such as, in this case, the claimant’s father. In this case, the respondent made a reasonable adjustment to its policy, in line with guidance, to allow a person with knowledge of the claimant’s disability, to attend for moral support. Wrongful dismissal[243]The respondent did not dismiss the claimant. In any event, the respondent has paid all relevant payments to the claimant. Out of time[244]None of the allegations are upheld, but, for completeness, the Tribunal has gone on to consider whether those that are prima facie out of time, as indicated above, are part of a continuing act or whether time should be extended to allow the claimant to bring those claims.[245]Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 11 February 2022 may not have been brought in time.[246]The respondent contends that the Tribunal does not have the jurisdiction to hear the complaints which were not made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates and should not extend the time limits.[247]The Tribunal is not satisfied that there was conduct extending over a period, given that none of the allegations are upheld. The claimant did not suggest a continuing act and there were no facts from which the Tribunal could conclude that there was a continuing act of discrimination.[248]Given that the allegations are out of time, the Tribunal must consider whether to exercise its discretion to extend time on the basis that it is just and equitable to do so.[249]The claimant’s submissions on this point were based, firstly, on how long they had had to wait for the respondent’s disclosure, but the Tribunal considers that claims should not be dependent on seeing the respondent’s disclosure. There was no reference to what exactly the claimant had been waiting for to allow them to bring the claim.[250]Secondly, Mr Box argued that the claimant did not consider that he was discriminated against until after the final disciplinary process and, in fact, not until 18 May 2022, though Mr Box, the claimant’s father, said he had suspected it before then. The Tribunal is aware that, whilst he was not a member of a trade union until the final disciplinary process, the claimant had access to union representation throughout all of the disciplinary processes and could have asked for advice on any potential disability discrimination at any time once he had been the subject of disciplinary proceedings.[251]Time limits are to be observed strictly in the Tribunal. There is no presumption that time will be extended unless it cannot be justified, quite the reverse. The exercise of that discretion is the exception rather than the rule.[252]Some of the allegation are significantly out of time. The respondent is significantly prejudiced in this regard, the managers who were responsible for the alleged acts having left the respondent’s employment some significant time previously. The balance of prejudice favours the respondent in this regard.[253]In the circumstances, the Tribunal does not consider that it is just and equitable to extend time.[254]The claimant’s claims fail and are dismissed.