Mr I Escudier v Coca-Cola Europacific Partners Great Britain Ltd: 2304209/2022

EMPLOYMENT TRIBUNALS

Case No 2304209/2022

Between

Mr I EscudierClaimant

Coca-Cola Europacific Partners Great Britain LtdRespondent

Before

Employment Judge Martin

In person for claimant

Mr Kendall - Counsel for respondent

Date 20 December 2024

REASONS

[1]The Tribunal gave oral judgment on 4 December 2023. The Judgment however was not promulgated at that time. The Claimant has now asked for written reasons, and I considered it was in the interests of justice for them to be provided.

[2]In considering whether the Claimant was disabled due to Cope Syncope and anxiety and depression I have adopted the staged process in determining whether a person is disabled as defined in the Equality Act 2010. The Respondent accepts that the Claimant is disabled due to deafness and tinnitus.

[3]The law is as follows: “a person has a disability if he or she has a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities”.

[4]In Goodwin v Patents Office

1999 ICR 302

the EAT gave guidance on the proper approach to adopt when applying the DDA’s provisions. This guidance is relevant when deciding matters under the Equality Act 2010. The guidance requires a Tribunal when determining disability to look at the evidence by reference to 4 different questions or conditions.a. Did the Claimant other mental physical impairment?

b. Did the activities affect the Claimant's ability to carry out normal day-today activities?

c. was the adverse effect substantial?

d. Was the adverse condition long-term?

[5]In Wigginton v Cowrie and others t/a Baxter international (A partnership) the EAT held that these four questions should be dealt with sequentially and not together.

[6]In Cruickshank v VAW Motorcast Limited

2002 ICR 729

the EAT held that the time to assess the disability is the date of the alleged discriminatory act. In Richmond adult community college v McDougall

2008 ICR 431

the Court of Appeal held that the date of the discriminatory act is also the material time when determining whether the impairment has a long-term effect.

[7]The burden of proof is on the Claimant to show that he or she has satisfied the definition.

[8]Turning to the four elements of the definition:a. An impairment can be physical or mental. There is no requirement for the impairment to have a specific diagnosis.

b. The words “substantial adverse effect” is defined in section 212(1) Equality Act as meaning "more than minor or trivial". Whether a particular impairment has a substantial effect is a matter for the Tribunal to decide. The focus should be on what the Claimant cannot do, or can only do with difficulty as set out in Leonard v Southern Derbyshire Chamber of Commerce

2001 IRLR 19

EAT.

c. Appendix 1 of the EHRC Employment Code states that "normal day-today activities are activities that are carried out by most men and women on a fairly regular and frequent basis, and gives examples of walking, driving, typing and forming social relationships. Account should be given of how far the activities are carried out on a normal frequent basis. The guidance emphasises that in this context, "normal" should be given its everyday meaning. In Goodwin v Patent Office the EAT considered that there was no need to specify what constitutes a day-to-day activity on the basis that, whilst it is difficult to define, it is easily recognised. In this case the ET stressed that the enquiry is focused on normal daily activities, not on particular circumstances.

d. Paragraph 2(1) of schedule 1 of the Equality Act 2010 says that the effect of impairment is "long-term" if it:

• has lasted for at least 12 months;

• is likely to last released 12 months; or

• is likely to last the rest of the life of the person affected. "Likely" in this context has been defined by the House of Lords in the case of SCA Packaging Ltd v Boyle

2009 ICR 1056

as something that is a real possibility in the sense that it "could well happen" rather than something that is probable or "more likely than not".

[9]Whether an individual is a disabled person is a legal and not a medical decision. The legal decision is made having regard to the evidence and the medical information before the Tribunal. I had before me the Claimant’s GP records going back to 2016. Reference was made by the Claimant about going to BUPA rather than his GP. There are no medical records from BUPA. Any records should have been disclosed so they could be put into the bundle. As they were not, I am not able to take them into account.

[10]With no disrespect to the Claimant, he said he has problems with his memory. For that reason, it is important that I consider the documentary evidence very carefully.

[11]I am considering two impairments. Cough Syncope and anxiety and depression. I have considered them separately.

[12]Cough Syncope – this impairment has different symptoms. Dizziness and issues with an arm, which last about 30 seconds and loss of consciousness which is short term but means the Claimant must rest afterwards.

[13]I am looking at the evidence I have at the time of these issues. Not how the Claimant is currently. The only medical evidence is from a neurologist who examined the Claimant in June 2022. This raised the possibility of the Claimant having Cough Syncope. It was formally diagnosed in May 2023 after the termination of his employment.

[14]The Respondent accepts the Claimant has this impairment and that when there is an episode it is very unpleasant for the Claimant. The Claimant’s evidence was that he had dizzy spells everyday. It was unclear from his evidence whether he was referring to how he is now, or how he was at the relevant time.

[15]I accept the Respondent’s submission that the episodes of dizziness are very short lasting only about 30 seconds and that this does not have a substantial adverse impact on the Claimant’s ability to carry out normal day to day activities. Once the dizzy spell is over it appears he can resume his normal day to day activities.

[16]The medical evidence is that the Claimant lost consciousness on about 5 occasions over the course of a year. Whilst I accept that the aftermath of this incident is that the Claimant must rest for a short while, he is then able to continue his normal day to day activities.

[17]I do not find that there is a substantial adverse impact on his ability to carry out normal day to day activities at the relevant time.

[18]I also do not find that at the relevant time that the condition was long term. I do not accept that the Claimant would have lost consciousness and not gone to see his GP or seek other medical help. This is something so out of the ordinary that medical assistance would inevitably have been sought if it had happened earlier.

[19]There is no medical evidence to suggest that it was likely to last more than twelve months. It is not a medical condition I am familiar with, and I would expect there to be evidence about this but there is none.

[20]I do not find cough Syncope to be a disability as defined in the Equality Act 2010. Depression and anxiety

[21]The Claimant was absent form work for five months from February 2022 to July 2022 with depression and anxiety. In this period, I find that the impairment had a substantial impact on the Claimant’s ability to carry out his normal day to day activities.

[22]Before me are medical notes from 2016. Up to this time (February 2022) there is no reference to the Claimant being depressed or anxious although he says it is a long-term problem.

[23]The Claimant returned to work and from the return-to-work documentation he is telling his employer that he is now well. After a two-month phased return he was able to return to full duties and working his usual shifts.

[24]The Respondent accepts that the Claimant has or had this impairment. It disputes whether, after the Claimant returned to work it had a substantial adverse impact on his ability to carry out his normal day to day activities and whether it was long term.

[25]I accept that there is a lead up to the moment when a person with depression and or anxiety will contact his or her GP. I therefore accept that the Claimants symptoms are most likely to have started in the weeks before he saw his GP in February 2022. My concern is what happened when the Claimant returned to work. The documentary evidence is that he was coping well with his work and his day-to-day interactions in the workplace. He does not say in his impact statement how depression and anxiety affects him in his normal life. He is focussing on his work environment. Many of the matters he refers to in the work environment relate to his deafness/tinnitus, which the Respondent accepts are disabilities. It is striking how little there is about his mental impairment. The document prepared on the Claimant’s behalf by Mr Sater does not assist to any great degree.

[26]It may well be that the Claimant was experiencing symptoms after he returned to work. However, he has not been able to describe how this affected his normal day to day activities outside the time he was signed off work.

[27]I have great sympathy for the Claimant, and it is with some reluctance that I have to come to the conclusion that on the evidence I have before me, I do not find that at the relevant time the Claimant was disabled. I am aware the Claimant was prescribed Citalopram, and he is still taking it. I am not a medical expert so it would not be appropriate for me to guess at what the effect would be if the Claimant was not taking this medication. There is no medical evidence in the bundle, so this is something I am unable to consider.

[28]The full merits hearing will consider the Claimant’s disability discrimination claim in relation to deafness and tinnitus only.

[1]Mr Escudier, the claimant, was employed by the respondent, Coca-Cola, as a Warehouse Operative, his job involving moving containers around a site. He started working for them in September 1988 and was dismissed in July 2022 by reason of alleged misconduct. His original complaints were of unfair dismissal and disability discrimination, later amended at a case management hearing to be direct disability discrimination and failure to make reasonable adjustments. For the purposes of his disability discrimination complaints, he relies on the following impairments: deafness, Tinnitus and Cough Syncope. The respondent denies the claim completely but accepts that he is a disabled person by reason of these impairments.

Background

[2]The claimant, Mr Escudier, presented his claim form to the Employment Tribunal on 22 November 2022 following a period of ACAS Early Conciliation between 25 September and 6 November 2022. This identified complaints of unfair dismissal and disability discrimination in broad terms. Page 1 of 31

[3]In its response, received on 20 December 2022, the respondent denied the claim in its entirety and pointed to the lack of particulars as to the disability discrimination complaint.

[4]A letter sent to the parties on the instruction of Employment Judge (“EJ”) Self, dated 3 January 2023, which contained a number of Case Management Orders: the claimant was required to provide further information as to his disability for the purposes of the Equality Act 2010 (“EQA”) and any medical evidence he relied upon in support and an impact statement; on receipt the respondent was required to indicate whether or not it accepted that the claimant was disabled; both parties to agree a List of Issues arising in the claim and, if that was not possible, to send a draft indicating the areas of disagreement; the claimant to set out in date order each and every act of disability discrimination relied upon, with dates, the name(s) of the perpetrator, a brief description of the alleged treatment and, ideally, what provision of the EQA he relies upon.

[5]On 25 January 2023, notice of a Preliminary Hearing for Case Management was full hearing set for 29-31 January 2024 was sent with Suggested Case Management Orders.

[6]In February 2023, the claimant provided a document setting out discrimination particulars and an impact statement.

[7]In response, the respondent wrote to the Tribunal accepting that the claimant was disabled by virtue of Tinnitus but not in respect of other conditions mentioned and raised its concerns that he had not, in respect of those other conditions, complied with EJ Self’s order.

[8]On 24 February 2023, the Tribunal wrote to the parties on the instruction of EJ Webster, requiring the claimant to provide further information as to the conditions relied upon as amounting to a disability, and, on what dates, as well as the other information required by EJ Self in the earlier letter. The claimant was warned that failure to do so could result in his claim being struck out either in part or entirely.

[9]By an email to the Tribunal dated 13 March 2023, the respondent wrote to the Tribunal advising that the claimant had simply provided in the region of 200 pages of medical notes from which it was not possible to determine what conditions he relied upon. The respondent provided a table which it requested the claimant be ordered to complete, confirming, in respect of each allegation of discrimination, the disability relied upon, so as to assist in determining the issues at the forthcoming Preliminary Hearing.

[10]By letter dated 22 March 2023, the Tribunal wrote to the parties on the instruction of EJ Abbot ordering the claimant to complete the table to the best of his abilities by 5 May 2023. The claimant provided the completed table on 9 May 2023.

[11]At some stage the claimant indicated that he was also disabled by virtue of anxiety and depression.

[12]The Preliminary Hearing took place on 21 July 2023 and was conducted by EJ Evans. The claimant attended in person and the respondent was represented by Ms Franklin of Counsel. At that hearing, EJ Evans did a number of things: a public Preliminary Hearing was set for 4 December 2023 to determine whether the claimant was disabled by virtue of Cough Syncope and/or anxiety and depression, along with supporting Case Management Orders; the final hearing was extended to 4 days, from 29-31 January and also 1 February 2024; the claimant was ordered to provide Page 2 of 31 a further impact statement in respect of his Cough Syncope and anxiety and depression, as well as supporting medical evidence; the respondent was required to indicate, on receipt, whether it conceded disability in respect of those impairments or not; the various dates set out in the Suggested Case Management Orders were varied. In addition, a List of Issues was agreed between the parties. This document identifies time limit issues in respect of the disability discrimination complaints and that those complaints comprised direct disability discrimination and failure to make reasonable adjustments, in addition to the complaint of unfair dismissal.

[13]On 17 August 2023, the respondent submitted amended grounds of resistance to the claim.

[14]The public Preliminary Hearing took place on 4 December 2023 and was conducted by EJ Martin. At that hearing, the EJ did two things. She issued an Unless Order because the claimant had not disclosed his documents to the respondent and also she found that he was not disabled by reason of Cough Syncope or anxiety and depression. Subsequently, the respondent revised the List of Issues to reflect the outcome of that hearing.

[15]I was assigned to conduct the final hearing which had been set to commence on 29 January 2024. The week before the hearing, on looking at the case file, it appeared to me that the claimant had not complied with the Unless Order and so I instructed the Tribunal administration to write to the parties notifying them that the claim was automatically dismissed, and the hearing dates cancelled.

[16]However, unbeknown to the Tribunal, the claimant had in fact complied with the Unless Order. I subsequently rescinded my instruction, after the respondent’s solicitors informed the Tribunal of the claimant’s compliance, and the hearing dates were reinstated.

[17]For reasons which are set out more fully in a separate record, the hearing could not proceed because it became apparent that the claimant had requested a reconsideration of the decision to disallow his disability discrimination complaints relying on Cough Syncope and anxiety and depression, but this had not been dealt with. Moreover, EJ Martin’s Judgment had not yet been promulgated (sent out), and after enquires were made, the Judgment did not contain the reasons for it, neither party having requested them in writing. I therefore adjourned the hearing to allow due process to take place and relisted it for 14 to 17 October 2024 (before myself), ordering the claimant within specific time limits to request written reasons of the disability Judgment and thereafter apply for a reconsideration of that Judgment.

[18]My understanding is that the claimant did indeed request written reasons, these were provided, and he then requested a reconsideration. which was refused.

[19]The claimant thereafter appealed to the Employment Appeal Tribunal (“EAT”) again the Disability Judgment. He was successful in part and on receipt of the EAT Judgment and Reasons, this hearing was able to proceed. The EAT overturned the finding that the claimant was not disabled by reason of Cough Syncope and suggested that there was no reason that the matter could not be remitted to the EJ Martin to deal with. The finding that the claimant was not disabled by reason of anxiety and depression was not overturned.

[20]The respondent helpfully conceded that the claimant was disabled by reason of Cough Syncope although it disputed knowledge at the requisite times so that this matter could proceed to be heard as listed. Conduct of the hearing Page 3 of 31

[21]The EAT’s full Judgment with reasons was only sent to the Tribunal and the parties the week before this hearing. Prior to that we simply had the Judgment. Indeed, it did seem likely that I would have to postpone the hearing if we did not have the reasons in good time.

[22]The hearing was due to commence on 14 October 2024 for 5 days in person at the Ashford Hearing Centre. Unfortunately, I had been ill in the weeks before the hearing. At one point I was not sure I would be able to attend the hearing at all and so the hearing would have to be postponed in any event. However, I recovered sufficiently to anticipate being able to participate and as a precaution we put the hearing back to start on 15 October 2024 and converted it conducted by Cloud Video Platform (*CVP”). Both parties agreed to this conversion. In the event, I was able to attend, the EAT’s Judgment and reasons were received in good time and the hearing proceeded by CVP on 15-17 October 2024, the 18 October being held in private for us to reach our decision.

[23]At the start of the hearing, I explained the order and timetabling of events. I also explained the Tribunal’s procedure to the claimant.

[24]In view of the claimant’s medical conditions, I told him that we would have regular breaks and if he needed any additional breaks at any time, he simply had to let me know.

[25]We spent the morning reading the witness statements and referenced documents. We heard evidence from the respondent’s witnesses first and then the claimant. Documents

[26]All of the documents were provided electronically.

[27]At the previous abortive hearing, on 29 January 2024, the claimant provided a document at the hearing entitled “Position Statement” dated 18 January 2024. This did not address his claim in sufficient detail or even set out the evidence he needed to give to the Tribunal or by reference to any documents. It appeared to be more a document that one might provide for a mediation hearing, although we were not aware that one had taken place. At the hearing in January 2024, I told the claimant to seek advice given our concerns about this document.

[28]However, it was only at 11.35 am the day before the hearing started that the solicitor who has been acting for the claimant on what appears to be an ad hoc basis, off the record, provided a witness statement. This is dated 14 October 2024 and consists of 6 typed pages. Mr Goodwin objected to its admission on the basis that the claimant had been given plenty of warning to provide a witness statement and should have produced one in advance of the original hearing in January 2023. Instead, he provided a Position Statement. Mr Goodwin said that the Respondent was prejudiced by production of this witness statement at the last moment, not having time to prepare its case or take instructions from its witnesses. In addition, he said that the statement contains new allegations and sets out expert evidence relating to the claimant’s Cough Syncope.

[29]The claimant explained that he had been ill with a bad cold and unable to do very much and his solicitor had been on holiday. He added that he was currently being tested for ADHD, which he said explains a lot of things to him, including his tendency to leave matters until the last moment. He also referred to documents he had been seeking from the respondent. Mr Goodwin replied that the respondent had provided all it had and also challenged the solicitor’s absence given recent communications from him. Page 4 of 31

[30]After adjourning for half an hour, we gave the following decision. It is very difficult to assess the contents of claimant’s witness statement without reading everything. We accept that it has been produced very late in the day and that the claimant had plenty of warning of the need to produce a witness statement in good time for this hearing. His solicitor should have advised him as much as well. But on balance, we decided to admit it on the basis that it contains assertions which the respondent can cross examine the claimant on and given that we need to adjourn to read in any event, it will have until this afternoon in which to take instructions. We will keep in mind that the respondent does not necessarily have the correct witnesses here to challenge what the claimant says in his statement but in as far as the claimant relies on evidence it is either in the bundle or it is not.

[31]Prior to the hearing, the claimant sent an email attaching two short videos to the Tribunal. These appear to show him suffering an attack or attacks of Cough Syncope, in that he is coughing. Mr Goodwin said that there was no need to view these given that the respondent has accepted the fact of Cough Syncope but not knowledge. We viewed them anyway.

[32]The claimant provided a copy of the bundle of documents prepared for the EAT hearing. This consists of 96 pages. We were initially unclear why he had done so. However, the claimant said he wished to rely on the three documents at the back of the bundle, which he said that respondent had not included in the copy it provided. Mr Goodwin explained that they had originally been left out because he did not believe they were of relevance save for the final one which goes to remedy (at EATB81-96). We will refer to this bundle as “EATB” followed by the relevant page number where necessary.

[33]On the morning of the first day the hearing, the claimant had also sent an email attaching a screenshot or photograph of an email dated 22 February 2022 relating to his disciplinary appeal hearing. However, it was evident that this was the first page of a multi-page document. The respondent subsequently provided a complete copy of the email and the attachment containing its notes of the appeal hearing.

[34]The respondent provided an electronic bundle of documents consisting of 836 pages (which we will refer to as “B” following by the relevant page number). In addition, the respondent provided the following documents: witness statements for Jane Marchant, Karl Probert and Andre Haughton and a Cast List & Chronology which included a reading list.

[35]During the hearing the respondent provided an email containing a document headed “D Shift Team Notes” and a copy of the Disciplinary Procedure that was in use at the time of the claimant’s disciplinary proceedings.

[36]The respondent had provided us with a reading list and the claimant asked us to read the three documents at the back of the Employment Appeal Tribunal bundle (at EATB66 onwards).

[37]At the end of the evidence, the respondent provided us and the claimant with written submissions, which we allowed time to read before proceeding to hear submissions.

[38]For the majority of the hearing, the claimant attended with his wife present in the same room of their home. His wife provided support and, at times, assistance in asking questions of the respondent’s witnesses. However, when the claimant was giving evidence, there were a number of occasions on which she answered for him or interjected to prompt him, sometimes when she was not present on screen. Whilst I could understand the temptation to do so, I had to warn them both that when Mr Escudier was giving evidence, it was not appropriate for his wife to prompt him or answer questions for him. Ultimately, the claimant arranged to give evidence either Page 5 of 31 in a separate room to his wife or when he assured us she was out of the house.

List of issues

[39]The respondent’s updated list of issues taken with the addition of the respondent’s concession as to Cough Syncope as part of the claimant’s disabilities are at B536- 538. We were subsequently provided with an amended version including Cough Syncope.

[40]I emphasised to the parties that these are the complaints and issues that we will consider and that we will not depart from them unless there are exceptional reasons to do so.

Evidence

[41]The respondent indicated that it would be relying on evidence from Andre Haughton who had dismissed another member of staff as consistency comparator for the purposes of the unfair dismissal complaint. We agreed to anonymise this person’s name by referring to him, where necessary, as “Mr X”.

[42]We heard evidence on behalf of the respondent from Jane Marchant (who heard the claimant’s appeal against a final written warning and his subsequent dismissal), Karl Probert (who heard the claimant’s appeal against his dismissal) and Andre Haughton (who was the dismissing officer in respect of Mr X) by way of written statements and in oral testimony. We heard evidence from the claimant by way of his written statement and in oral testimony.

Findings of fact

[43]We decided all the findings referred to below on the balance of probability, having considered all of the evidence given by the witnesses during the hearing, together with documents referred to by them. Any failure to mention any specific part of the evidence should not be taken as an indication that we failed to consider it.

[44]We have only made those findings of fact necessary to determine the issues. It has not been necessary to determine every fact in dispute where it is not relevant to the issues between the parties.

[45]The claimant was born in 1968. He has a number of impairments for which the respondent has conceded he is a disabled person for the purposes of his disability discrimination complaints. These are: 1) deafness and Tinnitus; and 2) Cough Syncope.

[46]The claimant has described the effect of his disabilities within his Impact Statement from February 2023, although not in a way that separates out the effect of each impairment clearly or identifies with any specificity the dates of each (at B58-60), similarly within his Position Statement (and with slightly more clarity within his witness statement. Unless indicated it is difficult to determine whether the claimant is talking about his condition now, in the past or at the time of the events which we are required to consider.

[47]Doing the best we can, we identify the following:a. He has been hard of hearing all of his life and has suffered from Tinnitus for over 23 years. This impacts upon his ability to sleep beyond 3 to 6 am each day or for any longer than 3 hours at a time. He is able to partially lip read what is said to him but cannot hear properly much of the time. In addition, the Tinnitus causes Page 6 of 31 a loud ringing in his ear/head. This combination affects his ability to hear, comprehend and respond to what is said to him. His Tinnitus can mask out what he can hear and when it is very bad, he misses much of what is said to him and this causes further stress;

b. His Cough Syncope is a more recent condition. This was formally diagnosed in 2023 (which is after his employment with the respondent ended, although his position is that clearly, he was suffering from it at the time of his employment and that now, having the diagnosis, what was happening to him at the time now makes more sense). When he coughs this can result in the following: dizziness and pain in his left eye and head; loss of control of his left arm; disorientation for a few moments with increased pain in his eye and a severe headache; loss of ability hold things in his left hand due to uncontrollable shaking; falling out or a chair, if he is sitting; a sensation similar to passing out but he is conscious and able to see but unable to communicate or protect himself from injury when falling. The condition has had a very bad effect on his life. He is unable to work and has been signed off work for over a year. He is in receipt of Employment and Support Allowance and a Personal Independence Payment with an enhanced mobility payment.

[48]The claimant also relies on suffering from anxiety and depression. This was found not to be an impairment for the purposes of his disability complaints both by the Employment Tribunal and on appeal to the Employment Appeal Tribunal. This was essentially because he did not and still has not provided sufficient evidence that supports this as a disability within the EQA. Nevertheless, the claimant continues to refer to it as part of his claim and previously produced generic evidence which links anxiety and depression to Cough Syncope, although nothing that evidence that it is part of his own medical condition or was at the time of the events in question.

[49]In addition, in written evidence and several times during our hearing, he referred to a recent diagnosis of PSTD but has provided nothing in support of this or why it is relevant to his claim beyond an assertion that it is a direct result of his dismissal. Indeed, he also referred to a number of other unrelated medical conditions which certainly indicate that he has been and is generally unwell.

[50]The claimant was employed by the respondent from 15 September 1988 until his dismissal for misconduct on notice with effect from 26 July 2022. At the time of the events in question he was employed as a Warehouse Operative at the respondent’s depot in Sidcup which is a warehouse and manufacturing site. The respondent is of course a well-known international manufacturer of soft drinks.

[51]The claimant accepted in evidence that he was very familiar with his role, having built up his expertise over the years. He also accepted that the respondent recognised this by appointing him as a Road Transport Industry Training Board approved trainer and instructor, although he added that they did not have anyone else to do it.

[52]We were not provided with a copy of his contract of employment or written particulars of employment, beyond a specific reference to a permanent change of shift in May 2016 (at B111).

[53]There were a number of policy documents within the bundle relating to disciplinary, medical capability and attendance absence management. The main one we were referred to was the disciplinary policy. However, the version in the bundle was not the one in force at the time of the claimant’s dismissal. This was provided to us separately at the end of the hearing, although this did not appear to contain any material differences. We were also referred to a number of guidance/instruction Page 7 of 31 manuals relating to the handling of equipment and operation procedures (at B149- 153 & 154-162). These were at times referred to as SOPs (Standard Operating Procedures).

[54]The claimant accepted in evidence that he knew the respondent’s rules and SOPs “inside out and back to front”, as he put it. We were referred to his training record at B142-148 for the period 2007 to 2022. This indicates that he undertook (and provided) an extensive amount of training. Some of this was face to face and some online. Whilst the claimant alleged in respect of some of the training that the hours recorded were not true, he provided no evidence in support of this. Prior to the hearing, the claimant had requested disclosure of an insurance document which he said supported this allegation. However, the respondent had been unable to identify what this document was or to find it.

[55]As we understand it, the depot received large HGV lorries either delivering or collecting its products (it was not clear), ie driving in and out and around the site. The claimant’s job involved the “shunting”, ie moving of the containers (that is the trailer part of the lorries) from where they had been uncoupled from the lorries and then shunting them into the requisite loading/unloading bay.

[56]Shunting is a high-risk task as each pallet on the vehicle weighs 1 tonne and each vehicle contains 26 pallets. As such operations on the site are inherently hazardous. As a result, the respondent quite rightly placed great weight on the importance of health and safety rules being followed. The documents at B149-153 and B154-162 clearly indicate as much and the level of instruction given to staff. The claimant was aware of the hazardous nature of his work and the need to follow health and safety procedures, not least from his role as an instructor/ trainer.

[57]Part of the claimant’s duties when shunting was to place a stand underneath the HGV trailers when they were docked, to avoid them tipping whilst being loaded/unloaded. As the claimant put it himself, failing to properly put a stand in place could cause the trailer to “fall sideways or tip up”, resulting in “serious injury or death” (at B190 which is part of the notes of a later informal meeting held on 3 December 2021 – which we will come to).

[58]Some of the evidence relating to the history of this matter is not readily apparent and we were not taken to all of the documentation that might assist. This was because either it has simply not been referred to in any narrative or witness evidence or simply because we do not necessarily have all of the possible witnesses to these matters available before us. This is not meant for criticism of either party, but it did make our task all the more difficult.

[59]From the documentation within the bundle, it is clear that the claimant was absent from work on a number of occasions during 2021.

[60]We refer to his statement of fitness for work certificate for the period 22 February to 8 March 2021 in which his GP signed him off work due to “low mood” (at B419).

[61]On 23 February 2021, Andre Noel-Pottinger, the claimant’s Manager, referred him to the respondent’s Occupational Health (“OH”) advisers, Duradiamond Healthcare Ltd.

[62]The claimant was assessed by way of a telephone consultation on 8 March 2021 and an OH report was provided (at B420-423). It was copied to Mr Noel-Pottinger.

[63]The report indicated that the claimant presented with symptoms including low mood, anxiety, disturbed sleep, irritability and loss of motivation, as well as difficulties with his concentration and memory. In addition, the report stated that the claimant had Page 8 of 31 advised that he has a hearing impairment and relies on lip reading which, at that time, due to Covid and the wearing of masks, had a significant impact on him.

[64]The report advised that the claimant was unfit for work at the present time and that the prognosis depended on the treatment provided by the claimant’s GP. The report further indicated the importance of keeping in contact with the claimant to monitor his progress and identify any concerns him may have and that to do so by way of pre-arranged times would be beneficial as too much communication could be perceived to exacerbate his symptoms as opposed to being beneficial and helpful. The report indicated that the EQA was likely to apply. The report recommenced a review in 4 weeks.

[65]The claimant continued to be absent from work and presented a further certificate for the period 9 March to 6 April 2021 again indicating the reason being “low mood” (at B426).

[66]Duradiamond conducted a further OH assessment of the claimant on 6 April 2021 (at B427-31) which was again copied to Mr Noel-Pottinger. In addition to those health issues, he previously notified, the claimant stated that he had been getting daily headaches for several weeks and whilst they continued, they were not as severe. The claimant also mentioned that his Tinnitus had become more pronounced recently (not something that was contained in the previous OH report). The report very much repeated the same advice as before, that the claimant was not fit for work, to keep in contact with him and that the EQA was likely to apply. The report recommended a review in 4 weeks.

[67]The claimant continued to be absent from work and presented a further medical certificate for the period 7 April to 9 May 2021 in respect of a “depressive disorder” (at B433) and a further certificate for the period 10 May to 7 June 2021 also in respect of “depressive disorder” (at B434) and for a further month from 7 June 2021 for “low mood” (at B435).

[68]On 16 June 2021, the claimant attended a Welfare Meeting conducted by Mr NoelPottinger, the notes of which are at B436. This records the claimant’s medical situation and treatment received. It indicates that on expiry of his medical certificate he will be available to return to work on 9 July 2021 and wished to stay on his current shift pattern working with his close peers. A further meeting was arranged for 5 July 2021, although we are unaware whether or not this took place.

[69]The claimant returned to work on 9 July 2021, although he took annual leave on 10 and 11 July.

[70]From the claimant’s additions to the respondent’s request for clarification of his claim (at B68), there was a return-to-work meeting on 9 July 2021. Indeed, we were referred to the claimant’s Back to Role Plan signed by both the claimant and Mr Noel-Pottinger at B437-438.

[71]At B439-440 is a further copy of the Plan which has written next to 3 of the planned events, the words “didn’t happen” (ie the meetings did not take place) and then at the end of the document “awaiting S.A.R from Coke est. time of arrival 02/02/23. Asked for 2/11/22.” However, we know nothing further about this.

[72]The document at B68 indicates that the claimant’s position is that he asked for 3 things to allow him to get back to work properly: not to be left working on his own; not to be placed in confrontational areas; and not to have too much pressure placed upon him whilst getting back to full health. His further position is that whilst Mr NoelPottinger agreed to his request, after 19 August 2021 (the significance of which we Page 9 of 31 will come onto), he was regularly left on his own having to do excessive amounts of work and to deal with aggressive drivers who had to weight. However, we heard no further evidence as to the detail of these matters.

[73]On 19 August 2021, the claimant was involved in an incident at work in which he had started to tip a load without placing a stop sign in front of the trailer. The claimant explained in oral evidence that tipping a load meant taking pallets off a trailer when it was coming in tipping. This was in breach of health and safety procedures in relation to shunting. The claimant accepted in evidence that he had received training on this task and further that the failure to place the stop sign in place could lead to people being injured.

[74]As a result, he was issued with an informal conduct / performance improvement plan, known as a “Counselling and Action Plan”. This was issued by his Manager, Andrea Quinn. The document says it is a positive tool to support the informal stage of the respondent’s Disciplinary Policy to help the employee to get back on track. It is at B163. The document indicates that the claimant was given “a counselling” which remained live for six months, ie until 19 February 2022. We think this is a euphemise for a warning.

[75]Whilst the Counselling and Action Plan was signed by the Claimant, he said in evidence that because of his mental state he would have signed anything to get out of the room. Mr Goodwin asked him how the respondent would have known this. His response was that he was on a back to work plan that had not even finished and that he started crying halfway through the meeting.

[76]We note that in the claimant’s additions to the request for clarification of his claim, he states that he requested somebody to attend the meeting on account of his hearing and mental health but was told it was an unofficial meeting and so he could not.

[77]On 1 December 2021, during the currency of the Counselling and Action Plan, the claimant was involved in a further incident. In essence, because it was raining and because the claimant felt unwell, he failed to properly place stands under a number of trailers. As a result, one trailer tipped when being loaded by another employee. We were referred to the SOP at B149-153 and to the claimant’s accident and incident witness statement at B164. We were also referred to stills from CCTV footage taken on that day (at B166-178).

[78]The claimant accepted in evidence that he did not follow the SOP essentially because it was raining, he was soaking wet and so did not leave his truck to properly check that the stand was placed at the correct height but judged it from where he was sitting.

[79]Fortunately, no injuries were sustained, although the incident was classified as being “HiPo”, meaning it had a high potential for serious injury, fatality or major damage to property or plant.

[80]We were referred to the notes of an informal meetings that the claimant attended with Tom Gear, Manager, on 2 and 3 December 2021 (at B191- and B188-190 respectively).

[81]In oral evidence, the claimant stated that whilst there is no mention within these notes of him having a funny turn or feeling dizzy or experiencing a wave of tiredness, as he says was the case, he did tell Mr Gear before the meeting (we assume on the telephone) that he was having “a funny turn” (this was how he described it at the time not knowing what it was) and Mr Gear told him to sit down and wait for him in Page 10 of 31 the coffee shop.

[82]On 24 January 2022, the claimant was sent a letter requiring him to attend a formal disciplinary hearing (at B193-194). The reason for the meeting was stated to be that on 1 December 2021 he failed to adhere to the health and safety processes around the use of trailer stands in the dispatch yard resulting in a HiPo incident at work. The letter warned that one possible outcome of the meeting could be dismissal. The letter also advised the claimant of his right of accompaniment. Supporting documentation was attached.

[83]The disciplinary hearing took place on 2 February 2022 and was conducted by Mr Noel-Pottinger. We were referred to the notes of the meeting at B195-198. During the meeting the claimant admitted he was at fault. Mr Noel-Pottinger decided to issue the claimant with a final level warning, to remain live for 12 months. This was confirmed in a letter dated 9 February 2022 (at B199-201). The letter advised the claimant of his right of appeal.

[84]On 14 February 2022, the claimant appealed by way completion of a Grounds of Appeal Pro-Forma (at B202). In essence, this was on the basis that the sanction was too harsh, there was a delay in the process and information was taken from two colleagues from informal meetings. In mitigation, he also stated that his mental state was not considered following his absence of 5 months with mental illness and there was no back to work plan or support offered on his return.

[85]The appeal hearing took place on 21 February 2022 and was conducted by Jane Marchant, the Senior Manager Quality, Environment, Safety and Health. The claimant attended and was represented by Graham Knapp. We were referred to the notes of the meeting at B205-209. At the end of the meeting, Ms Marchant told the claimant that she was upholding the warning.

[86]By letter dated 24 February 2022, Ms Marchant wrote to the claimant confirming the outcome of the appeal (at B210-211). The letter addressed all of the claimant’s grounds of appeal, including the mental health issues he referred to. Her view was that not only was the final warning upheld but she believed the incident to have been so serious it could have resulted in summary dismissal for gross misconduct.

[87]The claimant was taken to the section in the outcome letter headed “Your Mental Wellbeing” in evidence. In particular, where Ms Marchant reported that during the hearing he had stated that he considered himself to be fit to be at work and had not raised any concerns about his health and ability to do his job or requested any specific meetings or adjustments to be made.

[88]The claimant accepted that he had said this although it was not necessary what he actually felt. It was put to him that from this Ms Marchant concluded that there was no evidence that at the time of the incident the claimant was medically incapable of performing his role and reminded him that it was his responsibility to ensure he was fit to be at work. Ms Marchant further stated that she would feedback to the management team that he had stated that he currently felt anxious so that they could explore any additional support he might require.

[89]It was further put to the claimant that unless he told her about his mental health and concerns, how could she had known? His response was that she should have done more to explore his health issues.

[90]The claimant also accepted that she had drawn his attention to the respondent’s Employee Assistance Programme (“EAP”) although he had not contacted them. He said that he had a problem with the respondent and anonymity. Page 11 of 31

[91]The claimant was taken through the rest of the letter. He accepted in evidence that whilst he might not agree with Ms Marchant’s findings, she had considered his grounds of appeal.

[92]In April 2022, during the currency of the final written warning, the claimant was involved in two further incidents.

[93]The first of these took place on 25 April 2022. It is referred to as the “trailer door collision incident”. The claimant failed to secure the doors of a trailer he was shunting (or raise that there was an issue with his ability to secure the doors), resulting in the door coming loose and causing damage. It was explained that this meant that the doors of lorries, some of which were 10-12 feet high (and one particular company’s lorries up to 16 feet high), flapped loosely and could cause serious injury to persons or damage to other vehicles or product or the structure of the depot itself. We were referred to the SOP at B154-162. We were also referred to the Accident and Incident Investigation Support Pack at B217-232. In oral evidence it became apparent that the claimant had used pallet straps to secure the doors rather than the correct fasteners. He also referred to the previous use of chains, although since his return from sick leave, he found that these were not available.

[94]The second incident took place on 26 April 2022. This is referred to at the “fork-lift truck incident”. The claimant tipped a pallet he was transporting with a fork-lift truck, damaging plant and product, and then failed to properly deal with the incident afterwards. He had been unwell with an ear infection on that day.

[95]On 27 April 2022, the claimant was suspended from work on full pay in accordance with the Disciplinary Policy. This was confirmed in a letter sent to him dated 4 May 2022 (at B277-278). The letter stated that the suspension was to allow investigation of allegations of a serious breach of Health and Safety rules and failing to report an accident at work.

[96]A disciplinary investigation meeting was held by Sam Gear, Manager, with the claimant on 6 May 2022. This is referred to as a Q&A. We were referred to the notes of the meeting at B283-286. We also note what appears to be a further copy of the final page of the notes on which is handwritten words to the effect that the notes were incomplete and as to some discrepancy regarding the addition of the claimant’s signature (at B287). Indeed, the claimant’s position was that they were inaccurate.

[97]There were no witnesses to the trailer door collision incident and the claimant admitted that he used pallet straps to secure the doors and did not report the incident.

[98]From 9 May 2022 onwards, the claimant was absent from work due to ill-health, initially stated to be a neurological absence and then subsequently work-related stress and anxiety (were not provided with any medical certificates for this period and these references come from the Occupational Health (“OH”) report at B601 (referred to below).

[99]The claimant was subsequently referred by the respondent to OH on two occasions. The original report is dated 24 May 2022 but was subsequently amended following further referral on 23 June 2022 (at B600-605).

[100]In essence, the report indicated that the claimant advised that he had passed out on a number of occasions recently when coughing and intermittently lost control of his left arm and the grip in his left hand after coughing. He further advised that he had Page 12 of 31 discussed this with his GP, had been referred for an MRI scan and have requested an appointment with a neurologist. His GP had advised him not to drive at the present time. The claimant also made reference to the previous incident in which he said he was hit on the head by ratchet strap at work and to his history of anxiety and depression which he was taking medication (the respondent’s position was that it had no knowledge of this incident which the claimant said occurred in 2017). The claimant also stated that he has had episodes of low mood and anxiety which he attributes to concerns regarding his health and work-related matters.

[101]The OH report advised that based on the available information, the claimant was unfit for work and that further investigations need to be undertaken to establish the position. The OH report further advised that from a welfare point of view, the respondent should monitor the claimant’s progress by way of prearranged times for contact so as not to exacerbate his symptoms.

[102]In response to specific questions, presumably from the referrer, the OH report advised, and it was recommended that he should be accompanied by a suitable person to support him and allowed more time for meetings than normal to facilitate breaks, if he needed time to consider his responses or compose himself.

[103]On 28 June 2022, a welfare meeting was conducted by Mr Noel-Pottinger with the claimant. This presumably took place by telephone as the claimant was still off work due to ill-health. The meeting was held to ascertain the claimant’s current medical status, and to support and aid his recovery back to work, if feasible. The notes indicate that the claimant’s suspension was placed on hold given his absence. A further meeting was arranged for 29 June, after the claimant’s forthcoming hospital appointment. The notes of this meeting are at B606. We were unaware whether a further welfare meeting took place as indicated or not.

[104]A disciplinary hearing took place with the claimant conducted by Ms Marchant on 25 and 26 July 2022. The claimant was accompanied by Lee Barwick, who he explained in oral evidence was the Factory Trade Union representative. He accepted that Mr Barwick was an experienced representative. We later determined that the union involved was Unite.

[105]The notes of these meetings are at B301-315. At the start of the meeting on 25 July, the claimant asked if he could record the meeting due to his hearing problems. Ms Marchant responded that it was not the Respondent’s practice to do so but he could ask her to repeat herself as many times as he liked. In addition, the notetaker stated that she would take notes near enough verbatim and so he would be able to read all of the conversation. The claimant also stated that before they started the meeting, he wanted to say that he “may go a bit dizzy. It’s been happening more frequently.” In response, Ms Marchant stated that this was no problem and that if he felt uncomfortable to let her know and that he could have break at any point. The meeting then proceeded to discuss the three allegations arising from the two incidents.

[106]The hearing was reconvened on 26 July 2022 to deliver the outcome (at B315-319). We assume that the same persons were present as at the meeting previous day. In essence, Ms Marchant quashed the two allegations arising from the 26 April 2022 relating to the fork-lift truck incident. However, she upheld the allegations arising from the 25 April 2022, the trailer door collision incident.

[107]As a consequence and given the claimant’s role as a trainer and the live final written warning, Ms Marchant decided to terminate the claimant’s employment. In her written evidence she stated that had the claimant not already been subject to a live warning, he would not have been dismissed, as she did not consider the matter to Page 13 of 31 amount to gross misconduct.

[108]In oral evidence, it became apparent that during these meetings the claimant was wearing a visible hearing aid, called a BAHA hearing aid, which he described as like headphones turned round the back of your head. Ms Marchant accepted this.

[109]In her written evidence, Ms Marchant said that she first recalls being made aware that the claimant suffered from deafness and Tinnitus at their meeting in July 2022. Although the claimant referred to being hard of hearing during the appeal hearing she conducted in February 2022, she did not recall this and that he did not appear to struggle with any hearing issues on any occasion that she met with him. She also stated in her written evidence that the claimant made her aware of his absence from work due to mental health issues during the appeal meeting in February 2022.

[110]In addition, she stated that whilst the claimant had made her aware during the start of the July hearing that he sometimes got dizzy and that he lost control of his left arm and blacked out, he did not say that this had happened at the time of the disciplinary allegations against him and she was unaware that this was a condition known as Cough Syncope.

[111]Ms Marchant’s evidence is that as part of her preparation for this case, she spoke to Ms Quinn who issued the claimant’s Counselling and Action Plan, and she confirmed that the claimant did not request to bring a companion to that meeting. In addition, Ms Quinn advised her that if the claimant had requested support and asked to bring a companion, she would then have considered it and had done so in the case of another employee.

[112]The claimant stated in oral evidence that during the disciplinary hearing he was having an anxiety attack but did not tell anyone at time because he did not know what it was. But he said that as a result he could not concentrate, the meeting was lengthy and now he has been diagnosed with ADHD, which apparently he has had since childhood and also with Sleep Apnoea, and so the meeting should have been stopped. This was new evidence and was unsupported by a documentation. He did not put any of this to Ms Marchant in cross examination and the notes of the meetings contain no reference to him raising concerns about his ability to concentrate or as to the length of the meeting or requesting any breaks.

[113]By letter dated 9 August 2022, Ms Marchant wrote to the claimant confirming his dismissal (at B331-333). In her letter, Ms Marchant went through each of the allegations, setting out the claimant’s position and her findings. Mr Goodwin took the claimant through the allegations and conclusions.

[114]With regard to the trailer door collision incident, the claimant confirmed that he had returned to work in August 2021 and that his position was that the door chains previously used were not available and so he used straps. He was asked why he had not reported this for over 8 months (ie August 2021 to April 2022)? Whilst the claimant said he had reported the incidents, Ms Marchant was unable to find any records to support this. Indeed, her conclusion was that the claimant knew the requirements for the task, that was how he trained others, and he did not follow the correct procedures, if, as he alleged, chains were not available. She therefore upheld the allegation which she believed to amount to an act of serious misconduct.

[115]With regard to the fork-lift incident, she concluded, in respect of the allegation that the claimant had breached health and safety, that he was unwell due to an ear infection, tried to complete the task prior to stopping but dropped a pallet. She accepted that this was down to his ill-health and not through misconduct or negligence. She therefore did not uphold the allegation. With regard to the allegation that the claimant failed to follow correct reporting procedures, she Page 14 of 31 concluded that the claimant had done so in as far as he had reported the matter to a member of the non-management team and took action with colleagues to start to rectify the situation, which, whilst not in line with the required procedure, was sufficient. She therefore did not uphold the allegation.

[116]Having taken into account the evidence, the claimant’s length of service, that he already had a final written warning and alternative options available, she decided the appropriate course of action was to dismiss the claimant with 12 weeks’ payment in lieu of notice.

[117]The letter also advised the claimant of his right of appeal.

[118]On 19 August 2022, the claimant appealed against his dismissal using the respondent’s Grounds of Appeal Pro-Forma (at B356-357). His grounds for appeal included allegations that Ms Marchant was not neutral and that the refusal to allow him to record the meeting was discriminatory against hard of hearing people. In addition, he cited the respondent’s lack of duty of care in supporting his health issues.

[119]An appeal hearing took place on 14 September 2022 and was conducted by Karl Probert, Manufacturing Director, Edmonton. The claimant attended and was accompanied by another Trade Union representative, Dave Turnball. We were referred to the notes of the meeting at B403-408.

[120]At the start of the meeting, Mr Probert acknowledged that he was aware that the claimant was hard of hearing and stated that if at any point he needed him to repeat anything, he was more than happy to do so as many times as needed.

[121]The claimant then asked if he could record the meeting to which Mr Probert replied that they were unable to record anything. The claimant said that because he was hard of hearing, he has to hear what is being said, to comprehend it and to respond and sometimes he goes off on a tangent because he has not heard what was said or has heard incorrectly. Mr Probert responded that he was not going to be asking what happened, he just needed to hear the claimant’s points of appeal. Mr Turnball then stated that he knew the points, and, to the claimant, “if I hear you’re going off tangent, I will ensure I will pull you back”.

[122]The claimant also explained in the meeting that there was a possibility that he might start coughing and, if so, he will have a dizzy spell, lose control of his left-arm or pass out. He said that he had also already informed Lindsay (we were not told who this was) who had made herself available and if he looked like he was going to pass out to simply shake him and he will come round.

[123]On 26 September 2022, Mr Probert wrote to the claimant advising him that he had rejected his appeal (at B411-415). Mr Probert carefully considered the claimant’s grounds of appeal and conducted further investigation where necessary. Nevertheless, he concluded that the disciplinary sanction had been “fair, reasonable and appropriate given the risks to health and safety and the fact that the claimant knowingly failed to comply with the correct procedure despite training others on it”.

[124]Mr Goodwin took the claimant through the outcome letter.

[125]With regard to point 1 as to feeling forced into completing shunting activities without consultation. It was apparent that this was an issue to do with the claimant’s disagreement with the consultation undertaken with the respondent and his union, Unite. Mr Probert had taken the view that this was not a matter relevant to the appeal. Page 15 of 31

[126]With regard to point 2, as to being treated differently to other drivers, Mr Probert investigated this and found nothing in it.

[127]With regard to point 3, that Ms Marchant was not neutral in her decision and directed in making it, Mr Probert investigated this and again found nothing in it. The claimant said in oral evidence that perhaps this was down to miscomprehension of a conversation he overheard. He further accepted that he could have called his then union rep, Mr Barwick to give evidence as to what was said but he did not, although he added that he did not know that he could.

[128]With regard to point 4, being discriminated against by not being allowed to record the meeting, Mr Probert found that at the disciplinary hearing, a similar approach to the one he adopted in his meeting with the claimant was taken and so he did not find that the claimant was put to any disadvantage and that alternative adjustments were offered.

[129]With regard to point 5, that the claimant was not able to provide any documentations during the second formal meeting, Mr Probert found that there was no point where the claimant requested to submit documents, and this was refused. Indeed, he allowed the claimant the opportunity to provide any further information which he then reviewed.

[130]With regard to point 6, that the respondent had not supported the claimant over the last few years to look after his health, Mr Probert reviewed the claimant’s back to work plan, interviewed Mr Noel-Pottinger, and concluded that there was no evidence to support this.

[131]With regard to point 7, that the procedure regarding the use of chains had changed during the claimant’s absence from work, Mr Probert found that this was not the case.

[132]Mr Probert said in evidence that beyond being aware that the claimant sometimes became dizzy he had no knowledge that the claimant suffered from Cough Syncope. In addition, he stated that he only became aware that the claimant suffered from deafness and Tinnitus at the appeal hearing.

[133]In evidence Mr Probert also stated that the claimant did not just want to record the meeting for his own records, what he was asking to do was record the questions put to him, then leave the room with Mr Turnbull to discuss the question and formulate a response, before returning to the meeting. Mr Probert further stated that he did not think this was a reasonable request and would have meant the meeting would have taken the entire day. In addition, he stated that also wanted to ensure that he heard the claimant’s own answers and not scripted answers prepared with his union representative.

[134]During the meeting, the claimant told Mr Probert he felted been treated differently to others who had similar incidents but had been subjected to a lesser penalty. Mr Probert asked for specific examples, but the claimant was unable to provide them and the examples he did give were vague, some with only first names. The claimant and Mr Turnbull asked him to go and to check the point which he did after the meeting. Mr Probert emailed HR to ask for examples of individuals who had caused damage to property and what the outcome had been. We were referred to B410 in this regard. HR provided him with two or three examples of other individuals who had been disciplined in a similar way to the claimant from which Mr Probert was comfortable that the claimant been treated consistently.

[135]In oral evidence Mr Probert confirmed that he had not shared the outcome of these enquiries with the claimant, his explanation being that he had made these enquiries Page 16 of 31 simply to satisfy himself that the claimant had not been treated any differently. When asked whether he thought it might be better to share this with the claimant, he responded that he did not think that the respondent had to provide this information, that they were dealing with data protection legislation and so it would not have been appropriate.

[136]During the meeting, the claimant provided Mr Probert copies of medical appointments, medical letters and his OH reports. Mr Probert said in his written evidence that he reviewed all these documents, alongside the return-to-work documentation from July and August 2021 and nothing particularly stood out to him as being relevant to the allegations which had been raised.

[137]In oral evidence, the claimant asserted that the notes of various meetings were not accurate, although initially he said it was only one meeting. When asked why he had not challenged this at the time if it was the case, he said he did.

[138]We were taken to the handwritten note at the bottom of a copy of the last page of the notes at B409. It became apparent that this document had been provided by the claimant’s solicitors as part of the process of disclosure of documents in September 2023. Mr Goodwin explained that it was generated by CASEDO, a software system used by the claimant’s solicitors and this name was printed at the bottom of the page. The respondent said it had not been provided to them at the time of the meeting. The claimant said that he sent this to the respondent by return of post when he got a copy of the notes of the appeal.

[139]The claimant asserted that he raised a grievance on 26 July 2022 (at B324-327) which he delivered by hand and sent by email. He said in oral evidence that hand delivery was as he was being escorted out of the building on the day of his dismissal. He could not hand it in so he left it on the desk. Ms Marchant and Mr Probert both said in evidence that they had not seen the grievance until it had been disclosed as part of the Tribunal proceedings.

[140]Again it was pointed out to us by Mr Goodwin that the letter bears the name CASEDO at the bottom of each page which indicates that it was disclosed by the claimant’s solicitors. Further it was pointed out that it did not form part of the response to the claimant’s SAR under the data protection legislation. However, we were not specifically taken to that request or the response, if it is in the bundle.

[141]The claimant accepted that the grievance is not mentioned in the notes of the disciplinary appeal hearing and that he could not remember referring to it. He was unsure if he had sent any emails chasing a response to the grievance. There are none in the bundle. There is no covering email to support the claimant’s assertion that it was also submitted that way.

[142]The claimant has alleged that he was treated more harshly than other people in the same or similar circumstances. In particular he relies upon Mr X who he alleges was treated more favourably than him.

[143]We heard evidence from Andre Haughton, Warehouse Professional, a Team Leader, who was involved as the disciplinary officer in disciplinary proceedings brought against an employee who we are referring to as Mr X.

[144]Mr X is employed by the respondent as a Warehouse Operative Level 2 with one skill set (Shunting). The claimant was also a Warehouse Operative Level 2 but with an additional qualification as a trainer. He was employed for 3 plus years.

[145]Mr X was disciplined in respect of two incidents. The first of these took place on 21 September 2022. We were referred to an Accident & Incident Witness Statement Page 17 of 31 which he completed (at B738), the Investigation Q&A held (at B739-742) and his disciplinary outcome letter dated 22 November 2022 (at B751). We also looked at his disciplinary invite letter dated 11 November (at B 745-746).

[146]In essence this involved the following: on 21 September 2022, Mr X was negligent and failed to take due care and attention whilst completing his work, which resulted in an accident at work and damage to respondent’s property; this was investigated by a different manager to the claimant’s; disciplinary action was taken by a different manager to the claimant’s; Mr X had no live warnings; he was issued with a first level warning for a period of six months.

[147]The second incident took place on 11 October 2023 (which is after the date that the claimant’s employment ended).

[148]In essence this involved the following: Mr X caused in the region of £4,000 worth of damage to the respondent’s property by failing to follow a documented procedure within the environment (at B757-758); he attended to informal meetings conducted by Mr Gear on 12 and 15 October 2023 (the notes which are at B753-756); disciplinary action was taken by a different manager to that of the claimant’s (at B757-761); on 6 March 2024 he was issued with a first level warning live for a period of six months (at B 766-767).

[149]The claimant accepted the following in oral evidence: that the second warning had been issued after the first warning had expired; in his own case, three incidents had occurred within the space of eight months; that Mr X had no other warnings (at B765); in his own case, he had a live final written warning; Mr X was not a trainer, whereas the claimant was. Whilst it was put to him that the two of them were very different situations the claimant asserted that Mr X’s incidents should have been classified as HiPo’s.

[150]In oral evidence, Mr Goodwin put a number of matters to the claimant regarding his reasonable adjustment’s claimant.

[151]He was referred to the notes of the disciplinary hearing with Ms Marchant at B301 in which he asked if he could record the meeting. It was put to him that recording the meeting was simply to play back to himself and had nothing to do with hearing. The claimant responded that it was to do with comprehension, although he would not accept that this had nothing to do with hearing. It was put to him that there was not one instance in the meeting where he asked for anything to be repeated. His response was that Mr Barwick took over when this happened. It was then put to him that Mr Barwick hardly said anything at all during the meeting. The claimant responded that he was trying to remember, but he was having a anxiety attack throughout the meeting and just wanted to get out of the room.

[152]The claimant was then referred to the appeal hearing notes at B403 in which he asked to record the meeting, was told no, and during the meeting there is no mention that he asked for anything to be repeated or clarified. The claimant responded that these the ones he sent back, as inaccurate. Mr Goodwin reminded the claimant that the respondent had not received these. The claimant then said that they did because he sent it recorded delivery and it was signed for. When he was asked why he had not provided a copy of this he replied that he did not think he would need it. I said to him when you clearly mistrusted the respondent’s ability to take accurate minutes, so perhaps you should have. His response was that there was a lot going on including his claim for his head injury.

[153]With regard to his Cough Syncope, the claimant accepted that all he had said at the relevant meetings was that if he coughs, he will get dizzy and can pass out. He accepted that this was all he said about Cough Syncope, but he qualified this by Page 18 of 31 saying that Ms Marchant never asked and that he did not think it been formally diagnosed then. He would not accept that in the circumstances Ms Marchant could not have appreciated anything significant from what he did say. His response was “does it not make the hairs stand up on the back of your head if someone says they might go dizzy”. It was put to him that in any event was no link between his Cough Syncope and her decision to dismiss him. His response was that he was getting at his anxiety, as when he gets anxious, he goes dizzy, and the room spins round. It was then put to him that he was not even thinking about his Cough Syncope, and he agreed.

[154]The claimant further accepted that his Cough Syncope had nothing to do with his decision to use pallet straps instead of chains or his failure to report incidents because of it. Although in the case of the latter, he added that this was because he was alright on that date.

[155]Mr Goodwin also put to the claimant that there was nothing to suggest that Ms Marchant dismissed him because of his deafness or Tinnitus. His response was “well probably no”.

[156]Mr Goodwin put to the claimant that he believed what he was saying was if there is a medical condition attached his dismissal it is his anxiety. The claimant responded that it was a lot of things and he had provided the respondent with every piece of paper relating to his medical conditions since 2017 but he does not know what they did with it. Submissions

[157]We were provided with written submissions by Mr Goodwin which he amplified orally. After he had finished, I gave Mr Escudier the opportunity to either respond to anything that Mr Goodwin had put in writing or said and/ or to add anything else you wish to say. He responded very briefly.

[158]I do not propose to set out in detail what either party said by way of submissions, unless it is appropriate to refer directly to what was said. However, I would sure both parties that we have taken them fully into account in reaching our decision. Essential law

[159]Section 94(1) of the Employment Rights Act 1996: “An employee has the right not to be unfairly dismissed by his employer.”

[160]Section 98 (1), (2) and (4) of the Employment Rights Act 1996: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee,

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (3) In subsection (2)(a)— (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held. (4) [In any other case where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”

[161]Section 13 of the Equality Act 2010: “(1) A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[162]Section 20 Equality Act 2010: “(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. (4) The second requirement is a requirement, where a physical feature 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. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put 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 provide the auxiliary aid. (6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format…”

[163]Section 21 Equality Act 2010: “(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.” Conclusions Disability Discrimination Time limits Page 20 of 31

Conclusions

[164]Paragraphs A.1 of the List of Issues asks us to consider whether we have jurisdiction to determine the claimants’ complaints under the Equality Act 2010.

[165]This requires us to consider a number of matters: were each of the complaints presented to the Tribunal within the requisite time limits; if any of them were not, do they form part of a continuing act; or would it be just and equitable for us to extend time so as to allow us jurisdiction to determine those complaints?

[166]Section 123 governs time limits under The Equality Act 2010. It states as follows: “[Subject to sections 140A and 140B,] proceedings on a complaint within section 120 may not be brought after the end of— the period of 3 months starting with the date of the act to which the complaint relates, or such other period as the employment tribunal thinks just and equitable… For the purposes of this section— conduct extending over a period is to be treated as done at the end of the period. failure to do something is to be treated as occurring when the person in question decided on it. In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— when P does an act inconsistent with doing it, or if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it”.

[167]In essence then, a claim has to be presented within a period of 3 months, plus any extension of that period by operation of the ACAS Early conciliation process, of the act complained.

[168]However, any discriminatory conduct which “extends over a period” shall be treated as done at the end of that period under section 123(3) of the Equality Act 2010.

[169]In addition, a Tribunal has the discretion to allow a claim outside the time limit if it is just and equitable to do so. This is a process of weighing up the reasons for and against extending time and setting out the rationale.

[170]With regard to the claimant, given the date on which the claim was presented and the dates of early conciliation, any complaint made concerning something that happened before 26 June 2022 may not have been made in time.

[171]Turning then to the position under section 123(3). In some situations, discrimination continues over a period of time, sometimes up to the date of leaving employment. If so, the time limit in which to present a claim form to the Employment Tribunal runs from the end of that period. The common, although technically inaccurate, name for this is “continuing discrimination”.

[172]In Hendricks v Commissioner of Police of the Metropolis

[2003] IRLR 96

, the Court of Appeal held that a worker need not be restricted to proving a discriminatory policy, rule, regime or practice, if s/he could show that a sequence of individual incidents was evidence of a “continuing discriminatory state of affairs”.

[173]Turning then to the claimant’s complaints.

[174]The alleged act of direct disability discrimination is his dismissal which took place on 26 July 2022 and so the complaint was presented in time.

[175]With regard to the complaints of failure to make reasonable adjustments, the claimant relies on two matters. The first of these is alleged to have occurred on 19 August 2021, although this was said to be an example. However, no further dates or events were provided. On that date, the complaint was presented out of time. The second of these relies on two dates, one alleged to have been on 26 July and the other on 14 September 2022 and so appeared to have been presented in time. Page 21 of 31

[176]However, as Mr Goodwin pointed out to us in his closing submissions in fact all of the complaints of failure to make reasonable adjustment had been presented out of time. They were not part of the original claim but were permitted by way of amendment at the Preliminary Hearing held on 21 July 2023. This is of course correct.

[177]So, what we have are matters arising on three specific dates and nothing to indicate that they formed part of a continuing course of conduct the last incident of which took place on or after 26 June 2022.

[178]The claimant gave no evidence by which we could find it just and equitable to extend the time limit, although I gave him the opportunity to respond to Mr Goodwin’s submissions in this regard.

[179]However, for the sake of completeness we have gone on to consider the merits of both the direct discrimination and failure to make adjustments complaints. Burden of Proof

[180]Under section 136 of the Equality Act 2010, if there are facts from which an Employment Tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the Tribunal must hold that the contravention occurred, unless that person can show that he or she did not contravene the provision.

[181]We have taken account of the guidelines set out by the Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

;

[2005] IRLR 258

regarding the burden of proof. The Court of Appeal said the Tribunal must go through a two-stage process. At stage 1, the claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation from the respondent, that the respondent had discriminated against the claimant. In deciding whether the claimant has proved these facts, the Employment Tribunal can take account of the respondent’s evidence. At stage 2, the respondent must prove s/he did not commit that discrimination. Although there are two stages, Employment Tribunals generally hear all the evidence in one go, including the respondent’s explanation, before deciding whether the requirements of each stage are satisfied.

[182]The full guidelines (as adapted for the Equality Act 2010) are as follows:a. It is for the claimant to prove, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful under the 2010. These are referred to below as ‘such facts.

b. If the claimant does not prove such facts s/he will fail.

c. It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few Respondents would be prepared to admit such discrimination, even to themselves. In some cases, the discrimination will not be an intention but merely based on the assumption that “s/he would not have fitted in”.

d. In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. Page 22 of 31

e. It is important to note the word ‘could’ in section 136(1). At this stage, the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage, a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

f. 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.

g. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw from an evasive or equivocal reply to a questionnaire or any other questions that fall within the Equality Act 2010.

h. Likewise, the Tribunal must decide whether any provision of any relevant code of practice is relevant and, if so, take it into account in determining, such facts. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

i. Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on grounds of a protected characteristic or act, then the burden of proof moves to the respondent.

j. It is then for the respondent to prove that s/he did not commit, or as the case may be, is not to be treated as having committed, that act.

k. To discharge that burden, it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of a protected characteristic or act, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive 97/80/EC.

l. That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

m. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.

[183]We have also taken into account Madarassy v Nomura International plc

[2007] IRLR 246

, CA which found that the mere fact of a difference in protected characteristic and a difference in treatment will not be enough to shift the burden of proof. There needs to be “something more”. There has to be enough evidence from which a reasonable tribunal could conclude, if unexplained, that discrimination has (not could) occurred.

[184]In Qureshi v(1) Victoria University of Manchester

(2) Brazie

[2001] ICR 863

, the Employment Appeal Tribunal stated that a Tribunal should find the primary facts about all the incidents and then look at the totality of those facts, including the respondent’s explanations, in order to decide whether to infer the acts complained of were because of the protected characteristic. To adopt a fragmented approach “would inevitably have the effect of diminishing any eloquence that the cumulative Page 23 of 31 effect of the primary facts might have” as to whether actions were because of the protected characteristic.

[185]We have also taken into account the guidance from the, then, House of Lords, in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

HL. The House of Lords considered the classic Tribunal approach to discrimination cases, which is to first assess whether there has been less favourable treatment, and if so, consider if the treatment was on grounds of the relevant prohibited conduct and stated that it may be more convenient in some cases to treat both questions together, or to look at the reason why issue before the less favourable treatment issue.

[186]We have considered the evidence that was put before us and have reached findings of fact as indicated having looked at the matters individually and then gone back and looked at the matters in their totality, drawing inferences from the primary facts if we felt it appropriate to do so. Direct disability discrimination

[187]Under section 13 of the Equality Act 2010 (“EQA”), it is unlawful to treat a worker less favourably because of a protected characteristic, which includes disability, by reference to an actual or hypothetical comparator in the same or similar circumstances.

[188]The complaint of direct disability discrimination is set out at paragraph D of the list of issues. The treatment complained of is the claimant’s dismissal.

[189]Whilst Ms Marchant was aware that the claimant had hearing difficulties and he was of course wearing a highly visible hearing aid at their meetings she did not know that this amounted to a disability or in particular that the claimant suffered from Tinnitus. This at best could amount to constructive knowledge of deafness and we believe it was sufficient to alert her to it.

[190]As to Cough Syncope, of course there was no way that she could have known that whatever symptoms the claimant told her of, amounted to this or would be imbued with constructive knowledge. The claimant himself did not even know and when asked in cross examination whether he was dismissed because he accepted that he was thinking more that it was because of his anxiety.

[191]However, of more significance is that there is no evidence by which the claimant has established a prima facie case that he was dismissed because of his deafness and Tinnitus (or Cough Syncope, clearly) and nothing to indicate that this had anything to do with his dismissal. The claimant did not put to Ms Marchant that she dismissed him because of his disability. We were prepared to overlook that given that the claimant is appearing in person and in any event, Ms Marchant has denied any discrimination. But when the claimant was asked in cross examination whether Ms Marchant his deafness or Tinnitus in mind when she dismissed him, he replied to no.

[192]For the sake of completeness although this is not relied upon as part of the complaint, we will deal with the grievance. Whilst the claimant may have brought a grievance, there is nothing conclusive to indicate that this was brought to the respondent’s attention. The evidence from the claimant on this point is lacking. We accept that both Ms Marchant and Mr Probert were unaware of it and the claimant provided no evidence that he had mentioned it at the appeal hearing or chased the non-response to it. Page 24 of 31

[193]We therefore conclude that the complaint of direct disability discrimination is not well founded and is dismissed. Failure to make reasonable adjustments.

[194]Under sections 20 and 21 EQA, there is a duty upon employers to make reasonable adjustments to the workplace. Failure to do so constitutes unlawful discrimination. Where an employer applies a provision, criterion or practice (“PCP”) which puts a disabled person at a substantial disadvantage compared with people who are not disabled, the employer must take such steps as are reasonable to avoid the disadvantage. The purpose of the adjustment is to address the disadvantage. The adjustment has to be reasonable. The respondent must know or have been reasonably expected to know that the claimant was likely to be placed at the disadvantage.

[195]The complaint of failure to make reasonable adjustments is at paragraph E of the list of issues.

[196]The claimant relies on two PCPs as set out in E.14. The respondent accepts that these are PCPs applied by the respondent.

[197]The disadvantage that the claimant alleges arising from these PCPs is set out at E.15 of the list of issues.

[198]The first of these is that by not permitting employees attending counselling meetings to be accompanied put him to a substantial disadvantage because of his disabilities in that his deafness and Tinnitus make it more difficult for him to understand what is being said in meetings when not accompanied.

[199]Mr Goodwin submitted that there is no clear evidence of the substantial disadvantage. The claimant was accompanied to the disciplinary meetings by Mr Barwick. But from the notes one can see that Mr Barwick says very little during the meeting. The claimant was wearing his hearing aid at the meetings. Moreover, the claimant has conducted this Tribunal hearing without it and at no point has he asked for anything to be repeated or misunderstood what was being said (although we would add that at times, he did become confused). Whilst he asserts that it makes it more difficult for him to follow what was being said, that is more obviously down to comprehension and, whilst it is not accepted, the claimant is asserting that this arises not from his deafness or Tinnitus but from his anxiety, which is not part of his disability.

[200]We accept these submissions. There was no evidence of substantial disadvantage.

[201]The second of these is that not permitting employees to record meetings put the claimant to a substantial disadvantage because of his disabilities in that his deafness and Tinnitus make it more difficult to follow what is being said in a meeting.

[202]As to recording being a reasonable adjustment. Mr Goodwin pointed to the following. An employer may have a genuinely good reasons not to allow meetings to be recorded, given that the recording could be shared with others and the process of recording itself could interfere with the progress of the meeting. In addition, he submits that a recording would not assist one in hearing what is being said although listening to it later on might be of assistance. However, a reasonable adjustment could be people speaking up or speaking more slowly. It is also hard to see how a recording could aid comprehension. But moreover, he pointed to what the claimant actually wanted to do, which was to record a question, adjourn the meeting and go Page 25 of 31 away and listen to the recording, take advice and then draft an answer and return to the meeting. That is not a reasonable adjustment it is to gain an advantage.

[203]We accept these submissions. In his witness statement the claimant stated that he does not often absorb everything that is said to him. At the meeting the claimant asked to record due to his hearing problems, Ms Marchant said he could ask her to repeat herself as many times as he liked, the notetaker said she would provide almost verbatim notes and the claimant was represented. At the appeal meeting held on 14 September 2022, the claimant made his rather elaborate request that Mr Goodwin has referred to and even if the substantial disadvantage was linked to disability, that makes the advantage unreasonable. This would amount to a total disruptive why to conduct a meeting which would make it unmanageable. Whilst Mr Probert’s oral evidence goes further than the notes of the meeting as to the claimant’s request and we wondered by this was not included in the notes, we accepted his explanation. In any event we cannot find evidence to support the assertion of substantial disadvantage at either meeting.

[204]We therefore conclude that the complaints of failure to make reasonable adjustments whilst presented out of time are in any event not well founded and are dismissed. Unfair Dismissal

[205]Section 98 of the Employment Rights Act 1996 sets out how an Employment Tribunal should decide whether a dismissal is unfair. There are two basic stages. Firstly, the employer must show what was the reason, or if more than one, the principal reason, for the dismissal. The reason must be one of the four potentially fair reasons set out in section 98(2) or some other substantial reason of a kind such as to justify dismissal. Secondly, the Employment Tribunal must then decide in accordance with section 98(4) whether it was fair to dismiss the employee for that reason.

[206]The Tribunal is essentially required to look at how the claimant was dismissed (i.e. the procedure followed) and why the claimant was dismissed (i.e. the reason). The Tribunal is not required to decide what it would have done but is tasked to look at what the employer did to determine whether that was reasonable or not.

[207]The respondent has put forward two potentially fair reasons for the claimant’s dismissal. Its first position relates to conduct and in the alternative, capability. We need to decide whether the respondent has shown the reason for dismissal, or if there is more than one, the principal reason for dismissal.

[208]It is clear from our findings that the respondent was advancing a conduct dismissal, and we were satisfied that this had been shown to us. This is clear from the allegations made against the claimant, the process of investigation and the outcome. There was therefore no merit in considering the alternative position of capability.

[209]From our findings we conclude that the principal reason for dismissal is conduct.

[210]We then turned to consider whether this was a sufficient reason for the claimant’s dismissal within section 98(4) ERA 1996. As we have indicated above, this involves an examination of both the way in which the respondent dismissed the claimant (the process followed) and the reason for the dismissal (the substance).

[211]In determining the fairness of procedure, we consider the respondent’s own Disciplinary Procedure as well as having an eye to the bare minimum that an employer is required to do under the ACAS Code of Practice 1: Code of Practice on Page 26 of 31 disciplinary and grievance procedures (2015).

[212]We also had regard to the test contained within BHS v Burchell

(1979) IRLR 379

, EAT relating to conduct dismissals. This requires us to consider the following: a) Whether the employer believed that the employee was guilty of misconduct. b) Whether the employer had in mind reasonable grounds upon which to sustain that belief; and c) At the stage at which the employer formed that belief on those grounds, whether s/he had carried out as much investigation into the matter as was reasonable in the circumstances.

[213]When assessing whether the Burchell test has been met, we must also ask ourselves whether what occurred fell within the “band of reasonable responses” of a reasonable employer.

[214]This has been held to apply in a conduct case to both the decision to dismiss and to the procedure by which the decision was reached. (Sainsbury’s Supermarkets v Hitt

[2003] IRLR 23

, CA).

[215]In addition, we have to remind ourselves that we must be careful not to substitute our own decision for that of the employer when applying the test of reasonableness.

[216]The claimant was on a final written warning at the time of his dismissal. He challenges the fairness or bona fides of that previous warning.

[217]In Davies v Sandwell MBC

[2013] EWCA Civ 135

, the Court of Appeal held it was legitimate for an employer to rely on a final warning when deciding whether to dismiss an employee, provided that the warning was issued in good faith, that there were at least prima facie grounds for imposing it and that it was not manifestly inappropriate to issue it.

[218]The Court of Appeal emphasised that the guiding principle for the Tribunal in determining whether a dismissal is unfair in cases where there has been a prior final warning is the test within section 98(4) ERA. The question is whether, in the particular case, it was reasonable for the employer to treat the conduct, taken together with the circumstance of the final written warning, as sufficient to dismiss the claimant. It is not the function of the Tribunal to reopen the final warning and rule on whether the final warning should, or should not, have been issued and whether it was a legally valid warning or a “nullity”. It is relevant for the Tribunal to consider whether the final warning was issued in good faith, whether there were prima facie grounds for following the final warning procedure and whether it was manifestly inappropriate to issue the warning.

[219]We have to say that there is no evidence to indicate that the warning had not been issued in good faith or to question the validity of following that procedure. The respondent’s Disciplinary Procedure allowed live warnings to be taken into account when considering further disciplinary sanctions and the severity of the outcome could be higher (at page 7). The final written warning warned that any further lapse in conduct could lead to dismissal (at B200). Ms Marchant took into account that the final written warning also related to health and safety breaches (at B323).

[220]In terms of the procedure followed, the respondent has clearly complied with the ACAS Code of Practice. In terms of its own procedure, although there might have been some minor slippage with the timeframes within which the stages were dealt Page 27 of 31 with, part of this was caused by the claimant’s intervening ill-health. It was reasonable of the respondent to take into account the live final written warning in determining the appropriate sanction to be that of dismissal as we have dealt with above. Indeed, Ms Marchant indicated in evidence that without this, she would not have dismissed as she did not consider the allegation she upheld to amount to gross misconduct. On appeal, it was reasonable of Mr Probert to find the process followed was fair and consistent.

[221]Turning to the substantive matter of dismissal and dealing with the Burchell test in reverse order.

[222]We are satisfied that the respondent carried out as much of an investigation as was necessary in the circumstances. To an extent the facts of the two incidents were self-evident. There were no witnesses to the trailer door collision incident and the claimant essentially admitted that he had used pallet straps to secure doors rather than the correct fastenings and had not reported the incident and there was no evidence that he had reported the absence of chains during the preceding 8 months he said they were not available. The allegations were initially investigated by Mr Gear by way of the Q&A procedure. There was a hiatus in the process between May and the end of July 2022 because of the claimant’s ill-health. The investigation continued by way of the disciplinary hearing conducted over two days by Ms Marchant. The claimant was represented by a Trade Union representative. Ms Marchant investigated the allegations herself and considered the matters raised by the claimant and his representative before reaching her conclusions.

[223]We except that the conclusions that she reached were reasonable on the basis of the investigation and enquiry she undertook. Indeed, she accepted the claimant’s explanations with regard to the fork-lift truck incident, in effect, mitigating any findings of misconduct or negligence, given the particular incidents of his ill-health on that day.

[224]However, she reasonably concluded from what she had heard and investigated that the claimant was guilty of misconduct in respect of the trailer door collision incident. We have no reason to doubt that this was a genuinely held belief that there are no untoward or indeed unlawful reasons for her conclusion.

[225]Having reached this conclusion, she considered the claimant’s length of service and other mitigating factors but took into account that the claimant was on a final written warning (which also related to health and safety matters) and reasonably decided that dismissal was the appropriate sanction.

[226]On appeal, Mr Probert was essentially reviewing the decision that Ms Marchant had reached but he also made additional enquiries of his own and allowed the claimant to provide all of the information he wished to provide and support of his appeal, and he considered it. He made enquiries to ascertain the veracity of the claimant’s allegations of inconsistency and whilst he did not share these with the claimant and perhaps, he should, this does not render the investigation or indeed his conclusions and his decision to uphold the dismissal as unreasonable.

[227]In terms of whether dismissal was within the range of reasonable responses open to a reasonable employer it is impossible to say that it was not. Clearly dismissal was one of the options open in the circumstances, even if we might not agree with it ourselves.

[228]We also considered whether it was reasonable of the respondent to focus on the conduct issues and not take into account the claimant’s health issues. Page 28 of 31

[229]Part of the difficulty for the claimant is that he did not fully vocalise at the time how he felt in terms of his health issues. He explained that at several meetings he was overwhelmed by what was happening even to the extent of experiencing an anxiety attack, crying in a meeting and had signed notes of meetings as accurate simply to get out of the room, as he put it. However, there is nothing to indicate that the respondent was actually aware of the existence of mental health issues or the extent of them at the material times.

[230]Whilst he alluded to his mental health issues in general, the most that the respondent could reasonably know or ought to have known, came from the various OH reports that it commissioned at various times during 2021 and 2022 (although the latter of these was whilst the claimant was unable to work due to ill-health and facing disciplinary action).

[231]The respondent has no record of the head injury that the claimant stated occurred at work in 2017. He clearly told the respondent about his hearing difficulties and in vague terms that he suffered from dizziness and could pass out (Cough Syncope not being diagnosed until much later and we accept being as much as he could know of what was going on with him).

[232]The earlier OH reports relating to his ill-health absences in 2021 can be expressed in broad terms to be anxiety and depression. The claimant was off work from 22 February until 9 July 2021. Although the reports focused on mental health matters they also revealed the claimant was hard of hearing and suffered from Tinnitus.

[233]Whilst the claimant complains that on his return to work his back to role plan was not implemented as agreed, there is no evidence that he raised this with his managers. It is not reflected in the Counselling and Action Plan arising after the incident at work on 19 August 2021.

[234]When the further incident occurred on 1 December 2021, it does not appear that the claimant raised any health issues in the informal meetings with Mr Gear. However, it does not appear that Mr Gear considered the claimant’s previous health issues either.

[235]The claimant does raise his mental health issues as one of the grounds of his appeal against the final written warning issued as a result of the incident on 1 December 2021. Ms Marchant considers this at the appeal stage but the claimant’s evidence to her at the appeal hearing gave her no reason to suppose that he was anything other than fit to work and had not raised any concerns about his health and is ability to do his job or requested any specific meetings or adjustments to be made. Whilst he had been referred to the EAP, the claimant said to her that he had not contacted them.

[236]With regard to the two further incidents in April 2022. Shortly after they had occurred, the claimant was absent from work from 9 May 2022 onwards and in fact did not return to work again. He was referred to OH on 24 May 2022 and the report provided was amended following a further referral on 23 June 2022. This identified the issue of what was subsequently diagnosed to be Cough Syncope but at that time was under investigation by his GP. The report also recorded that the claimant made reference to his history of anxiety and depression which he was taking medication. At a welfare meeting conducted by Mr Noel-Pottinger on 28 June 2022, it does appear that he reviewed the claimant’s current medical status with a view to supporting lading his recovery back to work if that was possible.

[237]The matter does not then appear to be pursued further but then again, the claimant continued to be absent from work presenting medical certificates citing work-related stress and anxiety (although we only know of this from the OH report itself). Page 29 of 31

[238]Ms Marchant then conducted the disciplinary hearings on 25 and 26 July 2022. At that hearing the claimant did allude to suffering from dizziness but did not raise the matter in any greater detail. She accepts that she was aware of his deafness and Tinnitus but not Cough Syncope. She took into account the specific health issues raised by the claimant in respect of the second incident which was to do with an ear infection. She was not aware of these later OH reports and said in evidence that whilst there is reference made to the issue which subsequently was diagnosed to be Cough Syncope, she does not believe it would have changed her decision to uphold the disciplinary allegations. However, she does state that it would have given her concern as to the claimant’s ongoing fitness for work. Of course, by this time the claimant was off work due to ill health with no obvious return date. She was aware of his absence from work due to mental health issues during the appeal meeting that she conducted on the 21 February 2022 but had not seen the earlier OH reports at that time. At that time, she considered the matter in the context of the claimant’s concerns that he had not been properly supported on his return to work she found no evidence to support this. However, she raised her concerns as to the claimant’s health both by way of suggesting he contact the EAP and I speaking to his managers about his fitness for work.

[239]Mr Probert was provided with copies of the OH reports by the claimant as part of the appeal process. His view was that nothing within those documents alongside the return-to-work documents from July and August 2021 that particularly stood out as relevant to the allegations which the claimant had raised or obviously impacted on his ability to perform the tasks for which he was disciplined.

[240]The difficulty is that there is no clear connection between the matters contained within the OH reports and the matters before the respondent arising from the disciplinary action. At first instance, the claimant does not provide any evidence that there are health issues beyond reference to his ear infection. The medical conditions he related were not mental health issues. The matter before her did not obviously denote such. Whilst it is clearly unfortunate that Ms Marchant did not see the OH reports, that does not render what she did do as unreasonable. They were viewed by Mr Probert on appeal and there is nothing to suggest that having done so his conclusions are unreasonable.

[241]The respondent was faced with a claimant who essentially admitted misconduct, gave general information as to dizziness and fainting as well as deafness and Tinnitus which appeared unrelated to the matters for which he was being disciplined and had only focused on the issue of an ear infection as an explanation for what happened with regard to the second allegation. We cannot find that what Ms Marchant and Mr Probert did was unreasonable.

[242]Turning then to the allegation of inconsistency. The ACAS Code states that employers should act consistently. This can come up in two ways: either because two employees commit the same offence at the same time, but only one is dismissed; or because some other employees have been treated more leniently for the same offence in the past (Post Office v Fennel

[1981] IRLR 221

, CA). Both situations are potentially unfair, but in practice, inconsistency rarely makes a dismissal unfair in a particular case. This is partly because any argument about inconsistency only works of the comparable situations really are similar. In reality few cases are identical (Hadjioannou v Coral Casinos Ltd

[1981] IRLR 352

, EAT).

[243]In some circumstances, inconsistency may also be an indication that there is some other reason for the dismissal entirely (Hadjioannou). It could even be an indication of discrimination. Page 30 of 31

[244]From an unfair dismissal point of view, it is not a good reason for treating two cases differently that different managers dealt with the two incidents (but this may defeat a discrimination complaint). An employee cannot complain of inconsistency in failing to discipline a colleague if the employer was unaware of the other person’s misconduct.

[245]What is important is for the Tribunal to consider the individual facts of the particular case and to decide on the usual section 98(4) test whether the dismissal fell within the band of reasonable responses (Levenes Solicitors v Dalley

UKEAT/0330/06

[246]On the evidence that we heard as to the comparators provided by the claimant during the appeal hearing, we find that Mr Probert’s conclusions are reasonable. There was insufficient evidence to support any findings of inconsistency.

[247]With regard to Mr X, whilst it is not clear if the respondent considered this at the time, certainly the evidence we heard indicates that his circumstances are simply not similar to the claimants, and it would be unreasonable to suppose that they were and so this does not take dismissal out of the band of reasonable responses. We would add that there is certainly nothing to indicate that Mr X’s treatment made him an actual comparator for the purposes of the complaint of direct discrimination.

[248]We therefore find that the complaint of unfair dismissal is not well-founded, and the complaint is dismissed.