Mr N Dowrich v London General Transport Services Ltd (Go-Ahead London): 2306202/2023
EMPLOYMENT TRIBUNALS
Case No 2306202/2023
Between
Mr N DowrichClaimantLondon General Transport Services Ltd (Go-Ahead London)Respondent
Before
Employment Judge LeithMr Feeny (instructed by Counsel) for respondentDate 22 October 2024
REASONS
Claims
[1]The claimant claims unfair dismissal and direct race discrimination, with the sole act of alleged discrimination being his dismissal. He relies, as a comparator, upon Bob Eddington, a white British colleague who he says was not dismissed despite significant sickness absence. Postponement application[2]The first matter we dealt with was a postponement application made by the Claimant.[3]The final hearing in this claim was originally listed to take place by CVP. On 21 March 2024, Mr Otchere, the Claimant’s representative, wrote to the Tribunal to ask for the hearing to be converted to take place in person. He said this: “I am a Lay Representative for the Claimant/Appellant Mr. N. Dowrich in this matter, I have read the Employment Tribunal Orders and will like to remind the tribunal of the following: On the ET1 FORM [06.21] page 1 of number 1 .11 [Would you be able to take part in a hearing by video? [Requires Internet access] x I did tick NO. I am a Litigant or a lay representative and not a Solicitor who has no office to work in, that is the reason why I said NO on the ET1 form. I don't have access to a good working environment within which I will be able to work with the Claimant during the hearing from 21 to 22 October 2024. I prefer to have the hearing done face to face or the hearing in-person in court. I am living with my family and it will be highly unlikely to have the hearing done in my property, whereby there will be some noise and movement around the house. My house phone could disrupt proceedings which will not be of any help to the hearing. I prefer to have the HARD COPY OFTHE BUNDLE which will be prepared by the Respondent without the use of electronics.”[4]Significantly, the letter did not refer to technical difficulties or to lack of internet access on Mr Otchere’s part. The final hearing was nonetheless converted to take place in-person by Employment Judge Burge.[5]The Claimant subsequently applied for postponement of the listed final hearing on the basis that he was undergoing a surgical procedure. That application was not supported by medical evidence. On 4 October 2024, Employment Judge Siddall refused the application, saying this: “If an application to postpone is renewed it must be accompanied by medical evidence explaining why the Claimant is not fit to attend the hearing”.[6]The Claimant did renew the application, accompanied by medical notes showing that he had undergone a coronary procedure, but not giving any prognosis. On 10 October 2024 Regional Employment Judge Khalil wrote to the parties saying this: “The claimant is asked to provide evidence regarding his fitness to attend the hearing on 21 and 22 October 2024 and his expected date of discharge.”[7]On 17 October 2024, the Claimant wrote to the Tribunal again with a fit note saying that he was unfit to work from 11 October 2024 to 11 November 2024, by reasons of “lump to neck and shoulder pain”. REJ Khalil directed the Respondent to comment on the application. The Respondent commented as follows: “Your correspondence of 15 October 2024 required evidence of the Claimant’s fitness to attend the hearing on 21 and 22 October 2024, however the Claimant has sent a fitness for work note which says that the Claimant is not fit for work until 11 November 2024. Working is different to giving evidence at an Employment Tribunal, so the Respondent is none the wiser as to whether or not the Claimant is fit to attend the hearing on 21 and 22 October 2024.[8]The Claimant’s postponement application was refused by REJ Khalil on the same day. REJ Khalil also converted the hearing to take place by video.[9]On Saturday 19 October 2024 the Claimant’s representative, Mr Otchere, wrote to the Tribunal attaching a further GP fit note in respect of the Claimant, dated 18 October 2024. That referred to the Claimant being unfit to work from 29 September 2024 on 24 November 2024. The reason given was as follows: “Recent bypass surgery, admitted on 29/09/2024. Currently housebound post op, recovering post op, fatigue.”[10]The note did not address the Claimant’s fitness to attend a Tribunal hearing, nor did it address his prognosis.[11]Mr Otchere’s letter of 19 October 2024 also indicated that Mr Otchere was unable to attend a CVP hearing. He said that this was because he had “inability to process I.T. and its components” and did not have access to internet. He further noted that he did not want to embarrass himself by trying something he did not have any knowledge or idea about. Mr Otchere’s letter having been sent the Saturday before the Monday on which the hearing was listed to commence, he did not receive a response to that application prior to the start of the hearing.[12]Neither the Claimant nor Mr Otchere joined the hearing as listed on 21 October 2024 at 10am. Both were separately telephoned by a member of the Tribunal staff. The Claimant indicated that he would not be attending the hearing because he was not well enough. Mr Otchere initially indicated that he would not be attending the hearing via CVP. When he was told that he could attend in the first instance by telephone, he did dial in to the hearing. He explained that he was dialing in from a bus stop, where he was waiting to catch a bus to go and pick his car up from the garage.[13]After being offered a short amount of time to get himself to a private place, Mr Otchere addressed the Tribunal regarding the postponement application. He explained that he had represented parties before the Tribunal before, and that he was “not a stranger” to the Tribunal in Croydon. He did not explain what, if any, steps he had taken to try to find a means of attending a CVP hearing. Upon questioning, it became apparent that he had not even asked the Claimant whether the Claimant himself had the necessary facilities.[14]There were therefore two limbs to the application – one relating to the Claimant’s health, and the other to the fact the hearing had been converted to take place via CVP. In respect of the Claimant’s health: 14.1. We had no evidence before us regarding the Claimant’s fitness to attend a remote hearing, despite Claimant being asked to provide evidence of his fitness specifically to attend a hearing on more than one occasion. All we had was a GP fit note saying that he was not fit for work. That is a different question. 14.2. There is publicly available guidance from the Tribunal regarding the medical evidence which is required to support a postponement application, in the form of the Presidential Guidance on Seeking a Postponement of a Hearing (4 December 2013). That guidance says this, regarding medical evidence: “When a party or witness is unable for medical reasons to attend a hearing. All medical certificates and supporting medical evidence should be provided in addition to an explanation of the nature of the health condition concerned. Where medical evidence is supplied it should include a statement from the medical practitioner that in their opinion the applicant is unfit to attend the hearing, the prognosis of the condition and an indication of when that state of affairs may cease.” 14.3. We had before us two GP fit notes, ostensibly covering the same period, but giving very different reasons for the Claimant’s inability to attend work. There was no explanation for the divergence. 14.4. The most recent GP fit note referred to the Claimant being housebound. While that would be a barrier to an in-person hearing, it would be no barrier to a remote hearing. 14.5. Based on the totality of the evidence before us, we could not be satisfied that the Claimant was not fit enough to attend a remote hearing (at which he would be represented). 14.6. We had no evidence before us regarding the Claimant’s prognosis beyond the end dates on the fit notes. Those dates were different, and fit notes in any event generally give an earliest date on which the employee may be well enough to work rather than a more general prognosis – it is commonplace for multiple consecutive fit notes to be issued during the same period of absence. So even if we had been satisfied that the Claimant was not well enough to attend a remote hearing, we would have had no guidance as to when he might be well enough to do so in the future. That would be a relevant factor to whether it would be in the interests of justice to postpone the hearing.[15]In respect of Mr Otchere’s ability to engage in a remote hearing: 15.1. We had some doubts about what he told us about his lack of internet access. We considered that if he had in fact had no internet access, he would have said so in his letter of 21 March 2024. But he did not do so. 15.2. Instead, the letter of 21 March 2024 focused on the difficulties Mr Otchere would have in finding a private place to conduct the hearing at home. He even referred also to the hearing being interrupted by his home telephone ringing. We considered that those were issues that could quite easily be overcome. 15.3. We bore in mind that Mr Otchere communicated with the Tribunal by email, so he was not without access to and facility with technology. Many litigants every day, without special technical knowledge or experience, are able to successfully engage in CVP hearings. 15.4. Mr Otchere did not tell us what he had done to try to make the necessary arrangements to access the CVP hearing, or gain technical assistance if he required. He had not even asked the Claimant if he had the necessary equipment and facilities. It appeared that he had simply taken it for granted that the Tribunal would postpone the hearing at his request. The fact he had gone out to collect his car on the morning of the hearing, in circumstances where the hearing had not been postponed and consequently it remained listed, was powerful evidence of that. 15.5. On the totality of the information available to us, we were therefore not satisfied that Mr Otchere did not have the ability or facility to attend a remote (CVP) hearing.[16]We also bore in mind the effect that delay would have on the proceedings, and on the memories of all involved. The Respondent had additionally incurred the costs of preparing for and attending the hearing, including instructing Counsel. Weighing all of that up, we concluded that it was not in the interests of justice to postpone the hearing.
The hearing
[17]We delivered our judgment on the postponement application at 12:05pm on the first day of the hearing. Mr Otchere explained that he did not think that the Claimant would be attending the hearing, notwithstanding our decision. We indicated that we would start hearing evidence at 3pm, and that if the Claimant did not attend we would hear the Respondent’s evidence.[18]Mr Otchere confirmed that he had a hard copy of the bundle of documents at his house. We asked Mr Otchere to confirm that he would be home by 3pm. He was initially ambivalent, as he informed us that he still had to catch a bus to the garage to collect his car and then drive home, and that traffic would be bad. We therefore informed Mr Otchere, in no uncertain terms, that he must make arrangements to be back home by 3pm. He was informed that if that meant he needed to pick his car up on a different day, that is what he would need to do. He confirmed that he would ensure he was home to start the hearing at 3pm.[19]When we resumed at 3pm, Mr Otchere did not join the hearing. Our clerk telephoned him. He dialed in to the hearing at 3:10. It transpired that he was at the garage, in the process of collecting his car. Consequently, he did not have access to the bundle of documents. He said that he could not join the hearing from home, as his children would be there.[20]In the circumstances, although we had some concerns about Mr Otchere’s approach, we indicated that we would adjourn until 10am on the second day of the hearing. We explained to Mr Otchere that: 20.1. He should join the hearing by video if at all possible. He should start logging in at around 9:45am, and the Tribunal staff may be able to assist if he had difficulty logging in. 20.2. If it proved impossible for him to join by video, he could dial in by telephone. 20.3. He would need to make appropriate childcare arrangements (which of course he would also have needed to have done if the hearing had remained in person). 20.4. He should speak to the Claimant and confirm whether he would be attending. 20.5. Whether or not the Claimant attended to give evidence, Mr Otchere would have the opportunity to ask questions of the Respondent’s witnesses to challenge their evidence. We reminded him of the process of cross-examination and the importance of him challenging the Respondent’s evidence if the Claimant disagreed with it. This was in the context that Mr Otchere had explained to us that he had appeared before the Tribunal previously. He had also previously within these proceedings applied for the final hearing to be extended to four days from the listed two days.[21]Mr Otchere explained that he did not have a computer, but had a tablet and a mobile phone. He explained that he would speak to the EE shop about how to connect to the hearing using his devices.[22]On the second day of the hearing, Mr Otchere again dialed into the hearing by telephone. He explained that the Claimant would not be attending. He then explained that he had no questions for the Respondent’s witnesses and no submissions to make, and would leave the Tribunal to make a decision. We explained again the importance of Mr Otchere challenging the evidence of the Respondent’s witnesses. Mr Otchere confirmed that those were his instructions from the Claimant. He then disconnected from the hearing. We proceeded in his absence.[23]We heard evidence on behalf of the Respondent from: 23.1. Takmil Kiani, Operating Manager of the Respondent’s Putney Garage. 23.2. Saf Patel, General Manager of the Respondent’s Putney and Sutton Garage.[24]Both gave evidence by way of pre-prepared statements (plus supplementary statements, prepared in response to specific allegations made for the first time in the Claimant’s witness statement). Neither were cross examined, but the panel asked clarifying questions of both witnesses.[25]We also had before us a bundle of 554 pages, and a witness statement from the Claimant.[26]After hearing the evidence, we heard brief submissions from Mr Feeny. We retired to deliberate before resuming and delivering our judgment orally. The Tribunal staff contacted Mr Otchere before we resumed to give judgment to give him the opportunity to attend. He elected not to do so. Factual findings[27]We make the following findings on balance of probabilities. We have not dealt with every area canvassed before us; rather, we have focused on those necessary to reach a conclusion on the issues in the claim.[28]The Respondent operates bus services in London. It employs over 7,000 staff, and operates over 2,200 buses. The majority of the Respondent’s work is undertaken under contract with Trasport for London (“TfL”). Contracts are typically awarded for 5 years, with the potential to extend for a further 2 years if targets are met. Mr Patel’s evidence was that the tenders for TfL are highly price-sensitive, and that the Respondent must therefore control its costs carefully to ensure that it can bid successfully for and deliver services to TfL.[29]The Respondent’s main operating cost is the cost of employing staff. It costs the Respondent approximately £8,000 to recruit and train a bus driver.[30]At the relevant times, the Respondent had in force a sickness absence policy. That policy provided that: 30.1. “Long term” absence was defined as sickness absence lasting for 3 weeks or more 30.2. Personal contact with the absent colleague should be made as soon as possible after the beginning of absence to establish the reason for absence and determine when a return to work was likely. 30.3. Thereafter, managers should remain in contact throughout the duration of the sickness absence. 30.4. Where an employee’s return to work remains uncertain, managers should consider holding a formal sickness review meeting. The employee should be invited to such a meeting giving 5 days notice. At that meeting, the managers must make an objective assessment of an acceptable timescale for a return to work 30.5. Where the timescale in the first formal review is not likely to be met, the manager will invite the employee to a Contractual Review, again giving at least 5 days notice. At a Contractual Review, the employee may be dismissed.[31]The Respondent’s operating agreement provided that drivers were entitled to sick pay rising with length of service to a maximum 26 weeks full and 26 weeks half pay. It explicitly noted that management were not obliged to grant the maximum duration of sick leave before a decision was taken to terminate employment. Mr Patel’s evidence was that he could only recall one case where an employee had exhausted their entitlement to sick pay without being dismissed, which was a case where the employee had had cancer. That was out of, by his estimate, some 50 to 75 cases where he had dismissed an employee for long term absence.[32]The Claimant commenced employment with the Respondent on 18 December 2000. He was employed as a Bus Driver, at the Respondent’s Putney garage.[33]At the relevant time, the Claimant’s line manager was Takmil Kiani. Mr Kiani was responsible for approximately 400 drivers at the garage.[34]The Claimant was absent from work from 2 May 2023. The reason he gave for the absence was chest pains and headaches.[35]Mr Kiani contacted the Claimant by telephone on 3 May 2023 to discuss his return to work. Mr Kiani wrote to the Claimant that day confirming what they had discussed. The letter said this; “You informed me that you suffered with high blood pressure. You said that the GP had prescribed you 2 different types of medication. You believed that this caused some reaction which resulted in you suffering chest pains and headaches. You said that you took yourself to Croydon Hospital where they took a chest scan and blood sample. They also asked you to take paracetamol tablets over the next few days. You said that the chest pains had calm down slightly. You said that you will speak to your GP and if he’s satisfied, you should be able to return to work in the next few days. I informed you that the next health review will take place on Tuesday 09th May 2023. You were asked to keep me updated on any changes to your condition.[36]On 9 May 2023, the Claimant tendered a fit note. The fit note indicated that the Claimant would be unfit to work until 19 May 2023. The reason given was “Increased shortness of breath (currently having investigations)”.[37]Mr Kiani and the Claimant spoke on the telephone that day, as arranged. Mr Kiani again wrote to the Claimant that day setting out what they had discussed. The letter said this: Thank you for attending a medical review with me on 09th May 2023. You informed me that the reaction that you suffered lowered the oxygen in your blood. You said that you were feeling shortness of breath and fatigue. You said that you were going to the hospital on Wednesday 10th May for some further tests. You said that you had a GP appointment on Tuesday 16th May 2023. You submitted a med3 for Increased shortness of breath which was for the period 02/05/2023 - 19/05/2023. I informed you that the next health review will take place on Tuesday 16th May 2023. You were asked to keep me updated on any changes to your condition.”[38]Mr Kiani’s evidence was that it had been agreed that the Claimant would call him after his GP appointment on 16 May 2023, but he did not do so. Mr Kiani therefore telephoned the Claimant on 18 May 2023. Once again, Mr Kiani followed up the conversation with a letter on the same day. The letter said this: “Thank you for attending a LTS medical review with me on 18th May You informed me that you had a blood test and chest x-ray on Tuesday 16th May at Croydon hospital. You said that a heart test was due today but unfortunately, you could not make it to the hospital and missed the appointment. You said that the appointment has been rescheduled for the 30th May. You said that you still had shortness of breath and were also struggling to sleep at night. You said that you had zero energy and would try to get to your GP. You submitted another med3 for shortness of breath - having investigation which was for the period 16/05/2023 - 13/06/2023. I explained to you that your absence from work is now considered as long-term sickness, I will arrange for your case to be consulted by the Company Doctor. I asked you to complete the medical forms. I explained to you that as soon as I get an appointment, I will write to you with the details. I informed you that the meeting will take place over the phone. The Doctor will call you on your mobile phone at the set time and date and you have confirmed that you will be participating. We have then both agreed that, when I receive the report from the OHP I will call you and arrange a follow-up medical review with me, so that we can discuss the report and make further decisions regarding your sickness depending on its outcome.”[39]In the interim, the Claimant submitted a further fit note covering the period to 13 June 2023. The reason given for the absence was “shortness of breath – having investigations”. He then submitted a further fit note covering the period to 30 July 2023, with the reason being “MI/heart failure”.[40]The Claimant did not sign the consent forms necessary to be referred to the Respondent’s Occupational Health practitioner until 13 June 2023.[41]Although it had been agreed that Mr Kiani would call the Claimant after receipt of the Occupational Health report, because of the delay in receiving the signed consent form he therefore telephoned the Claimant on 16 June 2023 to discuss his continuing absence. Once again, he followed the conversation up with a letter which said this: “Thank you for attending a LTS medical review with me on 16th June You informed me that you still had shortness of breath. You apologized for not sending back the medical forms. You explained that you had been admitted to the hospital where you were admitted fora week. You said that you were discharged on Sunday 11th June. You said that you had heart palpitations which the hospital called heart failure. You said that your BP was low, and you had fluid built up in the body and the lungs. You said that they prescribed you with several medicines. You said that you were trying to get an appointment with the GP to find out the recovery time. You submitted another med3 for heart failure - which was for the period 13/06/2023 -30/07/2023. I explained to you that your absence from work was considered as long-term sickness. You sent me back the medical forms which I had received. I informed you that I will arrange for your case to be consulted by the Company Doctor. I asked you to complete the medical forms. I explained to you that as soon as I get an appointment, I will write to you with the details. I informed you that the meeting will take place over the phone. The Doctor will call you on your mobile phone at the set time and date and you have confirmed that you will be participating. We have then both agreed that, when I receive the report from the OHP I will call you and arrange a follow-up medical review with me, so that we can discuss the report and make further decisions regarding your sickness depending on its outcome.”[42]On 20 June 2023, Mr Kiani wrote to the Claimant confirming that his Occupational Health appointment would take place on 22 June 2023 at 16:10.[43]The Claimant attended the appointment with Dr Hughes of the Respondent’s Occupational Health provider by telephone. A report was produced that day. It noted that a timescale for normal return to duties was not predictable at the time. It went on to this this: “Subsequent to you referring this driver for a long-term sickness assessment I understand he was admitted to hospital on the 4th of June to the 11th of June 2023 with chest pain and shortness of breath. He tells me he has been diagnosed with heart failure. At this time he can walk approximately 100 m. He is on extensive medication to treat this condition. At this time, I am unable to give you a return to work date. I do not think he’s fit alternative employment. He has not been told to inform the DVLA as yet and I’ve asked him to address this with his GP. I will ask GP for a report which will hopefully guide us further”[44]Mr Kiani telephoned the Claimant on 23 June 2023 to discuss the report. Once again, he followed that conversation up in a letter. The letter summarised the advice from the Respondent’s Occupational Health provider. It then noted that the Claimant was invited to a meeting with Saf Patel, the Garage General Manager, on 29 June at 13:00. The letter noted that a decision about the viability of the Claiamnt’s continuing employment with the Respondent would be made, which could result in the Claimant’s employment being terminated on medical grounds. The letter explained that the Claimant could bring a Trade Union representative to the meeting, and that his chosen trade union representative would be made available.[45]The Claimant attended the sickness review meeting on 29 June 2023. He was accompanied by with his Trade Union representative. At that point the Claimant had been absent for 59 calendar days. The Claimant explained that he was awaiting a date for appointments with the Heart Foundation and also with a diabetes nurse. On a scale of 1 to 10, where 10 was fully recovered, the Claimant explained that he thought he was a four out of 10. The Claimant explained that he did not have a return to work date. Mr Patel explained to the Claimant that there was very little scope for light duties at the Putney Garage.[46]Mr Patel wrote to the Claimant on 6 July 2023 to confirm what they had discussed at the meeting. He enclosed a list of non-driving roles, dated 3 July 2023, and asked the Claimant to make contact if there were any roles he wished to apply for. All of the roles on the list were engineering roles.[47]Within the letter he said this: “I said it was our objective for you to return to work as a driver/operator and to aid this we could seek medical advice and explore short-term light duties.”[48]He invited the Claimant to a further meeting on 13 July 2023. Once again he noted that he Claimant could be accompanied to the meeting. Regarding what would be discussed at the meeting, he said this: “At this appointment we will review your on-going absence and I will consider your continued employment with us. We will review alternative employment vacancies, explore options for short-term light duties and discuss the outcome of any medical appointments. Please note that if we were unable to establish a date for you to return to work within a reasonable timeframe then an outcome of that meeting may be that your employment is terminated on medical ground.”[49]The meeting was subsequently postponed to 20 July 2023.[50]The Respondent’s Occupational Health providers had, in the interim, received a report from the Claimant’s GP. On 19 July 2023, Dr Iqbal of the Respondent’s HR provider emailed Mr Kiani and the Claimant as follows: “I have now received a report from this gentleman's GP. He has been diagnosed as having severe heart failure following a probable myocardial infarction. He is unfit for bus driving duties. This needs to be reported to the DVLA. They will arrange further investigations. He is not fit for driving duties until written clearance is received from the DVLA that he is fit to continue to hold a PCV license.”[51]The Claimant attended the meeting on 20 July 2023 with his Trade Union representative. The Claimant explained that he was not fully recovered, but was getting close – he described himself as 6 or 7 out of 10. There was some discussion of the report from Dr Iqbal. The Claimant explained that he had written to the DVLA on 17 July 2023 to inform them of his medical condition, but had not received any response. The Claimant explained that he was due to see his GP on 25 July 2023, and his Consultant on 28 July[52]Mr Patel wrote to the Claimant on 25 July 2023 to confirm what they had discussed at the meeting. He noted that the Claimant had confirmed that his outcome letter from the previous meeting was a true and accurate reflection of that meeting. He enclosed a list of non-driving roles (dated 24 July 2023), and asked the Claimant to make contact if there were any roles he wished to apply for.[53]He invited the Claimant to a further meeting on 4 August 2023. Once again he noted that he Claimant could be accompanied to the meeting. He explained again that one outcome of the meeting may be that the Claimant’s employment was terminated on medical grounds.[54]Mr Patel emailed the letter to the Claimant at his work email address, and the Claimant confirmed receipt.[55]On 1 August 2023, the Claimant was issued with a further fit note until 4 September 2023. Once again, the reason for absence was “MI/heart failure”.[56]The Claimant attended the review meeting with Mr Patel on 4 August 2023. He was again accompanied by his Trade Union representative.[57]The Claimant explained that he had spoken to the DVLA medical team, but had not had any correspondence from them. He explained that he had good days and bad days, but more good than bad. He gave his recovery score as 8 out of 10. He explained that he did not have a return to work date. There was some discussion of alternative vacancies. All of the available vacancies were engineering roles, for which the Claimant was not qualified.[58]Mr Patel then adjourned the meeting to consider. When he returned, he explained to the Claimant that he had taken the decision to terminate the Claimant’s employment. He wrote to the Claimant on 7 August 2023 to confirm his decision. Within that letter, he set out the reasons for dismissing the Claimant as follows: After a short adjournment, I explained that I had considered your case in depth and noted that you had been absent from work since 2nd May 2023, 95 calendar days at the time of our meeting. I said that you had a consultation with the Company Medical Officer on 22nd June 2023 and he noted that he was unable to give a return-towork date and that he did not think you were fit for alternative employment. He also noted in his report that he would be writing to your GP for further information. The Company Medical Officer received a report from your GP and he wrote to us on 19th July 2023 explaining that you are unfit for driving duties and remain unfit for driving duties until the DVLA have given written confirmation that you are fit to continue to hold a vocational licence. I sympathised with your difficult situation. I said that with the information available I concluded that a return to work within a reasonable timescale, particularly given the length of time you have already been away from work, was unlikely. Both your GP and Company Medical Officer have found you unfit for driving duties and I said that our endeavours to find alternative work had not been successful. It was therefore with regret that I decided to terminate your employment on capability grounds; medically dismissing you from the employ of London General Transport Services Ltd (Go-Ahead London) with immediate effect. I appreciate this decision will be greatly disappointing but trust you understand the reason as to why.”[59]He informed the Claimant that he had the right to appeal the decision, and that any appeal had to be lodged within 14 calendar days. He then said this: “In respect of future re-employment, I said that you would need to be medically fit to return to work and be considered suitable for the job vacancies and the standard recruitment and selection processes. If you were able to return within nine months from the date of your dismissal, consideration would be given to re-engaging you on your current grade, albeit not with maintained seniority. Thereafter, you would not retain your current grade or seniority and you would be engaged on a new entrant package.”[60]Mr Patel’s evidence was that: 60.1. It had cost c.£8,950.75 to cover the Claimant’s shifts during his absence. 60.2. The Claimant had also received Company Sick Pay during that time, amounting to £6,625 plus NI contributions and holiday pay accrual. 60.3. Given the evidence available regarding the Claimant’s health, he was not satisfied that the Claimant could return in the foreseeable future.[61]The Claimant did not appeal within the timescale. He attempted to lodge an appeal on 3 October 2023, nearly two months after his dismissal. Bradley Faithfull, Area General Manager Service Performance, wrote to the Claimant on 10 October 2023 to indicate that his appeal would not be heard as it was lodged outside the time limit. He went on to say this: “I note from your letter that you were dismissed on medical grounds, with some uncertainty around your ability to hold a vocational D licence. If you are now fit to work, and in possession of a current valid vocational D licence, and able to pass a PCV medical, then we would be happy to re-engage you as a Driver with a licence for London. You would be appointed as a GD04 Driver and would receive holiday entitlement acknowledging your previous service all other contractual aspects would be that of a year one Driver.”[62]The Claimant did not reply to that letter.[63]In a letter dated 11 April 2024 within the litigation, the Claimant’s representative said that: 63.1. The Claimant was not fit for work (this was in response to a request that the Claimant disclose all documentation showing when he became fit to work after his employment terminated). 63.2. The Claimant had not yet received a PCV licence from the DVLA.[64]The Claimant alleged in his witness statement that the invitation letters in the bundle said to be from Mr Kiani were faked. There was no suggestion that the Claimant told Mr Patel that he had not received previous correspondence from Mr Kiani. Of course, the meetings the Claimant had with Mr Kiani were not meetings to which he was formally invited. The only letter from Mr Kiani which invited the Claimant to a formal meeting was the letter of 23 June 2023, inviting him to the meeting on 29 June 2023 with Mr Patel. He did not explain why the letter was said to be faked, beyond a reference to Mr Kiani’s signature having been “adapted” and being “perfectly placed”. Self-evidently, the Claimant must have received the letter because he attended the meeting with Mr Patel on 29 June 2023 (along with his Trade Union representative).[65]Mr Kiani’s evidence was none of his letters were faked. Given that Mr Otchere elected not attend to cross examine the Respondent’s witnesses, Mr Kiani’s evidence in that regard was unchallenged. But in any event, having carefully considered the surrounding circumstances (including the unsupported and somewhat bizarre way that the allegation was made, and the fact that no issue with Mr Kiani’s letters appeared to have been raised at the time), we find that the letters in the bundle said to be sent by Mr Kiani to the Claimant were not faked, but were accurate copies of the letters sent to the Claimant at the time.[66]The Claimant’s evidence was that he was treated less favourably than a comparator, who he named as Mr Bob Eddington. His evidence was that Mr Eddington, who was white British, was allowed to go through cancer treatment without being dismissed. His evidence was that Mr Eddington was never dismissed and passed away while still employed by the Respondent as a bus driver.[67]The Claimant’s position regarding his comparator had evolved somewhat. He did not name a comparator on the original ET1. He was directed to provide further and better particulars, which he did on 13 February 2024. In his further and better particulars he named the comparator as “Bob Ardenten”. The Respondent noted that it had no employee of that name, and asked for further clarification. In a document dated 3 March 2024, the Claimant then named the comparator as “Mr Bob Addington/Erdenten”. The first time he gave the name of the comparator as Mr Eddington was in his witness statement.[68]Upon receiving the Claimant’s witness statement, the Respondent searched its records for Mr Eddington. The evidence from Respondent’s records was that Mr Eddington had been employed by the Respondent, but was dismissed on medical grounds on 2 June 2017. There was a record of absence from work, with the reason given being “Aches and pains”.[69]Mr Kiani and Mr Patel both produced supplementary statements following receipt of the Claimant’s witness statement. We allowed both statements to be adduced, given the way the Claimant’s position had evolved. Neither Mr Kiani nor Mr Patel had any personal knowledge of Mr Eddington, since he had apparently been dismissed before either of them started working at the Putney garage. Mr Patel’s evidence was that the Respondent’s records regarding Mr Eddington’s employment had been automatically purged 6 years after his employment terminated, in line with the Respondent’s normal practices (for data protection purposes). We deal with our findings regarding Mr Eddington in our conclusions.[70]The claimant notified ACAS under the early conciliation process of a potential claim on 17 October 2023 and the ACAS Early Conciliation Certificate was issued on 1 November 2023. The claim was presented on 8 November 2023. Law[71]Section 39(2) of the Equality Act 2010 provides that an employer must not discriminate against an employee: 71.1. In the terms of employment; 71.2. In the provision of opportunities for promotion, training, or other benefits; 71.3. By dismissing the employee; 71.4. By subjecting the employee to any other detriment.[72]In order to be subjected to a detriment, an employee must reasonably understand that they had been disadvantaged. An unjustified sense of grievance will not constitute a detriment (Shamoon v Royal Ulster Constabulary [2003] UKHL 11). Protected characteristics[73]Race is a protected characteristic (s.9) Direct discrimination[74]The definition of direct discrimination is contained in section 13(1) 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.”[75]The comparison may be to an actual or a hypothetical comparator. In either case, there must be no material difference between the circumstances relating to each case (s.23(1)). That is, the comparator must be in the same position in all material respects save only that he or she is not a member of the protected class (Shamoon v Chief Constable of the RUC [2003] ICR 337).[76]In considering whether a claimant was treated less favourably because of a protected characteristic, the tribunal generally have to look at the “mental processes” of the alleged discriminator (Nagarajan v London Regional Transport [1999] IRLR 572). The protected characteristic need not be the only reason for the less favourable treatment. However the decision in question must be significantly (that is, more than trivially) influence by the protected characteristic. Burden of proof 77. section 136 of the Equality Act deals with the burden of proof: “(2) If there are facts from which the [tribunal] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the [tribunal] must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene that provision”[78]The provision therefore prescribes a two-stage process. At the first stage, there must be facts from which the tribunal could decide, in the absence of any other explanation, the discrimination took place. All that is required to shift the burden of proof is at primary facts from which “a reasonable tribunal could properly conclude” on balance of probabilities that there was discrimination. It must, however, be something more than merely a difference in protected characteristic and the difference in treatment (Madarassy v Nomura Internatiojnal PLC [2007] EWCA Civ 33).[79]The burden of proof at that stage is on the Claimant (Royal Mail Group v Efobi [2021] UKSC 22). The employer’s explanation is disregarded.[80]If the claimant satisfies that initial burden, the burden shifts to the employer at the second stage to proveone balance of probabilities that the treatment was not for the prescribed reason. Unfair dismissal[81]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that they were dismissed by the respondent under section 95.[82]Section 98 of the 1996 Act deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.[83]Section 98(2) provides that capability is a potentially fair reason for dismissal.[84]Section 98(4) deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.[85]In considering dismissal for long term ill health, the Tribunal must consider whether the employer can be expected to wait any longer for the employee to return (BS v Dundee City Council [2014] IRLR 131). The employer must consult with the employee about the proposed dismissal, and discover the true medical position (East Lindsey District Council v Daubney [1977] ICR 566).[86]The Burchell test is applicable to dismissals for long term ill health – the employer must: 86.1. Genuinely believe that the employee is incapable of returning to their post; 86.2. Have carried out reasonable investigation into the position; and 86.3. Have reasonable grounds for that belief; (DB Schenker Rail (UK) Ltd v Doolan EAT 0053/09)[87]It is not for the Tribunal to substitute its own view on whether to dismiss; rather, the question for the Tribunal is whether dismissal was in the range of responses open to a reasonable employer. Polkey[88]In the case of Polkey v AE Dayton Services Ltd [1987] UKHL 8, the House of Lords set down the principles on which a Tribunal may make an adjustment to a compensatory award on the grounds that if a fair process had been followed by the respondent in dealing with the claimant’s case, the claimant might have been fairly dismissed. Further guidance was given in the cases of Software 2000 Ltd v Andrews [2007] ICR 825; W Devis & Sons Ltd v Atkins [1977] 3 All ER 40; and Crédit Agricole Corporate and Investment Bank v Wardle [2011] IRLR 604.[89]In undertaking the exercise of determining whether such a deduction ought to be made, the Tribunal is not assessing what it would have done. Rather, it is assessing what this employer would or might have done, on the assumption that it would this time have acted fairly though it did not do so beforehand: Hill v Governing Body of Great Tey Primary School [2013] IRLR 274 at para 24. Conclusions Direct Race Discrimination
Conclusions
[90]The act of alleged race discrimination relied upon was the Claimant’s dismissal. The Claimant compared himself to Mr Eddington. The high point of the Claimant’s evidence was that Mr Eddington had cancer and he had not been dismissed (but had died in service). The Respondent’s (limited) extent records showed that Mr Eddington’s reason for absence was “aches and pains” rather than cancer – we appreciate that aches and pains could be a side effect of cancer or cancer treatment, although it would be surprising if an absence by reason of cancer had been explicitly recorded as such. The Respondent’s records also showed that Mr Eddington was dismissed for long term ill health.[91]We bore in mind that we did not hear evidence from the Claimant, because he did not attend to be cross examined. That would ordinarily limit the weight we could give to his statement. But the more significant point which caused us to question the Claimant’s evidence regarding Mr Eddington was that it was not until his witness statement that he correctly identified Mr Eddington by name. That was, in our judgment, a powerful suggestion that the Claimant did not know Mr Eddington particularly well, and was not particularly knowledgeable about his circumstances even at the time. And of course according to the Respondent’s records Mr Eddington was dismissed in 2017. That would necessarily mean that the Claimant’s recollection of the circumstances may have been affected by the passage of time.[92]The Respondent’s ability to adduce evidence which may have shed more light on Mr Eddington’s situation was hampered by the fact that the Claimant only correctly named him for the first time in his witness statement.[93]For those reasons, we preferred the Respondent’s (limited) contemporaneous records to the Claimant’s recollection in his witness statement. We therefore found that Mr Eddington was dismissed by the Respondent on medical grounds. So he was not treated differently in the way that the Claimant alleged.[94]We consider that in any event, Mr Eddington would not have been an apt comparator for the Claimant. Even on the Claimant’s own evidence, his absence was for a very different reason. Significantly, if the Claimant was right that Mr Eddington’s absence was due to cancer, there was no suggestion that he would have lost his PSV licence as a result. The requirement to be confirmed as fit to continue to hold a PSV licence by the DVLA was an important factor in the Claimant’s case. That arose because of the nature of the Claimant’s condition. So Mr Eddington was not in materially the same circumstances as the Claimant.[95]We would in any event have concluded that the Claimant had adduced no evidence that the reason he was treated (on his case) differently to Mr Edington was his race, such as to shift the burden of proof. It was common ground that Mr Eddington was white, whereas the Claimant is black. But that on its own is insufficient to shift the burden without something more. And there was simply nothing more on the evidence before us.[96]It followed that we concluded the complaint of direct race discrimination failed and was dismissed. Unfair dismissal[97]The reason relied upon by the Respondent for dismissing the Claimant was capability, by reason of ill health[98]On the evidence before us, we were satisfied that that was the real reason. The Claimant was incapable of returning to work to work as a bus driver, and there was no timescale for when he may be able to do so. We were satisfied that the reason given by Mr Patel for dismissing the Claimant was the real reason – namely, ill health capability.[99]We then turned to consider the fairness of the dismissal.[100]We carefully considered the criticisms the Claimant made of the Respondent’s process within his witness statement: 100.1. The Claimant appeared to take issue with the fact that he was not sent meeting notes from the meetings with Mr Kiani. We have found that the letters sent to the Claimant by Mr Kiani were genuine. Those letters contained a description of what happened in each meeting. They were, in substance, notes of the meetings. They were not verbatim, but we can see no reason why the Respondent would need to keep verbatim notes of informal sickness review meetings. The Claimant did not challenge the contents of those meetings at the time. Nor did he, in his statement, suggest that the summaries captured by Mr Kiani in his letters were inaccurate. So we considered that there was nothing in that point. 100.2. The Claimant also took issue with the fact that he was not sent meeting notes from the meetings with Mr Patel. Once again, Mr Patel’s letters sent to the Claimant at the time contained a description of what happened in each meeting. The Claimant accepted at the time that the letters from meetings 1 and 2 accurately captured the contents of those meetings (his agreement was recorded in the outcome letters from meetings 2 and 3 respectively). There was no evidence that the Claimant took issue with the contents of those letters at the time. So once again, there was nothing in that point. 100.3. The Claimant’s evidence was that when he received Mr Patel’s letter following the meeting on 29 June 2023, he knew then that the Respondent had the “appetite and desire” to sack him. We consider that the letter (and indeed the Respondent’s policy) showed that the Respondent had the appetite to dismiss him if he could not return to work within a reasonable period. That was the thrust of the Respondent’s approach to long-term sickness absence, for any employee. But we considered that that was very different from saying that the Respondent had a desire to dismiss the Claimant. There was no evidence that the Respondent had a particular agenda to dismiss the Claimant as of the 29 June (albeit given that the Claimant had a condition which had to be notified to the DVLA, and given the need for him to hold a PSV licence, it may have appeared that it would be the likely direction of travel).[101]We therefore did not consider that any of those factors suggest unfairness on the part of the Respondent. Turning to the steps the Respondent took: 101.1. Mr Kiani met informally with the Claimant on 6 occasions to discuss his ongoing absence. 101.2. He referred the Claimant to Occupational Health. The Occupational Health doctor provided advice, and then sought input from Claimant’s GP before providing further advice. On both occasions, that advice was discussed with the Claimant – on the first, in the meeting with Mr Kiani, and in the second case, in the meeting with Mr Patel. 101.3. Mr Patel met with the Claimant three times. On each occasion, he allowed the Claimant to be accompanied by his Trade Union representative. On each occasion, the Claimant was warned in advance that he may be dismissed if there was no return date within a reasonable period. 101.4. Mr Patel sent the Claimant lists of vacancies within the Respondent, and discussed those vacancies with him. 101.5. Mr Patel discussed the Occupational Health advice and the Claimant’s GP fit notes with him in the course of the three formal meetings they had. 101.6. The Claimant was notified of Mr Patel’s decision in writing, and given a right of appeal (which he did not exercise in a timely fashion). 101.7. Importantly, the Respondent complied substantially with its own policy.[102]Overall, we were therefore satisfied that the process followed was a fair one, and that the Respondent carried out a reasonable investigation and adequately consulted the Claimant.[103]In terms of Mr Patel’s substantive decision to dismiss the Claimant: 103.1. At the point when the decision was taken to dismiss the Claimant, he had been absent for 95 calendar days. 103.2. He had a fit note for a further month, with no suggestion that he would be fit to work at the end of that fit note. 103.3. The Occupational Health advice was open-ended and gave no prognosis for a return to work. 103.4. Importantly, the medical advice was also that Claimant would be unable to return to bus driving until he had been cleared by the DVLA, and there was no suggestion regarding when that clearance may be received. Mr Patel’s evidence was that in his experience it could take around 4 months for that clearance to be received. Selfevidently, that clearance would only be granted if the DVLA were satisfied that the Claimant was fit to hold a PSV licence, and there was no evidence before Mr Patel that the Claimant would be able to satisfy the DVLA of that in the short or medium term. So it was not the case that the DVLA clearance would simply be an administrative formality. 103.5. Mr Patel had explored the possibility of alternative employment for the Claimant. 103.6. He had weighed up the cost to the business of continuing to employ the Claimant, with no real end date to his absence in sight. 103.7. Importantly, there was no need for the Respondent to wait until the Claimant had exhausted his sick pay entitlement before considering dismissal. The focus of the policy, and Mr Patel’s focus, was on whether the Claimant might be fit to return work within a reasonable period of time.[104]In the circumstances, we concluded that it was not reasonable to expect the Respondent to wait any longer before dismissing the Claimant, given that the medical evidence did not provide any grounds to conclude that he would be fit to return in a reasonable period.[105]The Claimant did, of course, have a long service; Mr Patel’s evidence that the Claimant had been a good employee. The decision to dismiss the Claimant was taken at a relatively early point in his absence, bearing in mind both his length of service and the Respondent’s sick pay provisions (which provided for up to six months full pay and six months half pay). But overall, given the lack of a clear prognosis, we concluded that the decision to dismiss the Claimant was within the range of reasonable responses open to a reasonable employer.[106]We therefore concluded that the dismissal was a fair one. It followed that the complaint of unfair dismissal failed and was dismissed.[107]The evidence before us suggested that the Claimant remained unwell following his dismissal, and has never recovered his PSV licence. That is what his representative said in his correspondence to the Respondent within these proceedings. Had the Claimant recovered his licence at any point, we consider that the overwhelming likelihood is that he would have taken up the Respondent’s offer of returning to work on his predismissal terms. The sad reality was therefore that he has remained unfit to return to bus driving. Therefore had we concluded that there was any unfairness in his dismissal, we would in any event have concluded that there was a 100% chance he would have been fairly dismissed, if not on 4 August 2023 then very shortly afterwards. Postscript[108]The Claimant was poorly served by Mr Otchere, and in particular by his decision not to participate in the hearing before us. Mr Otchere told us that he had the Claimant’s instructions not to do so. We took that at face value, although of course we do not know what Mr Otchere told the Claimant about our decision not to postpone the hearing. But in any event we were satisfied that it made no material difference to the outcome. Beyond the (somewhat bizarre) dispute about the letters from Mr Kiani and the difference in evidence regarding whether Mr Eddington was dismissed by the Respondent, there was relatively little factual dispute between the parties. There was a wealth of contemporaneous documentation regarding the process followed. Even if the Claimant had been differently represented, or attended the hearing himself, we can see nothing to suggest that it would have materially affected the outcome of the hearing. Very sadly, after a long and successful career with the Respondent, he had become unwell in a way which meant he could no longer carry out his role. That was not his fault; but nor was it the Respondent’s. They were entitled to dismiss him in the way that they did, and they did not discriminate against him by doing so.
Conclusions
[1]The complaint of direct race discrimination fails and is dismissed.[2]The complaint of unfair dismissal fails and is dismissed.