L Marjoram v WA Corporate And Events Ltd: 2306524/2023
EMPLOYMENT TRIBUNALS
Case No 2306524/2023
Between
Luke MarjoramClaimantWA Corporate And Events LimitedRespondentDate 8 January 2026
JUDGMENT
[1]The complaint of dismissal as unfavourable treatment arising in consequence of the Claimant’s disability is not well-founded and is dismissed.[2]The complaint of harassment related to disability is out of time and it would not be just and equitable to extend time.[3]The complaint of harassment related to sexual orientation is out of time and it would not be just and equitable to extend time. Approved by:
REASONS
[1]Judgment having been delivered to the parties on 8 January 2026 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following written reasons are provided.
THE HEARING
[2]No preliminary matters were raised but subsequently during the hearing we heard an application from the Claimant for additional documents to be added to the bundle (an Instagram post and Mr Devonport’s witness statement). The Respondent raised no objection, so these documents were added.[3]We were conscious of the Claimant’s disability, and it was agreed that he could ask for regular breaks to stop his knees from becoming painful and seizing up.[4]The Tribunal was provided with an initial bundle of 227 pages and heard evidence from the Claimant and from three witnesses for the Respondent: Mr Bradley, Ms Roberts‑Hewitt, and Mr Ghione.[5]Although we were provided with witness statements from Mr Devonport and Ms Sullivan, they did not appear as witnesses to give evidence, and as their statements were not tested in the hearing, we have given them minimal weight.[6]Neither party called evidence from Mr Shakespeare, who was the claimant’s line manager at the time, but who no longer works for the Respondent.[7]The parties were told that the Tribunal would only read documents in the Bundle that they were expressly drawn to.[8]The Tribunal considered all the evidence, both oral and documentary, together with the helpful submissions of the parties.[9]The List of Issues agreed at the Preliminary Hearing on 8 December 2025 was adopted and is repeated below. It is noted that at the preliminary hearing, the Employment Judge determined that the Claimant’s claim of unfair dismissal was out of time and dismissed.[10]The Respondent confirmed that the legitimate aim was “the effective management of employees’ sickness absence; and ensuring that employees on long-term sick leave are capable of returning to work”.[11]We heard oral submissions from both parties and had written submissions from the Respondent. It was explained to the Claimant that he would not be at a disadvantage because he had not provided written submissions and that the Tribunal would listen carefully to his oral submissions and would make notes.
LIST OF ISSUES
[12]The List of Issues that had been agreed prior to the hearing is as follows:[13]Time Limits 13.1. Any Equality Act 2010 (EqA 2010) complaints relating to 14 July 2023 are in time following the Tribunal’s judgment on 26 November 2025. However, whether any allegations which took place before that date are in time are to be determined. 13.2. Were the discrimination and victimisation complaints made within the time limit in section 123 EqA 2010? 13.3. The Tribunal will decide: - Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act or omission to which the complaint relates? 13.3.1. If not, was there conduct extending over a period? 13.3.2. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 13.3.3. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: - 13.3.3.1. Why were the complaints not made to the Tribunal in time? 13.3.3.2. In any event, is it just and equitable in all the circumstances to extend time?[14]Disability 14.1. The Respondent has conceded that the Claimant was disabled at the time of the events the claim is about for the purposes of section 6 of the Equality Act 2010 by reason of their knee injury.[15]Discrimination Arising from Disability (EqA 2010 s.15) 15.1. Did the Respondent treat the Claimant unfavourably by dismissing the Claimant on 14 July 2023? 15.2. Did the following things arise in consequence of the Claimant’s disability? - The Claimant’s sickness absence between 20 September 2021 and 14 July 2023. 15.3. Was the unfavourable treatment because of any of those things? (Did the Respondent dismiss the Claimant because of that sickness absence?) 15.4. Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: [the effective management of employees’ sickness absence; and ensuring that employees on long-term sick leave are capable of returning to work]. 15.5. The Tribunal will decide in particular: 15.5.1. Was the treatment an appropriate and reasonably necessary way to achieve those aims? 15.5.2. Could something less discriminatory have been done instead? 15.5.3. How should the needs of the Claimant and the Respondent be balanced? 15.6. Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?[16]Harassment Related to Disability (EqA 2010 s.26) 16.1. Did the Respondent do the following things: a) Adrian, Katie, and Ms Roberts-Hewitt had been making a joke of the fact that the Claimant had received a wheelchair from the Red Cross following the incident on 14 September 2021, and this continued until 14 July 2023. The Claimant was informed of this joke by Mr Shakespeare. 16.2. If so, was that unwanted conduct? 16.3. Did it relate to disability? 16.4. Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for the Claimant? 16.5. If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case, and whether it is reasonable for the conduct to have that effect.[17]Harassment Related to Sexual Orientation (EqA2010 s.26) 17.1. The Claimant describes themselves as a gay man. 17.2. Did the Respondent do the following things: - a) On or around December 2019, Mr Shakespeare told the Claimant that Tracey, Andy, Katie, Leanne, and Adrian thought the Claimant was being a drama queen (regarding mould in a hotel room). b) On or around September 2021, Ms Roberts-Hewitt told the Claimant they were over-reacting and being a drama queen (for raising issues around their workload, including driving time, and potentially drugs being in the workplace). c) Dismiss the Claimant on 14 July 2023. 17.3. If so, was that unwanted conduct? 17.4. Did it relate to sexual orientation? 17.5. Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for the Claimant? 17.6. If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case, and whether it is reasonable for the conduct to have that effect. 18. [Remedy for] Discrimination or Victimisation 18.1. Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend? 18.2. What financial losses has the discrimination caused the Claimant? 18.3. Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job? 18.4. If not, for what period of loss should the Claimant be compensated for? 18.5. What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that? 18.6. Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result? 18.7. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If so, did either party unreasonably fail to comply with it? If so, is it just and equitable to increase or decrease any award payable to the Claimant and, if so, by what proportion up to 25%? 18.8. Should interest be awarded? How much?
FACTS
[19]The Tribunal has made its findings of fact on the balance of probabilities, based solely on the evidence before it. When facts were disputed, the Tribunal records the competing accounts or conflicting evidence and makes a finding of fact and explains its reasons for doing so.[20]The Tribunal heard a range of evidence but has restricted its findings to facts that were relevant to determining the agreed List of Issues.
Background
[21]The Respondent is a floristry business that creates and installs floral displays and arrangements for weddings and large corporate events. The Respondent is not large; it has approximately six regular members of staff and supplements these from time to time with freelance florists. The Respondent operates from a studio in Battersea, London.[22]The Claimant started his employment with the Respondent on 14 October 2019. He started as a junior florist with some years' experience and became a senior florist for the Respondent. The role of florist with the Respondent is a physically demanding one, involving lifting heavy buckets and floral arrangements, early starts, travel to event locations nationally and setting up/removing elaborate floral displays.[23]The Claimant lives in Dagenham, which all parties acknowledged was a long way from the studio in Battersea.[24]During the COVID‑19 period (2020/2021), the business experienced significant disruption, furloughed staff, and later relied heavily on freelance florists. The Claimant’s accident, absence & dismissal[25]On 14 September 2021, the Claimant sustained a serious injury to both knees following a work event and was signed off sick by his GP. He has remained unable to work since this date. The Respondent agrees that for the purposes of the Equality Act 2010 the Claimant was at all material times disabled.[26]During his period of employment with the Respondent, the Claimant provided regular medical certificates.[27]The Claimant continued to receive medical treatment throughout 2021 and 2022.[28]The Claimant states that Ms Roberts-Hewitt discussed arranging private MRI scans but never booked them. Ms Roberts-Hewitt confirmed that this discussion took place, but it was a suggestion to see if there was anything the Respondent could do to support him or get him the help he needed. She explained that it was not intended to put pressure on the Claimant to return to work. In any event the Claimant never followed up this suggestion, and he received an MRI on the NHS on 2 November 2021.[29]In or around December 2021/January 2022 there was contact between the Claimant and Respondent to see if he could do some work for the Respondent. 29.1. Ms Roberts-Hewitt asked him to complete paperwork, but the Claimant was unable to as he was signed off sick, and his pain medication made it difficult to concentrate. 29.2. This request to undertake paperwork was not disputed by the Respondent but the Respondent denied that it was a ruse to negatively affect the Claimant’s eligibility to state benefits and was an effort to explore with the Claimant whether he could undertake light duties. We find that Ms RobertsHewitt was credible in this regard. 29.3. At around the same time, there was a suggestion that the Claimant could help string some baubles, but the Claimant was in too much pain to visit the studio, even in a taxi.[30]The Claimant’s entitlement to Statutory Sick Pay ended in March 2022. The Respondent did not engage with capability discussions at that point and continued to employ him. He remained employed by the Respondent for the next year. We heard evidence from Ms Roberts-Hewitt that they valued the Claimant as an employee and were hopeful that he would recover and be able to return to work.[31]On or around the Spring of 2023 Ms Roberts-Hewitt started planning how the business would manage their busy period in the run up to Christmas. She explained that Covid lockdown had negatively affected the business generally, but that one consequence was that they now had mostly freelancers on the books. She explained that although that had a lot of advantages for the business it left them vulnerable to staff shortages in busy periods, and she wanted to put in place some permanent employees to ensure adequate cover.[32]The Claimant was their only employed florist but was still absent at this point. Ms Roberts-Hewitt said that she wanted to understand whether he would be able to return in order to factor him into her plans. She felt that it was 18 months since the accident and it was appropriate to review his long‑term sickness absence, but she recognised that this was a specialist HR issue and that she needed support so she contacted her external adviser, Mr Bradley, who handled that aspect for the business.[33]Mr Bradley met with the Claimant on 27 March 2023. The Claimant confirmed he was not yet fit to return to work and Mr Bradley discussed a referral to an occupation therapist for an evaluation. On 26 May 2023, Mr Bradley referred the Claimant to an occupational therapist.[34]An occupational health assessment report (the OH report) was provided to the Respondent on 8 June 2023, concluding that the Claimant was not currently fit for his role, that there were no current adjustments that would assist in his current job role and that returning to work could worsen his condition.[35]We heard evidence from Ms Roberts-Hewitt that following the OH report in June 2023, she realised that no viable alternative roles were available for the Claimant and that it was unlikely he could return to work in the foreseeable future. We heard that although the business operates out of a studio in London, there is no ‘reception’ or office-based role.[36]By an email of 20 June 2023, Mr Bradley scheduled a meeting called a ‘role evaluation meeting’ for 26 June 2023. The email explained that “At the meeting we will discuss the attached documentation [the OH report] and look to make a final decision as to whether it is reasonable to continue your employment in the current circumstances. I must unfortunately advise you that the outcome of this meeting could be the termination of your employment on the grounds of capability”[37]The Claimant suspected that he would be dismissed at this meeting and as it was scheduled for the day after his birthday, he asked for the meeting to be postponed. Although there was some confusion about the eventual date of the meeting, the Respondent’s witness Mr Bradley conceded that contrary to his witness statement, the meeting was rescheduled to either the 10th or 12th of July (it is not clear which date is correct but we do not need to make a finding of fact on that).[38]On 28 June 2023, the Respondent posted an advert on its social media accounts tagged as ‘job opportunity’ and using the phrases “Senior studio florist contracts” and “We are looking for an awesome new team member”. We heard from Ms Roberts-Hewitt that this was part of her business planning for the busy period and that she needed a permanent employee. She was aware from the OH report that the Claimant was unlikely to be able to support the business in the short term. She said in evidence that if the Claimant had recovered sufficiently, they would have been pleased to have him back, in addition to whomever was recruited. She said that she would have been happy to recruit one or more permanent florists if this was possible. We find her evidence credible in this regard.[39]During the ‘role evaluation meeting’ that took place on either the 10th or 12th of July 2023, the Claimant confirmed to Mr Bradley that he remained unfit to return and the Claimant could not identify any adjustments that would enable him to do so. It was noted that there were no notes of the meeting. While this is not ideal, we do not find that the absence of notes materially undermines the Respondent’s evidence.[40]The Claimant alleges that during this meeting Mr Bradley suggested ill‑health retirement prematurely and repeatedly, and that this amounted to unfavourable treatment arising from disability. Mr Bradley states that ill‑health retirement was raised as an option in the OH report and denies any improper motive. We find that the use of this term was unfortunate as it caused some confusion. The expression is normally used in the context of occupational pensions and appears to have been suggested in the OH report as a standard form possible option; but it was not relevant in this situation. We find that Mr Bradley used it as a shorthand for capability dismissal but the Claimant felt that he was being told that he would never be able to work again and was very distressed by this.[41]On 14 July 2023, Mr Bradley sent an email to the Claimant terminating his employment on grounds of medical capability. We heard that the decision was delegated to Mr Bradley who made it following consultation and instructions from the Respondent.[42]The Claimant was paid in lieu of notice and for accrued holiday. The Claimant did not appeal his dismissal.[43]He approached ACAS on 9 October 2023, and early conciliation concluded on 23 October 2023. On 25 November 2023 he submitted to the Tribunal a claim of unfair dismissal/disability dismissal.[44]To support his claim, the Claimant noted that a work colleague had a hip problem and was given lighter duties. We heard evidence from Ms Roberts-Hewitt that that particular colleague was able to manage her issue with painkillers and would be given small adjustments on occasion. We find that as that colleague was not disabled and was fit for work, her adjustments are not relevant to the Claimant’s position. Harassment – disability[45]Shortly after his accident, while he was still employed, the Claimant was provided with a wheelchair by the Red Cross for home use. This was sent to his home address.[46]The Claimant said that Mr Ghione, Ms Sullivan and Ms Roberts-Hewitt had been making a joke or jokes about his wheelchair use. The Claimant explained that he had heard about the mockery from Mr Shakespeare, his former line manager.[47]The Claimant’s evidence is first degree hearsay (repeating what Mr Shakespeare told him). Mr Shakespeare was not called to give evidence, nor could the Claimant provide any documentary or supporting evidence that the staff knew about his wheelchair use.[48]The Respondent denies any knowledge of the Claimant’s wheelchair use and that any such comments were made. We heard evidence from Mr Ghione and Ms Roberts-Hewitt that they were not aware that the Claimant had used a wheelchair.[49]We found the witnesses to be credible in this regard. They both agreed that such statements/mockery would have been discriminatory but were confident when pressed that they did not know that the Claimant had used a wheelchair.[50]As the Claimant was unable to produce any evidence other than his account of what he said he had been told by a third party, we found that on the balance of probabilities, meaning it was more likely than not, the Respondent’s staff did not know about the wheelchair and did not make jokes about it. Harassment Related to Sexual Orientation Hotel room mould (December 2020)[51]The Claimant and Mr Shakespeare travelled to Sheffield in December 2020. The Claimant requested a room change due to mould and he was provided with a new hotel room.[52]The Claimant said that Mr Shakespeare later described the incident as a “bitch fit” and that the next day the “whole studio” mocked him. The Respondent’s position is that no such mockery took place.[53]Ms Roberts-Hewitt recalled the incident only vaguely and denied any mockery. She denied using either “bitchfit” or “drama queen” in relation to the Claimant. She acknowledged that they could be seen as offensive and homophobic. She conceded that although she believes she would not have used those terms, she couldn’t confirm that no-one else had. She said that if she had seen anyone being homophobic, she would have stopped that as it was not behaviour she would have put up with. Ms Roberts-Hewitt could not recall in any detail the incident regarding the hotel room and seemed somewhat confused by its relevance. She stated that they try to book decent quality rooms for travelling staff and as the Claimant’s complaint had been satisfactorily dealt with she gave it no further thought and recalled no further mention of it in the studio.[54]Mr Ghione could not recall any such mockery, although we accept that he may not have been in the studio at that time. Mr Ghione said that as a gay man himself he would have found those terms offensive and would not have used them. Mr Ghione also stated that he did not recall any mockery of the Claimant as a ‘drama-queen’.[55]We are mindful that it is not essential for the Claimant to provide documentary evidence, but we have to take into account the lack of corroborative evidence such as texts, emails, complaints, or witnesses that could support his account.[56]When asked why he did not complain at the time, the Claimant said that there was “no point” raising concerns because he believed he would not be taken seriously. That explanation is consistent with his general perception of the workplace but does not assist in establishing that the alleged comments were made.[57]Memory can be affected by later events and by the process of litigation itself. Taking all the evidence into account, we consider it more likely than not that the Claimant’s recollection of the 2020 incident has become influenced by his subsequent proceedings.[58]Therefore, on the balance of probabilities we find it more likely than not that although the Claimant’s room was swapped because of mould, there was no workplace-wide mockery of it. Suffolk to London Journey (September 2021)[59]The Claimant said that following an event in Suffolk, Ms Roberts-Hewitt made him drive for a long period in severe weather (via the Claimant’s mother’s house to pick up his belongings and then to drop Ms Roberts-Hewitt off at her house) and that she called him a “drama queen” during the journey. The Claimant also said that other topics of the conversation on the way home were positive and personal, but he felt discouraged by the reference to a drama queen.[60]Ms Roberts-Hewitt recalled the journey and the weather, but denied calling the Claimant a drama queen on the journey. She said that she was happy to meet the Claimant’s mother and it was her understanding that the Claimant was happy to use the van for the drive to his home. She did not recall any negativity or difficulty during the drive, apart from the weather.[61]Both the Claimant and Ms Roberts-Hewitt’s narratives agreed on the key external features – namely the timing of the journey, the weather and the cordial conversation the pair shared. We found both to have given their evidence sincerely and to be credible in their recall of events.[62]We examined the Claimant’s account against the passage of time, the backdrop of supporting evidence, his explanation about not being aware of his legal rights and the influence of proceedings on memory. Ms Roberts-Hewitt’s account, by contrast, remained consistent and, on balance, is more likely to be reliable than not.[63]Therefore we prefer the Respondent’s version of events. Wedding Room Incident (September 2021)[64]The Claimant alleges that he raised with Ms Roberts-Hewitt his concerns about workload, fatigue, and drug use, and that Ms Robert-Hewitt dismissed these, again calling him a “drama queen.” Ms Roberts-Hewitt confirmed the incident but denied using the terms.[65]For the reasons already given (lack of corroboration, passage of time on memory, credible denials) we do not find the term was used. Time limits & claim[66]The Claimant submitted his ET1 on 25 November 2023. He claimed disability discrimination and unfair dismissal; but did not make any reference to discrimination on the basis of his sexual orientation.[67]When asked why he had not relied on sexual orientation harassment in his ET1, the Claimant said he was unaware of his legal rights. However, he accepted that he had contacted Citizens Advice in 2022 for employment related advice. His explanation for not raising it with his employer was that he wished to keep his job, and that sits uneasily with the fact that he had brought a personal injury claim against the Respondent in 2022.[68]For completeness, although the Claimant referred in evidence to discussions about light duties and paperwork, no claim for the failure to make reasonable adjustments was pleaded or pursued. The Tribunal therefore makes no findings on that issue. THE LAW Discrimination arising from disability
THE LAW
[69]Section 15 EqA 2010 provides as follows:(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[70]In Pnaiser v NHS England, Coventry City Council (UKEAT/0137/15/LA) it was held that the Tribunal has to: 70.1. Identify whether there was unfavourable treatment and if so, who carried it out. This is a factual identification exercise, and no comparator is required. 70.2. Determine the reason for the unfavourable treatment. 70.2.1. There could be more than one reason but the “something” need not be the main or sole reason; it must simply have a significant or more than trivial influence; 70.2.2. The focus needs to be on the reason in the mind of the alleged discriminator, this might require an examination of their conscious or unconscious thought processes; 70.2.3. The Tribunal must not confuse the reason (why the act occurred) with the motive (the intention behind it) as motive is irrelevant. 70.3. Determine whether that reason was "something arising" from the claimant's disability. 70.3.1. This is a factual assessment; 70.3.2. The Respondent doesn’t have to be aware of the link, just the disability itself; 70.3.3. There could also be a range of causal links not just direct or narrow ones.[71]To be proportionate, the unfavourable treatment has to be both an appropriate means of achieving the legitimate aim and a reasonably necessary means of doing so Homer v Chief Constable of West Yorkshire [2012] UKSC 15.[72]The Tribunal has to make an objective decision based on: 72.1. a fair and detailed assessment of the employer's business needs and working practices, and then 72.2. assess the proportionality of the means by balancing the reasonable needs of the business against the discriminatory effect of the employer's actions on the employee Hensman v Ministry of Defence UKEAT/0067/14.[73]The tribunal should not be assessing the fairness of the decision but undertaking a balancing exercise DWP v Boyers [2022] EAT 76. This will involve an objective balancing exercise between the reasonable needs of the respondent and the discriminatory effect on the claimant: a test established in the context of indirect discrimination in Hampson v Department of Education and Science [1989] ICR 179 CA.[74]Factors to be considered in the balancing exercise may include: 74.1. Whether a lesser measure could have achieved the employer’s legitimate aim. In Ali v Torrosian and others (t/a Bedford Hill Family Practice) EAT 0029/18 – where the EAT remitted the s.15 claim to the tribunal to reconsider proportionality in the light of its finding that a practice which dismissed a GP because he was unable to return to work full time could have accommodated part-time working. 74.2. A failure to comply with the duty to make reasonable adjustments. The Equality and Human Rights Commission’s Statutory Code of Practice on Employment para 5.21 states – “If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified.” 74.3. Cost alone cannot justify discriminatory treatment but can be considered as part of a broader context of the Respondent’s financial constraints Woodcock v Cumbria Primary Care Trust [2012] ICR 1126, CA.[75]Discrimination can be objectively justified even if the employer did not have that justification in mind at the time of the alleged discrimination ICTS (UK) Ltd v Visram UKEAT/0344/15/LA.[76]The Tribunal has to carry out its own critical evaluation; it is not asking what might fall within the band of reasonable responses of the reasonable employer (albeit, in many cases, the effect of the different tests may be the same. In addition, the Tribunal is required to make clear how it had undertaken its assessment. In such cases the critical evaluation is not merely required, it is also necessary that it be demonstrated in the ET's reasoning. Neil Gray v University of Portsmouth [2021] 6 WLUK 702. Burden of proof[77]S136 EQA 2010 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]If the Claimant can show that there was unfavourable treatment arising from their disability, then the burden shifts to the Respondent to show that this treatment was a proportionate means of achieving a legitimate aim.[79]The burden on the Claimant is not onerous, the Claimant only needs to make out a prima facie case (Pnaiser). Inferring discrimination[80]In Qureshi v Victoria University of Manchester and anor [2001] ICR 863, the Employment Appeal Tribunal stated that the function of the Tribunal is to find the primary facts from which they will be asked to draw inferences and then “look at the totality of those facts (including the respondent’s explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of” were discriminatory. Failure to call key witnesses[81]The failure by a respondent to call key decision makers as witnesses to explain their decision does not automatically give rise to an adverse inference such as to shift the burden of proof on to the respondent Efobi v Royal Mail Group Ltd [2012] UKSC 33. This is because at stage 1 the burden of proof is on the claimant. Whether or not it would be proper to draw an adverse inference depends on the context and particular circumstances.[82]At stage 2 when the burden of proof is on the respondent, a respondent who chooses not to call key decision makers will face substantial difficulty in discharging that burden Bennett V Mitac Europe Ltd [2022] IRLR 25 Hearsay[83]Evidence given by a witness that is not about what happened to, or was observed by, the witness themselves is ‘hearsay’ evidence.[84]There are different degrees of hearsay – for example, a witness’s evidence about what a claimant said to a third person, A, is first degree hearsay if A relayed that conversation to the witness. If instead it was B, who overheard the conversation between A and the claimant, and B who told the witness what was said, the witness’s evidence of that conversation is second degree hearsay.[85]In determining the weight to be given to hearsay evidence the tribunal should consider: 85.1. Why the person who directly participated in the event or conversation is not available to the tribunal; 85.2. The extent to which the evidence is credible (for example, whether it was made contemporaneously with the act in question, whether it is corroborated by the evidence of witnesses present at the hearing or by determinative documentary evidence);[86]The reliability of that evidence, for example: 86.1. what is the degree of hearsay? 86.2. is a statement given under oath? 86.3. to what extent does other evidence suggest that it accurately and authentically reports what happened? 86.4. is it a complete record of what the statement maker said on the subject, or has it been edited? 86.5. does the person in question have or did they have any motive to conceal or misrepresent matters? 86.6. how soon after the event in question did the source inform the witness of what happened?
Compensation
[87]In assessing compensation to be paid in respect of a discriminatory dismissal, the Tribunal must determine the chances that the dismissal would have occurred had the been no unlawful discrimination Abbey National PLC v Chagger [2010] EWCA Civ 1202. Harassment[88]Section 26(1) EqA 2010 provides as follows: A person(a) (A) harasses another(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.[89]Section 26(4) provides that In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—(a) the perception of B;(b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.[90]Section 26(5) provides that disability and sexual orientation are relevant protected characteristics.[91]The EHRC guidance on harassment (Sept 2024) says that unwanted conduct covers a wide range of behaviour and means essentially the same as ‘unwelcome’ or ‘uninvited’. It can include:• spoken words• written words• banter• posts or contact on social media• imagery• graffiti• physical gestures• facial expressions• mimicry• jokes or pranks• acts affecting a person’s surroundings• aggression• physical behaviour towards a person or their property[92]The Tribunal should describe the conduct and explain the relationship between the conduct and the protected characteristic in question. Although the test for “related to” in the statute is a much broader concept than causation is generally considered to be, there is still a requirement for a connection to be established. Governing Body of Windsor Clive Primary School v Forsbrook [2024] EAT 183,[93]The Claimant does not have to have told the Respondent that the conduct was unwanted. Insitu Cleaning Co v Heads [1995] IRLR 4. Although, if the Claimant genuinely is comfortable with the treatment, it cannot be unwanted either.[94]Whether ‘banter’ was unwanted will depend on the facts of the case. The Tribunal should not assume that behaviour was welcome simply because the Claimant has tolerated it for a while or joined in with "banter" Munchkins Restaurant Ltd and another v Karmazyn & Ors UKEAT/0359/09. However, there may be circumstances where potentially offensive banter might not amount to harassment, but the Tribunal should explain and justify their findings, consider everything that is relevant and not take into account anything they shouldn’t Evans v Xactly Corp Ltd UKEATPA/0129/18/LA. Time limits (relevant to the harassment claims)[95]Section123(1)(a) EqA 2010 provides that: (1) [Subject to [sections 140A and 140B],] Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. […] (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[96]By s.140B Equality Act 2010, the primary time limit is extended by Early Conciliation but only if it commences before the primary time limit has expired.[97]The Tribunal has jurisdiction to hear it if it is brought within such further period as it considers just and equitable. That is a very broad discretion and there is no definitive list of factors that must be considered by the Tribunal. The Tribunal should have regard to all the relevant circumstances, which may include factors such as: 97.1. the reason for the delay; 97.2. whether the Claimant was aware of his right to claim and/or of the time limits; 97.3. whether (s)he acted promptly when he became aware of their rights; 97.4. the conduct of the employer; 97.5. the length of the extension sought; 97.6. the extent to which the cogency of the evidence has been affected by the delay; and 97.7. the balance of prejudice[98]The burden is upon the claimant to persuade the Tribunal that it is just and equitable to extend time, and there is no presumption that the Tribunal should extend time Robertson v Bexley Community Centre (trading as Leisure Link) [2003] IRLR 434.[99]There is no need for the Tribunal to be satisfied that there was a ‘good reason’ for the delay. But if there is any explanation or apparent reason for the delay then the reason will be a relevant consideration for the Tribunal. “Factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reason for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claims while matters were fresh).” Abertawe Bro Morannwg University Local Health Board v Morgan [2018] ICR 1194).[100]The fact that the Claimant may have deferred proceedings in the tribunal while awaiting the outcome of internal grievance proceedings is only one factor to be taken into account. Apelogun-Gabriels v London Borough of Lambeth [2002] IRLR 116.[101]When considering conduct “extending over a period” Tribunals should focus on the substance of the complaints and whether the respondent was responsible for an ongoing situation or continuing state of affairs. It need not be the same discriminator nor the same cause of action. Hendricks v Commissioner for Police for the Metropolis [2003] IRLR 96[102]The overriding objective of the Employment’s Rules of Procedure, set out at Rule 3, is to enable Employment Tribunals to deal with cases “fairly and justly”.[103]Where the Tribunal has heard evidence on the merits of the underlying discrimination claim, such as at a full merits hearing, it is an error of law not to factor those merits into the balance‑of‑prejudice assessment, since the strength or weakness of the claim may materially affect where that balance lies. Rathakrishnan-v-Pizza Express [2015] UKEAT/0073/15. APPLICATION OF LAW TO THE FACTS Section 15 – Discrimination arising from disability[104]The Respondent conceded that it knew that the Claimant was disabled and that his disability-related absence was the reason for his dismissal.[105]We first find expressly that the dismissal on 14 July 2023 constituted unfavourable treatment for the purposes of s.15(1)(a).[106]We further find that the “something arising” was the Claimant’s disability-related sickness absence.[107]In accordance with s.136 EqA 2010, the Tribunal is satisfied that the Claimant has met this initial threshold: he was dismissed, the dismissal was unfavourable treatment, and the reason for dismissal was his long‑term absence, which arose from his disability. The burden therefore shifts to the Respondent to show that the treatment was justified. Did the Respondent have a legitimate aim for the dismissal?[108]The Respondent confirmed that its aim was the effective management of employees’ sickness absence and ensuring that employees on long-term sick leave are capable of returning to work. We heard evidence of the impact that the Covid lockdown had on the Respondent; the size of the employer and its over-reliance on freelance florists. We conclude that there was a genuine business need for understanding and managing the capability of its employees in such a small workforce, and that it needed certainty to plan for busy periods.[109]We conclude that the Respondent adequately demonstrated that it had a genuine business need and therefore we accept these aims as legitimate. Was the dismissal a proportionate means of achieving that aim?[110]This test is an objective test and requires us to balance the reasonable needs of the business against the discriminatory effect of the employer's actions on the employee. It requires a structured assessment of whether the dismissal was appropriate and reasonably necessary means of achieving the Respondent’s aims.[111]To assess this we weighed the following factors in a ordered manner; considering first the impact on the Claimant and then the operational needs of the Respondent. 111.1. The Claimant was a skilled florist who had suffered a serious accident while at work in September 2021. 111.2. The dismissal took place in July 2023. At the time of the dismissal he was disabled and had been unable to work for 22 months following his accident in September 2021. 111.3. The occupational health report and the Claimant’s witness evidence confirmed that he was unable to work and that there was no clear timeline indicating when he would recover sufficiently to be able to return to work. 111.4. The Respondent had kept the Claimant ‘on the books’ for 16 months after Statutory Sick Pay had stopped in the hope that he would recover sufficiently to return. We heard evidence from the Respondent that they were hopeful that the Claimant would return to work as they valued his skills in the role. We conclude that the dismissal was not rushed and that the Respondent allowed extra time for the Claimant’s recovery. 111.5. During this period of absence, the Claimant was still accruing annual holiday leave. 111.6. The Respondent was a small employer and recognised that it needed additional HR support. 111.7. At the time of the dismissal there were no apparent or suggested adjustments or alternative roles that could be put in place which would have allowed the Claimant to return to work. We do not consider that the Respondent failed to consider reasonable adjustments or alternatives as none had been suggested by the occupational health report or the Claimant. We heard that various options had been suggested by the Respondent (baubles and paperwork), but the Claimant was in too much pain. 111.8. The Claimant was in considerable pain and it was not clear how he could have commuted the long distance, even there had been an alternative role. What were the needs of both parties?[112]The Claimant was a long-serving, valued employee whose absence arose solely from a serious disability. His recovery was uncertain but not impossible. The Respondent had managed without him for 22 months and adapted its operations, suggesting further retention would not cause disproportionate hardship. Dismissal carried significant financial and emotional impact for him. We recognise that it was a serious step and a significant detriment for the Claimant.[113]The Respondent was a small company that had struggled financially and with staffing issues following the covid lockdown. It had valued the Claimant’s skills and experience and hoped for his return. It retained the Claimant for 22 months (16 months after the end of statutory sick pay) a considerable time period beyond its legal obligations. It had offered him lighter duties to the extent that its business permitted (examples of the bauble-stringing and paperwork); but the Claimant was unable to undertake these. Recognising the time elapsed and its growing concern about reliance on freelance florists the Respondent handled the matter by seeking advice from an HR consultant and obtaining an occupational health report. Could something have been done that was less discriminatory that dismissal?[114]The role of florist with the Respondent was a physically demanding job. The Claimant had been unable to take up previous offers of light work. The occupational health report did not identify any adjustments that could be made to his role. The Claimant did not appeal the dismissal with any suggested amendments or adjustments. The Respondent did not have a dedicated reception or office job that the Claimant could have been redeployed to. We therefore considered whether any lesser measure, such as further delay, amended duties, or redeployment, could realistically have achieved the Respondent’s aims. None were identified.[115]The Respondent was a small employer and it had already delayed dismissal for a considerable period. It had obtained evidence and advice that there was no obvious or clear recovery date for the Claimant. The Respondent could not maintain his employment indefinitely. We find that further delay would not have materially advanced the Respondent’s aims and would not have been a viable alternative.[116]Therefore no less discriminatory measure was identified.
Conclusions
[117]Applying the proportionality principles and weighing the relevant factors, we conclude that dismissal was appropriate and reasonably necessary to achieve the legitimate aims. The Respondent’s actions were not rushed, alternatives were considered, and the balancing exercise favours the Respondent given its size, resources, and operational needs. We are satisfied that the Respondent’s aims could not have been achieved by a less discriminatory measure.[118]Accordingly the complaint of dismissal as unfavourable treatment arising in consequence of the Claimant’s disability is not well-founded and is dismissed. Section 123 Time extension for s26 – Harassment related to disability The claim and timings[119]The Claimant did not expressly plead disability harassment in his claim, but he did make a short reference to the wheelchair incident in his supporting statement that accompanied his claim.[120]There is no accurate or even approximate time stamp for the allegation of wheelchair mockery, but it was certainly out of time as the Claimant’s ET1 was submitted out of time, even allowing for the ACAS extension.[121]It was alleged to be a single incident so there was no evidence that it was conduct extending over a period that would bring the claim in time.[122]We must therefore decide whether it would be just and equitable to allow an extension of time. In making our decision we balance the interests of and potential prejudice to the parties and also weigh them with the Tribunal’s overriding objective. We remind ourselves that the just and equitable test is broad, but that extensions are the exception rather than the rule, and he burden rests on the Claimant to show that the extensions should be granted.[123]We considered that as we had a bundle and the parties could provide evidence and cross examination within the hearing window, it was appropriate in this case to hear the evidence before making our decision. This enabled us to assess both the merits and the surrounding circumstances in determining whether an extension was justified. The merits of the claim[124]Having heard the evidence in connection with this claim we did not find that the alleged incident of mockery had taken place. Looking at that and the totality of the facts before us, we are not satisfied that the Claimant has established a prima facie case of harassment and the burden of proof did not shift to the Respondent under s136 EqA 2010. Just & Equitable: Evaluation[125]The Tribunal evaluated the balance of prejudice to both parties of extending the time limit and weighed up all the relevant factors.[126]In particular, but not limited to, we also considered: 126.1. The prejudice to the Claimant in refusing him the opportunity to pursue a claim. 126.2. The length of the delay. 126.3. The reason for the delay (the Claimant’s explanation was that he had wanted to keep his job which was at odds with his pursuit of a personal injury claim). 126.4. The failure of the Claimant to expressly plead the harassment in his ET1, although the substance of his ET1 related to disability. 126.5. The Claimant’s awareness of his rights (he had sought legal advice from Citizens Advice during his employment). 126.6. The merits of the claim. Given that the claim lacks a realistic prospect of success, which weighs strongly against extension.[127]Having considered all the relevant factors in the round, and giving appropriate weight to the merits of the claim, we have determined that it would not be just and equitable to extend time, the Tribunal has no jurisdiction and the claim is therefore dismissed. Section 123 Time extension for s26 – Harassment related to sexual orientation The Claim & timings[128]The Claimant claims that there was a continuing act of harassment and that the final act took place on or around September 2021. This was certainly out of time as the Claimant’s ET1 was dated November 2023.[129]We must therefore decide whether it would be just and equitable to allow an extension of time. In making our decision we balance the interests of and potential prejudice to the parties and also weigh them with the Tribunal’s overriding objective. We remind ourselves that the burden lies on the Claimant to justify an extension.[130]We considered that as we had a bundle and the parties could provide evidence and cross examination within the hearing window, it was appropriate in this case to hear the evidence before making our decision. This enabled us to assess the merits, which is a relevant factor in the just and equitable exercise. The merits of the claim[131]Having heard the evidence in connection with this claim we found that three alleged incidents had not taken place (the mockery regarding the hotel room mould, the reference to drama queen during the journey from Suffolk and the wedding room incident).[132]We have also considered the totality of the evidence before us and do not consider that it could justify a prima facie case of harassment on the basis of sexual harassment.[133]The Claimant therefore failed to establish a prima facie case of harassment, and the burden of proof did not shift to the Respondent. Just & Equitable: Evaluation[134]The Tribunal evaluated the balance of prejudice to both parties of extending the time limit and weigh up all the relevant factors.[135]In particular, but not limited to, we considered: 135.1. The prejudice to the Claimant in refusing him the opportunity to pursue a claim. 135.2. The length of the delay (over two years from the last alleged incident). 135.3. The reason for the delay (the Claimant’s explanation was that he had wanted to keep his job which was at odds with his pursuit of a personal injury claim). 135.4. The failure of the Claimant to expressly plead the harassment in his ET1, in particular there was no reference to his sexual orientation. 135.5. The Claimant’s awareness of his rights (he had sought advice during employment). 135.6. The merits of the claim: for the reasons given above, the claim lacks a realistic prospect of success, which weighed strongly against extension.[136]Weighing up all the relevant factors and giving appropriate weight to the merits of the claim, we have concluded that it is not just and equitable to extend the time limits, the Tribunal has no jurisdiction and the claim is therefore dismissed. Approved by: Employment Judge O’Neill 4 February 2026 Notes Judgments (apart from judgments under rule 51) and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found at www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/