Ms C JammehMr B J McCaugheyMr B Henry (instructed by counsel) for claimantMs C Urquhart (instructed by counsel) for respondentDate 13 December 2021
JUDGMENT
[1]The complaint of unfair dismissal is well founded, which means that the claimant was unfairly dismissed.[2]The claimant was disabled in accordance with section 6(1) Equality Act 2010 by reason of the condition of depression and anxiety.[3]The complaint of discrimination on grounds of disability contrary to section 15 Equality Act 2010 is well founded to the extent described within the reasons given in this judgment. This means that the complaint of disability discrimination is successful.[4]The complaint of breach of contract is well founded. This means that the complaint is successful.[5]The question of remedy will now be determined at a remedy hearing on a date to be advised.
REASONS
Conclusion
[1]The claimant was employed by the respondent from 1 November 1983 until 14 October 2019 and at the date of his dismissal was a Team Leader (Hot End).[2]He presented a claim form to the Tribunal on 19 February 2020 following a period of early conciliation from 6 January 2020 until 21 January 2020 and brought complaints of unfair dismissal, disability discrimination and breach of contract.[3]The respondent presented a response on 18 March 2020 resisting the complaints and not accepting that the claimant was disabled within the meaning of the Equality Act 2010.[4]The case was the subject of case management and considered by Employment Judge Allen at a preliminary hearing on 21 April 2020, when a list of issues was identified, the case was listed for a final hearing and case management orders made. Specific orders were made concerning the question of whether or not the claimant was disabled including the provision of an impact statement and relevant medical evidence. The relevant period for the disability for the purposes of determining the complaint of disability discrimination was recorded as being from 1 May 2019 until 12 December 2019.[5]Upon the provision of the impact statement and medical evidence by the claimant, the respondent confirmed its acceptance that he was disabled at the relevant time by reason of his long-standing radiation induced neuropathy (also known as fibrosis radiation syndrome), but not by reason of depression and/or anxiety. Accordingly, the question of disability remained in issue between the parties insofar as it related to the asserted impairments of depression and/or anxiety.[6]The hearing was originally listed for 6 days, but due to Employment Judge Johnson having to attend an unavoidable medical appointment, it was necessary for day 2 of the final hearing to be a non-sitting day, with the Members and the Judge using the time that they had available to carry out further reading of the hearing bundle. However, the Tribunal was able to read the relatively short witness statements quickly on day 1 and it was possible to start the hearing of the claimant’s evidence before lunch.
Issues
[7]Ms Urquhart did suggest that the question of disability could be dealt with as a preliminary issue given the non sitting day. However, Employment Judge Johnson determined that this would not result in a saving of time as there would be a need for additional submissions on this discrete issue and there would be the risk of evidence having to be heard twice in relation to disability and then in relation to discrimination, unfair dismissal, and breach of contract. It was noted it had not been determined in case management that this was a case suitable to have disability dealt with as a preliminary issue and under these circumstances, all issues relating to liability would be dealt with together during the 5 sitting days of the case. Issues Disability[8]Did the claimant have a disability at the relevant time, pursuant to section 6 Equality Act 2010 (‘EQA’)? The impairments relied upon are: radiation induced neuropathy; fibrosis radiation syndrome; and/or depression and/or anxiety. The relevant time is 1 May to 12 December 2019. [The respondent has already conceded that the claimant had a physical impairment which amounts to a disability of radiation induced neuropathy/fibrosis radiation syndrome during the relevant time]. The Tribunal must decide: a) Did the claimant, during the relevant time, suffer from depression and/or anxiety? b) If so, did the depression and/or anxiety have an adverse effect on his ability to carry out normal day to day activities during the relevant time? c) If so, was such effect, during the relevant time, substantial? d) If so, had such effect lasted for at least 12 months, or was it likely to last for at least 12 months, or was it likely to last for the rest of the claimant’s life? e) Did the respondent have knowledge of the claimant’s disability at the relevant time? Discrimination arising from disability (section 15 EQA)[9]Was the dismissal of the claimant unfavourable treatment?[10]Was one or more of the following ‘something arising in consequence of the claimant’s disability’: a) His sickness absence and/or incapacity to attend work; b) His attendance at the farm the claimant says it was to aid his mental health and therefore arose directly as a consequence of his mental impairment and/or because the deterioration of his mental health arose in consequence of his physical impairment); c) The respondent’s belief that the claimant was undertaking physical activity at the farm whilst off sick, and/or d) The aggregate effect of (a) to (c)?[11]Did the respondent dismiss the claimant because of any of those things?[12]Was dismissal of the claimant a proportionate means of achieving a legitimate aim? The legitimate aim relied upon by the respondent is: ‘to ensure the sickness absence procedure is adhered to in order to try to ensure employees have a reasonable period of recovery time, and to safeguard employees during this recovery time by preventing them from undertaking activities which could further exacerbate their alleged symptoms, hinder their recovery and increase their length of time off work’. Unfair dismissal
Findings of fact
[13]What was the principal reason for the claimant’s dismissal? Was it a potentially fair reason in accordance with section 98 Employment Rights Act 1996 (‘ERA’)? The respondent relies upon conduct.[14]Was the dismissal fair in all the circumstances in accordance with section 94 ERA and in accordance with equity and the substantial merits of the case? Relevant to this will be: a) Did the respondent act reasonably in treating the relevant conduct as sufficient grounds for dismissal? b) Did the respondent follow a fair process to determine whether it was reasonable to treat the relevant conduct as sufficient grounds for dismissal? c) Did the decision to dismiss fall outside the range of reasonable responses in the circumstances?[15]Did the claimant contribute to his own dismissal and, if so, to what extent?[16]If the dismissal is found to be procedurally unfair, would the claimant have been fairly dismissed had a fair procedure been followed? Wrongful dismissal[17]The claimant was dismissed without notice. Can the respondent prove that there was a repudiatory breach in order to justify dismissing the claimant? a) Is the Tribunal satisfied that the claimant committed the misconduct? b) Was the alleged misconduct sufficiently serious to amount to a repudiation? Remedy[18]If the claimant is successful in any of his claims, what, if any, remedy is he entitled to?[19]Relevant to remedy is the following issue (which will be determined at the same time as the liability issues): did the respondent unreasonably fail to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures and, if so, would it be just and equitable to increase any award and by what percentage? The claimant alleges that he was dismissed for something which differed from the matter investigated/alleged, that is, there was a change of allegation, and that is the way in which the respondent did not comply with the ACAS Code of Practice. Evidence used[20]The claimant gave witness evidence and did not call any other witnesses. His physical disability meant that he could become uncomfortable from time to time, and he was allowed regular breaks and the opportunity to stand up when he needed to do so. Additionally, regardless of whether or not his mental condition amounted to a disability, there were occasions when he found the giving of evidence emotionally stressful, and breaks were allowed in order that he could reflect and compose himself. In this respect, the Tribunal considered the relevant provisions of the Equal Treatment Bench Book and the overriding objective at Rule 2 of the Tribunal’s Rules of Procedure.[21]The respondent relied upon the witness evidence of those managers who would normally be expected to give evidence in a case of this nature. Greg Clarke who was the investigating manager in the disciplinary process which led to the claimant’s dismissal, Sam Cooke who was the disciplinary hearing manager and ‘dismissing officer, Neil Syder the appeal hearing manager and Andrea Manley who was the relevant Human Resources (‘HR’) manager.[22]An agreed hearing bundle was provided, and it comprised of a little under 300 pages. There was also a cast list provided and chronology of events, which were agreed by the parties.[23]There were also 2 covert surveillance video clips which the Tribunal was requested to view and following some initial technical difficulties, Mr Henry was able to share with those present using the share facility on the CVP platform. The Tribunal was provided with copies to watch during deliberation[24]Everybody attending the hearing did so remotely using CVP, apart from Mr McCaughey, who viewed the hearing from the Tribunal at Alexandra House, using the available large screen technology. Findings of fact Introduction[25]The respondent (‘Pilkington’) is a major UK company involved in the production of glass using highly technical processes. It employs a significant number of people in the UK. As a large company, it has access to significant in house OH and HR support together with detailed policies and procedures.[26]The claimant (‘Mr Jones’) started his employment with Pilkington as an apprentice on 1 November 1983. He completed his apprenticeship in 1986 and in 2002 became a team leader, which was the job he held until his dismissal.[27]He confirmed that he was obliged to join a trade union as was often the case in industrial workplaces in the early 1980s and became a member of the GMB. He later transferred his membership to Unite. He became a trade union official and was a steward from 1993 and was ultimately elected as branch secretary for the GMB. He acknowledged that he was well aware of Pilkington’s policies and procedures and in particular, the sickness and disciplinary policy. Disability[28]Mr Jones had undergone a high dose of radiotherapy in the 1980s because he developed Hodgkin’s Lymphoma, and this treatment fortunately enabled him to go into remission. Understandably, Mr Jones remains anxious about the illness returning, but the radiotherapy appeared to be successful and for several years the tribunal understood that he was able to live his life normally.[29]Unfortunately, in or around 2006 he began to develop a problem with his shoulder pain which was ultimately diagnosed by Dr Williamson consultant neurologist in September 2019 as being a side effect of the radiotherapy drugs used at the time of his treatment and which caused a chronic and progressive condition called radiation induced neuropathy and was also known as fibrosis radiation syndrome. He identified a loss of muscle in his right shoulder area (his dominant arm was his right) and was of the view that Mr Jones would not be able to recover the damage already sustained and management was all that could be done.[30]In terms of symptoms, this condition resulted in a weakness in his right arm and extreme sensitivity which meant he could suffer pain from the ‘slightest touches’. This condition was degenerative, and long term in nature. He was awarded a Personal Independence Payment (‘PIP’ payment) by DWP in 2019 which presumably related to his impaired function. The respondent accepts this physical condition was a disability at the material times within the meaning of s6 EQA.[31]From September 2018, there was clear evidence that Mr Jones was suffering from mental health issues which he said arose from the uncertainty of his physical disability and associated pain. He saw his GP on 24 October 2018, and he was referred to ‘Mind Matters’, whom the Tribunal understand to be a therapeutic service which is part of Lancashire Care NHS Foundation Trust. Inevitably, as is often the case with mental health referrals, there was a wating list and Mr Jones was not seen until January 2019. He was asked to complete a questionnaire relating to depression and anxiety at this appointment. The scores from the questionnaires produced an outcome which indicated that depression was ‘severe’ and anxiety was ‘moderate to severe’.[32]He then received several CBT sessions, which the Tribunal understood to involve 6 sessions interrupted by a holiday to Australia followed by a further 2 sessions. He then completed the same questionnaires at the end of this treatment and in a letter dated 3 April 2019, Mind Matters indicated that both the depression and anxiety scores had dropped to a normal level with no depressive or anxiety symptoms being identified. Mr Jones attributed this improvement to his holiday to Australia which would have no doubt provided him with a welcome distraction, especially as he was on long term sickness absence at this point.[33]He remained asymptomatic until he learned of the disciplinary investigation into his activities while on sick leave. He was first notified of this investigation by Pilkington HR’s letter dated 23 July 2019 and by 2 August 2019, he had been invited by Mind Matters to an appointment on 7 August 2019. This telephone assessment then recommended that Mr Jones be referred to a Psychological Wellbeing Practitioner. The Tribunal did not hear any further evidence regarding this process, and it does not appear that any further questionnaires were completed with subsequent treatment taking place. However, it did note that a letter was provided to Mr Jones by Minds Matter on 9 August 2019, which described his ‘negative thought patterns’ and they mentioned recommending ‘increasing activity levels to improve mood. One activity which was discussed and encouraged was your involvement with a community farm, as this appeared to help with feelings of isolation due to the social contacts that you have made there’.[34]On 9 September 2019, he was referred to adult mental health services by his GP Dr Shaikh, but it was rejected because of his pre-existing referral to Mind Matters.[35]A letter was sent by Dr Shaikh to Pilkington’s on 13 September 2019 which stated ‘[o]f recent he has struggled with anxiety and depressive symptoms; he attends for regular reviews with his wife. He has been trialling different anti-depressants to help with his affective symptoms’. Dr Sheikh asked that ‘empathy and support can be shown towards his recent request’. Although it was not clear from the documents what this request was, the Tribunal understands that this statement was made in response to the ongoing disciplinary process and was suggesting to Pilkington’s that they should take account of Mr Jones’ mental health issues.[36]His consultant oncologist Dr Thorp wrote to Mr Jones’ GP on 27 September 2019 primarily discussing the physical condition, but also stating that the condition had: ’a significant impact on his ability to continue with his usual employment which is a manual job for Pilkington’s and this has had a knock on effect on his mental state resulting [in] anxiety and depression and also his financial situation’. She added that: ‘he genuinely is unable to continue in his manual post but unfortunately, he is even less fit for employment because of his overlay of his anxiety. She concluded by making the following observation: ‘…his main issue is with his employer. I am hopeful that there is a satisfactory resolution to the situation in the near future as I am concerned for Alan’s [Mr Jones’] ongoing mental health’.[37]Finally, the Tribunal was taken to a letter from Dr Tsang of the Department of Pain Medicine at Broadgreen Hospital on 20 November 2019 which included in the diagnosis section a reference to depression and although it was not discussed in the body of the letter, it was clearly identified as a continuing factor as part of Mr Jones’ overall health.[38]The Tribunal appreciates that while mental health is something that arose as a result of the long term physical health issues that he had, they nonetheless had the capacity to impact significantly upon his day-to-day life. They were intermittent and could be ameliorated by support from Mind Matters, although distraction seemed to be a significant factor as was the case with the holiday to Australia. But nonetheless he remained vulnerable to relapses whether in relation to his physical symptoms or external events such as the disciplinary process. Light duties[39]As a result of his physical symptoms, Mr Jones was moved to light duties from 22 January 2018 and he continued with these until November 2018, when he went off sick. The Tribunal was not provided with any contemporaneous documentation relating to this move and it was only referenced in the disciplinary hearing notes and was discussed during the disciplinary hearing[40]Mr Jones said that his role became ‘predominantly’ sitting and he referred to an occasion where due to staffing absences, he had to step in as team leader and carry out the more physically demanding work carried out by team members.[41]Mr Cooke described Mr Jones’ role at the time of his absence as being ‘one of our most sedentary roles’.[42]The Tribunal understood that these light duties remained in place while Mr Jones was on long term sick leave and that once declared fit to return to work, he could continue to work on this basis. However, as will be discussed below, this adjustment was overtaken by events concerning his pain management. Sickness policy and Mr Jones’s sickness absence[43]The Tribunal recognised that Pilkington’s had a particularly generous sickness absence policy which provided for extensive periods of paid sickness absence – 56 weeks in the case of Mr Jones, due to his length of service.[44]The Tribunal recognises that as an experienced employee, Mr Jones was well aware of these procedures and how they operated.[45]Sick leave was managed under the Sickness Procedure and the Tribunal heard evidence from Ms Manley with regards to its application. The version in use at the time of Mr Jones’ disciplinary process was Version No: 2 created on 1 June 2003. Section 4.3 dealt with regular sick review meetings and reference to the designated medical advisor after 3 months continuous absence.[46]A particularly relevant section in this procedure related to section 4.4: ‘Employee Conduct Whilst Absent During any period of absence a major objective will be a speedy return to fitness and work. Therefore, employees will be required to conform to the following guidelines:-a. Not to participate in any sports, hobbies or social activities that are in any way inconsistent with, or could aggravate the illness or injury, which could delay recovery.b. Not to undertake any other employment, whether paid or unpaid.c. Not to engage in any work around the home in terms of home improvements which could aggravate their illness or injury.d. Not to engage in any activity which is inconsistent with the nature of the illness or injury.’ The Tribunal notes that these activities were described within the section as being ‘guidelines to reduce the possibility of difficulties or embarrassing situations arising’. But nonetheless it went onto say ‘[b]y not following these guidelines employees may make themselves liable to disciplinary action’. The Tribunal accepts that if the relevant parts of section 4.4 were triggered, they could result in the involvement of the disciplinary procedure.[47]The Sickness Policy was also relevant and in respect of section 4.3 (f) Abuse. Which provided the following: ‘Abuse Entitlement to Company Benefit may cease if the employee behaves in a way, which, in the opinion of a designated Medical Adviser, may hinder recovery or if they refuse suitable employment. Abuse of the scheme may lead to disciplinary action and restrictions on the benefits available.’ There was considerable discussion during the hearing of witness evidence as to the meaning of this section and in particular, the respondent’s witnesses (apart from Mr Syder), expressed a belief that the question of involving the designated medical advisor was a matter for discretion. However, the Tribunal disagrees and finds that the section should be read as whole. It clearly indicates that inappropriate behaviour while sick (which we understand to be regulated by section 4.4 of the sickness procedure), required the involvement of the designated medical advisor in order that the question of abuse could be considered. If having referred the matter to the advisor, it was felt that abuse had taken place, management could then consider whether or not they should restrict benefits or in addition, commence disciplinary action. The Tribunal finds it was perhaps understandable that the respondent adopted the approach of not seeking a medical opinion because it initially thought it was looking into the question of secondary employment (being 4.4. (b)) rather than (a), (c) and (d)), which did appear to a question of fact rather than medical opinion. However, once an investigation moved into areas involving issues relating to (a), (c) or (d), the involvement of medical opinion was clearly necessary as it involved an assessment of a medical nature.[48]The third relevant policy or procedure was the disciplinary agreement which was a procedure that applied to all employees in ‘Float Manufacturing’, which was where Mr Jones worked.[49]A section which was of particular relevance included the reference to gross misconduct at 2(i)(a) which included conduct ‘serious enough to destroy the employment contract between employer and employee and make any further working relationship and trust impossible’.[50]The Tribunal also noted the procedure to be followed in relation to the investigatory stage and the need to ensure that evidence from witnesses should be obtained ‘quickly before recollection fades’.[51]Mr Jones began a period of sick leave on 5 November 2018 due to right shoulder pain. Fit notes were provided at regular intervals and the condition keeping him off work was identified with reference to shoulder symptoms/pain with reference to hospital review. He was subject to ill health review meetings on 3 December 2018, 1 February 2019, 8 April 2019, 23 May 2019 and then 30 July 2019, (which was same day as the investigatory meeting). Apart from the final meeting, these meetings were conducted by HR manager Jenny Liston and Mr Cooke. Ms Liston completed an email following each meeting and copied in Pam Cooper in OH. But it was noticeable that Mr Jones was not provided with a copy or note of what had happened.[52]Mr Jones was referred to OH and Group Medical Advisor Dr Shackleton on 7 February 2019. He produced a short email rather than a report or letter and focused upon pain and loss of function in Mr Jones’ right arm. He said: ‘[t]his is very disabling and he is not currently fit for any work’. He went on to say: ‘[o]n balance I think the problem will remain or get worse and it will permanently prevent him returning to manual work’. A return to work was considered possible once he was able to manage/control pain better, but even then, he would only be fit enough for a non-manual role. The Tribunal acknowledges that the respondents would have concluded that Mr Jones had a significant reduction in physical function at this point in time. The farm and Surveillance[53]At some time during March 2019, management received information from an unnamed employee who reported seeing Mr Jones in a local cycle shop wearing work boots, which were understood by the Tribunal to be the heavy-duty tan-coloured boots used in manual work settings. Management became concerned that Mr Jones might be involved in secondary employment contrary to section 4.4 (b) of the sickness procedure described above and decided it required investigation.[54]The Tribunal heard no evidence of any discussions taking place between management concerning the least intrusive ways of investigating this matter. They decided to instruct a surveillance company with the somewhat hubristic title of ‘Mike India 5 agents’ to look into Mr Jones activities. There was a discussion between Emma Neil of HR and Mr Syder concerning the instruction of this company, whose activities were charged at a daily rate of £950. A Surveillance Process Form was referred to in the bundle, which instructed surveillance on 8 May and 10 May 2019. The form was signed by Ms Manley on 6 May 2019 and in addition to her, Ms Neal, Mr Syder and Mr Cooke were identified as having knowledge of the instructions. As it turned out the Tribunal understood that there were four days of surveillance, although one tape was lost, and another was very short. In terms of the investigation, only the two days surveillance on 8 and 10 May 2019 were used by Pilkington’s in their deliberations.[55]The Tribunal acknowledges that in terms of cost, the outlay for these investigators was believed to be proportionate when taking into account the generous sick pay being received by Mr Jones. However, it appears that little consideration was given concerning the proportionality of the investigation and the extent to which Mr Jones’ privacy should be interfered with. As it turned out, the surveillance company appeared to go way beyond what Pilkington’s expected, investigating Mr Jones’ property ownership and credit referencing. While it is acknowledged that as a private company, Pilkington’s were not subject to the provisions of the Regulation of Investigatory Powers Act 1996 (commonly known as ‘RIPA’), the Tribunal does find it surprising that a more nuanced and measured approach was not considered when commencing this investigation. After all, this sort of activity does involve interference with human rights and an individual’s reasonable expectation of privacy. An employer should naturally carry out these activities in a limited, necessary and proprotioante way. However, the Tribunal accepts Ms Manley’s evidence that the use of covert surveillance was rarely used and acknowledges Mr Syder’s evidence that the company would take steps to ensure that the instruction of these businesses would be carried out more carefully in future.
Law
[56]The Tribunal watched the two days of surveillance relied upon, on a number of occasions. What was noticeable about their content, was how unremarkable they were. Effectively, there was footage of Mr Jones sharing a transit van belonging to Cronton Farm and where he accompanied (‘chaperoned’ to use his words), his friend the farmer and the farmer’s son on a delivery of produce such as potatoes to nearby houses in Knowsley and St Helens on 8 May 2019 and 10 May 2019. It was understood that Mr Jones was picked up en route and at its highest, the physical effort that the Tribunal could see was his handling of a small plastic bag in which appeared to be placed a normal retail sized bag of potatoes. The actual deliveries appeared to be carried out by the farmer or his son. On 8 May 2019, there was also footage of Mr Jones and the farmer in a greenhouse in the farm. The tribunal accepts Mr Jones’ evidence that he was holding the tap open with his right arm outreached for a few minutes while the farmer watered flowers which were apparently being grown for use at Mr Jones’ daughter’s wedding. While his statement referred to him using a hose, he appeared to simply pass the hose to the farmer. The Tribunal did not see it as a particularly physical activity.[57]Nonetheless, management felt concerned that taking into account the available OH evidence, his light duties pre sickness and the contents of the surveillance, an investigatory meeting was appropriate to consider his activities and whether they amounted to a breach of the sickness procedure. Investigation meeting[58]Linda Zocek from Pilkington’s HR sent a letter on 23 July 2019 to Mr Jones inviting him to meeting on 30 July 2019 to ‘discuss reasonable belief that you have undertaken secondary employment during sickness absence, whilst in receipt of Occupational and Statutory sick pay.’ The letter was short and explained that the meeting was a ‘fact-finding exercise’ that no decision would be taken as to whether the formal disciplinary procedure should be started until the investigation is concluded. Mr Jones was reminded that he could have a trade union representative present. The reason given for the meeting bore close resemblance to the wording of 4.4(b) of the Sickness Procedure and following the receipt of the surveillance, this was clearly what was in the mind of management when deciding to commence the investigation. There was no suggestion that they were concerned Mr Jones was doing things inconsistent with his injury contrary to the wording of 4.4(a), (c) or (d) at this stage and it is reasonable to conclude that Mr Jones would have expected questioning to be about whether or not he had taken another job during sick leave. There was no reference to the surveillance within this letter.[59]The investigatory interview with Greg Clarke took place on 30 July 2019. Mr Jones, his trade union representative Danny Cheetham and Jenny Liston from HR were in attendance.[60]The meeting first of all took the form of a review of Mr Jones’ health. Effectively, the Tribunal noted that this was a sickness absence review and a disciplinary investigation were being dealt with at the same meeting, albeit consecutively. Importantly, it was not made clear to Mr Jones that this was what was going to happen and the failure to separate these two matters, could easily leave a perception that the health review, was being used as a means to find information that contradicted evidence given in the investigation, especially as the details of the surveillance had not been disclosed to Mr Jones or his union representative at this stage. Regardless of whether that was the intention of management, the Tribunal finds this to be poor practice by an employer.[61]The Tribunal also noted that this investigation took place some months after the surveillance had taken place and Pilkington’s explained that Ms Manley was unwell, hence the delay. While this might be the case, it does seem surprising that a company the size of Pilkington’s’ could not continue with this matter in her absence with her colleagues taking over. This would be especially the case, taking into account the discipline agreement at 2.2 which stated the importance of obtaining evidence quickly before recollection fades.[62]In terms of his present health, Mr Jones said to Mr Clarke that he ‘Continued to have good days and bad days, but not getting any better’. He acknowledged that he could still lift things, but knew his condition meant that he shouldn’t. It very much appeared that Mr Jones’ health was in process of being understood by his doctors and indeed himself and he was coming to terms with his physical limitations: he was starting to receive pain management.[63]The meeting then moved to the investigatory part of the meeting. Mr Clarke questioned Mr Jones about whether he was doing anything that could be part- or full-time work, paid or unpaid and he said no, he had not. He was then asked about any activity that could be deemed as work and again Mr Jones said no. Mr Clarke then explained that he was asking these questions because Mr Jones had been seen wearing safety boots. Mr Jones acknowledged that he had been wearing safety boots because he was expected to wear them when attending his friend’s farm Almond Brothers, Cronton. He said that he was a long term friend and had been helping out for five years or more.[64]Mr Jones said that he had been encouraged to continue going by his mental health advisors ‘Mind Matters’, because it would be to his benefit of ‘social inclusion’. While the Tribunal is not sure that this was the correct terminology to use, it understood this to mean that as a man with a physical impairment which restricted his function and who was spending a lot of time at home, it was to his benefit to go out and socialise with others so as not to become isolated and dwelling upon his health issues. Mr Clarke was told that he would attend to 2 to 3 times a week but had not been for last 2 to 3 months due to personal reasons. He added that his friend the farmer, would stop him doing strenuous things.[65]Ms Liston did suggest to Mr Jones that he had not mentioned the attendance at the farm during previous sickness review meetings and noted that he would not be allowed to undertake any physical activity which was detrimental to his health. This was the first time during the investigation that a suggestion was made that management’s concerns went beyond the question of secondary employment. She also mentioned that Mr Jones had asked to volunteer to work at the office based Honeyrose Foundation while off sick, so she implied that it was surprising that the farm had not been mentioned. Despite Mr Jones’ suggestion that he had mentioned the farm previously, there was no documentary evidence that he had done so from the welfare meeting emails in the bundle. But importantly, the Tribunal noted that management held a belief that there were too many contradictions between their perception of Mr Jones’ health while off sick and what they saw on the surveillance.[66]Mr Clarke produced a note of the meeting and added some additional comments provided by Mr Cheetham following a WhatsApp message. He explained that the farmer was a friend from pre diagnosis of his shoulder injury, he continued to see him for social inclusion and as a hobby, and gave assurance no work was being carried out likely to hinder his return to work and if anything, suggested that it helped with his rehabilitation and return to work.
Discussion
[67]Mr Clarke gave his evidence in a very reasonable way and was willing to make concessions or acknowledge occasions where upon reflection, he would have done things differently. However, the Tribunal believes that an early mistake in this process was to focus heavily upon his perception of Mr Jones being seen wearing work boots and his attending a farm – being a workplace as well as his friend’s residence while being off work sick. Given that Mr Clarke quite reasonably approached the investigation meeting as a fact-finding exercise, it is unfortunate that he did not appear to explore Mr Jones’ alternative explanation as to what he was doing while on sick leave and to look into the health-related issues which were identified. The difficulty was that Mr Jones was not shown the surveillance evidence and had this happened, it may well have been possible to get a clearer picture of what he was doing as was shown on the surveillance pictures and in any event, he should have been shown these films so he could understand why he was subject to management concerns that he was working while off sick. Disciplinary process and dismissal[68]In any event, Mr Clarke felt that there was sufficient concern to justify this case being referred to a disciplinary hearing under the disciplinary process.[69]Mr Jones was invited to disciplinary hearing by letter dated 16 August 2019. The reason given remained ‘to consider disciplinary action in accordance with the disciplinary procedure in relation to allegations of reasonable belief you have undertaken secondary employment during sickness absence, whilst in receipt of occupational and statutory sick pay’. He was reminded that this conduct was being treated as a disciplinary matter and could result in his dismissal.[70]The original August 2019 meeting date was amended to 12 September 2019 at Mr Jones’ request. But before the meeting took place, Mr Jones and his union representative expressed concern about the stills of the covert surveillance which were contained within the investigation pack. It was not clear when the pack was received by them from management, but it did not appear to have been sent with the invitation letters to the disciplinary meetings.[71]The hearing was adjourned to 26 September 2019. In addition to the hearing officer Mr Cooke and Mr Jones, Ms Manley was present as HR Manager and note taker and unusually, Mr Jones was supported by two union representatives, with Paul Hatton representing him and Mark Arnold taking notes. Management’s note of the meeting provided a clear heading that the issue to be considered was whether Mr Jones was engaged in secondary employment while sick.[72]The Tribunal noted that during the questioning, Mr Jones was less than helpful, diverting questions and not answering them directly. However, he did mention his sessions with Mind Matters and the benefit of attending the farm for ‘social inclusion’. Mr Cooke acknowledged the importance of mental wellbeing but was recorded as saying that he was off work with a physical impairment. The meeting appeared to be quite ill tempered on 26 September 2019 and the Tribunal believes that this was not assisted by the late disclosure of the video stills and had the actual videos themselves had been shown at this stage, this would have assisted the smoother running of the hearing. Mr Hatton requested an adjournment to consider procedure. The meeting was adjourned to 2 October 2019.[73]Ms Manley opened the meeting on 2 October 2019 with a reminder that the purpose of the meeting was to establish whether Mr Jones was working whilst off sick. However, the questioning began to move from the issue of secondary employment and instead, focused upon whether Mr Jones was carrying out physical activity? contrary to what medical evidence suggested. No variation of the issues, however, took place at this stage. It is understood that Dr Shackleton’s OH report of 8 August 2019 was available to those present at the hearing, which gave a pessimistic view as to when a return to work could take place. The illtempered feeling of the meeting was apparent, little active listening appeared to be taking place and Mr Hatton and Mr Jones were countering questions with reference to mental health, vague suggestions of bullying and ill health retirement. The Tribunal noted that Mr Cooke gave evidence to say this was his first disciplinary hearing where he had to consider dismissal. The outcome was inconclusive and again the meeting had to be adjourned as Mr Jones had to take medication.[74]The meeting resumed on 9 October 2019, and it began with Mr Jones confirming that he would give consent for OH to disclose his records to management. Mr Hatton requested sight of the surveillance video footage and Ms Manley said she would need to speak with Pilkington’s legal advisors. Consequently, a further adjournment was required, although she stressed that Mr Cooke would need to give a decision at the next meeting. Given that Mr Cooke was the appointed hearing manager and decision maker, the Tribunal did feel that these comments by Ms Manley would have placed Mr Cooke under some pressure to reach a decision quickly.[75]The meeting resumed on 14 October 2019. Surprisingly, the OH records had not been obtained and there appeared to be confusion as to what Mr Jones should have done. However, Ms Manley did not appear to resolve this matter at the meeting. She also said that the Legal advice she had obtained was that HR did not need to show the video because the photographs had been disclosed and it was management’s choice whether to do so. It is therefore surprising to the Tribunal, that if this was the case, why the videos were simply not disclosed by management before the resumed hearing. It was clear that their continued unavailability was an issue for Mr Jones and his union representatives. Instead, Ms Manley expressed concern about the number of adjournments, that disclosure of the footage would add further delay and, once again, she stressed that Mr Cooke had to deliver his decision at the hearing today. This matter continued to be a source of dispute as the hearing progressed and eventually, Ms Manley relented and allowed the videos to be disclosed. She added however, that the viewing ‘cannot detract from the purpose of today. We are here for Sam [Cooke] to give a summary and deliver an outcome to the meeting. The decision will be delivered today, irrespective of time.’ We felt that regardless of whether or not Mr Cooke decided this case without any influence from Ms Manley, the way in which the notes described her interventions, made it difficult for the Tribunal to accept his decision was truly independent.[76]Following the viewing of the surveillance videos, Mr Hatton asked Mr Cooke whether he accepted that Mr Jones had not carried out paid employment. Mr Cooke then said that ‘[t]he core issue is that he’s undertaken physical activity elsewhere when he could have come into his place of work and carried out his role’. While Mr Cooke did not appear to appreciate this at the time, he had moved the issue under consideration in the disciplinary from 4.4 (b) to 4.4 (d) of the sickness procedure In his evidence, Mr Cooke said that he believed in terms of (b) and (d) there were, ‘connections between the two’. However, this view was not expressed in the hearing notes and the Tribunal believes this evidence was given with the benefit of hindsight and does not accept that he appreciated the potential implications of this changed issue at the time.[77]Had he done so, the Tribunal finds that either Mr Cooke would have considered whether to adjourn the hearing to allow a review of the issues under consideration and to allow Mr Jones and his union representatives to consider how they wished to present their case. All of the individuals present at this meeting should have been aware of the relevant elements of the sickness procedure, but it appears that Mr Cooke did not recognise management’s new position and Ms Manley either failed to appreciate it too or was by this stage so focused upon reaching a conclusion that she was unwilling to countenance further delays.[78]The remaining discussions during the disciplinary hearing appeared from the notes to be repetitive and inconclusive and dealt with the conflicts between management and Mr Jones, rather than producing any clarity as to Mr Jones’ health and what he could do or could not do. In summary, neither side appeared to be listening to the other’s arguments.[79]Eventually, Ms Manley called a halt to the meeting at 4.20pm and no objection was recorded from Mr Jones or the union. Management retired so that Mr Cooke could consider his decision and they returned 15 minutes later at 4:35pm. Mr Cooke was then recorded in the hearing note as providing a full decision (as opposed to a summary decision) and which he concluded by saying that: ‘I have established to my reasonable satisfaction that you have undertaken physical activity whilst helping at your friends farm. You may not have received payment whilst at the farm, but I am confident that you have undertaken physical activity during your sickness absence whilst being paid both occupation and statutory sick pay, when you deemed that you were not capable of attending work’.[80]It was a lengthy oral decision, and it is doubtful that it could have been prepared and concluded within the limited time available during the 15- minute adjournment given Mr Cooke’s limited experience of disciplinary hearings involving dismissal. But additionally, he incorrectly decided that Mr Jones’ desire to return to work was motivated by the investigation and during the Tribunal hearing acknowledged that this was contrary to what Mr Jones had said during the earlier sickness reviews at which Mr Cooke had been present[81]He also concluded that Mr Jones’: ‘personal conduct during your sickness absence contravenes the sickness policy and irreparably damages the employment contract between yourself and company. This makes any future working relationship and trust questionable.’ He clearly described circumstances where he believed gross misconduct had taken place. He acknowledged that he had considered mitigating circumstances to justify a lesser sanction than dismissal but said he could not find any. He confirmed in his evidence to the Tribunal that he took into account Mr Jones’ unblemished record and length of service and considered whether a final written warning could be imposed, but he said that he felt Mr Jones had been too evasive during the process to warrant this leniency. This apparently was all done within a 15-minute conversation with Ms Manley, the timing of which was indicated by the hearing note, and which was not disputed by these witnesses during their evidence.[82]Reference was made to a right of appeal within 7 days of the decision being given. A letter was sent from Mr Cooke to Mr Jones on 15 October 2019 confirming the decision at the disciplinary hearing. It was signed by Ms Manley without the customary ‘pp’ being inserted. Mr Cooke said it had been drafted by him (but with her consultation), and it simply summarised his oral decision given at the hearing and provided no further details. Appeal[83]Mr Jones raised an appeal by letter on 21 October 2019 and the case was allocated to Mr Syder as appeal hearing manager. The letter raised a number of issues, but importantly he noted that the original allegation of ‘secondary employment’ had been changed during the progression of the hearing to ‘undertaking physical activities’. While he did not request that the appeal should take the form of a rehearing, the notice given in the letter that a change of issues had taken place, should have suggested to management that this would be an appropriate step to take in this case. This did not happen however, and instead, he was invited to a meeting on 19 November 2019 with Mr Syder.[84]At the appeal hearing, Mr Syder was supported by Ms Neil and Mr Jones was supported by his union representative Pat Coyne. There was a discussion with Mr Jones and Mr Coyne about the appeal being brought and Mr Syder sought to identify the relevant issues which he was being asked to consider.[85]Mr Syder retired to consider the appeal and his decision letter was produced on 12 December 2019. He said that 3 issues for the appeal had been identified, although the first issue effectively included two grounds: Issue 1 – this was that management’s actions had been discriminatory because of Mr Jones’ disability and that the company had built a case against him using entrapment. Mr Syder gave evidence that he looked at the question of disability in terms of reasonable adjustments provided to Mr Jones such as light duties and getting back to work, rather than a consideration as to whether the disciplinary process had been discriminatory. In terms of the question of entrapment, he disputed that this was the case without explaining in any detail why he reached that decision. Issue 2 – was that Mr Jones felt Pilkington’s had not adequately dealt with the issue of complaint of bullying by another employee. Mr Syder felt that no details had been provided of the incident, despite Mr Jones having mentioned this matter to Mr Syder and Mr Cooke prior to going off sick. He said very little information was given about this matter at the appeal hearing and he invited Mr Jones to provide him with further information by 20 December 2019, failing which this issue could not form part of the appeal. The Tribunal understands that this further information was not provided by Mr Jones. Issue 3 – was that the company should not have dismissed Mr Jones for undertaking physical activity while on paid sick leave as this was unfair. We accept Mr Syder’s evidence that he had not seen the surveillance video footage until the appeal, despite knowing of the original instruction of the surveillance company ‘Mike India 5’. He did view them as part of the appeal and concluded that the footage did show activities taking place which were contrary to the physical restrictions which he believed Mr Jones had told the company were preventing him from returning to work.
Conclusion
[86]He did not mention anything in his decision letter about the change of issue during the disciplinary hearing and the appeal hearing notes do not indicate that he raised this as a matter with Mr Jones. This was despite it being mentioned in the notice of appeal letter which Mr Jones had provided. In any event he dismissed the appeal and explained that his decision was final.[87]Mr Syder confirmed in evidence that he had not read the sickness policy prior to the appeal, although said that he was aware of the policy. However, during his consideration of the appeal, he appeared to focus upon the disciplinary action under the disciplinary agreement and did not consider sections 4.4 (a) to (d) of the sickness procedure and their different types of behaviour. Similarly, he did not appear to consider 4.3(f) under the sickness policy relating to abuse of the company sickness scheme. Consequently, he failed to understand how they interacted, the differences between the behaviours described in 4.4 and the effect this had on the change of issues during the disciplinary hearings and also the question of whether a medical opinion should have been sought under 4.3(f) of the policy in relation to alleged abuse. The law Disability (section 6 EQA)[88]Section 6 of the Equality Act 2010 provides that a person has a disability if he has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out day-today activities. Section 212 provides that ‘substantial’ means ‘more than minor or trivial’. Schedule 1 of the Act provides that the effect of an impairment is long-term if it has lasted for at least 12 months, it is likely to last for at least 12 months, or it is likely to last for the rest of the life of the person affected. An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if measures are being taken to correct it and but for that it would be likely to have that effect.[89]Ms Urquhart also referred to Schedule 1 in her final submissions and reminded the Tribunal that the burden of proof is on the claimant to satisfy the Tribunal that he has met the test in section 6 EQA.[90]Ms Urquhart referred in her submissions to the Secretary of State’s Guidance on the Definition of Disability 2011 and in particular section C6 concerning the recurrence of fluctuating events and the example provided within that section. Mr Henry also referred to this guidance in his submissions. Discrimination arising from a disability (section 15 EQA)[91]Section 15 of the Equality Act 2010 provides that a person(a) (A) discriminates against a disabled person(b) (B) if A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. However, this kind of discrimination will not be established if A shows that he did not know, and could not reasonably have been expected to know, that B had the disability.[92]In City of York Council v Grosset 2018 ICR 1492 the Court of Appeal held that where an employer dismisses a disabled employee for misconduct caused by his or her disability, the dismissal can amount to unfavourable treatment under S.15, even if the employer did not know that the disability caused the misconduct. The causal link between the ‘something’ and the unfavourable treatment is an objective matter that does not depend on the employer’s knowledge. The Scottish EAT in Sheikholeslami v University of Edinburgh 2018 IRLR 1090 clarified the S.15 causation test. It held that an employment tribunal had erred in rejecting a S.15 claim on the basis that the reason for the claimant’s dismissal – her refusal to return to her existing role – was not ‘caused by’ her disability. The test is whether the reason arises ‘in consequence of’ the disability, which entails a looser connection than strict causation and may involve more than one link in a chain.[93]Unfavourable treatment will not be unlawful under S.15 if it is objectively justified. In Awan v ICTS UK Ltd EAT 0087/18 the EAT overturned an employment tribunal’s decision that the dismissal of a disabled employee on the ground of incapacity during a time when he was entitled to benefits under the employer’s long-term disability plan was a proportionate means of achieving the legitimate aim of ensuring that employees attend work. The tribunal had wrongly rejected the employee’s argument that an implied contractual term prevented his dismissal on the ground of incapacity while he was entitled to such benefits.[94]Ms Urquhart referred to the case of Pnaiser v NHS England and Coventry City Council [2016] IRLR and the correct approach set out by Simler J, to be adopted by Tribunals when determining section 15 claims. In particular, she referred to the question of whether the links in the chain of causation where too numerous to show a connection if Mr Jones was not considered by the Tribunal to be disabled by reason of his mental health and that he was attending the farm to support his mental health because of the distress caused by the physical disability. Mr Henry noted to the Tribunal that Pnaiser had been followed by the Court of Appeal decision in Grosset as referred to above and the Tribunal should note this higher court decision. Unfair dismissal (ERA)[95]Under section 98(1) of the Employment Rights Act 1996, it is for the employer to show the reason for the dismissal (or if more than one the principal reason) and that it is either a reason falling within section 98(2) or for some other substantial reason of a kind such as to justify the dismissal of the employee holding the position he held. A reason relating to conduct is a potentially fair reason falling within section 98(2).[96]The reason for the dismissal is the set of facts or the beliefs held by the employee which caused the employer to dismiss the employee. In determining the reason for the dismissal, the Tribunal may only take account of those facts or beliefs that were known to the employer at the time of the dismissal; see W Devis and Sons Ltd v Atkins 1977 ICR 662.[97]Under section 98(4) of the Employment Rights Act 1996, where the employer has shown the reason for the dismissal and that it is a potentially fair reason, the determination of the question whether the dismissal was fair or unfair depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and must be determined in accordance with equity and substantial merits of the case.[98]When determining the fairness of conduct dismissals, according to the Employment Appeal Tribunal in British Home Stores v Burchell 1980 ICR 303, as explained in Sheffield Health & Social Care NHS Foundation Trust v Crabtree [2009] UKEAT 0331, the Tribunal must consider a threefold test:a. The employer must show that he believed the employee was guilty of misconduct;b. The Tribunal must be satisfied that he had in his mind reasonable grounds upon which to sustain that belief; andc. The Tribunal must be satisfied that at the stage at which the employer formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable in the circumstances.[99]The requirement for procedural fairness is an integral part of the fairness test under section 98(4) of the Employment Rights Act 1996. When determining the question of reasonableness, the Tribunal will have regard to the ACAS Code of Practice of 2015 on Disciplinary and Grievance Procedures. That Code sets out the basic requirements of fairness that will be applicable in most cases; it is intended to provide the standard of reasonable behaviour in most cases. Under section 207 of the Trade Union & Labour Relations (Consolidation) Act 1992, in any proceedings before an Employment Tribunal any Code of Practice issued by ACAS shall be admissible in evidence and any provision of the Code which appears to the Tribunal to be relevant to any question arising in the proceedings shall be taken into account in determining that question.[100]It is not for the Tribunal to substitute its own decision as to the reasonableness of the investigation. In Sainsburys Supermarkets v Hitt [2003] IRLR 23 the Court of Appeal ruled that the relevant question is whether the investigation fell within the range of reasonable responses that a reasonable employer might have adopted.[101]Nor is it for the Tribunal to substitute its own decision as to the reasonableness of the action taken by the employer. The Tribunal’s function is to determine whether, in the particular circumstances of the case, the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted. See: Iceland Frozen Foods v Jones [1982] IRLR 430; Post Office v Foley [2000] IRLR 827.[102]In respect of certain claims, such as unfair dismissal and breach of contract, Section 207A of the Trade Union & Labour Relations (Consolidation) Act 1992 provides that where an employer or employee has unreasonably failed to comply with the Code of Practice, it may, if it considers it just and equitable in all the circumstances to do so, increase or reduce compensation awards by up to 25% (this does not apply to any Basic Award for Unfair Dismissal).[103]The Polkey principle established by the House of Lords is that if a dismissal is found unfair by reason of procedural defects then the fact that the employer would or might have dismissed the employee anyway goes to the question of remedy and compensation reduced to reflect that fact. Guidance as to the enquiry the Tribunal must undertake was provided in Ms M Whitehead v Robertson Partnership UKEAT 0331/01 as follows:(a) what potentially fair reason for dismissal, if any, might emerge as a result of a proper investigation and disciplinary process. Was it conduct? Was it some other substantial reason, that is a loss of trust and confidence in the employee? Was it capability?(b) depending on the principal reason for any hypothetical future dismissal would dismissal for that reason be fair or unfair? Thus, if conduct is the reason, would or might the Respondent have reasonable grounds for their belief in such misconduct?(c) even if a potentially fair dismissal was available to the Respondent, would he in fact have dismissed the Appellant as opposed to imposing some lesser penalty, and if so, would that have ensured the Appellant’s continued employment?[104]In Hill v Governing Body of Great Tey Primary School UKEAT/0237/12/SM the Employment Appeal Tribunal held that a “Polkey deduction” has these particular features. First, the assessment of it is predictive: could the employer fairly have dismissed and, if so, what were the chances that the employer would have done so? The chances may be at the extreme (certainty that it would have dismissed, or certainty it would not) though more usually will fall somewhere on a spectrum between these two extremes. This is to recognise the uncertainties. A Tribunal is not called upon to decide the question on balance. It is not answering the question what it would have done if it were the employer: it is assessing the chances of what another person (the actual employer) would have done. The question as to what a hypothetical fair employer would have done is not the test: the Tribunal has to consider not a hypothetical fair employer, but has to assess the actions of the employer who is before the Tribunal, on the assumption that the employer would this time have acted fairly though it did not do so beforehand.[105]Section 122(2) of the Employment Rights Act 1996 provides that where the Tribunal finds that any conduct of a Claimant before the dismissal was such that it would be just and equitable to reduce the amount of the Basic Award, the Tribunal must reduce that amount accordingly.[106]Section 123(6) of the Employment Rights Act 1996 provides that where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the Claimant, it must reduce the amount of the compensatory award by such proportion as it considers just and equitable. Breach of contract/wrongful dismissal[107]Contract complaints can be considered by the Tribunal in accordance with the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1984, if the claim arises out a termination of contract of employment. Statutory rights to notice pay upon termination are provided by section 86 Employment Rights Act 1996. If there is a breach of contract in respect of notice pay, a claimant may be able to recover the payment he should have received, unless he has committed gross misconduct, in which case a dismissal can usually be effected by the employer summarily. Discussion The question of disability
Discussion
[108]For the avoidance of doubt, there has been no dispute throughout this hearing that Mr Jones was disabled within the meaning of section 6 by reason of his physical impairment arising from his right shoulder injury. While there was some suggestion by Mr Cooke in his witness evidence that the surveillance footage of Mr Jones using the tap at the farm, gave the impression of greater movement in his right shoulder than the medical evidence of Dr Shackleton had suggested, the question of him being disabled by reason of his shoulder condition was not challenged. Mr Cooke accepted that he was not medically qualified and did not seek further medical advice concerning the surveillance and this matter was not pursued by Pilkington’s.[109]Consequently, in terms of disability, the Tribunal is left to consider whether Mr Jones was disabled by reason of the mental impairments of depression and anxiety.[110]The Tribunal is under no doubt, that Mr Jones had a long-term physical condition which has been deteriorating over the years since it was diagnosed by his medical experts. He has had to live with the legacy of his treatment for Hodgkin’s lymphoma as a young man and although it was successfully treated, there can be no doubt that this will have left him a ‘mental load’ over his lifetime. This is likely to be in addition to the inevitable concern that a condition which is in remission, may return. However, the Tribunal notes that Mr Jones appeared to manage the aftermath of this illness with some fortitude, and it was the later physical legacy of this condition which affected his mental health.[111]It must have been heart-breaking for Mr Jones to develop the difficulties with his right shoulder, with the consequential discovery that it arose from his radiotherapy treatment many years ago, that this physical legacy could not be cured and that the only option was management of the problem. It is not surprising that this will have had an impact upon his mental health, especially for a man working in an industry where physical work is important, even if lighter duties can be offered.[112]The relevant period for considering whether Mr Jones was disabled by reason of his mental health is from 1 May 2019 until 12 December 2019. However, it is of course necessary to consider Mr Jones’ mental health prior to this period and the Tribunal was assisted by his impact statement and the medical evidence which was included within the hearing bundle.[113]The Tribunal accepts that when Mr Jones was placed on light duties in early 2018, this was a distressing time for him, given the shoulder pain and the uncertainty of his physical condition at this stage. However, there was no firm evidence of any mental impairment at this point.[114]What becomes clear however, is that as the year progresses, his mental health deteriorates and by September 2018, he had been referred to Mind Matters by his GP and inevitably there was a period of waiting before he could be assessed by a mental health practitioner. His assessment in January 2019, produced an outcome which clearly indicated significant symptoms of depression and anxiety.[115]Following counselling sessions and a holiday to Australia, these conditions effectively became asymptomatic. However, by the end of July 2019, he was trying out different anti-depressants under the guidance of his doctor, followed by a referral once more to Minds Matter, (although this referral had not resulted in an assessment by the conclusion of the appeal process).[116]Depression and anxiety are clearly mental impairments which can have a substantial effect on day-to-day activities and can often be long term in their nature. However, they can also fluctuate over time, even if the underlying risk of the condition remains in place.[117]In relation to Mr Jones’ mental health, his assessment in January 2019, undoubtedly described symptoms of depression and anxiety of a significant nature. Their subsidence by April 2019 does of course mean that the question of whether the impairment was likely to be long term in nature, was an issue between the parties.[118]There was no evidence of previous depression and anxiety before the 2018 referral, other than an episode in 2008 which had resolved. The 2018/19 symptoms had similarly resolved and had not lasted for a period of at least 12 months.[119]The question was therefore whether this condition was likely to recur or not in accordance with section 2(2) of Schedule 1 EQA. The medical evidence of Dr Shackleton dated 8 August 2019 said that Mr Jones was feeling increasingly anxious because of the disciplinary allegations being made against him. This would be consistent with Mr Jones receiving antidepressants in July, together with his GP referring him again to Minds matter in August 2019. Moreover, reference is made within the disciplinary hearing both by the union representative and Mr Jones to his mental health and indeed Ms Manley referred to the impact the delayed hearings would have upon Mr Jones’ mental state. Mr Cooke acknowledged concerns about mental health as well, although his view that the sickness absence arose from a physical rather than a mental impairment.[120]While Mr Jones by April 2019 was asymptomatic in terms of his depression and anxiety, the Tribunal believes that when it was symptomatic, it had a significant impact on his day-to-day activities. Following the diagnosis of the long-term shoulder condition with its consequential impact upon his physical capacity to work, it remained highly likely that the effects of these mental health conditions could return, even if they could be managed from time to time through counselling or medication.[121]The Tribunal acknowledges the reference made by Ms Urquhart to Secretary of State’s Guidance on the Definition of Disability 2011 at C6 concerning the recurrence of fluctuating events and the example provided within that section. However, unlike the hypothetical woman described in the example, Mr Jones did not suffer mental health issues arising from 2 acute and unrelated events and without an underlying condition of depression. In his case, his mental health issues had arisen from the difficulties which he experienced from his shoulder injury which was a lifelong condition and one which was likely to deteriorate. There was clear evidence that this undermined his mental health following its diagnosis and his reaction in late 2018 and early 2019 reveals that to be the case. Whether it was the threat of disciplinary action or a further physical decline, Mr Jones had reached a point where his self-esteem was severely affected by his physical injury, and it made it him vulnerable to further episodes of depression and anxiety which would require counselling and/or medication. Indeed, section B14 of the Secretary of State’s guidance refers to a similar hypothetical example and it notes that if treatment is required to ameliorate a long-term mental health condition, the effect of the treatment is disregarded as the impairment could still return.[122]Accordingly, Mr Jones was disabled at the material time, not only in relation to his physical shoulder injury, but also in respect of his mental condition of depression and anxiety. Discrimination arising from disability (section 15 EQA) Unfavourable treatment?[123]There can be no doubt that the dismissal relied upon by Mr Jones amounts to unfavourable treatment Something arising in consequence of the claimant’s disability? His sickness absence and/or incapacity to attend work[124]Mr Jones had been absent on sick leave for a lengthy period from 5 November 2018 and this continued until his dismissal. Although he experiences mental health issues during this time, the reason for his absence were his physical symptoms. This was evidenced by the description given by his GP on the fit notes, his ongoing efforts to return to work expressed at welfare meetings and the view of Dr Shackleton that he remained unfit because of those physical symptoms. Ultimately, without the disciplinary process, what was preventing Mr Jones’ return to work was his continuing problems arising from his shoulder injury and the need for the pain and discomfort to be managed to an acceptable level. As a consequence, his sickness absence and incapacity to attend work related to the physical disability and not the mental disability. His attendance at the farm[125]Mr Jones’ attendance at the farm initially appeared to arise from his friendship with the farmer and several shared interests. His health did not play an obvious part in this activity. It may have had positive mental health outcomes, but in the way that many people derive from friendship and activities and the overall feeling of wellbeing. This began when he was able to work full time, he then went off sick and the Tribunal heard evidence that he found himself to be sat at home feeling fed up. We accept his evidence that he was encouraged to attend the farm by Mind matters, but that this did not involve a systematic attendance and by the time of the investigation, he said that he had not been attending for a few months due to unidentified personal reasons. These were not indicated to be associated with his health whether physical or mental. The Tribunal was therefore not able to conclude that his attendance at the farm was sufficiently connected to his mental health to amount to something connected with his disability in accordance with section 15 EQA. The respondent’s belief that the claimant was undertaking physical activity at the farm whilst off sick[126]The respondent did not initially believe Mr Jones to be undertaking physical activity while on sick leave. Their concerns originally arose from the ‘tip off’ about him wearing work boots and concerns about a second job following their viewing of the surveillance videos. They then commenced a disciplinary process which resulted in an acceptance that he was not engaged in secondary employment but was carrying out physical work contrary to the sickness procedure at section 4.4(d). It was at this point they considered what they believed the medical evidence said that Mr Jones could or could not do. They then decided that what the video showed was inconsistent with that and as a consequence, concluded that a breach of 4.4 (d) was taking place.[127]What they failed to do, was to seek the view of an appropriate medical expert and therefore rashly made assumptions about perceived inconsistencies between what they had been told was Mr Jones’ physical condition and the limited activities revealed on the film.[128]In other words, they decided he was not as ill as he said he was and was more fit for work than they felt they had been led to believe by him previously.[129]Accordingly, the Tribunal finds that the respondent’s belief of physical activity does amount to something connected with his physical disability rather than his mental health disability. The aggregate effect of the above ‘things’[130]This means that only the sickness absence/incapacity to attend work and the belief of physical activity while sick are relevant when considering section 15 EQA. Even then, this is only in relation to the physical disability. Did the respondent dismiss the claimant because of any of these things?[131]The respondent clearly dismissed the claimant because of undertaking physical activity at the farm while off sick rather than because of his sick leave or incapacity to attend work. They knew at the disciplinary hearing that he remained unfit to return to work and was likely not to be able to return if at all, for some time. As such his sickness absence was not a reason for his dismissal and there was no evidence that this was an underlying reason for the dismissal. Was the dismissal a proportionate means of achieving a legitimate aim?[132]The legitimate aim was ‘to ensure that the sickness absence procedure was adhered to in order to try to ensure that employees have a reasonable period of recovery time and to safeguard employees during this recovery time by preventing them from undertaking activities which could further exacerbate their alleged symptoms, hinder their recovery and increase their length of time off work.’[133]The Tribunal accepts that this is a legitimate aim. It is an essential aim for any employer, but it is particularly acute when you have an employer such as Pilkington’s with a very generous company sick pay scheme which is inevitably vulnerable to abuse.[134]This was anticipated by the sickness policy at paragraph 4.3(f) and guidance was given to management as to how to deal with suspected abuses. Unfortunately, in this case, managers did not consider this provision properly and failed to take account of the need to obtain advice from a designated medical advisor. This was a proportionate measure to ensure a fair consideration of abuse and to avoid circumstances arising where managers who are medically unqualified might reach a wrong conclusion where an abuse was discovered.[135]A failure in this case was not to involve a designated medical advisor once the video evidence became available to assess whether it revealed Mr Jones doing things which he had said he could not do and whether his symptoms could fluctuate. Mr Jones himself had said at the beginning of the investigatory hearing that he had had good days and bad days and given that Dr Shackleton was asked to produce a further medical report, in August 2019, it is unfortunate that he was not asked to consider the video evidence at the same time and before the disciplinary hearing concluded.[136]There were of course other failings in the management of this disciplinary process, and these will be considered below. However, the Tribunal finds that while the respondent did have a legitimate aim as described above, it failed to apply it in a proportionate way when it managed the disciplinary process. Unfair dismissal Initial matters[137]There was no dispute that Mr Jones was an employee with Pilkington’s and presented his claim in time in accordance with section 108 of the ERA following an explicit dismissal by his employer. The principle reason – was it potentially fair?[138]Pilkington’s have clearly shown that the reason for dismissal is ‘conduct’ and this a potentially fair reason under the ERA. The Tribunal is therefore left to decide whether the dismissal was fair in all the circumstances taking into account the well-established questions to be determined in conduct dismissal cases and as described in the case of Birchall. Was the dismissal fair in all the circumstances?[139]The Tribunal would firstly note that the respondent’s management of its disciplinary process was confused and allowed little time for reflection.[140]There was understandable alarm caused by the suggestion that Mr Jones might be working while off sick and that was the original basis of the investigation. However, as is often the case with video surveillance, there was a failure to question what could be seen in the video and to ensure that what they suspected might be happening was actually the case.[141]Mr Cooke was clearly faced with a case which had not begun well because the investigation had not involved the disclosure of the surveillance evidence. Mr Jones and his advisors were at a clear disadvantage and not only did this make the hearing process more convoluted, it also made for a more belligerent hearing as well because of that perceived disadvantage.[142]Mr Cooke genuinely believed that there was a conduct issue at stake and that Mr Jones had behaved inappropriately while on sick leave, but he was not clear as to the issues being advanced under sickness procedure at 4.4. Instead, he appeared to place great reliance on what he perceived to be evasive behaviour from Mr Jones rather than considering whether there were alternative explanations as to what was shown on the video evidence.[143]There was also clear evidence that he was being rushed by Ms Manley. While she was understandably concerned that the adjournments were prolonging the case, as the HR advisor to the hearing, she should have been aiming to ensure that Mr Cooke had sufficient time for deliberation. Ultimately, the case notes suggest that the process had become overly argumentative with Mr Manley frequently stressing the need for a conclusion to the case. The final fifteen minutes deliberation, (even allowing for preparation that might have taken place beforehand), does not persuade the Tribunal that the decision of summary dismissal by reason of conduct was reasonably reached by Mr Cooke.[144]He was aware from his previous knowledge of the welfare meetings and the available medical evidence that Mr Jones wished to return to work and was prevented from doing so by reason of his physical ill health. He was also given alternative explanations as to why he had been attending the farm. The video when it was eventually played (at far too late a stage of the dismissal), revealed very little physical activity. Without the opinion of a designated medical advisor it was unreasonable to reach the conclusion that there had been activities contrary to section 4.4 (d) of the sickness procedure and that these could amount to gross misconduct under the disciplinary agreement.[145]This was not helped by an investigation process which took too long to be commenced, which did not involve early disclosure of the video evidence. This was exacerbated by the decision to effectively hold a welfare meeting at the same time as the investigatory meeting and which could potentially cause an employee some confusion as to which part of the meeting was which.[146]Therefore, the decision fell outside the range of reasonable responses and at its highest, any conduct issues related to a failure by Mr Jones to explain at his welfare meetings that he wished to attend the farm in order that management could considered whether there were any issues that needed to be discussed. This failure may have made it more likely that the disciplinary process would be commenced, but it was not the ultimate reason given to support the finding of gross misconduct and would not in itself have amounted to a matter of gross misconduct. Procedural fairness and ‘Polkey’[147]The Tribunal has found that there are clear failures of procedure in terms of the speed of the investigation, the failure to disclose evidence, the unwillingness to adjourn the hearing when the issue under investigation changed, the constant pressure to conclude the hearing and the speed at which the decision was reached.[148]However, even if the process had been carried out in a more measured and thoughtful way considering the need for Mr Jones and his advisors to fully understand the case against him, the Tribunal does not think that he would have been dismissed in any event.[149]Mr Jones had worked for 36 years and had an unblemished disciplinary record and before his sickness absence arising from his shoulder injury, his attendance was understood to have been good. There was insufficient evidence available to support a finding of gross misconduct and any conduct under investigation if properly subject to a fair procedural process would have produced an outcome where dismissal was within the range of reasonable responses.[150]It might be considered that this was a case where in reality, the underlying concern for Pilkington’s, was Mr Jones’ medical capability. The evidence suggests however, that he was keen to return to work and a proper consideration during investigation with an early disclosure of the surveillance evidence may well have avoided a disciplinary hearing being considered necessary.[151]There is some suggestion that the physical condition suffered by Mr Jones may have continued to preclude his return to work in the foreseeable future but at the time of his disciplinary process, there was no indication that the respondent intended to proceed to a medical incapability process. As such, it was likely that Mr Jones would have been able to return to some sort of light duties or at least would have continued to remain on sickness absence until pain management had been concluded. Uplift/reduction for an unreasonable failure to comply with the ACAS Code of Practice?[152]The Tribunal also considered the question of an uplift to reflect failure by the respondent to comply with the ACAS Code of Practice Disciplinary and Grievance Procedures contrary to section 207(A) Trade Union & Labour Relations (Consolidation) Act 1992 (‘TULRCA’).[153]This related to a number of matters. There was the delay in holding the investigatory meeting. There was the non-production of the video evidence during the investigatory meeting and the continued failure to disclose it, only disclosing stills of images from the videos on 12 September 2019 and then only disclosing the actual videos on 14 October 2019 despite persistent requests. There was the failure at the end of the disciplinary hearing to allow sufficient time during the adjournment before the decision was reached. Finally, there was the change of issue under investigation relating to section 4.4 of the sickness procedure, without allowing an adjournment and thereby enabling Mr Jones sufficient time to consider whether he needed to review his arguments.[154]The number of failures identified means that the Tribunal feels that Mr Jones was prejudiced and there was an unreasonable failure by Pilkington’s management to comply with the ACAS Code. An uplift is therefore necessary and taking into account their impact the Tribunal feels that a 15% uplift to the compensatory award is appropriate. Did the claimant contribute to his dismissal?[155]Mr Jones had failed to tell his employer about the farm at his welfare meetings and while it may have involved visiting a friend, as an experienced employee and former trade union representative, the Tribunal believes that he should have considered checking with his employer whether it caused them any concern.[156]There was also evidence during the disciplinary hearing that Mr Jones behaved in an evasive way and a failure to answer questions directly and the notes reveal an obstructive approach. However, this needs to be balanced against the way in which his employer held onto the surveillance evidence, and which was not disclosed until the last meeting.[157]It should be noted that the earlier investigation hearing was much more open, and this was at a point when Mr Jones was oblivious to the existence of the surveillance evidence. Had this been disclosed at this early stage, it is likely that the suspicion and evasive answers could have been avoided during the disciplinary process.[158]Nonetheless, being supported by two union advisors, it was reasonable to expect a less belligerent and more cooperative approach from Mr Jones and his advisors. Their actions did not help the decision-making process and left Mr Cooke with concerns that Mr Jones was hiding something.[159]The tribunal therefore concludes for the reasons given above, there was contributory conduct by Mr Jones, which was culpable or blameworthy and which caused or contributed to his dismissal. Accordingly, there should be a deduction for contributory fault assessed at 20%. Wrongful dismissal/breach of contract[160]By deciding to dismiss Mr Jones for gross misconduct by reason of conduct, he was dismissed summarily and without notice.[161]Taking into account the Tribunal’s decision concerning the complaint of unfair dismissal, the Tribunal finds that his conduct was not sufficiently serious to amount to a repudiatory breach and he should not have been dismissed without notice[162]His claim of wrongful dismissal/breach of contract succeeds. Although it should be noted that this decision is concurrent to the finding of unfair dismissal. Accordingly, the question of avoiding double counting in respect of remedy for wrongful dismissal and unfair dismissal must be taken into account at the remedy hearing. Conclusion Judgment[163]Accordingly, the Tribunal finds: a) The claimant was disabled in accordance with section 6(1) Equality Act 2010 by reason of the condition of depression and anxiety. b) The complaint of discrimination on grounds of disability contrary to section 15 Equality Act 2010 is well founded to the extent described within the reasons given in this judgment. This means that the complaint of disability discrimination is successful. c) The complaint of unfair dismissal is well founded, which means that the claimant was unfairly dismissed. d) The complaint of breach of contract is well founded. This means that the complaint is successful. Case management orders[164]The question of remedy will now be determined at a remedy hearing on a date to be advised, but not to be listed on a date before 1 November 2021. The hearing will be listed for 1 day before the same Tribunal[165]Upon being given details of the remedy hearing, the parties will have 7 days from the date of receiving the Notice to inform the Tribunal if this date is inconvenient. If so, dates to avoid should be provided and the other party should be notified accordingly.[166]The parties will also discuss appropriate case management orders to ensure that the case is ready to be heard at the remedy hearing and will provide a proposed list for consideration by Employment Judge Johnson by no later than 16 August 2021. REMEDY JUDGMENT (Part 1) The judgment of the Tribunal in this Part 1 Remedy Hearing is that: Losses quantified at the Part 1 Remedy Hearing (1) The respondent shall therefore pay the claimant the sum of Thirty-One Thousand, Five Hundred and Twenty-Seven Pounds 36 Pence (£31,527.36) in respect of the losses identified within the table below and calculated as follows: Type of Loss Totala. A. Basic Award The claimant is entitled to a basic award in respect of the unfair dismissal and allowing for a deduction for contributory fault of 20% - (25.5 weeks x £525 x 80%) = £10,710b. B. Loss of Statutory Rights The claimant is entitled to an award for loss of statutory rights in the sum of £500.c. C. Injury to Feelings
Introduction
[1]The claimant is entitled to an award in respect of injury to feelings in the sum of £8,800.[2]The claimant is entitled to accrued interest of £3763.56 on the award for injury to feelings. D. Notice Pay/Wrongful dismissal The claimant is entitled to £7,753.80 in respect of notice pay, (which should be considered when loss of earnings is calculated at the next stage of this remedy process). E. Total of assessed losses to date The respondent shall therefore pay the claimant the sum of (£10,710 + £500 + £8,800 + £3763.56 + £7,753.80) = £31,527.36£31,527.36 Judgment in relation to the issues regarding the calculation of losses which could not be quantified today (2) The balance of remedy to be determined in this case relating to loss of earnings following the claimant’s dismissal and pension loss will be determined at the next part of the remedy hearing. (3) However, the Tribunal makes the following findings with regard to general principles concerning the extent of this loss:(a) Had the claimant not been dismissed by the respondent, he would have been able to return to work following a period of sick leave by 31 July 2020.(b) The claimant would have remained in employment with the respondent until his planned retirement in 2032 when he reached 65 years of age.(c) The claimant would have been able to return to his team leader role.(d) The claimant was well enough to start looking for alternative work from July 2023. Consequently, the claimant’s failure to look for alternative work or seek relevant training or assistance to support him in finding alternative work became unreasonable from July 2023.(e) The Tribunal had insufficient evidence available to enable it to identify the mitigation factors relating to the claimant’s pension and this matter must be determined at a future hearing in the remedy process if not agreed between the parties.[1]This part 1 remedy hearing was listed by the Tribunal following a preliminary hearing case management (PHCM), before Judge Johnson on 12 July 2024. The question of liability had originally been determined by a Tribunal consisting of the above panel in August 2021. The claimant succeeded with the following complaints: a) Unfair dismissal, (subject to a deduction for contributory fault of 20%). b) Disability discrimination contrary to section 15 Equality Act 2010 (EQA). c) Breach of contract, (wrongful dismissal). d) An ACAS uplift of 15% as appropriate[2]The respondent did seek to appeal the disability discrimination decision, which was unsuccessful before the Employment Appeal Tribunal, (EAT). This contributed to the delay in the determination of remedy.[3]The claimant’s most recent schedule of loss is dated 16 August 2024. Although the parties have cooperated to agree as much possible, there remain areas of dispute which primarily relate to the question of whether the claimant could have continued working in his former role with the respondent had he been dismissed despite ongoing health issues and the extent to which he has sought to mitigate his losses post termination in 2019.[4]The remedy hearing today took the form of a part 1 hearing which would consider whether judgment could be entered in respect of the noncontroversial past loss figures and to provide a decision regarding the claimant’s future employment, employability, and efforts to mitigate his loss. This would then equip the parties to enter into further discussions regarding future loss with the intention of avoiding further remedy hearings.[5]The Tribunal noted that at the date of this part 1 hearing, in relation to future losses, the parties remained some way apart and if necessary, they will hear further remedy hearings as appropriate.[6]The claimant has suffered several health issues during his lifetime including the impairment which gave rise to the disability discrimination complaint. More recently and not long before this part 1 remedy hearing, the claimant underwent a double heart bypass operation. It is understood that he is still recovering from this procedure, but that the outcome was largely positive, and he confirmed his fitness to attend the hearing and give evidence in support of his claim for remedy.
Issues
[7]The issues which the Tribunal has been asked to consider were identified at the PHCM before Judge Johnson on 12 July 2024 and can be summarised as follows: a) Judgment on non-pension compensation (which means the basic award for the unfair dismissal claim, loss of statutory rights and injury to feelings). b) How long would the claimant have remained employed if he had not been dismissed? c) Would the claimant have remained in the same job or alternative employment? d) Would the claimant have been likely to find alternative employment? e) What is the point at which the claimant would no longer be able to find alternative employment? f) What are the withdrawal factors relating to the claimant’s pension? The Tribunal would consider as many of these issues/questions as follows and enter judgment accordingly. The parties would then have time to consider whether the case could be compromised without a further remedy hearing. If this was not possible, further case management would take place with the listing of this case for a part 2 remedy hearing or hearings as appropriate. Evidence used[8]The claimant provided a statement which covered some background information, his ongoing health issues, and their impact upon his ability to do his job with the respondent and in relation to later activity. He also discussed the anguish and upset arising from the decision of the respondent to dismiss him and its impact upon his day to day life and capacity to find alternative work. He also commented upon the available medical evidence and the respondent’s mitigation evidence regarding their arguments that he unreasonably failed to mitigate his losses.[9]The respondent relied upon two witnesses who were as follows: a) Emma Neal (HR Director of UK Operations and Group Functions for the respondent). She provided evidence regarding the claimant’s health and the function of Occupational Health (OH) towards the end of his employment, his capacity to return to work while off sick and before he was dismissed, alternative roles and her view as to what would have happened to the claimant had he not been dismissed by the respondent. b) Joanne Miller (Group Pensions Manager). She provided helpful evidence explaining the complicated history of the respondent’s occupational pension schemes. This included an evolving defined benefit scheme which had salary caps imposed from 2013 and a defined contribution scheme from 2013 which employees were encouraged to use so that they could top up the older capped scheme. She also considered the claimant’s pension benefit projections but in relation to the respondent’s argument that he would have been dismissed in any event by 30 April 2020 instead of the actual date of dismissal following the disciplinary process on 14 October 2019. Her evidence was unchallenged by the claimant as no questions of cross examination were asked of her by Mr Mensah. However, for the avoidance of doubt, they maintained their position regarding future loss.[10]The hearing bundle was considerable in size, amounting to 940 pages. It included relevant extracts of the proceedings, the schedule and counter schedule of loss, the claimant’s medical evidence from his GP. Additionally, it included the respondent’s OH correspondence and sickness absence management policies and copies of news items relating to the decision on remedy/appeal as well as information regarding the claimant’s job role and mitigation evidence such as possible suitable roles that the claimant could have applied for post dismissal. Significantly, there was a joint medical expert report and letter of instruction from Dr Joshua Adedokun, consultant in pain medicine dated 10 December 2024, (pp264-319). Dr Adedokun was not called by either party as a witness in this case, but reference was made to his medical opinion in the cross examination of witnesses and in final submissions. Opening statement and parties respective opening positions (summary)[11]The respondent produced an opening statement prepared by Ms Urquhart before the remedy hearing began. It helpfully set out the respondent’s case and their argument that had the claimant not been dismissed on grounds of conduct, his ongoing sickness absence at the time and related health issues would have resulted in him being dismissed by reason of his medical incapability on 30 April 2020. This was effectively 3 months after the expiry of the claimant’s sick pay following a likely sickness absence continuing for 12 months from January 2019. They also argued that the claimant once dismissed, had not behaved reasonably, and had not mitigated his loss as a consequence in failing to apply for suitable alternative roles.[12]The claimant disputed this and in essence argued that had the claimant not been dismissed, he would have been able to return to work during 2020 and return to his old job. This was a role which was already adjusted to ameliorate the effects of his ongoing impairments and they say that the claimant could have remained in this role until retirement at the age of 65. They also argued that the claimant was not able to apply for the roles suggested by the respondent because of ongoing health issues which limited his ability to drive and use his right arm. Findings of fact[13]The parties should note that the Tribunal’s findings of fact do not seek to deal with every point where the parties disagree, simply what is relevant to the issues which the Tribunal is being asked to consider. If the discussion of an incident or point is not referred to within these findings, it does not mean that it has not been considered by the Tribunal, simply that it is not relevant to the issues and the findings that we are required to make.[14]In terms of the findings that we make, the Tribunal has reached its decision on what it considers to be on balance of probabilities the most likely way/reason in which an incident arose.[15]As previously explained in the judgment on liability, he respondent (Pilkington), is a major UK company involved in glass production. It employs many people in the UK and has access to considerable OH and HR support.[16]The claimant (Mr Jones) was employed by Pilkington as an apprentice on 1 November 1983. He was 16 years old when his employment began. Following the completion of his apprenticeship in 1986, he worked for Pilkington until the date of his dismissal following a disciplinary process on 14 October 2019. He had become a team leader in 2002 and he was 52 years old when he was dismissed. At the date of this remedy hearing, he is 57 years old.[17]Mr Jones’s team leader role when he was dismissed, was Team Leader at the Hot End. It was a supervisory role with management responsibilities for a team of 6 people on his shift, (job description at p240). Each shift also had a Shift Supervisor within Mr Jones’ team.
Remedy
[18]Mr Jones accepted that his role included responsibility for matters of health and safety, production targets and preparation of the float line where the Hot End shift worked. He accepted that it was a role which had provided him with management skills and by the time his employment ended in 2019, he had 17 years’ experience working in a managerial position, albeit in terms of managing a production team rather than overall management in the Greengates site where he worked.[19]His role included operational knowledge of the Pilkington IT systems, some knowledge of CCTV use, SAP business software and use of Word, Excel and Outlook. He had to ensure that the production line was correctly staffed at all times, (p241). The nature of the role meant that Mr Jones could often find himself covering for those in his team who were absent through holidays or sickness.[20]Mr Jones also had considerable experience as a union representative. Initially in the GMB, but later on with Unite. He was a shop steward in the early 1990s, being elected branch secretary in 1993 and which he held until 2000. This involved him working with senior management, pay negotiation and representation of members. He had extensive knowledge of Pilkington’s policies having been involved in their original writing.[21]By the time he left employment with Pilkington, Mr Jones had accrued 36 years’ unblemished experience. However, upon leaving their employment he believed he had become institutionalised working for one employer since 16 upon the recommendation of his father. This meant that he had no experience of the world of work outside of Pilkington including the skills required when applying for work, including the writing of CVs.[22]The Tribunal understood the significance of Pilkington as historically the major employer in St Helens and its impact upon the local community and economy. We accepted that the way in which Mr Jones described being forced to leave Pilkington left him feeling stigmatised as he still lived in the area. He gave credible evidence concerning the way he felt following his dismissal: “Since my dismissal only 3 out of hundreds of people that I worked with have rang to ask me how I am doing. People within the company believe that I have exploited the sickness policy and that I was dismissed due to this. This has caused my name to be in the mud”. Whether or not his perception was correct as to his status amongst the community following his dismissal, it is understandable that he felt this way given the reason for his dismissal.[23]The Team Leader role was afforded adjustments which removed the manual element of the job because of the ongoing health issue arising from Mr Jones’ developing problems with his right shoulder. The Tribunal did not hear any evidence which persuaded us that this adjusted role would have ceased in the foreseeable future had Mr Jones not been dismissed and this was confirmed by Mrs Neal’s evidence. This was conceded by Ms Urquhart in her final submissions, (paragraph 68).[24]Due to ongoing health issues, Mr Jones began a long period of sick leave from January 2019 and continued until he was dismissed on 14 October 2019 for reason of conduct. The Tribunal concluded that the dismissal was unfair and in paragraph 148 of its judgment on liability, we found that even if the respondent had carried out a fairer process, Mr Jones would not have been fairly dismissed on the asserted potentially fair reason of conduct.
Introduction
[25]Dr Adedokun is a consultant in pain medicine and was jointly instructed by the parties to produce a report on 10 December 2024.[26]Prior this report being obtained, the claimant’s case had been that although he was absent on long term sickness leave at the date he was dismissed, his health would have improved with the appropriate pain management and that he would have been fit enough to return to work by July 2020. He was not fit for work in October 2019 when he was dismissed or for the remainder of that year.[27]Dr Adedokun was of the opinion when he examined the claimant in 2024, that: “From the Pain Medicine point of view, I have been asked to comment on…the Claimant’s fitness for work from the date of his dismissal to the present date. From the Pain Medicine point of view, if the Claimant had not been dismissed in October 2019, he would have been fit enough to end his sick leave and return to work either to carry out his previous role as Team Leader with restricted duties or to carry out an alternative role. The Claimant would have been able to stay working in the role and continue until retirement, “(paragraph 10.37 at p288).[28]Ms Urquhart in her final submissions, asserted that she broadly agreed with “…the thrust of Dr Adedokun’s report, in that it agrees that the Claimant would have been able to return to work. It disagrees as to when it would have happened: Dr Adedokun considers that the Claimant could have returned to work in October 2019; the Respondent (and indeed the Claimant himself) says that the Claimant could have returned to work by July 2020. (para 51)”.[29]The Tribunal did not accept that Dr Adedokun gave a clear and unequivocal opinion as to precisely when he believed Mr Jones would have been fit to return to work. It would have been helpful if he had expressly stated whether the claimant was fit at the date of dismissal or if not, the date when he would have been fit. As it is, we concluded that his opinion was that Mr Jones would have become fit for work shortly after he was dismissed so that he could return to his old job and continue in employment until retirement.[30]The contemporaneous medical records identify that Mr Jones was subject to pain management treatment and on 7 January 2020 his GP changed his medication to Pregabalin 75mg which is a painkiller, (p112). This was reduced over a 7 day period following an appointment with his GP on 21 May 2020 and at the same time he was prescribed Magnesium Glycerophosphate (described by Mr Jones in his evidence as ‘Magnesium’). This medication significantly alleviated his pain and by 30 July 2020, his health had improved sufficiently for the Magnesium dosage to be reduced, (pp110-111). The regular attendances at the claimant’s GP surgery in relation to pain then ceased during 2020. The Tribunal accepted that this is consistent with Mr Jones’ case concerning when he would have become fit to return to work and we accept that he could have returned to his old job by the end of July 2020.[31]Mrs Neal confirmed that this job remained vacant and available for Mr Jones and with the previous adjustments that had been made before his sickness absence began, she said his role was: “…the least manual role on the [Greengates] site.” This is consistent with the opinion given by Dr Adedokun that once back at work, Mr Jones could have continued in his designated role which was largely supervisory and technical rather than manual in nature.[32]The question that the Tribunal needed to then consider was whether Mr Jones’ ongoing sickness absence during the remainder of 2019 following the date of dismissal and into 2020, would have resulted in Pilkington dismissing him on medical incapability grounds.[33]Mrs Neal gave evidence that from her perspective as Head of HR, Mr Jones would have been dismissed on capability grounds: “…in the not too distant future on the basis that he did not appear to be fit for work”. This imprecise comment demonstrated to the Tribunal the uncertainty involved in dealing with this counterfactual scenario.[34]Mrs Neal’s belief was that Mr Jones’ company sick pay would have expired on 28 January 2020. As a longstanding employee, Mr Jones had generous sick pay entitlement. She argued that the “most likely scenario” was that HR would have had a further welfare meeting shortly before the sick pay expired in January 2020 and: “…we would probably have sought another occupational health report from Dr Shackleton. Of course, I am having to hypothesise, but based upon Dr Shackleton’s assessment of Alan’s [Jones] condition to date (i.e. that his condition would either plateau or deteriorate further), I do not believe that Dr Shackleton’s prognosis in January 2020 would have been any different.”[35]The Tribunal concluded that while understandably, Mrs Neal was trying to give a view as to what would have happened to Mr Jones, this evidence amounted to speculation. Indeed, she effectively attempted to give an opinion as to what a medical expert would have concluded. This evidence was not supported by any documentary or other witness evidence which revealed a rigid capability process and timeline. Instead, we heard contradictory, but more credible evidence during cross examination from both Mr Jones and Mrs Neal, that Pilkington adopted a more flexible approach when dealing with questions of medical incapability.[36]We accepted Mr Jones’ evidence that Pilkington’s employees had in the past contributed towards employees whose sick pay had ended but who had not been dismissed by the company. Mrs Neal conceded in cross examination that it could have taken some time to obtain final OH reports concerning Mr Jones’ fitness for work and reach a final stage of the capability process where dismissal would have been only realistic option.[37]The period that we were asked to consider was from the 28 January 2020 to 31 July 2020, which was a period of 6 months. On balance, we find that it was likely that any subsequent medical incapability process could have occupied this entire period. With Mr Jones’ improvement in health taking place following the prescribing of magnesium from May 2020, on balance it is likely that Pilkington would have obtained further medical evidence which would have declared Mr Jones fit to return to work. The available evidence from the period demonstrated that Mr Jones was wanting to return to work and would have been medically able to return to work by the end of July 2020. Mrs Neal confirmed in her evidence that: “We generally find that our employees want to resolve the situation one way or the other fairly swiftly after their sick pay has expired, so that they can either resume work or sign on for benefits.” In this case, we find that Mr Jones was keen to return to work, given his financial circumstances and his very long service.[38]Mr Jones however, found himself out of work from October 2019 and since that date, he has not been employed in a paid role. He has carried out voluntary work during the Covid pandemic supporting Age UK who were with St Helens MBC. This involved the delivery of food to elderly people in the St Helens area during the pandemic. Mr Jones no longer owns a car and while we understand that he had a driving licence, he did was not physically able to act as a driver for the deliveries. Instead, he organised the logistics of the deliveries which we understand would have involved him drawing on his supervisory skills while working as a team leader at Pilkington.[39]Following the conclusion of this work when the pandemic subsided, he was then approached to assume a similar role to support the relief effort for Ukraine arising from the Russian invasion in March 2022. Again, he organised the logistics and the arrangements for lorries to be filled with loads and sent to Ukraine.[40]The reduction in income arising for his dismissal meant that Mr Jones and his wife had to sell their home and move into a two bedroomed apartment. There was a management committee for maintenance of the common parts of the apartment block and Mr Jones became one of the two elected directors of the management company. The Tribunal understood that his role was the organising of services for the maintenance of the building. He remains in this role to the present day, but it is not a full time activity which would prevent him from being available for work.[41]When Mr Jones was absent on sick leave, he did spend time at his friend’s farm near St Helens. There is no need to consider the history of this involvement as it was considered in the Tribunal’s liability judgment. However, for the purposes of remedy, we accepted Mr Jones’ evidence that his friend who owned the farm did not have sufficient resources to provide him with any sort of paid employment.[42]While Mr Jones would have needed to return to an adjusted role at Pilkington, we do not accept that this would have prevented him from securing alternative employment outside of the company once he was dismissed. However, we do accept that at the point of his dismissal, he was 52 years old, with long term health issues which limited the amount of physical work that he could undertake. He had worked for a single employer during his whole adult life to date in a niche industry of glass. He did not have any meaningful academic qualifications having left school at 16 to begin an apprenticeship at Pilkington. While in principle he remained qualified to drive, he sold his car for financial reasons, his wife used her car for work as a nurse and for family assistance. In any event, we accept that Mr Jones remains unable to drive any significant distance on a regular basis as a result of his disability.[43]In terms of glass manufacturing in the UK, the closest production centres were at the time of dismissal in Bolton and Yorkshire. It was not clear whether suitable roles became available since 2019, but Mr Jones would not have realistically been able to travel to them by public transport, given that he could not drive these distances.[44]The Tribunal accepted from late 2020 and into 2021, a new factory called Glass Futures had opened in St Helens and during this period was actively recruiting. Accordingly, roles may have been available at this time which would have been suitable for Mr Jones, although specific details of available roles at that time were not included in the hearing bundle.[45]Waterside College in St Helens was a college where Pilkington sent their apprentices for day release training. The Tribunal heard persuasive evidence from Mr Jones that many of the teaching staff were ex Pilkington managers whom he would have known.[46]As described above, Mr Jones had provided convincing evidence of the stigma that he felt arising from his dismissal by reason of alleged dishonesty regarding his fitness to work. Moreover, once the Tribunal’s judgment had been delivered upholding Mr Jones’ claim, Pilkington elected to appeal the decision relating to disability discrimination. While they did not appeal the overall decision (and of course they are perfectly entitled to appeal if they believe there are grounds for doing so), these actions prolonged the proceedings and left Mr Jones in a position of some uncertainty where he felt that Pilkington did not accept the Tribunal’s decision.[47]His evidence was that: “…I had lost my self worth and was embarrassed to face people, (paragraph 14 of his statement)” and that: “I wanted to avoid people looking down on me and avoiding the degree of shame associated with being ‘fired’ or ‘sacked’ by a company whom I had worked with for so many years”, (paragraph 27 of his statement).[48]On balance the Tribunal accepted that the ongoing proceedings made it difficult for Mr Jones to come to terms with his circumstances and to quickly make the necessary adjustments to return to work. This was exacerbated by his lack of qualifications and length of unblemished service with Pilkington. While the Tribunal would reasonably expect a claimant who found themselves on the open labour market to quickly take steps to find alternative work, we must consider each case on its own facts. In the case of Mr Jones, there were several factors already described which affected his ability to quickly find alternative work, especially as the earlier part of his post dismissal unemployment coincided with the onset of the Covid pandemic from March 2020. This had a significant impact upon the nature of roles available in paid employment and the way in which recruitment took place. Mr Jones had no experience of applying for work, let alone engaging with recent developments in online recruitment. However, it is reasonable to expect him to take steps to acquire these skills even if the pandemic delayed his ability to do so. His voluntary work during this period is evidence of a person who is keen to work and remain occupied.[49]The EAT dismissed the Pilkington appeal in mid 2023 and by this point Mr Jones would have had certainty regarding the success of his claim. The pandemic would have subsided and by this point the Tribunal believes that Mr Jones would be expected to take meaningful steps to obtain paid employment to mitigate his ongoing losses or at the very least, acquire the necessary skills to enable him to do so.[50]The Tribunal noted that on 31 May 2023, Mr Jones was examined by Dr Myint at the Clatterbridge Cancer Centre regarding his previous Hodgkin’s disease Stage I. The report confirmed that he continued to suffer with symptoms of radiation induced neuropathy which caused him fatigue, numbness and pins and needles on right side in relation hands, shoulder, arm and back, (pp195- 6). Reference was made to the ongoing legal proceedings causing Mr Jones anxiety.[51]The available medical records naturally record attendances with Mr Jones’ GP and medical specialists. The Tribunal noted that the available medical records concluded by December 2023 and were not updated. At this point, while Mr Jones was attending his GP regularly there were no entries recorded which suggested that for the second half of 2023, he was unfit to be looking for alternative employment, (pp102 to 104). The Tribunal acknowledge that Mr Jones suffered a heart attack in October 2024, (according to Mr Urquhart’s unchallenged final submissions at paragraph 67). However, the available medical evidence does not reveal that any relevant symptoms were being experienced prior to this date that might have rendered him unfit for work.[52]The Tribunal accepted that by July 2023, Mr Jones should have been actively seeking to find alternative employment and/or acquire relevant skills to assist him in this task. It may well be the case that his ongoing health issues, restrictions on certain types of physical work and his inability to drive long distances, (assuming he had access to a car), would have made finding alternative work more challenging. But Mr Jones accepted that he had not made any attempt to find alternative paid employment since being dismissed and we found that from July 2023 it was unreasonable for him not to make any effort looking for alternative employment.[53]Mr Jones described having good and bad days (with the bad days rendering him unable to work at all). However, we did not hear any convincing evidence of the proportion of bad days to good days and the extent to which this would prevent him from finding paid employment whether in part or at all. Therefore, based upon the evidence before us, we are not persuaded that this prevented him from seeking employment from July 2023 onwards.[54]We heard little evidence regarding the early withdrawal of a lump sum by Mr Jones from one of his Pilkington pensions. His schedule of loss includes an incomplete pension loss claim and we understand that his plan was to be able to retire in 2032 when he reached the age of 65. Paragraph 21 of Mr Jones’ statement included a short paragraph concerning this matter explaining that it was necessary to make an early withdrawal of a lump sum because of his financial difficulties arising from his dismissal. However, without more evidence, it is not possible for the Tribunal to make any further findings concerning this issue.[55]Nonetheless, what is clear is that the claimant anticipated being able to work continuously until 65 with Pilkington had he not been dismissed and that he would have been able to continue working in his adjusted team leader role for that period. Law Agreed losses not requiring further consideration of
The law
[56]Given that the parties had agreed remedy in relation to the basic award, notice pay and injury to feelings, it is not necessary to discuss the law applying to these heads of loss within the context of this judgment. Loss of statutory rights[57]The question of loss of statutory rights did require some discussion as the respondent’s primary argument was that the claimant was not entitled to claim this loss, which is commonly encountered when a claimant succeeds with an unfair dismissal claim.[58]By way of reminder, the purposes of an award for loss of statutory rights is to compensate the employee for the value of the accrued statutory rights that have been lost as a result of the dismissal. It recognises that the dismissed employee will need to accrue 2 years’ continuous service before they will have reacquired the right to claim unfair dismissal or statutory redundancy payment, as well as any statutory notice period.[59]In terms of the quantification of this figure, there is no particular figure that should be awarded, but in recent years a figure in the region £500 is commonly awarded. The case of Countrywide Estate Agents & Ors v Turner UKEAT/0208/13/LA the EAT upheld a Tribunal decision to award 2 weeks’ gross pay (limited to the weekly pay then in force) for loss of statutory rights, as the claimant in that case would require another 2 years to accrue those rights once more. While the statutory figure for a weeks’ pay has increased since that case was considered, it confirms the broadbrush principles behind such an award and the relatively conservative sums involved when a Tribunal determines what to award. Mr Mensah referred to Countrywide in his written final submissions.[60]Ms Urquhart in support of the respondent’s argument that this loss should not be awarded, referred to the case of Harvey v Institute of The Motor Industry (No2) [1996] ICR 981, at [990D]. This judgment held that there is no rule of law which requires the automatic award of compensation for this loss. Loss of earnings and mitigation of loss[61]Mr Mensah referred to the case of Fyfe v Scientific Furnishing Limited [1989] IRLR 331, which confirms that the claimant has a duty to mitigate their loss. However, it is the respondent who has the burden of proving a failure to mitigate and they must how that not only did the claimant fail to take a step, but that this amounted to unreasonable behaviour. He also noted that the case of Wright v Silverline Car Caledonia Limited UKEAT/0008/16 which confirms the respondent has to show how the failure of the claimant to take a step was unreasonable and the Tribunal must consider the following questions: a) What steps the claimant should have taken to mitigate his losses; b) Whether it was unreasonable for the claimant to have failed to take any such steps; and, c) If so, the date from which an alternative income would have been obtained.[62]In his closing arguments also noted that in Hakim v The Scottish Trade Unions Congress UKEAT/0047/19/SS which held that where the facts are so uncertain, a Tribunal may impose a percentage reduction to compensation as an alternative to applying an end date arising from a finding of failure to mitigate, (see 40(c) above). It is however, acknowledged as being a crude approach to take and a Tribunal will be expected to justify why it felt that this was the only realistic option available to them based upon the evidence before them.[63]A case referred to by both counsel was that of Cooper Contracting Limited v Lindsey UKEAT/0184/15/JOJ and in particular, paragraph 16, where the relevant principles a Tribunal should follow when considering the question of mitigation. Of note is that it is the Tribunal’s assessment of what amounts to reasonableness and not the claimant. But when considering this issue, the Tribunal should not apply too demanding a standard on the claimant, as they are ultimately the victim of the wrong that has been determined. Polkey[64]This issue had been determined in paragraph 149 of the Tribunal’s reserved judgment and reasons on liability. As we concluded that a fair process would not have resulted in Mr Jones being dismissed, there is no need to consider this issue further and we would agree with Mr Mensah’s submission that there ‘was a 0% chance that a fair process with a proper investigation and appropriate consideration of the Claimant’s explanation for the issues arising on the surveillance video would have resulted in his dismissal.’ Adjustments and order of adjustments[65]It is important that adjustments are applied to awards in the correct order so as to avoid a distortion of the final figure. This was perfectly illustrated in the case of Digital Equipment Co Ltd v Clements [1997] EWCA Civ 2899.[66]In relation to this case the adjustments to the compensatory award should be calculated in the following order: a) Calculate the total losses suffered by the claimant. b) Deduct amounts already received from the employer. c) Deduct earnings which have mitigated the claimant’s loss or a sum which reflects any failure by the claimant to mitigate. d) Polkey [not relevant given the original judgment on liability]. e) Decrease or increase for accelerate receipt. f) ACAS uplift. g) Deduct contributory fault. h) Interest on past losses if available. i) Gross up. j) Apply statutory cap. Discussion Those matters capable of being quantified today.[67]These had been agreed between the parties before this hearing began and based upon the claimant’s current schedule of loss, dated 16 August 2024, (pp82-88). This was confirmed in Ms Urquhart’s opening statement and by Mr Mensah when this hearing began on Day 1.[68]Both parties agreed that the basic award should be £10,710. This was calculated by applying a week’s gross pay of £525, multiplied by 25.5 weeks (based upon the claimant’s accrued service and age), making £13,387.50. With the deduction of 20% being imposed in accordance with the Tribunal’s decision on liability, the net figure is £10,710.[69]Injury to feelings was agreed at £8,800. The respondent also agreed with the claimant’s calculation that interest upon this figure as being £3,753.80.[70]Finally, notice pay was also agreed at £7,753.80. This figure is subject to credit being given for any award for loss of earnings over the same period covering the notice period. Loss of statutory rights[71]The Tribunal considered that this matter could be resolved relatively quickly. While we acknowledged the argument submitted by Ms Urquhart that the claimant’s failure to mitigate his loss prevents him recovering an award under this head of loss, we are not persuaded that this is a reasonable approach to take.[72]The claimant was unfairly dismissed, and the Tribunal considered that if a fair process had been followed, a dismissal would not have taken place. Consequently, the claimant is entitled to an award reflecting the loss of his statutory rights and the requirement to work continuously for two years with a new employer before reacquiring these rights once more.[73]However, we did not believe that Mr Jones’ asserted loss of £1,800 as described in the schedule of loss is appropriate. Considering the date of dismissal and Tribunal’s broad discretion, we agree with Ms Urquhart’s alternative submission in relation to this matter, that a sum of £500 would be proportionate. How long would the claimant have remained employed if he had not been dismissed?[74]There was no dispute that had Mr Jones been able to return to his former team leader role had he not been dismissed, he would have been able to continue working in this job until retirement age when he was 65 in 2032.[75]The area of dispute between the parties in relation to Mr Jones remaining in employment with Pilkington, was whether his ongoing sickness absence would have reached a point where he was dismissed by reason of medical incapability in April 2020. This would have meant that his dismissal would have taken place 3 months after the exhaustion of company sick pay, 1 month before the prescribing of Magnesium pain relief and 3 months before Mr Jones’ pain improved significantly thereby enabling to return to work.[76]While it was possible that Pilkington could have quickly exercised an ill health process and decided upon dismissal, we were not persuaded from the evidence of Mrs Neal and Mr Jones that such a decision would have been reached so quickly. It is to Pilkington’s credit that they appear to adopt a flexible and measured approach to questions of medical incapability/capability, and this was supported by their Sickness Procedure (pp601-606). While Longer Term Absences could result in dismissal, it was unlikely that any action concerning medical incapability would take place until company sick pay was exhausted. There would then be a process were consideration would be given to whether a return to work was possible within ‘a reasonable timescale’. This would involve further OH evidence being obtained, and consideration being given to redeployment and ill health retirement.[77]The Tribunal concluded that on balance it was more likely than not, that Mr Jones would have remained in employment until the point when his health was improving following the prescribing of magnesium. This means that he would have remained employed by July 2020 when a return to work would have been likely. Would the claimant have remained in the same job or alternative employment?[78]The evidence of both Mrs Neal and Dr Adedokun confirmed that Mr Jones would have been able to return to his team leader role. In particular Mrs Neal’s evidence was clear that this adjusted role was the least physical role at Greengates. He was therefore able to return to this role and remain in the same adjusted job role. Would the claimant have been likely to find alternative employment?[79]The Tribunal’s judgment is that had Mr Jones not been dismissed by Pilkington, there would have been no need for him to look for alternative employment. He would have recovered sufficiently from his ill health so that he could return to work by July 2020 in his team leader role which remained open for him during this time.[80]However, considering our findings of fact concerning Mr Jones’ circumstances following his dismissal, we concluded that he was simply not able to begin looking for alternative paid employment until July 2023. This was when the EAT appeal had concluded. He faced several challenges relating to the way he was dismissed, the stigma he felt as a consequence and the prolonged nature of his proceedings before the respondent’s appeal was dismissed. Moreover, the Covid pandemic and his lack of knowledge and skills relating to recruitment processes added to these difficulties. His evidence and the medical records demonstrated that on balance he was not able to be able to apply for alternative work prior to July 2023.[81]Nonetheless, the Tribunal recognises Mr Jones’ duty to mitigate his loss and considering his witness evidence and the medical evidence within the documents, we find that he was well enough to start looking for alternative work from July 2023. There was no medical evidence to support ongoing ill health preventing him from working during the second half of 2023 and no medical records were available for 2024. He accepted that he did not at any stage begin looking for employment or undertaking training since his dismissal. Consequently, we consider that from July 2023 this failure became unreasonable in accordance with the principle outlined in Cooper (and referred to by both counsel in their closing arguments). We acknowledge that Mr Jones’ circumstances in terms of age and impairments may have made it more difficult for him to find suitable alternative employment, but what is unreasonable is his failure to even attempt to explore whether such work was available. What are the mitigating factors relating to the claimant’s pension?[82]There was no dispute that Mr Jones took a lump sum out of his pension at a date much earlier than he had planned to do and that he had hoped to remain employed by Pilkington until 2032 when he reached the age of 65.[83]Unfortunately, we were not provided with sufficient evidence concerning the impact of this early withdrawal, having not even been provided with the details of the amount withdrawn.[84]Mr Jones has clearly included a pension loss calculation within his schedule of loss, although it currently appears to be incomplete. Mr Miller while available to give oral witness evidence at this part 1 remedy hearing, was not subject to cross examination. Her witness statement while helpful in terms of explaining the history and nature of the Pilkington pension provision during Mr Jones’ employment, was relatively short and did not consider questions relating to the substance of the mitigation question.[85]Consequently, this is a question which remains unresolved and if the parties are not able to agree a single ‘answer’, it will be necessary for the Tribunal to consider this matter further at a future remedy hearing with the relevant and necessary documentary and witness evidence being made available by the parties.
Conclusion
[86]Accordingly, the Tribunal has been able to determine part of the remedy applicable to the claimant’s claim and as set out in the table below. Losses quantified at the Part 1 Remedy Hearing (1) The respondent shall therefore pay the claimant the sum of Thirty-One Thousand, Five Hundred and Twenty-Seven Pounds 36 Pence (£31,527.36) in respect of the losses identified within the table below and calculated as follows: Type of Loss Amounta. A. Basic Award The claimant is entitled to a basic award in respect of the unfair dismissal and allowing for a deduction for contributory fault of 20% - (25.5 weeks x £525 x 80%) = £10,710b. B. Loss of Statutory Rights The claimant is entitled to an award for loss of statutory rights in the sum of £500.c. C. Injury to Feelings 3. The claimant is entitled to an award in respect of injury to feelings in the sum of £8,800. 4. The claimant is entitled to accrued interest of £3763.56 on the award for injury to feelings.d. D. Notice Pay/Wrongful dismissal The claimant is entitled to £7,753.80 in respect of notice pay, (which should be considered when loss of earnings is calculated at the next stage of this remedy process).e. E. Total of assessed losses to date The respondent shall therefore pay the claimant the sum of (£10,710 + £500 + £8,800 + £3763.56 + £7,753.80) = £31,527.36£31,527.36[87]There is no reason why the respondent cannot pay the sum of £31,527.36 to the claimant in full without further delay. Any adjustments arising from the calculation of the remaining part of remedy below, can be made as part of any discussions between the parties or at the Tribunal’s final determination of remedy at a future hearing. Judgment in relation to the issues regarding the calculation of losses which could not be quantified today[88]The balance of remedy to be determined in this case relating to loss of earnings following the claimant’s dismissal and pension loss will be determined at the next part of the remedy hearing.[89]However, the Tribunal makes the following findings with regard to general principles concerning the extent of this loss:(a) Had the claimant not been dismissed by the respondent, he would have been able to return to work following a period of sick leave by 31 July 2020.(b) The claimant would have remained in employment with the respondent until his planned retirement in 2032 when he reached 65 years of age.(c) The claimant would have been able to return to his team leader role.(d) The claimant was well enough to start looking for alternative work from July 2023. Consequently, the claimant’s failure to look for alternative work or seek relevant training or assistance to support him in finding alternative work became unreasonable from July 2023.(e) The Tribunal had insufficient evidence available to enable it to identify the mitigation factors relating to the claimant’s pension and this matter must be determined at a future hearing in the remedy process if not agreed between the parties. Next steps in the process of determining remedy/concluding the proceedings[90]The parties may now wish to use this judgment and enter into further discussions regarding the settlement of the balance of remedy in this case. However, even if this is not possible, they may nonetheless be able to agree certain elements of the remaining remedy issues to assist the determination of this case at a future remedy hearing.[91]No case management orders will be made at this stage because both sides are represented and will understand what they need to do in order that this case can be brought to a conclusion without significant further delay.[92]However, in order that the Tribunal can manage the progress of these proceedings, Judge Johnson has listed the case for a preliminary hearing case management reserved to himself with a duration of 2 hours. It will take place remotely and of course if an agreement is reached between the parties, it may be possible for the Judge to deal with any outstanding case management on the papers and without counsel being required to attend.[93]It is likely that the listed hearing date for the PHCM will take place in July 2025, but should representatives find the date to be inconvenient, they may jointly apply within 2 weeks of the Notice of PH being sent to the parties seeking an alternative date and providing their dates to avoid.