Employment Judge HoeyMr Buckle (instructed by solicitor) for respondentDate 18 September 2020
JUDGMENT
[1]The claimant was a disabled person in terms of section 6 of the Equality Act 2010 at the relevant times, for the purposes of his claims.[2]Each of the claims were brought within the statutory limitation period, which failing they were raised within such other period that was just and equitable.[3]It cannot be said that there are no reasonable prospects of success or little reasonable prospects of success in respect of the claims, each of which shall now proceed to a Hearing. Introduction[1]This case called as a preliminary hearing following a case management preliminary hearing that had been heard on 12 June 2019. The hearing was fixed to determine 3 main issues:a. Was the claimant a disabled person in terms of section 6 of the Equality Act 2010 at relevant time?b. Were any of the claims lodged outwith the statutory time limit, and if so, should the time limit be extended? 1 of 28c. Should the claims be struck out for having no reasonable prospects of success which failing should a deposit be ordered if the claims have little reasonable prospects of success.[2]The claimant was represented by his trade union representative and the respondent by a solicitor.[3]I began the hearing by reminding the parties of the overriding objective in terms of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and of the need to work together to ensure matters were dealt with justly and proportionately and the parties were placed on an equal footing.[4]A joint bundle had agreed comprising 166 pages to which an additional 2 pages were added during the hearing.[5]This judgment follows my detailed consideration of the evidence and submissions that were made. Issues[6]The claimant had raised a claim for direct disability discrimination, indirect disability discrimination and an alleged failure to make reasonable adjustments.[7]Each of the claims appeared to stem from the one incident, namely that on 1 May 2017 the claimant (a retail store manager) asked and then agreed to move stores to work in a smaller store, albeit the claimant relies upon a policy of the respondent which is not limited in time as such (and which continued to be applied).[8]The claimant had complained about the reduced salary (which applied because the store was smaller) by lodging a grievance on 22 July 2017, the outcome of which he appealed and received a decision dated 24 October 2018.[9]His claim form was presented to the Tribunal on 17 January 2019. Disability status[10]The first issue that arose was whether or not the claimant was a disabled person in terms of section 6 of the Equality Act 2010 at the relevant time. The parties had agreed the claims all stemmed from and related to the move on 1 May 2017 and so this was the relevant time. The claimant’s agent had initially suggested he was relying on a continuing act but conceded that this was a discrete matter that had happened on 1 May 2017.[11]However, as can be seen below, the claimant’s agent changed his position by the time the hearing proceeded to hear the parties’ submissions. The claimant’s agent had submissions that had been prepared prior to the hearing which he issued to the respondent and the Tribunal. Those written submissions argued that there was a continuing act and that the claims did not relate only to the 2 of 28 event on 1 May 2017 but up to and including the outcome of the grievance appeal in October 2018. This is due to the claimant relying upon the respondent’s application of their policy. The claimant’s claims related to the respondent’s policy as to how it pays managers, which clearly did apply for the period in question and not simply on one occasion.[12]I shall come to that matter when dealing with the time bar issue but it is a relevant consideration in relation to disability status since when leading evidence, the claimant focused upon the medical position as at 1 May 2017.[13]Nonetheless his evidence was clear in that his medical position remained constant by the outcome of the appeal (in October 2018) and this was not challenged by the respondent. The document that the parties agree be added to the bundle was a medical report dated 25 July 2017 which confirmed the claimant’s position had not changed. I also understand (from the claimant’s submissions) that the respondent’s occupational health expert confirmed the position as set out in this judgment (see page 109 and 110 of the bundle). In other words, the claimant’s medical position (as known by the respondent) was not materially different in October 2018 to that pertaining in May 2017.[14]The respondent conceded that the claimant had physical impairments at the relevant time, namely sarcoidosis, (an inflammation of the lung), degenerative disk disease and lower back arthritis. The issue was whether or not the impairments satisfied the requirements set out in section 6 of the Equality Act 2010, which was disputed by the respondent. Time limits[15]At the outset of the hearing, the claimant’s agent had suggested the claims were not out of time, but following a discussion as to the nature of the claims, his agent conceded that the claims all stemmed from a one-off act, the transfer to the new role on 1 May 2017. The claimant had lodged 2 grievances, the latter of which resulted in an appeal outcome being issued on 24 October 2018.[16]The claimant’s agent at submissions sought to withdraw the concession since the written submissions that he presented argued that there was a continuing act that went beyond 1 May 2017 and continued up to the outcome of the appeal hearing which was issued in October 2018.[17]The respondent’s agent argued that this was something about which no advance notice had been given and the case had been presented (and defended) on the basis of the position which had been agreed at the outset of the hearing, namely the claims were time barred and the issue was whether the claims should be allowed to proceed, although late.[18]I asked the parties to make submissions on these issues and reserved my decision. Strike out and deposit order 3 of 28[19]Finally, the respondent argued that the claims had no reasonable prospects of success and should be struck out, which failing a deposit order should be made, there being little reasonable prospects of success. Disability Issue – Findings of fact[20]Evidence was led by the claimant himself and from the respondent (a replenishment assistant who worked with the claimant and reported to him). Both witnesses had lodged a witness statement and were cross examined. I am able to make the following findings of fact from the oral evidence that was led and the documents to which I was referred, on the balance of probabilities (by finding what was more likely than not to be the case). Background[21]The respondent is a retail operation and the clamant was engaged as Store Manager from July 2013. In 2015 he was promoted to a larger store. He asked to move to a smaller store due to his health concerns, which was closer to his home, which was agreed. He moved to the smaller store, on or around 1 May 2017.[22]Since 2007 the claimant has suffered from back pain and was diagnosed with lower back arthritis and suffering from a degenerative disc.[23]In 2016 the claimant was diagnosed with having sarcoidosis which manifests itself by way of a chronic cough. Medical position[24]The medical information that was presented to the Tribunal included the following facts, which I accept.[25]On 4 March 2016 the claimant had presented with a persistent cough. The letter from the medical physician stated that he had a history of allergic rhinitis and occasionally got flare ups with the cough clearing after some time. His cough had worsened. He complained of a “tearing sensation” down his right side on coughing which was muscular in nature. There was no medical information as to how the impairment manifested itself nor on what would happen if any of the medication was not taken by the claimant.[26]On 15 April 2016 the claimant saw a specialist surgeon who diagnosed chronic cough which was stated to have been presented for around 6 months at that time. The consultant noted that there was remission in between events. Medication was prescribed.[27]On 23 May 2016 the surgeon reports that “his cough is better”.[28]At an examination on 14 July 2016 the doctor noted that the “appearances are highly suggestive of Sarcoidosis” 4 of 28[29]On 23 August 2016 the specialist notes that the claimant has suffered from a cough since 1996 when he was diagnosed with asthma. The cough can last for a number of months or weeks but “he has had a constant cough from last year”.[30]At a review on 26 September 2016 the surgeon states that the claimant has had a “chronic cough on and off”. The surgeon states that “it is extremely troublesome and interfering with his quality of life. In addition, he feels generally “achy” and quite lethargic”. He was prescribed steroids.[31]On 28 October 2016 the consultant noted the diagnoses of chronic cough and sarcoidosis and osteoarthritis (in the heading of the letter). The surgeon noted that the “cough had virtually gone. However, he still feels quite lethargic”. The claimant complained of a dull chest ache which kept him awake (which may be a side effect of medication).[32]On 29 November 2016 the surgeon noted that the cough had returned and the claimant “felt quite lethargic”. Medication was continued (but there was no evidence as to what would happen had the medication not been taken).[33]On 10 January 2017 the consultant stated that the claimant “feels better in himself but still feels quite fatigued”. His cough “is now supressed” and steroids were to be reduced.[34]On 24 February 2017 the consultant noted that the claimant’s cough “remains at bay” but the claimant is “feeling quite lethargic”. He was prescribed steroids but no information is given as to the effect if these were not taken.[35]On 11 April 2017 the surgeon notes that since stopping steroids the claimant did not have any further cough or chest pains. Fatigue was, however, still present. He does feel that he gets a good night sleep but is “quite fatigued during the day”.[36]The bundle included reports beyond this date but as the focus at the Hearing was on the 1 May 2017, no specific reference was made to the later medical reports.[37]No medical information was presented as to how the impairments the claimant suffered impacted upon his day to day activities (particularly with regard to the claimant’s lower back arthritis/degenerative disc). This was found in the claimant’s impact statement and, to a lesser extent, in his witness statement, to which he referred. His impact statement broke the claimant’s impairments down into two, the degenerative disk/arthritis and sarcoidosis. Effect of impairment[38]The claimant says that “due to a combination of both conditions I suffer with different levels of lower back pain”. He explained that he gets pain in his buttocks and thigh and “shooting pains up the back on a daily basis”. The statement notes that his pain is worse when kneeling, reaching over, jumping, 5 of 28 sitting, standing, bending, lifting or twisting. He also notes he was prescribed steroids.[39]I find the claimant sought to mask the effects of his disability, which included by attending work and by not showing the effects of his impairments outwardly.[40]The respondent challenged the claimant’s evidence on the basis that the evidence they had, from their experience of the claimant on a day to day basis, substantially conflicted with what he was saying. The challenge the respondent had was that they could only provide evidence with regard to what a colleague saw of the claimant during working hours when the individual saw the claimant, which was obviously not at all times during working hours and did not deal with the times when the claimant was not at work (which they were essentially unable to challenge).[41]There was an evidential dispute in terms of the impact the claimant’s physical impairments had on a day to day basis. The claimant contends that his condition resulted in him having difficulty twisting, bending, kneeling, reaching over, standing in the same spot, using a step ladder and lifting. He argued that he had delegated tasks to other individuals within the store and was spending only 30% of the time on the shop floor, with the remainder of the time recovering. The respondent’s position was that there were no such effects of his impairments.[42]The Tribunal heard evidence from a colleague of the claimant who worked 35 hours a week and who reported directly to the claimant. She saw the claimant and worked with him on a daily basis. She worked with the claimant from 5 March 2016 until the claimant’s move away from the store on or around 1 May 2017.[43]She stated that she was never asked to do any of the tasks that the claimant had said he delegated to others. She would have been one of the persons to whom such tasks would be delegated (but there were others).[44]She saw the claimant at work when she was working. Her evidence was that the only issue that she saw affecting the claimant was a cough (for which he took medication) that he had but she was surprised to learn of the impact the claimant maintained his impairments had on a day to day basis since she saw no evidence of it.[45]She was of the view from her experience of the claimant he spent 90% on the shop floor and 10% in the office (and not the 30% on the shop floor and 70% in the office as the claimant suggested) and use stairs and ladders.[46]The claimant’s impact statement sets out the consequences of both conditions. The degenerative disc/arthritis is stated to give the claimant lower back pain “at times”. It notes that the claimant suffered “with different levels of pain at all times”. He had purchased a thermal bed which he said reduced his pain. 6 of 28[47]The statement notes that the condition affects his mobility and if he sits for too long, the pain increases in his back. If he kneels this causes pain. Longer walks cause him to suffer pain. Long car journeys cause pain as does travelling on public transport. He argues that in terms of manual dexterity, the pain he suffers makes him feel fatigued which causes him a lack in concentration. He says that lifting, carrying, bending and picking items up can increase pain in his back and he is unable to concentrate at home and at work when he suffers from pain.[48]He says that “without pain killers I would feel increased pain, be unable to concentrate, [suffer a] temperament change, low mood, be sore, have fatigue and be anxious”. This was based on the claimant’s belief rather than upon any medical basis or upon any evidence of the claimant having experience of not taking the medication.[49]With regard to sarcoidosis, which manifested from a persistent cough, which started in late 2015, his statement states that steroids had helped but “not this time”. He says persistent coughing impacts on his day to day activities putting him at significant risk of long term multiple side effects of taking steroids.[50]His statement says that sarcoidosis causes him to have “significant weakness” which means he finds it “much harder to carry out normal day to day tasks” which include communicating with others, working stock quickly and driving. He says it also affects his mobility as he has to walk at a slower pace due to the loss of energy from consistent coughing and he is unsteady with movement. He says he has difficulty going up and down stairs due to tiredness and weakness in his body. A side effect, he says, is back pain which stops him lifting items. He says he gets fatigued easily and has disturbed sleep.[51]He says that without medication he would be house bound, and unable to communicate, have mood swings and deep depression, which appears to based on the claimant’s belief rather than upon any actual experience of medical information. There was no evidence of the claimant having experience of the effect of not taking medication.[52]The parties agreed that there was no medical evidence to support the claimant’s assertions (as to the impact of his impairment) and the Tribunal required to make a finding of the impact of the claimant’s impairments on the balance of probabilities. There was clearly a stark conflict between the evidence presented by both parties.[53]While the parties suggested I had to choose whose evidence is to be preferred, I do not consider that such an approach is determinative of the issue of disability given the scope of the evidence from the respondent which was limited to what that witness saw. The respondent did not challenge large parts of the claimant’s evidence, which was not surprising given the respondent would not know how the impairment impacted upon the claimant outwith times those who worked with him saw him, but I require to make findings based upon the evidence I heard. 7 of 28[54]I accept that there are some inconsistencies in the claimant’s evidence and his answers in cross examination were in some parts confusing but that did not result in his evidence being incredible. On the whole, I found the claimant to be a credible and reliable witness. His assessment that he had revised his activities to spend 30% on the shop floor (rather than the 90% suggested by the respondent’s witness) was a guess by the claimant. I find on the balance of probabilities the claimant did restrict his shop floor activities and that he did delegate to others. It is impossible to say to what extent he reduced his direct shop floor activities (and instead supervised others who carried out his instructions) but I find that the claimant’s impairments had caused him to materially restrict his working on the shop floor carrying out lifting, ladder and stock work.[55]The respondent’s witness was not present with the claimant at all times during the day and not at all outwith her working hours. She is also not able to comment upon the extent to which the claimant sought to mask the effect of his impairments.[56]Having considered the evidence carefully, I accept the claimant’s evidence that the content of his impact statement referred to the impact his impairments had not just at the time of writing but in 2016 and 2017. I find on the balance of probabilities that the claimant did suffer pain on a daily basis and that he was lethargic and lacking in energy in a material way. That impacted upon his ability to drive and to concentrate. I also find that the impairments had the following effects upon the claimant:a. He suffered from lower back pain on a daily basis, which involved shooting pains in his back which affected his ability to walk, sit and driveb. The claimant struggled to concentrate as a result of the pain and fatigue he encountered stemming from his impairments and his energy levels were considerably reduced. This affected his ability to have a conversation and communicate with others.c. His impairments made it more difficult for him to lift everyday objects and to walk up ladders[57]The foregoing effects would occur on a daily basis and lasted for 12 months by 30 April 2017 (and it would have been so had the matter been considered at that time).[58]His chronic cough also made it more difficult for the claimant to communicate with others. His persistent cough makes him unsteady on his feet and results in him having to walk at a slower pace. The persistent cough also exacerbates the claimant’s back pain which results in the claimant encountering difficulty in lifting and moving everyday objects. This also restricted the claimant’s ability to drive.[59]Even although the claimant’s cough would disappear on occasion, he still suffered fatigue and a lack of energy as a result of his condition which affected his ability to communicate with others and carry out normal day to day activities since he would be tired, more so than others. These issues were likely to recur 8 of 28 as at April 2017 even although they did not occur on a daily basis. They were fluctuating.[60]The foregoing effects in relation to the impairments did not materially change and the position remained as above at 24 October 2018. Medication and other effects[61]The claimant did take medication but this was sporadic and the medication changed, as did the dosage and type. His evidence was not clear in relation to the specifics and the medical information did not provide any assistance in determining what the effect upon the claimant would have been had he not taken the relevant medication. There was no medical evidence that set out what would have happened had the claimant not taken the medication which he took on occasion. The effects as set out above were the effects with medication and it is highly likely that had the claimant not taken the relevant medication the effects would have been worse.[62]There was also no evidence from the claimant that set out what actually happened had the claimant not taken his medication. He believed that he would not have been able to function had he not taken his medication but there was no evidence that this had in fact happened. The claimant was clear that his medication did assist him, albeit no specific evidence was produced as to the ways in which it did so and the above findings are made on the basis of the claimant’s position with the benefit of medication.[63]I also note that the claimant had purchased, at considerable costs to himself, a specialist bed to support him. There was no evidence before the Tribunal as to what would have happened had the claimant not had the benefit of that support (other than what the claimant thought might happen if he did not use it). The law - disability[64]Section 6 of the Equality Act 2010 states that:a. “A person (P) has a disability if—(a) P has a physical or mental impairment, and(b) the impairment has a substantial and longterm adverse effect on P's ability to carry out normal day-to-day activities…b. A reference to a disabled person is a reference to a person who has a disability.c. In relation to the protected characteristic of disability – i. A reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; ii. A reference to persons who share a protected characteristic is a reference to persons who have the same disability 9 of 28[65]Paragraph 5 of Schedule 1 to the Act states:a. 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: i. measures are being taken to correct it, and ii. but for that, it would be likely to have that effect.b. ‘Measures’ includes, in particular, medical treatment and the use of a prosthesis or other aid.[66]Paragraph 12 of Schedule 1 of the Act provides that when determining whether a person is disabled, the Tribunal “must take account of such guidance as it thinks is relevant.” The “Equality Act 2010 Guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability” (May 2011) (the “Guidance”) was issued by the Secretary of State pursuant to section 6(5).[67]In Goodwin v Patent Office 1999 ICR 302, Morison J (President), provided some guidance on the proper approach for the Tribunal to adopt when applying the provisions of the (then) Disability Discrimination Act 1995. Morison J held that the following four questions should be answered (which apply as much today for the Equality Act 2010 as it did then), in order:a. Did the claimant have a mental or physical impairment? (the ‘impairment condition’);b. Did the impairment affect the claimant’s ability to carry out normal day-today activities? (the ‘adverse effect condition’);c. Was the adverse condition substantial? (the ‘substantial condition’);d. And was the adverse condition long term? (the ‘long-term condition’).[68]That case also contains a reminder that a purposive approach should be taken of the legislation in this area and that Tribunals should bear in mind that even although a claimant can carry out a task with difficulty, the relevant effects can still be present. Persons with disabilities often downplay the effects of their impairments. Tribunals should also ensure they do not lose sight of the overall picture in making their assessment. Submissions on disability[69]The claimant had provided written submissions and argued that the evidence showed the physical impairments had a substantial adverse and long term effect upon his ability to carry out normal day to day activities. 10 of 28[70]The respondent accepted that there were physical impairments but denied they had an adverse effect upon day to day activities. It was argued that his colleague was able to comment on what the claimant could do. The claimant had attended work without issue.[71]At most the respondent argued the claimant suffered from fatigue which did not have the requisite effects.[72]The respondent argued that the medication was irrelevant since it was taken sporadically and the claimant managed to attend work without any issues. The respondent argued the definition had not been made out. Discussion and reasons on disability[73]I shall take each of the issues within the legal definition in turn, a. Did the claimant have a mental or physical impairment? (the ‘impairment condition’);[74]It is not in dispute that the claimant suffered from a physical impairment. b. Did the impairment affect the claimant’s ability to carry out normal day-today activities? (the ‘adverse effect condition’);[75]It was not essentially in dispute that the claimant’s impairment did impact upon his ability to carry out day to day activities to the extent that the respondent accepted the claimant had suffered fatigue and a cough and some pain (which would impact upon day to day activities). In any event I find that the impairments did affect the claimant’s ability to carry out day to day activities. They restricted his ability to drive and to concentrate and to lift and walk. These were all day to day activities. The key issue for the respondent was whether or not the impact upon the claimant’s ability to carry out day to day activities was substantial and/or was it minor or trivial. c. Was the adverse condition substantial? (the ‘substantial condition’) and did it last for 12 months or more;[76]They key issue in this case was whether the impact was substantial, which means more than minor or trivial. In other words, does the limitation go beyond the normal differences in ability among people and had it lasted for 12 months or more. The Tribunal needs to assess the evidence carefully. The respondent’s challenge was not that the claimant had impairments but that the effects of the claimant’s impairments as alleged by the claimant were not present (ie not substantial or long term).[77]The Guidance in this area notes that the time taken by a person with an impairment to carry out the activities should be considered and contrasted with those who do not have an impairment. It is also possible to look at the way in which the person with the impairment carries out the activity. It is also important to consider whether the effect on more than one activity, when taken together, 11 of 28 could result in an overall substantial adverse effect. The effects of the impairments taken together should be assessed.[78]Section 212(1) of the Equality Act 2010 and paragraph B1 of the Guidance notes that the effect is substantial if it is more than minor or trivial. Paragraphs B2 to B5 note that the time taken to do an activity and the way it is done is relevant and it is the cumulative effect of the impairments which should be considered.[79]The Tribunal must also focus on what the claimant cannot do or can do with difficulty (comparing how others would carry out the activity absent any impairment).[80]I have found that the claimant’s impairments impacted upon his day to day activities. In my view, having assessed the evidence carefully the claimant’s ability to carry out day to day activities was substantially and adversely affected, which went beyond the normal differences that may exist among people. The claimant suffered pain on a daily basis, with his impairments impacting upon his ability to walk, drive and concentrate. He suffered lethargy which impacted upon his ability to concentrate and communicate with others. It was difficult for him to lift everyday objects and to walk up ladders. These effects would occur on a daily basis and lasted for 12 months by 30 April 2017. It was not suggested that the position improved by October 2018. These are day to day activities and the effect upon the claimant was clearly more than minor or trivial – it was substantial and long term, assessing the matter at the relevant time with the knowledge the parties had.[81]His chronic cough also made it more difficult for the clamant to communicate with others. His persistent cough made him unsteady on his feet and resulted in him having to walk at a slower pace. The persistent cough exacerbated the claimant’s back pain which resulted in the claimant encountering difficulty in lifting and moving everyday objects. He experienced shooting pain regularly. This also restricted the claimant’s ability to drive. These are day to day activities which were substantially affected at the relevant time.[82]Even although the claimant’s cough would disappear on occasion, he still suffered fatigue and a lack of energy as a result of his condition which affected his ability to communicate with others and carry out normal day to day activities since he would be tired, more so than others who did not suffer from that impairment. These issues were likely to recur as at April 2017 even although they did not occur on a daily basis. They were fluctuating.[83]Paragraph 2(2) to Schedule 1 of the Equality Act 2010 notes that even if an impairment ceases to have a substantial adverse effect upon a person’s ability to carry out normal day to day activities, it is to be treated as having such an effect if it is likely to recur. This is the position in relation to the effects of the chronic cough the claimant suffered, since it would disappear but return. I am satisfied, however, that the effects of his other impairments satisfied the definition of disability even if the chronic cough were to be excluded, at the time in question from the information that was then known. 12 of 28[84]Taking the effects of the impairments together, it is clear that the claimant had physical impairments which had a substantial, adverse and long term effect upon his ability to carry out normal day to day activities for the period April 2017 until October 2018.[85]I accept the claimant attended work for the duration of the period in question and the respondent’s witness may not have witnessed the effects upon the claimant but there was no reason to doubt the impact of the impairments the claimant experienced on a day to day basis, which could have occurred when the colleague was not with the claimant or outwith working hours. The claimant sought to downplay or mask the effect his impairments had when at work but from the evidence presented to the Tribunal in relation to the effect his impairment had upon his day to day activities and from the information known at the time, the constituent elements of the statutory definition were satisfied.[86]In making this assessment I have considered the evidence the parties led carefully together with the productions and the statutory wording and Guidance. I have concluded that the effect of the claimant’s impairments, even with the benefit of medication was that the claimant’s ability to carry out normal day to day activities was impeded in a more than minor or trivial way. That had lasted for over 12 months on 1 May 2017 (and 24 October 2018).[87]In the circumstances I have concluded therefore that the claimant was a disabled person in terms of section 6 of the Equality Act 2010 at the relevant time, namely from April 2017. As the effects did not lessen, and there was no suggestion his impairments had changed, I conclude that the claimant was a disabled person as at April 2017 and up to the outcome of his appeal in October 2018. Time bar – Findings of facts[88]The claimant gave evidence in relation to time bar and I am able to make the following findings of fact on the balance of probabilities (which are facts for the purpose of this preliminary issue only). Policy and pay[89]The claimant moved to the smaller store on 1 May 2017 at which point he suffered a cut in the level of his pay. This was because the respondent operated a policy that pay was based upon the size of the store in which the manager worked, which was a continuing policy. Complaints[90]On 3 August 2017 the claimant lodged a grievance alleging that he had suffered discrimination at work (which did not specifically deal with the pay point).[91]On 26 April 2018 the claimant claimed he was being treated unfairly in relation to pay. He had discovered that colleagues had received a pay increase and he 13 of 28 had not. It was at this point the claimant discovered his 2 comparators (on whom he relies for his direct discrimination complaint) did, in his view, get a pay rise when they moved to a smaller store (which he realised resulted in him, potentially, being subject to direct disability discrimination when he moved stores).[92]On 22 July 2018 the claimant raised a formal grievance complaining about discriminatory treatment. A meeting was held on 7 September 2018 which dismissed his grievance.[93]The claimant appealed against the dismissal of his grievance and was told on 24 October 2018 that his appeal was dismissed.[94]His appeal outcome letter did offer him an increase in salary (which was not backdated). Claimant’s knowledge and position re time limits[95]In April 2017 and in April 2018 the claimant was not aware of the time limit rules pertaining to Employment Tribunal claims, although the claimant understood that he required to go through an internal process before a claim could be lodged. He therefore lodged a grievance and appeal.[96]The claimant had the benefit of trade union advice and support from April 2018. He was not sure when he learned of the 3 month time limit but he thinks it was when he contacted ACAS in late 2018 when he read about the time limits. I find, on the balance of probabilities, that the claimant learned of time limits by the end of 2018, on or around 9 December 2018. Proceedings[97]The claimant went to ACAS on 9 December 2018. An early conciliation certificate was issued on 7 January 2019.[98]The claimant lodged his claim on 17 January 2019. Time limits – law[99]Section 123 of the Equality Act 2010 states: i. [Subject to [sections 140A and 140B] proceedings] on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— 14 of 28 1. conduct extending over a period is to be treated as done at the end of the period; 2. failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— 1. when P does an act inconsistent with doing it, or 2. if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[100]In the case of Hendricks v Metropolitan Police Commissioners [2003] IRLR 96 the Court of Appeal on the question of what amounted to a continuing act, cautioned Tribunals against looking too literally for a policy, rule, practice, scheme or regime, but rather to look for incidents which are linked to each other and which are evidence of a “continuing discriminatory state of affairs”. Where a continuing discriminatory act exists within the employment relationship, time does not begin to run as long as the discriminatory policy remains in force and the employee remains in the employment of the discriminator.[101]The court emphasised that the focus should be on the substance of the claimant’s allegations. In that case the allegation was that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the police force were treated less favourably. The question was whether that was an act extending over a period, as distinct from a succession of unconnected or isolated specific acts for which time would begin to run from the date when each specific act was committed.[102]The focus is on the substance of the complaints in question — as opposed to the existence of a policy or regime — and determine whether they can be said to be part of one continuing act by the employer.[103]The court in Robinson v Surrey 2015 UKEAT 311 is authority for the proposition that separate types of discrimination claims can potentially be considered together as constituting conduct extending over a time.[104]In Barclays v Kapur 1991 ICR 208 the then House of Lords held that a discriminatory practice can extend over a period. The key issue is to distinguish between a continuing act and an act with continuing consequences. The Court held that where an employer operates a discriminatory regime, rule, practice or principle, then such a practice will amount to an act extending over a period. Where, however, there is no such regime, rule, practice or principle in operation, an act that affects an employee will not be treated as continuing, even though that act has ramifications which extend over a period of time[105]In the case of a disability discrimination claim, where the act complained of consists of a failure to make reasonable adjustments, the calculation of the relevant date for limitation purposes is date involves carrying out an investigation into the period during which the respondent might reasonably have been expected to make the adjustments in question and deciding on the date when that period ended, as that will be the date which will be treated as the beginning of the limitation period. 15 of 28[106]It was held in Abertawe v Morgan [2018] IRLR 1050, that the duty to comply with the relevant requirement begins as soon as the employer is able to take the requisite steps to avoid the relevant disadvantage to the claimant[107]In Matuszowicz v Kingston [2009] IRLR 288, the Court of Appeal held that a failure to make reasonable adjustments is an omission, not an act, and that omission may be either deliberate or inadvertent, that is, it may be due to lack of diligence, competence or any reason other than conscious refusal. This means that if an employer has not done an act inconsistent with making a reasonable adjustment, there must be an enquiry by the Tribunal as to when he might reasonably have been expected to make the necessary reasonable adjustments.[108]The Employment Appeal Tribunal suggested in Secretary of State v Jamil UKEAT/97/13 that where the employer keeps the matter under review, the action may be regarded as a continuing act (albeit Matuszowicz, supra was not cited).[109]The Court of Appeal in Morgan, supra held that, in ascertaining the correct start date in a reasonable adjustment case, the period in which the employer might reasonably have been expected to comply with its duty 'ought in principle be assessed from the claimant's point of view, having regard to the facts known or which ought reasonably to have been known by the claimant at the relevant time'.[110]If there is a continuing act of discrimination, the Tribunal requires to determine when the continuing act came to an end in order to calculate the limitation date. This was considered in Fairlead Maritime Ltd v Parsoya EAT 0275/15 where, the Employment Appeal Tribunal upheld a Tribunal’s decision that the employer’s policy of paying a reduced salary to employees whose ‘employability’ was in issue — effectively, those for whom immigration issues might arise due to their visa status — continued to place the claimant at a disadvantage beyond the time when his visa status was resolved in February 2013 and even after the respondent had raised his salary to the correct rate in June 2013.[111]The continuing state of affairs was identified as the respondent’s continued failure to make good the shortfall in his pay to reflect amounts he would have earned had he been paid at the correct rate from the start of his employment, despite having promised that it would do so once his visa status was resolved. The Employment Appeal Tribunal considered that the respondent had thereby continued the discrimination and had done so because of the claimant’s earlier failure to meet its employability requirement. This state of affairs had continued until the end of the claimant’s employment.[112]Thus whether or not a claim is in time will require a careful consideration of the type of claim that is being pursued. Extending the time limit 16 of 28[113]Section 123 of the Equality Act 2010 requires that any complaint of discrimination within the Act must be brought within three months of the date of the act to which the complaint relates, or such other period as the Tribunal thinks just and equitable.[114]When considering whether it is just and equitable to hear a claim notwithstanding that it has not been brought within the requisite three month time period, the Employment Appeal Tribunal has said in the case of Chohan v Derby Law Centre [2004] IRLR 685 that a Tribunal should have regard to the Limitation Act 1980 checklist as modified in the case of British Coal Corporation v Keeble [1997] IRLR 336 which is as follows: i. The Tribunal should have regard to the prejudice to each party. ii. The Tribunal should have regard to all the circumstances of the case which would include: 1. Length and reason for any delay 2. The extent to which cogency of evidence is likely to be affected 3. The cooperation of the Respondent in the provision of information requested 4. The promptness with which the Claimant acted once he knew of facts giving rise to the cause of action 5. Steps taken by the Claimant to obtain advice once he knew of the possibility of taking action.[115]In Abertawe, supra the Court of Appeal clarified that there was no requirement to apply this or any other check list under the wide discretion afforded to Tribunals by section 123(1), but that it was often useful to do so. The only requirement is not to leave a significant factor out of account. Further, there is no requirement that the Tribunal must be satisfied that there was a good reason for any delay; the absence of a reason or the nature of the reason are factors to take into account.[116]In the case of Robertson v Bexley Community Services [2003] IRLR 434 the Court of Appeal stated that time limits are exercised strictly in employment law and there is no presumption, when exercising discretion on the just and equitable question, that time should be extended. Nevertheless, this is a matter which is in the Tribunal’s discretion.[117]That has to be tempered with the comments of the Court of Appeal in Chief Constable of Lincolnshire v Caston [2010] IRLR 327 where it was observed that although time limits are to be enforced strictly, Tribunals have wide discretion.[118]It has been held that where delay is attributable to incorrect legal advice, such a failure should not be generally used to penalise a claimant even if there is a stateable claim against the legal adviser (which has been extended to union adviser – Wright 2009 All ER (D) 179). 17 of 28[119]Ultimately the Tribunal requires to make a judicial assessment from all the facts to determine whether or not it is just and equitable. Time bar submissions[120]The claimant’s primary submission (from his written submissions) was that his claims form a continuing act and his claim was lodged within 3 months from the “last act in the chain”, namely the appeal outcome on 24 October 2018.[121]The claimant argues that the substance of his complaints are the same throughout and as such should be considered a continuing act extending over a period. The contention is that the pay banding was a practice that continued to apply and the time limit runs from the date the last act was completed, namely 24 October 2018.[122]In relation to the reasonable adjustments claim, it is argued that the time limit for pursuing the claim arises from the date the respondent might reasonably be expected to comply with the duty which should be assessed from the claimant’s point of view. The claimant says this is when the appeal outcome was issued – 24 October 2018.[123]The claimant argues that as he contacted ACAS on 9 December 2018, received an Early Conciliation Certificate on 7 January and raised his claim on 17 January 2019, the claims are in time.[124]In the alternative the claimant argues that it is just and equitable to extend the time limit. The claimant was unwell in 2017 and says he would have done anything to move to a smaller store. He was not aware other colleagues were being paid more than him until April 2018, at which point he raised the issue.[125]The claimant also relies upon the fact he remained in employment and had to maintain a continuing working relationship with the respondent. He tried to raise matters informally and ultimately raised matters formally.[126]The claimant maintains there is greater prejudice to the claimant in not having his claim heard as opposed to the respondent who would be able to set out its defence. Respondent’s response[127]The respondent’s agent argued that the failure to make the adjustment was a one off act that happened on 30 April 2017. That is when the respondent must have made a decision. The claim was not raised within 3 months of that date and relying on Bexley, supra, extending time limits is the exception not the rule.[128]The respondent argued that the claimant knew of the 3 month rule possibly in April 2018 but certainly by October 2018. The claim should have 18 of 28 been brought by July 2018and yet he did not raise a grievance until after 3 months after he became aware of the time limits[129]A further issue the respondent’s solicitor raised was that the respondent’s principal witness in this case retired in April 2018. The claimant had raised a grievance following his departure.[130]The respondent understands that the witness now lives abroad and has not worked for months. He has retired and so the respondent argues that it is disproportionately disadvantaged. It was open to the claimant to have raised matters in 2017 if not in 2018. The claims should therefore be dismissed. Time bar – Reasons and decision[131]I must firstly decide whether to allow the claimant to withdraw his concession that his claims were only based on a single date. Having considered both parties’ submissions and balanced the effect on the parties I have decided it is just to allow the claimant so to do.[132]The claimant’s claims were clearly based (in part) upon the respondent’s policy to pay managers based upon their store size. That was not a one-off act. The indirect discrimination claims clearly rely upon this practice which was not a discrete act. This is something about which the respondent has known not least since the formulation of the claims and issues at the preliminary hearing on 12 June 2019. That hearing note that was issued had also stated that the purpose of today was to consider whether not the claims were in time and if not to consider time bar. It was not therefore axiomatic or automatic that the claims were necessarily out of time.[133]The respondent is not prejudiced by my allowing the concession to be withdrawn since they had knowledge of this issue and knew of the facts relied upon by the claimant in support of his claims.[134]I therefore allow the claimant to withdraw the concession as to the time limit issue such that the claims as set out in the Note can be fully considered. I do not consider the respondent to be prejudiced. It knew as to the medical position in relation to the claimant (as set out in his Impact Statement and Witness Statement). The respondent has been able to deal with the legal and factual issues arising as a result of the withdrawal of the concession fully and without any difficulty. Were the claims brought in time?[135]The next issue to determine is whether the claims are time barred at all. It is necessary to look at each specific claim in turn. Direct disability discrimination[136]The first claim is that the claimant suffered direct disability discrimination when his salary was reduced upon relocation on 1 May 2017. That is a discrete one-off act and was not suggested to be a continuing act of 19 of 28 direct discrimination. It was a single act which had continuing consequences. That claim is accordingly considerably out of time, having been lodged 18 months after the event in question, albeit the claimant only learned of the potential for his claim in April 2018 when he learned that 2 comparators whom he says have the same circumstances as him (aside from disability) did not suffer a pay reduction. As a claim for direct discrimination the less favourable treatment was paying the claimant at the agreed rate for the new role which was a single isolated act.[137]The only way in which it could be considered in time is if the claimant can show that it formed part of a policy or continuing state of affairs with the claim being raised within 3 months following that policy ceasing to apply. I shall consider the other claims in this regard to assist in determining whether or not the requisite continuing discriminatory effect is present from the substance of the complaints. Reasonable adjustments[138]The second claim is one of reasonable adjustments, where the claimant says the provision, criterion or practice relied upon was the operation of a pay band structure based on store performance which he says put him at a disadvantage. In the alternative it is argued that ether was a failure to make a reasonable adjustment where his increased pay of £26,000 was not backdated 18 months when it was offered, on 24 October 2018.[139]The latter claim was therefore raised in time (with the relevant event occurring on 24 October 2018 and the clam being raised on 17 January 2019).[140]The former reasonable adjustments claim arises because the claimant says the respondent should have adjusted his pay when he transferred to the new role, on 1 May 2017. This requires analysis to determine whether it was lodged in time given the statutory provisions.[141]The calculation of the relevant date in reasonable adjustment cases for time bar purposes involves examining the period during which the respondent might reasonably have been expected to make the adjustments in question (from the claimant’s perspective) and deciding on the date when that period ended, as that will be the date which will be treated as the beginning of the limitation period. This is when the employer is able to take the requisite steps to avoid the relevant disadvantage to the claimant.[142]There are a number of possible stages when it might be said that the respondent could reasonably have taken the requisite steps:a. It could be said that the respondent did an act inconsistent with making a reasonable adjustment upon the claimant’s appointment to the role in May 2017 when, according to the claimant, the respondent knew he asked to be moved due to his health concerns and yet the respondent maintained their banding policy. 20 of 28b. Another option would be following the claimant raising the issue about his pay being discriminatory which he raised his first grievances in August 2017 (which did not specifically mention pay discrimination).c. When the claimant raised his second grievance in July 2018 (which specifically referred to pay discrimination issue) the respondent was certainly on notice as to the issue.d. It could also be said that the respondent could reasonably have dealt with matters when it dismissed the claimant’s grievance on 7 September 2018,e. Or finally (as maintained by the claimant) when the respondent dismissed his appeal, on 24 October 2018 having finally determined his request.[143]The assessment is when, reasonably, the claimant could have expected the respondent to have made the adjustment. In my judgment, looking at matters from the claimant’s perspective, as the authorities require me to do, and taking a step back and assessing the position, the respondent could reasonably have been expected to have made the change on 24 October 2018. I accept the claimant’s submission that this was the final stage when the respondent had the chance to make a final decision in relation to the adjustment. There is parity of reasoning with Jamil, supra. I apply the reasoning set out in Matuszowicz, supra, and I conclude that the time limit starts on 24 October 2018.[144]That claim is therefore within time. Indirect disability discrimination[145]The final claim raised by the claimant is for indirect disability discrimination and is based upon the same grounds as the failure to make reasonable adjustments. Neither party made specific submissions upon these claims.[146]The first indirect discrimination claim is based upon the pay banding structure for managers which he says put him at a disadvantage (presumably for the period he took the role, 1 May 2017, to date).[147]The second claim is that the decision to increase his pay to £26,000 but not backdate it (which happened on 24 October 2018) was indirect disability discrimination.[148]While superficially these claims might be said to be identical to the reasonable adjustment claims, upon proper analysis I do not consider this to be correct. The Employment Appeal Tribunal case of Fairlead Maritime Ltd v Parsoya, supra is relevant in respect of these claims. In that case there was a policy to reduce pay for certain categories of staff. That is not dissimilar to the current situation.[149]The court noted that a complaint which related to conduct extending over a period of time had to be treated as done at the end of that period. A 21 of 28 distinction has to be drawn between a continuing act of discrimination extending over a period of time, when section 123(3) applied, and the consequences of an act of discrimination, where the time limit was determined by the date of the act and not by the date of any consequence. Where an employer had adopted a discriminatory policy that it continued to operate, the relevant date of that continuing act of discrimination was the date on which the policy came to an end.[150]In that case, the act complained of was not limited to the mere existence of the employer's policy of not paying full salary to those who required a visa for their employment; it was the application of that policy to the employee. The policy continued beyond the point when the employee's visa status was resolved, and even after the employer had started paying the correct rate, since it had continued to refuse to make good the shortfall. Thus, the employer was continuing the discrimination by refusing to pay the full salary that had been due to the employee from the start of his employment.[151]That reasoning is applicable to the current claim given the respondent’s decision not to amend its policy in respect of the claimant. This claim relates to an ongoing policy about which the claimant complained (not a one off act or decision, in contrast to the other claims). Applying the legal reasoning from that case results in the indirect disability discrimination claims being in time since they rely upon the respondent’s policy of paying managers a salary based upon the store size and not backdating the claimant’s salary (which contrasts with the position in respect of the reasonable adjustments claim, which are assessed as omissions). The policy on which these claims are based continued even after the claimant accepted the job and raised his concerns about the sums.[152]I find that the indirect discrimination claims are therefore in time given the policy continued in force. Continuing act?[153]For the claim that is out of time, the direct disability claim, it is necessary to consider whether or not it is reasonably arguable that the respondent operated a discriminatory policy which continued to apply, such that the claims formed part of a conduct that extended over a period and were therefore raised within time. This requires there to be some form of specific policy, practice or state of affairs in connection with alleged discriminatory treatment of the clamant. As the court said in Hendricks, supra the question is whether there are incidents which are linked to each other which evidence a continuing state of affairs (rather than focussing on a policy as such).[154]In Hendricks, supra the allegation was that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the police force were treated less favourably. In the instant case the clamant is raising separate claims. He is essentially saying firstly the respondent paid him less because he was disabled and secondly they applied a policy of paying staff according to the size of their store. 22 of 28 There is no suggestion of a continuing state of affairs whereby disabled staff were treated less favourably.[155]Whether or not there is a continuing act would require to be determined by the Tribunal hearing the evidence. It does not appear to me that it is reasonably arguable that there was a continuing state of affairs, since the claims arising appear to be discrete claims which cannot be considered together and that the claims raised by the claimants are essentially isolated claims – one about direct discrimination (to pay him less than non-disabled colleagues in similar circumstances) and a separate claim that relies upon the pay banding structure, this is a matter for the Hearing to determine, albeit my decision in connection with the time limit issue may render this otiose. In any event, whether or not there is a continuing act would be a matter for the final Hearing, having heard evidence on the matter.[156]Assuming there was no continuing act, the claims for direct disability discrimination and the first reasonable adjustments claim were lodged outwith the statutory time scale. Just and equitable?[157]Next, I require to consider whether the direct disability discrimination claim, the only claim I have found to be out of time, was lodged within such period that was just and equitable. In this regard I must look at all the factors set out above and balance them carefully to determine whether or not the claim was lodged within such other period that is just and equitable given the statutory wording. Direct disability discrimination claim[158]This claim relates to an act that took place on 1 May 2017, when the claimant accepted the role in the smaller store. He did not find out that others had been paid more in similar circumstances until April 2018 and raised the point in his grievance in July 2018, with the matter being dismissed in July 2018 and then in October 2018.[159]The first question is the balance of prejudice. Denying the claimant the opportunity to have his claims of discrimination heard would clearly prejudice him. The prejudice the respondent relies upon if the claims are to proceed is that their key witness is absent as he has since retired. There was no evidence of the respondent having sought to contact the witness or any reason why his evidence could not be obtained in some other way, such as in writing or via video link. In any event that witness’s relevance may well be limited given the issue is likely to be more upon the respondent’s justification in respect of the banding and its application to the claimant, rather than what the claimant is alleged to have said to his manager. I find that the balance in this regard favours the claimant.[160]Next, I need to consider the delay and reason for it. The delay is significant in this case. The claim was not raised until January 2019 in respect of a move that happened on 1 May 2017. The claimant tried to resolve matters 23 of 28 internally and only raised matters in the Tribunal once that had not yielded an appropriate outcome. He raised 2 grievances. The claimant did have the benefit of trade union advice but only learned of the 3 month rule in or around October 2018. He did raise his claim within 3 months out the outcome of the grievance. I find that the claimant did not act unreasonably and he acted without any material delay.[161]The claimant progressed matters without undue delay once he learned of the time limits. Any failure by his union (in relation to time bar) ought not to be visited upon him. The claimant acted reasonably throughout this matter and without undue delay.[162]As I set out below, as to the impact on the cogency of the evidence, the respondent argues they are materially affected as the claimant’s then line manager has retired abroad. I have taken that into account but I do not consider that determinative. The issue in this case was why the claimant was treated in the way he was. The respondent is still able potentially to lead that witness and in any event will have evidence as to why the claimant received the sum he did (since it was their policy) and why the comparators received the sums they did. The evidence is not likely to be seriously affected and the respondent ought reasonably still be able to fairly and fully set out its position.[163]This is ultimately a balancing exercise, bearing in mind this is a discrimination claim and the question is whether the claim was lodged within such time that was just and equitable.[164]Having considered all the relevant matters carefully and in light of the above authorities I have concluded that the claim was raised in a period that was just and equitable. The claimant raised the claims within 3 months of learning of the time limits and upon receiving advice from his trade union. The respondent will be able to lead evidence to explain why the comparators relied upon by the claimant are not correct (as alleged in their submissions below) and the respondent is able to lead evidence as to the reason for their treatment of the claimant, which is likely to be the application of their policy. The respondent is not likely to be substantially prejudiced, in contrast to the claimant whose claim would not be heard. The claim should accordingly be allowed to proceed. Other claims[165]In the event that I was wrong in relation to my findings as to the time limits above, I have considered whether the other claims would similarly have benefited from the statutory extension of time.[166]The claimant would be prejudiced to a greater extent than the respondent if this claim is not allowed to proceed.[167]The claimant acted reasonably quickly once he was equipped with the knowledge as to time limits. He did raise matters internally as he understood he had to do. He gave the respondent the opportunity to resolve matters and raised proceedings when it was clear the internal route was concluded. He acted reasonably quickly once he learned of the time limits. 24 of 28[168]The claims clearly relate to an ongoing policy by the respondent with regard to pay banding. The respondent’s defence of that policy need not be based upon the claimant’s then line manager but could clearly be based upon the evidence that justified the policy at the time from those who were responsible for the policy.[169]I accept that the manager’s evidence may be of relevance (such as in relation to knowledge of disability) but there was no suggestion the individual was unable to attend, rather that he had retired and moved abroad. It is possible that steps could be taken to locate the individual and it may be possible for him to give evidence, even potentially in some other way other than by physical attendance.[170]I have taken into account the delay and the prejudice to the respondent but I have balanced this with the facts in all the circumstances. The claimant did not unreasonably delay once he knew of the time limits. Having balanced all of the factors and acting judicially I would have exercised my discretion in favour of the claimant and allowed the claims to proceed, if they had been found to have been lodged outwith the statutory timescale.[171]In making my decision as to time bar, I have carefully considered the evidence and applied each of the factors set out above in the authorities. Having done so, and taken a step back, I have concluded in all the circumstances that even if the claims were lodged outwith the statutory time period, the claims were lodged within such other period that is just and equitable. Strike out/deposit order - the law[172]Under Rule 37 of Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, an Employment Tribunal may strike out all or part of a claim or response on a number of grounds, including that the claim or response, or some part of either, has no reasonable prospect of success.[173]Rule 37 imports a two-stage test. The first is to consider whether the ground has been established. The second is to consider whether or not to exercise the discretion in favour of striking out. The second stage is important as it involves a fundamental cross check to avoid the bringing to an end prematurely of a claim that may yet have merit.[174]In Hasan v Tesco UKEAT/98/16, the Employment Appeal Tribunal held that relevant factors in the exercise of that discretion that might have weighed heavily included the early stage of the proceedings, the ability to direct that further and better particulars of each claim be specified and the absence of any application on the part of the respondent for striking out.[175]In determining whether or not there are reasonable prospects of success, strike out should only be ordered where the tribunal is in a position to conclude that there are no reasonable prospects. If central facts remain in 25 of 28 dispute it will only be in an exceptional case that a case is struck out on the grounds that there is no reasonable prospect of success.[176]This is particularly so for discrimination cases because of the particular public interest in examining such claims on their merits rather than striking them out at a preliminary stage, but there are exceptions. It was held in Mechkarov v Citibank [2016] ICR 1121 that it is possible to strike out discrimination claims in the clearest of cases. If the issue turns on oral evidence, evidence should be heard (Anyanwu v South Bank Students' Union [2001] IRLR 305).[177]In North Glamorgan NHS Trust v Ezsias [2007] IRLR 603 the Court held that the claimant’s case must be taken at its highest and it is only if the claimant’s case is 'conclusively disproved by' or is 'totally and inexplicably inconsistent' with undisputed contemporaneous documents, that strike out should be considered[178]Rule 39 of the Rules allows a Tribunal to order that the claimant pay a deposit in the event of claims or arguments are found to have “little reasonable prospects of success”. The Employment Appeal Tribunal in Hemdan v Ishamail 2017 ICR 489 em,phasiosed there must be a proper basis to doubt the likelihood of a claimant being unable to establish facts essential to a claim and the Tribunal still retains discretion which needs to be exercised in accordance with the overriding objective. The Tribunal also requires to consider the means of the claimant before making any such order. Submissions[179]The respondent argues that it was never told of the claimant’s disability and knowledge is therefore disputed. The respondent’s agent noted that the claimant’ s own evidence was that he kept matters to himself, which supports the respondent’s position that it could not have known about the claimant’s disability.[180]The respondent argues that for direct disability discrimination the claimant is comparing himself with 2 specific individuals. Their circumstances are fundamentally different to the claimant’s and so they are not relevant comparators. There are also factual disputes as to the banding situation as to specific stores. It was therefore argued that the direct disability discrimination claim has no prospect of success or limited prospects.[181]With regard to the indirect disability discrimination claim, the respondent argues that a disabled employee does not need to work at a smaller store. It is entirely possible that a larger store may be better since there would be more colleagues to whom tasks could be delegated. There was in any event a clear defence given the need for pay structures, which is a legitimate aim which was proportionately applied.[182]Finally with regard to reasonable adjustments, the respondent argued that the respondent had already made reasonable adjustments. They acceded 26 of 28 to the claimant’s request to move to a smaller store. The respondent is not obliged to put the claimant at a better position. He knew when he agreed to move that his pay would be reduced.[183]Thus the respondent argued the claims had no reasonable prospects of success which failing limited prospects. Claimant’s response[184]The claimant’s agent contested the comparators and the respondent’s submissions. There is also disagreement as to the banding position. The claimant also argued that while he did know the move resulted in a lower salary, that does not stop there being an argument that the policy was discriminatory and/or the decision not to backdate his pay was discriminatory. It is for the respondent to justify the policy it had.[185]In response, the respondent’s agent conceded that the disputes would be a matter of evidence[186]As to the claimant’s means, he had an income of £26,250 with savings of £5,000 His property was worth £145,000 with no mortgage. He also owed his car, worth £1800. There were outstanding liabilities in the sum of around £4,000 At the end of each month the claimant had an excess of around £200 month Decision and reasons on strike out and deposit order[187]The claimant’s first claim is that he was directly discriminated against because of his disability. He compares himself against 2 colleagues whom he says have circumstances not materially different to his, aside from his disability. This is disputed.[188]The law requires me to take the claimant’s claims at their highest in assessing whether or not there are no reasonable prospects or little reasonable prospects. If the claimant is correct and the individuals are relevant comparators, it is not possible to say that his claim has no or little reasonable prospects of success. That is a matter for the Tribunal hearing the evidence to make an assessment.[189]With regard to the indirect disability discrimination claim, the claimant argues the practice of paying managers per the store turnover puts him at a disadvantage because of his disability and that disabled people generally are at a disadvantage. There is some merit in the respondent’s argument that there is a lack of detail as to precisely why this may be so given the reason (within the submissions) is stated as “because they need to work in a small store”. This lacks detail and it is not clear why disabled staff in the position of the claimant would need to work in a smaller store. Nevertheless I cannot say that such a claim has no reasonable or little reasonable prospects of success. This is again a matter for the Tribunal hearing the evidence to determine in all the circumstances. 27 of 28[190]Finally, in respect of the claim for reasonable adjustments, the respondent argues that they had already made a reasonable adjustment. That does not, by itself, mean that the adjustment sought by the claimant (in addition to moving store) is not reasonable. Ultimately whether or not the position advanced by the claimant is reasonable is a matter that requires to be determined by the Tribunal hearing the evidence and assessing the matter in light of the facts and applicable law.[191]In all the circumstances I am not satisfied that there are no reasonable prospects of success nor little reasonable prospects of success in respect of the claims advanced by the claimant. I am also not satisfied that it would be proportionate to dismiss the claims in light of the overriding objective. Each of the claims shall now proceed to a Hearing.[1]The claim of direct disability discrimination advanced pursuant to sections 13 and 39(2)(d) of the Equality Act 2010 (“the 2010 Act”) is well-founded and the claimant is entitled to a remedy.[2]The claim of failure to make reasonable adjustments advanced pursuant to sections 20/21 and schedule 8 and section 39(5) of the 2010 Act is not well-founded and is dismissed.[3]The claim of indirect disability discrimination advanced pursuant to sections 19 and 39(2)(d) of the 2010 Act is not well-founded and is dismissed.[4]The question of remedy is adjourned and the parties are to write to the Tribunal by 4:00pm on 16 October 2020 to confirm that the question of remedy is settled and that the Tribunal file can be closed or, absent such settlement, to request that the matter be listed for a remedy hearing. Case Number: 2401408/2019 EMPLOYMENT JUDGE A M BUCHANAN
REASONS
1.1 The claimant instituted proceedings in the Liverpool Tribunal on 17 January 2019 supported by an early conciliation certificate on which Day A was shown as 9 December 2018 and Day B as 7 January 2019. A response was filed on 20 February 2019 in which the respondent denied all liability to the claimant.1.2 At a private preliminary hearing before Employment Judge Ryan on 12 June 2019 the various claims advanced and the issues arising for determination were defined and case management orders were made. Those orders included the listing of a public preliminary hearing (“PH”) to determine whether the claimant was a disabled person pursuant to section 6 of the 2010 Act at the material time, whether the claims advanced by the claimant were in time and, if not, whether time should be extended and whether any or all of the claims had no or only little reasonable prospect of success.1.3 At a public PH before Employment Judge Hoey on 4 November 2019 it was determined that the claimant was a disabled person at all material times and that all claims advanced were advanced in time. No strike out or deposit orders were made.1.4 The matter came before this Tribunal as set out above. Reasonable adjustments were made to the conduct of the hearing to accommodate the disability of the claimant. The claimant attended by cloud video - platform but all other parties were present in the Tribunal room. Due to an administrative error, the parties attended the wrong tribunal office on 14 September 2020 and therefore the hearing did not begin properly until 15 September 2020.1.5 An oral judgment was given on 18 September 2020. After judgment had been announced counsel for the parties asked for time to discuss remedy. After 90 minutes counsel returned to say that all matters were agreed but final authority was awaited. As a result, and by agreement, the non-legal members were released (it being late in the afternoon) and the Employment Judge agreed to wait for the confirmation of settlement of the remedy issues. Some 90 minutes later, counsel attended to say that the authority would not be available until 21 September 2020. As a result, a short Judgment on Liability was issued and the question of remedy was adjourned for the parties to advise the Tribunal of settlement. Some days later a timely written request for these reasons was received. There was an administrative delay in that request being forwarded to the Employment Judge. These reasons are now issued pursuant to that timely request and the delay in being able to do so is regretted. In the event of any inconsistency between the oral and written reasons, these written reasons prevail.
The claims
[2]The claimant advances the following claims to the Tribunal:-2.1 A claim of direct disability discrimination relying on the provisions of sections 6, 13 and 39(2)(d) of 2010 Act.2.2 A claim of indirect disability discrimination relying on the provisions of sections 6, 19 and 39(2)(d) of 2010 Act.2.3 A claim of disability discrimination by failure to make reasonable adjustments relying on the provisions of sections 6, 20/21 and Schedule 8 and 39(4) of 2010 Act.
The Issues
[3]The issues in the various claims advanced to the Tribunal are as agreed between the parties: Knowledge of disability3.1 Did the respondent know the claimant was disabled?3.2 If so, when did the respondent have knowledge?3.3 If not, ought the respondent to have known the claimant was disabled?3.4 If so, when was it reasonable for the respondent to have known? Direct Discrimination3.5 Is the reduction of the claimant’s salary, by agreement and following a request to transfer to a smaller store, detrimental treatment within the meaning of section 13 of the 2010 Act?3.6 If so, did the respondent treat the claimant less favourably than: 3.6.1 Laura Brooks 3.6.2. Vicki Smith3.7 Is there a material difference between the circumstances relating to each comparator’s case?3.8 Was the reduction to the claimant’s salary by agreement and on transfer to a new store because of his disability?3.8.1 Are there facts from which the Tribunal could decide, in the absence of any other explanation, that the respondent contravened section 13 (such that the burden of proof passes to the respondent)?3.8.2 Can the respondent show that it did not contravene the provision - section 136(1) of the 2010 Act? Indirect discrimination3.9 Is the respondent's practice, relied on by the claimant, discriminatory in relation to the protected characteristic of disability within the meaning of section 19(2) of the 2010 Act?3.9.1 The respondent accepts it has a practise of operating a pay banding structure for the store managers based on store performance (“the PCP”).3.9.2 The respondent accepts it applied the PCP to the claimant and other employees.3.9.3 What is the particular disadvantage to a disabled person when compared to a non-disabled person? The claimant alleges a disabled person is more likely to work in a smaller and therefore lower banded store.3.9.4 Did the claimant suffer that particular disadvantage?3.9.5 What is the appropriate comparator pool?3.9.6 Is there a causal connexion between disability and a particular disadvantage both in the comparative group and the individual disadvantage to the claimant?3.10 Can the respondent establish that the PCP was a proportionate means of achieving a legitimate aim? The respondent relies on:3.10.1 To ensure parity, fairness and consistency of store managers’ pay nationwide3.10.2 To ensure store managers at larger stores are properly and fairly remunerated for the higher-level management required in a store with higher turnover, a larger workforce and an increased workload. Reasonable adjustments3.11 Has the respondent failed to comply with its duty to make reasonable adjustments pursuant to sections 20/21 of the 2010 Act?3.11.1 The respondent accepts it has a practice of operating a pay banding structure for the store managers based on store performance.3.11.2 What is the substantial disadvantage to a disabled person in relation to a relevant matter when compared to a non-disabled person? The claimant alleges a disabled person is more likely to work in a smaller and therefore lower banded store.3.11.3 Did the claimant suffer the substantial disadvantage?3.12 What steps were taken by the respondent to alleviate the substantial disadvantage?3.12.1 The respondent transferred the claimant to a smaller store closer to his home following his request.3.12.2 The respondent offered the claimant a further transfer to a higher banded store (band 2).3.13 Were the steps taken by the respondent reasonable in all the circumstances such as to alleviate the disadvantage? The claimant contends that the following would have been reasonable adjustments:3.13.1 To maintain his salary at £28000 following an agreed transfer to a smaller store closer to his home3.13.2 To back date the claimant’s pay rise (from £24000 to £26000) awarded in October 2018 to May 2017. Remedy3.14 If the claimant is successful to what remedy is he entitled?3.14.1 What are the claimant’s losses arising from any discriminatory acts?3.14.2 What is the appropriate Vento band to apply in the circumstances? Witnesses
Remedy
[4]In the course of the hearing, the Tribunal heard from the following witnesses: Claimant4.1 The claimant gave evidence and called no other witnesses. We found the claimant to give his evidence in a straightforward manner. We note but do not adopt the small criticisms of the claimant as a witness referred to in the Judgment of Employment Judge Hoey. Respondent4.2 For the respondent evidence was heard from: 4.2.1 Darren Bagshaw (“DB”) - the officer who investigated a grievance raised by the claimant on 22 July 2018. This witness was ill at ease in giving evidence and he was not an impressive witness. He appeared unsure as to his evidence at times and struggled to answer some straight-forward questions in cross examination. 4.2.2. Colin Rockcliffe (“CR”) – the officer who dealt with an appeal from the decision of DB. This witness was more assured than his colleague and appeared to have a firmer grip on his own evidence. His involvement in the matter was late in the day and we conclude that he approached his role as grievance appeal officer in a spirit of trying to resolve an old issue which by then had been ongoing, not to say festering and causing problems, for some years. His approach was understandable and pragmatic but it meant that he did not address his mind to the question of disability and disability discrimination which by then were clearly to the fore. We note that both witnesses for the respondent (and for that matter the claimant himself as a store manager) had not received any training in the Equality Act 2010. The witnesses for the respondent evinced little understanding of the concept of disability and of their duties under the 2010 Act. Given the size of the respondent company, we find this surprising at best. Documents[5]We had an agreed bundle running to some 158 pages. Some pages were added during the hearing by the respondent with the consent of the claimant. An application by the claimant to add documents at the outset of the hearing was refused on the basis that such documents were not relevant. Any reference to a page number in this Judgment is a reference to the corresponding page in the agreed trial bundle.
Findings of Fact
[6]Having considered all the evidence both oral and documentary placed before us and in particular the way the oral evidence was given and having considered the documents to which we were referred, we make the following findings of fact on the balance of probabilities: Background6.1 The claimant was born on 16 September 1964 and commenced work for the respondent on 29 July 2013 as store manager in the Walkden store. In 2015 he was promoted to a bigger new store in Whitecroft, Manchester. The claimant moved to manage the store at Market Way Blackburn on 1 May 2017 at his request. The claimant continues to work for the respondent in that last capacity.6.2 The respondent company employs around 30,000 people across over 600 stores in the UK. It is a retailer of goods throughout the UK. It operates a salary scale for its store managers and other staff members which grades stores between 1 and 5. The lowest grade is grade 1 which is defined as a store with annual sales of below £50k. The highest is grade 5 with annual sales of over £200k. Within each band there is a minimum salary and a maximum salary for the manager. There are similar scales for deputy managers, other managers and supervisors. We find that Area Managers have an element of discretion in the operation of those scales in relation to store managers. Twice each year the respondent considers the sales records of each store over the previous 13 weeks and, if sales figures indicate that a store has moved into a different band, it will be re-graded accordingly. However, any such move has no relevance to the salary of the Branch Manager (“BM”) who remains at the salary band to which s/he was appointed. The incentive to increase sales for a BM is through a discretionary bonus. We have no evidence of that bonus system. The respondent has a large HR department based centrally in Liverpool which is the HR resource for the whole company. The current salaries attributable to each band of store were set out on page 96. The respondent’s record keeping in this regard is poor and it was only very shortly before the hearing that it disclosed the 2017 figures (page 95b) which had been “discovered in HR”.6.3 The claimant’s terms of employment were set out in a document signed 17 July 2013 (pages 70 and 72) showing his salary to be £26000 per annum. He was told to raise any grievance with his Area Manager (“AM”). During his employment which is ongoing, the claimant has had five area managers including Barry Whinpenny (“BW”) who was his AM when he moved from Whitecroft to Market Way Blackburn in 2017. His present AM is the witness CR. The actions of BW are central to certain of the claims advanced to us. We did not hear from BW and were told he did not give evidence because of his personal circumstances. BW retired from employment with the respondent in 2018. The claimant moved to the store at Market Way Blackburn on 1 May 2017 from when his annual salary was reduced to £24000 from its then current level of £28000. Revised terms and conditions were issued (Page 81) in 2018. The Whitecroft store was a band 4 store: the Blackburn store was a Band 1 store when the claimant moved to it but has subsequently been re-graded as a band 2 store. The claimant was told at his induction in 2013 that no manager was paid over the banding attributable to the store at which s/he worked. Occupational Health (“OH”)6.4 On 15 September 2017 (page 90) an appointment for the claimant with OH was deemed necessary and should have taken place on 4 October 2017 but did not. The claimant did follow up that missed appointment on two occasions but when he received no reply, he took the matter no further. The only OH appointment to have resulted in a report on the claimant took place on 13 September 2019 (page 92) which is beyond the relevant date in relation to the various claims advanced in these proceedings. The 2019 OH report noted the claimant suffered from a bad back and a lung disease. The claimant was diagnosed with degenerative disc disease (“DDD”) and lower back arthritis (“LBA”) in 2007 and then in 2016 with Sarcoidosis. The claimant had made adjustments to his duties to take account of these conditions which amount to a disability. In 2019 the OH opinion was that he was fit to work but that, if operationally possible, the adjustments made by the claimant should remain in place and included a recommendation that he do “mainly administrative work where possible”. Given the content of the Judgment of Employment Judge Hoey, we infer that had the report from OH been obtained, as it should have been, in 2017 then that same information would have been forthcoming. If the referral to OH (which we have not seen) contained a request for an opinion as to whether the claimant was disabled or not, no response to that question was provided and we infer the question was not asked. Comparators6.5 The claimant relies as comparators on two people:6.5.1 Laura Brooks. This SM worked at Croston store band 4 and moved to Hyndburn band 3 at the request of the respondent in September 2018. Contrary to what CR initially wrote in his witness statement at paragraph 21, the salary paid to this comparator from September 2018 did not fall within the band of a band 3 store but lay in band 4. In fact, she received £1500 per annum over the maximum for a band 3 store. On 1 August 2019 she moved at her request from Hyndburn to Hulme which is a band 2 store. She confirmed this request in writing at page 103 which confirms her understanding that her salary would drop to £28450. This was done after the claimant had filed his claim. There is no evidence of any manager moving bands and having a salary reduction prior to the claimant’s claim being lodged. When this comparator moved at her request to Hulme, she retained a salary of £28970 which fell in band 3 notwithstanding that the store fell into band 2: in fact, the salary was £490 per annum over the maximum for a band 2 store. CR attributed that circumstance to a “keying error”. The virtually illegible document at page 101A refers. By July 2020 this comparator was earning £32000 per annum.6.5.2 Victoria Smith. This SM works at a Blackburn store and previously at Westhoughton store. She moved to Blackburn in 2015 (a different branch to that of the claimant). Both stores are grade 2 stores and when she moved some 5 years ago in October 2015 it was a sideways move. The Blackburn store at which this comparator works is now a band 1 store. Her salary has remained at band 2 level throughout and is still at band 2 level even though it is now a band 1 store. There was a considerable period between 2015 and 2019 when this comparator received £1500 per annum more than the maximum salary attributable to the band of store in which she worked. The Judgment of Employment Judge Hoey6.6 The following matters of relevance were found in this Judgment:6.6.1 The claimant presented to his GP with a persistent cough on 4 March 2016 and was seen by a specialist surgeon who diagnosed a chronic cough on 15 April 2016. On 14 July 2016 the doctor noted that the appearances were highly suggestive of sarcoidosis (an inflammation of the lung). On 26 September 2016, the cough was said to be extremely troublesome and interfering with his quality of life. Steroids were prescribed. The claimant was diagnosed with degenerative disc disease and lower back arthritis in 2007.6.6.2 The claimant sought to mask the effects of his impairments which included attending work and by not showing the effects of his impairment outwardly. The claimant’s medical position was not materially different in October 2018 to that pertaining in May 2017.6.6.3 There were some inconsistencies in the evidence of the claimant and his answers in cross examination were in some parts confusing but that did not result in his evidence being incredible. On the whole, the claimant was found to be a credible and reliable witness.6.6.4 On balance the claimant did suffer pain on a daily basis from DDD and LBA and he was lethargic and lacking in energy in a material way. This impacted his ability to drive and concentrate. His ability to walk, sit and move was affected as was his ability to have a conversation and to converse with others and to lift everyday objects and climb ladders. The claimant’s impairments caused him to materially restrict his working on the shop floor carrying out lifting, ladder and stock work. The claimant struggled to concentrate as a result of the pain and the fatigue he encountered stemming from his impairments and his energy levels were considerably reduced. These effects occurred on a daily basis and by 30 April 2017 had lasted 12 months. His chronic cough made it more difficult for him to communicate with others and made him unsteady on his feet and resulted in in him having to walk at a slower pace. The cough exacerbated the pain in his back which resulted in the difficulty in lifting and moving everyday objects and driving. The claimant’s ability to carry out day to day activities were both substantially and adversely affected and this went beyond the normal differences that may exist among people. The claimant suffered pain on a daily basis which impacted on his ability to walk, drive and concentrate. He suffered lethargy which impacted on his ability to concentrate and communicate with others. His chronic cough also made it more difficult for him to communicate with others and made him unsteady on his feet and resulted in him having to walk at a slower pace.6.6.5 The claimant was a disabled person as at April 2017 and up to the outcome of his appeal in October 2018.6.6.6 The claimant attended work and the respondent's witness may not have witnessed the effects on the claimant but there was no reason to doubt the impact of the impairments the claimant experienced on a day-to-day basis which could have occurred when the colleague was not with the claimant or out-with working hours. The claimant may have sought to downplay or mask the effects the impairments had when at work. The witness who appeared at the public PH was a colleague of the claimant who did not see the claimant at all times during working hours.6.6.7 The claim of direct discrimination was lodged out of time but was raised in a period which was just and equitable. Chronology of Relevant Events6.7 On 22 July 2016 the claimant advised his then AM Barry Wimpenny that he had sarcoidosis (page 104). It was only at this time that the claimant began to consider that condition together with his other ongoing conditions of DDD and LBA posed a serious health problem. The response from BW was brief and read: “Hopefully it will be sorted out. I will catch up with you on Sunday we can discuss then”. We accept the claimant’s evidence that no meaningful reference was made to that diagnosis by BW at any time and no reference made of the claimant to OH. The claimant had expected there to be “welfare chats” organised with him by BW but that was not done at any time. We have not seen any policies of the respondent but we accept that managers are expected to hold “welfare chats” with employees who are experiencing health difficulties. That is what the claimant does with the staff under his control, that is what CR now does with the claimant (hence the referral to OH referred to above) but that is not what BW did at any time for the claimant. We accept the evidence of the claimant that he tried to get BW to engage with him about his health issues but that BW would not do so and evinced no interest in such matters – preferring to concentrate only on the performance of the claimant’s store.6.8 On 6 November 2016 the claimant raised a grievance (“the 2016 Grievance”) by email (page 106) with Laura Minards of HR and Robin Postans his then LM headed “Grievance raised, Behaviour at work, Health and Safety at work, Harassment”. This related to several matters some of which do not concern this Tribunal. That message contained a concluding paragraph (page 107) which reads: “My health, I have been suffering since 2015 going from doctor to hospital having test to find out what is wrong with me as I was coughing, vomiting and feeling weak only to find out I have a lung disease called SARCOIDOSIS and I have manage(d) to continue working with no sick days and suffering a lot, feeling weak and I have chest pains. I am on treatment and have to have monthly visits to the hospital, at the moment treatment is to last 12 months and then see how I respond after that which is unknown to date”.6.9 We accept that BW visited the claimant in his store on a regular basis – weekly visits are normal from the AM. We accept the evidence of the claimant that BW witnessed the effects of the impairments from which the claimant was suffering namely those mentioned in the above grievance. We accept the claimant’s evidence that BW witnessed the adjustments which he had himself put in place to accommodate his disabilities namely the variation of his duties. These included the claimant reducing his own workload and taking steps to avoid twisting, bending, reaching over, kneeling, standing, using stepladders and lifting. We infer that BW knew of these adjustments but did not re-act to them as the claimant was not absent from work at any time and his attendance record was thus not flagged to BW or HR as a problem.6.10 We accept that the statement in the 2016 Grievance about his health from the claimant provoked no response from HR or BW. We accept that the 2016 Grievance related to other issues arising out of disciplinary proceedings which had by then concluded and that those issues were investigated and dealt with but the “Health” issues clearly set out in the 2016 Grievance were not investigated or dealt with in any way. We infer such health matters were either overlooked or a decision was taken that they merited no action. Without the trigger of sickness related absence, the respondent ignored what should have been, and was in fact, obvious namely that there was a serious health issue crying out to be investigated. We note that there clearly were issues within the respondent company in 2016 about the claimant’s working pattern for some adverse comments about them from another manager were the subject of the 2016 Grievance.6.11 On 4 April 2017 at a routine meeting and without any warning, the claimant asked BW if he could move to another store. The claimant stated that he was not managing with his health and the demands of the large store and wanted a store which was smaller and closer to home so that the 50-mile round trip daily, which the claimant also found difficult by reason of his disabilities, would be avoided.6.12 That request provoked no enquiry of any kind from BW. No discussion or enquiry took place as to the rationale for the request and we conclude BW chose not to investigate the obvious reasons which lay behind that request namely the ill health of the claimant. We infer that BW did not refer the matter for advice from HR. However, BW found the Blackburn store close to the claimant’s home and offered the claimant a move to it. The claimant agreed. Subsequently BW attended the claimant’s store and told him he would have to take a £4000 per annum (15%) drop in salary when moving and presented the claimant with documents to sign. We accept that by this point the claimant was desperate to move and would have agreed to virtually any proposal to achieve his aim of a smaller store more suited to his health needs.6.13 On 18 April 2017 the claimant wrote (page 109) to BW recording his request was “due to my health because of the demands in a big store”. That message sought some reassurance about the future of the store to which the claimant had agreed to move. In accepting the reduction in salary, the claimant understood he was being treated just like any other manager who moved to a lower graded store and did not question the matter at that stage and did not do so until he had evidence that he had in fact been treated differently. The claimant duly moved to the Blackburn store at the end of April 2017.6.14 On 21 July 2017 the claimant wrote to Alex McGuffie of HR (page 111) subsequent to a disciplinary hearing which had resulted from allegations made against the claimant which had resulted in a period of suspension. The message ended with a sentence which reads: “Going forward I need your support……. bearing in mind how frail I am”. The reply asked the claimant to break down exactly what it was he needed in terms of support. The claimant indicated he would have expected a return to work meeting at another store with his AM. This had not occurred. At that time BW remained his area manager.6.15 On 3 August 2017 the claimant raised a grievance against “many colleagues” which arose out of the disciplinary allegations against him and which included at point 6 out of 11 points: “I believe I was discriminated against with my poor health”. He refers to not having had a day off sick “even with my poor health” (page 114) and that BW had (amongst many other matters) “failed to follow company policy from the store manager employment law training 2013”. He continues later: “The reason I believe Barry is discriminating against my health and wants me out is because he does not care to have a week (sic) link in his managers or excuse for any reason, approximately March 2016 I was constantly coughing, choking, vomiting, weak and very tired and Barry saw me at my worst but I still went to work unable to do my job to the best of my ability. I was going from doctor to visits to the hospitals to see consultants who could not find the reason for it until July 2016, I sent Barry an email on 22.7.2016 telling him I had Sarcoidosis to both lungs, Barry replied on the same day saying he will have a meeting with me but that did not happen, no risk assessment or meeting to look at ways to support me, it took me in 2017 to ask Barry to move me to a smaller store from 580 Whitecroft closer to home as to date I still suffer but not as bad and still visit the hospital every 6 to 8 weeks, I am on 5 lots of medication and still suffer with tiredness and weakness and my coughing has started to come back, I have felt all alone with no support and I was expected to go back to work and after asking for support to once again receive none”.6.16 The grievance hearing was chaired by Natalie Payne (“NP”) and resulted, amongst other things, in a referral of the claimant to OH. NP requested that the claimant set out for her a list of the medication he was taking and this he did by email on 15 September 2017 (page 120).6.17 On 15 September 2017 there was a referral of the claimant to OH with an appointment scheduled for 4 October 2017. The meeting was to be by telephone at a time when the claimant was on leave and the claimant waited for 45 minutes but received no call. The claimant reported the matter to the respondent (page 122). The claimant wrote again (page 119) to HR to report that failure and at the same time advised he had been taken off Qvar aerosol and put onto Prednisolone. The failure of the respondent through HR to follow through what had been agreed by HR in terms of a referral to OH is surprising at best and leaves a poor impression of the organisation and efficiency of the HR department.6.18 In or around April 2018 the claimant received information that some of his colleague LMs had received a pay rise which he had not received and also that some managers were being paid over the banding for the store in which they worked. The claimant felt as a result that he was being treated less favourably than his colleagues because of his disability and his resulting need in 2017 to move to a smaller store. The claimant determined to raise the matter with the respondent.6.19 On 26 April 2018 the claimant wrote to BW (page 123) saying he felt he was “being treated unfairly with regard to any pay rise and the reduction in wage when I moved to Market Way”. In that message he recorded that he had asked to move to Market Way in May 2017 “due to ill health”. He grieves informally about the lack of any pay rise and the reduction in his salary on transfer. That grievance was passed by BW (who was then retiring) to the new AM Andrew Cocker (“AC”). The claimant had an informal meeting, which appears not to have been minuted, with AC and Jess Perkins of HR on 13 July 2018.That informal grievance yielded no satisfactory result so far as the claimant was concerned and so the claimant decided to raise a formal grievance.6.20 On 22 July 2018 the claimant raised a formal grievance with AC. In that letter he traced the history of his cough from January/February 2016 and how he had kept BW informed until the diagnosis on 22 July 2016. He recorded how he had informed BW of the diagnosis of sarcoidosis on 22 July 2016 and that BW had replied saying he would catch up with the claimant but that that meeting did not happen. He went on to say that in other meetings he had told BW that he was not managing with his health, but BW showed no sign of interest and the claimant himself felt in no fit state to fight his corner. The history of the move in May 2017 to Market Way was recorded. The claimant stated he would have signed anything “as I was in a desperate state…..”. The claimant grieved the failure of the OH appointment on 4 October 2017. He grieved the failure of AC to follow up the informal grievance raised with BW on 26 April 2018. The claimant stated in that document: “I also suffer with Degenerative Disc and Arthritis of the lower back”.6.21 The claimant was invited to a grievance meeting for 6 August 2018 but at the claimant’s request it was altered to 8 August 2018. He attended with his union representative. The hearing was to have been taken by Simon Smith but this was subsequently altered to the witness DB who was an area manager and who was accompanied by a note taker Ann Chester.6.22 The claimant spoke to his grievance and said he had evidence that colleagues had received more favourable treatment when moving stores but he did not name those colleagues. He asked to be treated fairly and for the respondent to recognise the efforts he had put into his new store. He asked for his salary to be re-instated at band 4 and for the back pay. He asked for a 2% salary increase such as other managers had received.6.23 The grievances were discussed at the hearing. The claimant re-iterated that there had been no meetings with BW about his (the claimant’s) health. DB said that he had spoken to BW who had said he did speak to the claimant about his health, but the claimant did not agree. When asked what he sought to achieve from the grievance, the claimant stated that he wished the respondent to recognise its responsibility to care for employees with health issues and not take advantage of them being in a desperate state and to follow its own fair treatment policy. There had been no discussion with him about the reduction of his salary and he believed he had been unfairly treated in comparison to two others. The claimant made it clear that he considered himself disabled under the 2010 Act. DB informally offered the claimant the chance to move to a band 2 store but the claimant refused not wishing to move from what was still to him a relatively new store where he had just been able to build his team and the consequent relationships. The claimant accepted that the reinstatement of his salary should be with “transitional payments” to reflect the fact that, as a manager of a band 1 store, he would be being overpaid at least initially by being retained on a band 4 scale.6.24 The outcome was sent by letter dated 7 September 2018 (page 138). That outcome letter refers to the claimant being unable to “provide any evidence of any requests you have submitted to discuss your salary over the last 14 months”. having expected “reasonable adjustments”. The decision was that the pay reduction was justified as the claimant had transferred to the new store at his own request. In relation to the pay rise of 2% it was noted that pay rise awards were on a “private and confidential basis and at senior management discretion. You have failed to provide me with any evidence or specific information of a store manager being awarded a pay rise”. However, a pay rise of 2% was offered backdated to 1 April 2018: this would result in a gross payment to the claimant of £221.52p. In relation to the claimant’s health, it was proposed that informal welfare chats would be conducted with the claimant: “I will pass details of your condition to Colin Rockcliffe, Area Manager and you can discuss between you the frequency of these chats and how you would like for them to be conducted”. The grievance was not upheld and a right of appeal was notified.6.25 In looking into the grievance, DB did not conduct any investigation into the salaries of any other line managers and completely missed the opportunity to investigate the reason why the claimant asked for the move away from Whitecroft in April 2018 and the opportunity to inform himself, and thus the respondent, about the health of the claimant. DB had no appreciation that the claimant was or might be a disabled person and, even if he had had such appreciation, he had little, if any, appreciation of his duty towards such an employee under the 2010 Act. The fact that the claimant had not been absent from work and the fact he had requested the move in April 2018 effectively closed any possibility to the presence of disability in the mind of DB. Neither did HR raise that possibility with DB as a matter to investigate.6.26 The claimant appealed by email dated 9 September 2018 (page 140). The grounds of appeal were lengthy and included reference to the Equality Act 2010 and the rights and protection at work of a disabled employee. The claimant again refers to suffering from Sarcoidosis. In relation to his health, the claimant wrote that BW could not be bothered to engage with him in relation to his health and sent no apology for not attending the meeting he (BW) referred to in the reply to the claimant’s email to him of 22 July 2016 and that he had tried to talk to BW about his health but without success. The claimant also noted at page 142 “a total disregard to the equality act 2010 and the disability discrimination act, denying important employment rights and protection at work. An underhand move from Barry to reduce my pay by £4000 without any discussions knowing that I was in a desperate state. I have managed to make my own reasonable adjustments at Market Way and I am managing a good balance to manage my health and work, it is unreasonable to expect me to move to another store. Another manager in a band 1 store receiving £1500 above the band wage and £500 of it from a pay rise, unfair treatment is shown to expect me to move store or not pay me more money …”.6.27 The appeal was taken by the witness CR accompanied by Kirsty Stevens. The hearing was due to take place on 25 September 2018 but was re-arranged at the request of the claimant for 18 October 2018. The claimant attended with his union representative. The meeting was minuted (pages 146-156).6.28 The appeal looked at four specific matters. The fact the claimant believed his comparators (whom he named) had not received pay reductions when moving to lower banded stores, that the claimant would have signed anything to secure the move in 2017, that he had had to make his own reasonable adjustments to his role and that that was the reason for the delay in raising the matters.6.29 At the appeal hearing the claimant named Vicky Smith and Laura Brooks as comparators. He asserted Vicky Smith was paid £1500 more than her band grade when moved and that Laura Brooks had moved to a lower banded store with no pay reduction. It was confirmed by CR that DB had not interviewed either of those managers as part of his investigation. The claimant complained that DB had not investigated matters directly with BW. CR noted that the claimant had signed off the pay cut. The claimant responded that BW had taken advantage of him when he was in a poor state. The claimant confirmed he was still under the care of the hospital and had to visit every six months and was still taking medication. The claimant asserted that other managers had been treated differently than him and that his previous line manager had said that other managers were not paid more than him on moving store, even though he knew that they were, and he sought honesty from the respondent in that process. Towards the end of the meeting, a proposal to increase the claimant’s salary to £26,000 was discussed.6.30 The outcome was sent by letter dated 24 October 2018 (page 157). It was confirmed that there were other store managers within the area that “are potentially paid above their sales band and there would be individual reasons for this occurring, however due to confidentiality, I could not discuss this further”. The decision to offer a 2% increase was revoked and in its place an increase on salary to £26000 was implemented. It was not accepted that any increase could be backdated. The increase was “a reflection of the store’s improved sales performance, not as acknowledgement of an unfair reduction in salary due to the move to a smaller band store”.6.31 In his evidence as to the treatment of the comparators CR stated he had investigated the two comparators and had “since prepared a note for these proceedings that reflects my findings and this is at page 101 of the bundle”. The outcome letter itself made no reference at all to any such investigations. We do not accept that there were any meaningful investigations at the time. The evidence which this witness had written in his witness statement had to be considerably amended at paragraph 21 when he was called before us. CR also missed the opportunity to look into the reasons why the claimant sought the move in April 2017 and his health generally – in fact that step was only taken about 12 months later as referred to above. CR also had no inkling that the claimant was disabled or that his disability could have been behind his request to move in April 2017. In addition, CR was not alerted by HR as to any possible question of disability and he had no such concern himself. The thrust of the approach of CR was to settle the matter and move on. He was a new AM for the claimant and in cross examination he stated that he “wanted to put to bed what was wrong beforehand”. This witness visits in his capacity as AM 2/3 stores per day namely 10-15 stores per week.6.32 The claimant entered early conciliation on 9 December 2018 and filed this claim on 9 January 2019. As these proceedings were being prepared for hearing in July 2019, the claimant raised a further grievance about matters which are not relevant to these proceedings. That grievance was investigated by the respondent's Head of HR Stephanie Williams who took the opportunity when doing so to question the claimant about these proceedings: that questioning made the claimant feel very uncomfortable. Submissions
Background
[7]We received detailed written submissions from the representatives of both parties. These were supplemented by oral submissions and all are briefly summarised. Claimant7.1 Even if the claimant was not fully aware that his health condition rendered him disabled for the purposes of the 2010 Act, given his constant cough and his use to the managers of the respondent of the word “chronic” and “acute” in relation to his condition, it was apparent to anyone that he was disabled. The claimant made this clear throughout the grievance and appeal process. The respondent became aware of the disability when it received the claimant’s email of 22 July 2016 (pages 104- 5). If not, the email of 6 November 2016 (page 106) gave the respondent the required knowledge and failing that, the request to move stores on 4 April 2017 (page 109) gave no reason other than the claimant’s health. In the email of 21July 2017, the claimant described himself as “frail”. Once the HR Department of the respondent had knowledge of the claimant’s impairment, the respondent cannot dispute it had the required knowledge. The claimant could hardly have done more than he did to acquaint the respondent of his condition.7.2 The EHRC Code of Practice on Employment 2011 (“the Code”) requires an employer to do all it can reasonably be expected to do to find out if a worker has a disability. The respondent failed to fulfil its undertaking to hold “welfare chats” with the claimant which would have confirmed the position to the respondent. The respondent also reasonably should have known the claimant was placed at a substantial disadvantage. In any event, the email of 18 April 2017 (page 109) makes the link between the size of the store being managed and the claimant’s health.7.3 It is clearly a detriment to the claimant to be transferred to a smaller store with a much-reduced salary even following a request so to do.7.4 The claimant was treated less favourably than LB and VS in terms of the salaries attributable to the differently banded stores. The evidence in relation to the salary scales was not credible and the Tribunal was asked to draw inferences from the evidence produced in respect of the salary scales of the managers. Such information as is available was produced very shortly before trial. The witness CR was forced to clarify and amend his witness statement at the outset on this important matter.7.5 Comparators relied on for the purposes of a direct discrimination claim do not have to be “clones” of the claimant in every respect. What matters is that the circumstances which are relevant to the treatment of the claimant are the same, or nearly the same, for the claimant and the comparators. The material difference case advanced by the respondent has shifted and morphed at every stage as the case has evolved. Furthermore, the respondent can only point to pay decreases for store managers moving store after the presentation of this claim and that is no coincidence.7.6 The claimant does not need to show that any of the managers of the respondent consciously discriminated against him because of his disability: subconscious discrimination is also prohibited. The Tribunal should consider whether disability played a significant part in the treatment of the claimant. Disability does not need to be the only cause of the discrimination. Neither the grievance officer nor the appeal officer answered the questions posed by the grievance despite the gravity of the allegation made by the claimant. No information has been put forward to justify the decision to change the pay banding of the claimant which is unrelated to his ill health. If the health of the claimant and the move to a smaller store cannot be separated, then it is because of his disability. The claimant was desperate for a move and so eventually requested one but that does not mean he has not suffered a detriment.7.7 In terms of indirect discrimination, the respondent accepts that it had a practise of operating a pay banding structure for store managers based on store performance and that it applied that PCP to the claimant and others. The pay is higher in larger stores because it is harder work. There is more physical work in larger stores. Disabled managers are more likely to work in smaller stores. The claimant was obliged to move to a smaller store because of his health and thus suffered particular disadvantage. The pool for comparison is the pool of managers, or at least the managers who move store bands. The particular disadvantage must affect those who have the same disability as the claimant. The respondent has failed to show that the PCP is a proportionate means of achieving the legitimate aims advanced.7.8 In terms of the reasonable adjustment claim, it is submitted that disabled store managers are more likely to work in smaller and therefore lower banded stores. The respondent failed to make reasonable adjustments of maintaining the salary of the claimant at £28,000 following an agreed transfer to a smaller store closer to the claimant’s home and of backdating the claimants pay rise awarded in October 2018 from £24,000 to £26,000 to May 2017. Modifications of pay can be considered as reasonable adjustments and just because the respondent may have provided one adjustment in terms of a store move does not mean that their duty is satisfied. Pay protection can be considered as a reasonable adjustment. Such a measure may be a reasonable adjustment as part of a package to keep a claimant at work. Respondent7.9 The claimant was disabled by virtue of three physical impairments: sarcoidosis from sometime in 2016, degenerative back disease since 2017 and lower back arthritis since 2007. The Tribunal must consider what the respondent ought reasonably to have known at the time and not apply hindsight. The claimant stated he did not consider his conditions had a significant impact until the diagnosis of sarcoidosis which exacerbated the symptoms in the back.7.10 There was insufficient information contained in the correspondence from the claimant to fasten the respondent with knowledge of the claimant’s disability. The claimant had remained in full time employment and had taken no sickness absence and had made no formal request for support or adjustments. The symptoms which the claimant describes did not and could not reasonably have put the respondent on notice of disability. It should not be overlooked that the claimant accepted in this period that he had been prescribed steroids which had improved his symptoms, but these had later regressed. The claimant did not raise a grievance until 3 August 2017 and there is no documentary evidence of the claimant having raised the issue of his health with BW. This is in sharp contrast to the claimant raising a grievance when he had an issue with another store manager. The email of 21 July 2017 made reference to the claimant’s health, but he accepted that he was referring to his mental health. Even after the grievance of 3 August 2017, there was still insufficient for the respondent to know of any disability. The evidence of the respondent's witnesses is that they were unaware of any disability at the time the claimant’s grievance and appeal were dealt with. It was not reasonable for the respondent to have known of any link between the claimant’s back condition and the sarcoidosis.7.11 The reduction of the claimant’s salary following a request from the claimant to move and with knowledge of the salary structure cannot be said to be detrimental treatment. Viewed objectively, the reduction was a consequence of a supportive step. The claimant signed a contractual variation form to evidence his agreement.7.12 The comparator Smith moved from band 2 to band 2 and not to a lower banded store. The claimant’s move from a band 4 store to a band 1 store is manifestly different. It is accepted that the comparator Brooks move from band 4 to band 3 and that her salary was maintained but the material difference is that that was at the request of the respondent. Alternatively, the comparator Brooks requested a move to a smaller store and she was informed in advance that the salary would reduce and her agreement was sought. The evidence shows neither comparator was treated more favourably than the claimant. The position of Brooks is materially different when compared to the claimant’s move from a band 4 store to a band 1 store. This comparator should have been paid £28450 but was paid £28970. That is explained as a keying error, but in any event, the difference is very much less than the £4000 involved in the claimant’s move and it is materially different.7.13 Even if less favourable treatment is shown, there is no evidence that it was because of disability. The Tribunal must seek to find what was influencing the mind of the alleged discriminators. It is very relevant that the decision of the respondent in treating the claimant as it did was neither irrational nor perverse. There is no evidence that disability was an effective cause of the treatment complained of. The burden of proof provisions in section 136 of the 2010 Act do not apply if the respondent shows, as it has, that it did not contravene the relevant provision. Even if the burden passes to the respondent to explain the treatment, the respondent has provided an explanation which suggests there is no discrimination.7.14 In relation to the indirect discrimination claim, the claimant bears the burden of proof in relation to the first three elements of the claim and section 6(3)(b) of the 2010 Act requires that the claimant shows that the particular disadvantage affects those who share his disability. There is no evidence that such employees would be more likely to work at a lower banded store. The claimant has produced no medical evidence to support his contention and, in any event, any disadvantage does not stem from the application of the PCP but rather from other factors.7.15 If the claimant establishes liability then the respondent relies on two aims as legitimate aims: first to ensure parity, fairness and consistency of store manager salaries nationwide and secondly to ensure store managers at larger stores are properly and fairly remunerated for the higher-level management required in a store with a higher turnover, a larger workforce and increased workload. The aims are legitimate and the respondent acted proportionately to such aims. If liability is established, the Tribunal should conclude that there was no intentional motive and award no compensation.7.16 The reasonable adjustment claims require that the respondent has knowledge of the disability and of the substantial disadvantage. Once again there is no evidence that disabled persons are more likely to work in smaller and therefore lower banded stores. In any event the respondent contends that the claimant could successfully have worked at a higher banded store if it had been closer to his home.7.17 The adjustments sought by the claimant would not have eliminated the substantial disadvantage - if such is established. It would not have been reasonable to make either adjustments contended for. In any event the respondent did make an adjustment of transferring the claimant to a smaller store closer to his hom .[8]The Law Direct Discrimination8.1 We have reminded ourselves of the provisions of section 13 which read:(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others…. (3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.8.2 We have reminded ourselves that direct evidence of discrimination is rarely forthcoming and thus there are particular rules in respect of proving unlawful discrimination referred to below. It is now readily accepted that discrimination need not be conscious. Some people have an inbuilt and unrecognised prejudice of which they are unaware. A discriminatory reason for the conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of ‘significant influence’, see Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR572 at page 576. In some cases, discrimination is obvious. However, the Tribunal in most cases will have to discover what was in the mind of the alleged discriminator. In Nagarajan, Lord Nicholls said at page 575 that: “Direct discrimination, to be within section 1(1)(a) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to enquire why the complainant has received less favourable treatment. This is a crucial question. Was it on the grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in the obvious cases, answering the crucial question, will call for some consideration of the mental process of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision would have to be deduced, or inferred, from the surrounding circumstances”.8.3 The Tribunal has reminded itself of the guidance in Igen -v- Wong & Others 2005 IRLR 258 which it has considered in full although does not trouble to set it out here. In particular we have reminded ourselves of the two stage test.8.4 We have noted the decision in Madarassy v Nomura International Plc, where in the Court of Appeal, Lord Justice Mummery said at paragraphs 71 and 72: “Section 63A(2) [Sex Discrimination Act] does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or a situation for which comparisons are made are not truly like the complainant or a situation of the complainant; or that, even if there has been less favourable treatment of the complainant it was not in the grounds of her sex or pregnancy. Such evidence from the respondent could if accepted by the tribunal, be relevant as showing that contrary to the complainant’s allegation of discrimination, there is nothing in the evidence from which the tribunal could properly infer a prima facie case of discrimination on the proscribed ground. As Elias J observed in Liang (at paragraph 64), it would be absurd if the burden of proof moved to the respondent to provide an adequate explanation for treatment which, on the tribunal’s assessment of the evidence, had not taken place at all”. Indirect Discrimination8.5 The provisions of section 19 of the 2010 Act provided: (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if-- (a) A applies, or would apply, it to persons with whom B does not share the characteristic, b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.(3) the relevant protected characteristics are …disability8.6 We have reminded ourselves that in considering a claim of indirect discrimination it is necessary to consider the matter in stages. First has the respondent applied the PCP contended for by the claimant to the workforce or a part of it. Secondly, if so, to consider if there is particular disadvantage to those with the relevant protected characteristic under consideration. To undertake this exercise, we must identify the pool of people to be considered and in considering the pool we must not overlook the provisions of section 23 of the 2010 Act set out below. Thirdly, if group disadvantage can be established, we must consider whether the claimant has shown that he suffers particular disadvantage by reason of that PCP. If all those matters are satisfied, then we must consider whether the respondent has shown that the application of the PCP is a proportionate means of achieving a legitimate aim.8.7 We have reminded ourselves of the decision in Rutherford –v- Secretary of State for Trade and Industry (No 2) 2006 ICR 785 and Somerset County Council –v- Pike 2009 IRLR 870 to the effect that in considering the pool the Tribunal should not bring in any who have no interest in the advantage or disadvantage in question. We note that that position particularly holds good in so called “access to benefit” cases.8.8 We have reminded ourselves that in considering so called justification, that we must consider an objective balance between the discriminatory effect of the PCP engaged and the reasonable needs of the party who applies it. We have noted the words of Pill LJ in Hardys and Hanson -v- Lax 2005. This was a decision of the Court of Appeal taken in the context of a claim of indirect discrimination and was referred to again in the decision in Hensman –v- Ministry of Defence UKEAT/0067/14/DM. “Section 1(2)(b)(ii) requires the employer to show that the proposal is justifiable irrespective of the sex of the person to whom it is applied. It must be objectively justifiable (Barry) and I accept that the word "necessary" used in Bilka is to be qualified by the word "reasonably". That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word 'reasonably' reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellants' submission (apparently accepted by the EAT) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances”. Failure to make Reasonable Adjustment Claim: sections 20/21 of the 2010 Act8.9 The Tribunal has reminded itself of the relevant provisions of section 20 and 21 and Schedule 8 of the 2010 Act which read: Section 20: “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this Section, Sections 21 and 22 and the applicable schedule apply; and for those purposes a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements, (3) The first requirement is a requirement, where a provision, criterion or practice of A puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to take to avoid the disadvantage.(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(5) The third requirement is a requirement, where the disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid”. Section 21 (1) A failure to comply with the first second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purposes of establishing whether A has contravened this Act by virtue of subsection (2): a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.8.10 The Tribunal has had regard to the relevant provisions of Schedule 8 of the 2010 Act and in particular paragraph 20 which reads: “ (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know... (b)….that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement”.8.11 The Tribunal reminded itself of the authority of The Environment Agency v Rowan [2008] IRLR20 and the words of Judge Serota QC, namely: “An Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to section 3A(2) of the 1995 Act by failure to comply with section 4A duty must identify – (a) the provision, criterion or practice applied by or on behalf of an employer; (b) the physical feature of premises occupied by the employer; (c) the identity of non-disabled comparators (where appropriate); (d) the nature and extent of the substantial disadvantage suffered by the claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the claimant may involve a consideration of the cumulative effect of both the “provision, criterion or practice applied by and on behalf of an employer” and the ‘physical feature of the premises’, so it would be necessary to look at the overall picture. In our opinion an Employment Tribunal cannot properly make findings of a failure to make reasonable adjustments under sections 3A(2) and 4A(1) without going through that process. Unless the Employment Tribunal has identified the four matters we have set out above it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice or feature placing the disabled person concerned at a substantial disadvantage”. The Tribunal notes this guidance was delivered in the context of the 1995 Act but considers it equally applicable to the provisions of the 2010 Act.8.12 The Tribunal has reminded itself of the guidance in respect of the burden of proof in claims relating to an alleged breach of the duty to make reasonable adjustments in the decision in Project Management Institute -v- Latif 2007 IRLR 579 where Elias P states: “It seems to us that by the time the case is heard before a Tribunal, there must be some indication as to what adjustments it is alleged should have been made. It would be an impossible burden to place on a respondent to prove a negative……that is why the burden is reversed once a potentially reasonable adjustment has been identified…..the key point…is that the claimant must not only establish that the duty has arisen but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made……we do think that it would be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not.”8.13 We note that where a position is reached when there is nothing an employer can reasonably do to alleviate a disadvantage then the duty to make adjustments falls away: this will be the case where the position is irretrievable and this may be the position reached during a period of extended ill health. This may be the case also where the employer has caused the employee’s predicament where, even in that situation, there is no unlimited obligation to accommodate the employee’s needs. If an adjustment proposed will not in fact procure a return to work then it will not be a reasonable adjustment. We note also that the EAT in Lincolnshire Police –v- Weaver 2008 AER 291 made it clear that a Tribunal must take account of the wider implications of any proposed adjustment and this may include operational objectives such as the impact on other workers, safety and operational efficiency. The purpose of an adjustment in the employment context is to return the employee to work. Burden of Proof and other relevant provisions of the 2010 Act.8.14 The Tribunal has reminded itself of the relevant provisions of section 136 of the 2010 Act which read: “(1) This Section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But sub-Section (2) does not apply if (A) shows that (A) did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or Rule. (5) This Section does not apply to proceedings for an offence under this Act.(6) A reference to the court includes a reference to – (a) An employment tribunal………..”8.15 The Tribunal has reminded itself of the relevant provisions of section 39 of the 2010 Act and in particular: (2) An employer (A) must not discriminate against an employee of A’s (B)- … (c) by dismissing B (d) by subjecting B to any other detriment…… (5) A duty to make reasonable adjustments applies to an employer…(7) In subsections (2)(c)… the reference to dismissing B includes a reference to the termination of B’s employment-… (b) by an act of B’s (including giving notice) in circumstances such that B is entitled, because of A’s conduct, to terminate the employment without notice”.8.16 We have reminded ourselves of the provisions of section 23(1) of the 2010 Act which read: “On a comparison of cases for the purposes of section 13,14 or 19 there must be no material difference between the circumstances relating to each case”.
Discussion and Conclusions
[9]We approach our conclusions by dealing with the various claims advanced and issues arising in the order set out in the agreed list of issues. Knowledge (Issues 3.1-3.4)10.1 We refer to our findings of fact and our summary of the contents of the Judgment of Employment Judge Hoey. The claimant had a troublesome cough from March 2016 which affected his ability to concentrate and converse. His ability to lift and to climb ladders was also affected both by the cough (sarcoidosis) and the impairments of DDD and LBA, and this occurred on a daily basis from April 2016 through to April 2017. We accept the evidence of the claimant that BW, as his area manager, visited his store frequently. We did not hear evidence from BW and thus the evidence about the conduct of BW principally comes from the claimant whose evidence we found reliable. We conclude that BW must have regularly witnessed the effects on the claimant of the impairments from which the claimant suffered in the 12 months leading up to April 2017. We conclude and infer that, given his frequent visits, BW must have seen the adjustments to his working practices which the claimant had put in place to deal with his physical impairments. In our judgement, that is sufficient to fasten BW with knowledge of the ill health of the claimant, which it is now established amounted to a disability, by not later than the beginning of April 2017.10.2 Furthermore the claimant told the respondent on 22 June 2016 that he had sarcoidosis. This was done in writing and we note the response from BW which was to the effect that the matter would be discussed on the following Sunday. We accept the claimant’s evidence that that discussion did not take place then or at any other time and that BW failed in his duty to organise “welfare chats” with the claimant at any time up to the time of his move to the Blackburn store at the end of April 2017. In addition, on 6 November 2016 the claimant raised the 2016 Grievance which went both to HR and to a different line manager which gave information to the respondent in the clearest terms that the claimant was suffering with coughing, vomiting and feeling weak and had been diagnosed with sarcoidosis and was on treatment which would last at least 12 months. This very loud alarm bell went unheeded both by BW and by the respondent through its HR Department.10.3 We refer to the Code to which we were taken by Mr Bronze and have noted the contents of paragraphs 5.13 - 5.16 inclusive. In particular, we have noted paragraph 5.15 which states that an employer must do all it can reasonably be expected to do to find out if a worker has a disability. An example is given of an employee with depression with a good performance record who becomes emotional and upset at work for no apparent reason. It is said that that sudden deterioration in performance should have alerted an employer to the possibility that the deterioration was connected to a disability and that it is likely to be reasonable to expect an employer to explore with the worker the reason for the change in performance.10.4 In this case the respondent failed to react in anyway either through BW or HR to the warning bells which the claimant was sounding throughout 2016. In 2017 the claimant made a request with no notice to move to a smaller store and again that provoked no questioning or check with the claimant either from BW or from HR. The only reaction was through BW who quickly sourced a smaller store and then, we infer with input from HR, sought to have the claimant sign an agreement to move store with a consequent drop in salary of £4000 per annum without questioning that decision or seeking to understand why that, on the face of it very surprising, request had been made.10.5 We conclude that those circumstances were sufficient by April 2017, being the time of the reduction in salary of which the claimant complains in the direct discrimination claim, to fasten the respondent with knowledge of the claimant’s illness which amounted to a disability. The respondent cannot simply close its eyes to the obvious - let alone the blindingly obvious.10.6 We were not impressed by the actions of the respondent's HR Department in this case at all. In particular, the failure of the HR Department to react to the claimant’s 2016 Grievance and the information contained in it about his health was extraordinary - especially since the department has responsibility for such a large workforce and should reasonably be alert to all such matters.10.7 If that is wrong, then we conclude the respondent ought reasonably to have known the claimant was disabled by the time of the request to transfer to a smaller store from the claimant in April 2017. We refer again to the Code which states that an employer must do all it can reasonably be expected to do to find out if an employee has a disability. The respondent in this case patently failed to do so. There was no use of “welfare meetings” to inform the respondent of the details of the claimant’s health which was and is the very purpose of such meetings. 10.8. If that is wrong, then we accept the submission of Mr Bronze that the Respondent ought to have known at latest by October 2017 after it referred the claimant to OH in September 2017 and did not chase up that referral. Had that referral taken place, we infer that what was discovered in September 2019 would have been known in October 2017 and thus by that time at the latest the respondent ought to have known of the disabilities of the claimant. Once again, there were concerning failures by the HR Department of the respondent which allowed a referral to OH to be made and then did not follow up the matter in spite of two reminders from the claimant himself. If that should be wrong, then clearly by the time of the grievance and the grievance appeal the respondent had had several more alerts to the question of the claimant’s health but had failed to follow up on any of them. We conclude that the respondent did know or alternatively ought reasonably to have known of the claimant’s disability at all material times for the purposes of all the claims advanced. Direct Disability Discrimination General matters[11]Before moving to consider the specific issues in relation to this claim, we consider it is right to set out our findings in respect of three matters which are of central importance to our assessment of this claim and which inform our drawing of inferences in relation to this claim.[12]The respondent relies for its explanation of any less favourable treatment in this case on the salary scales which it applies to its staff working in its stores which it grades from band 1 to band 5. We accept that the respondent has shown there is a system of salary banding. The only written evidence produced to us related to the figures applicable to those various bands over differing financial years. That is all. Nothing was produced in relation to the details of the application of the policy. It was left to cross examination and to questions from the Tribunal to enable us to understand how a store might move from one band to another and what happens to the salaries of the staff working in a store if it moves from one band to another. It is clear that area managers have discretion over salaries to be paid to the managers of stores and yet we were shown nothing in writing to evidence the existence of that discretion or how such a discretion was to be exercised. It is clear managers can be paid salaries out-with the range applicable to a certain store. We had no evidence of the steps which needed to be taken to obtain such authorisation or of the steps that need to be taken to confirm the exercise of discretion or how and where the exercise of discretion should be recorded. The record keeping of the respondent in this regard was woefully inadequate. Given the size of the respondent company and the number of its staff and branches, this is surprising. The respondent was only able within days of the final hearing to produce figures for the banding of stores for the year 2017 when the claimant moved from a band 4 store to a band 1 store. These important matters ought to be recorded in order for there to be transparency and consistency in an area of the business where discrimination can so easily occur and yet the records produced to us were few in number, in some cases illegible, had just been discovered “in HR” and in our judgment were frankly inadequate.[13]The actions of BW lie at the heart of the claim of direct discrimination. We did not hear from BW in evidence. It is clear from the evidence that for a period of at least 12 months in 2016 and 2017, BW managed the claimant and failed to address with him the very obvious health impairments which were affecting the claimant at work throughout that period. We accept that BW, as an area manager, was required to hold welfare meetings with those whom he managed if the need arose. We conclude that there was a clear necessity to do so in the claimant’s case, but BW failed so to do. BW failed in that period to engage with the claimant’s health issues at all, let alone in any meaningful way. By the time of the claimant’s request in April 2017 to move stores, BW knew, or should reasonably have known, that the claimant was disabled: we refer to our findings at paragraphs 10.1-10.8 above. When the claimant made his request to transfer, there was no enquiry as to the reason behind that request which would in turn have revealed the health issues of the claimant. BW chose not to investigate something which patently should have been investigated and we are bound to wonder why that was so. Instead, he acceded quickly to the claimant’s request to transfer and then, shortly before the transfer, presented documents to the claimant to sign in order to evidence the claimant’s agreement to a reduction of £4000 per annum in his salary. We infer by reference to the comparators that, as area manager, BW had a discretion in relation to salary when the claimant moved but he did not consider the exercise of that discretion in favour of the claimant: again, we are bound to wonder why that was so. We infer that the claimant’s health had become an issue between the claimant and BW in the previous 12 months in what was an important store, in terms of revenue, but which BW chose not to address or did not know how to address. However, when an opportunity presented itself to BW in April 2017 to solve that issue, we infer he seized it without giving any thought as to what lay behind the request to transfer. We infer that a material reason for the reduction in salary and the failure to consider the exercise of any discretion was the illness of the claimant and we agree with the submission of Mr Bronze that it is impossible to separate the health of the claimant from the reason for the transfer of stores in April 2017. We infer that, at least sub-consciously, the health/disability of the claimant was a material influence on BW and the way he dealt with the matter at that time.[14]Neither of the witnesses DB and CR who dealt with the grievance hearing and the grievance appeal hearing respectively had received any training in their responsibilities as managers to employees under the terms of the 2010 Act and, in particular, no training as to their duties towards disabled employees. We infer that the same applied to BW. We had no evidence before us that the respondent company takes seriously its obligations to ensure that its employees/managers were aware of their duties and responsibilities under the terms of the 2010 Act generally, or in relation to disabled employees in particular. The fact that the claimant could be referred to OH in 2017, could chase up the failure on the part of OH to keep the appointment on two occasions and still not have the appointment is hardly a mark of an employer which takes seriously its responsibilities towards the health of its employees. If a referral to OH is deemed necessary, then an employer ought to ensure that that referral takes place. It was surprising that the witness CR could not recall ever having referred an employee to OH before, despite the fact that he had been an area manager with the respondent for some years. Neither of the respondent’s witnesses from whom we heard evinced any understanding of the concept of a risk assessment in the context of the health of an employee. CR chose not to engage in his investigation with the issue raised in respect of the 2010 Act despite that clearly forming a ground of appeal but chose instead to see the appeal being “more about pay than illness”. We note that the Head of HR herself saw it appropriate to investigate a further grievance raised by the claimant as this matter was being prepared for trial and, during that investigation, chose to question the claimant about these proceedings. That could have been a dangerous course of action and one which could be said to invite a claim of victimisation under section 27 of the 2010 Act and again is indicative of a cavalier approach to the provisions of the 2010 Act. It is in the context of an organisation with such an approach to the 2010 Act that we must assess this matter.[15]We conclude that by April 2017 the claimant was suffering serious health problems which amounted to a disability and felt he had no choice but to request a move to a smaller store for the good of his health and to shorten his driving time each day because the store he moved to was much closer to his home. The claimant was driven to this action by the failure of BW to engage with his health issues. The claimant did not request the transfer on a whim or entirely voluntarily. He felt compelled to do so by the circumstances of his health - which all the officers of the respondent involved failed to appreciate or chose not to appreciate.[16]We have reminded ourselves again of the two-stage test in allegations of direct discrimination to which we refer above. We remind ourselves that it is not necessary in every case for a tribunal to go through the two stage process and, in some cases, it may be appropriate simply to focus on the reason given by the employer (“the reason why”) and if the tribunal is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the two stage test. However, in this case the claimant relies on two actual comparators and we did not hear evidence from BW whose actions lie at the heart of this direct discrimination claim. In those circumstances we consider it appropriate to follow the traditional two stage test in assessing this claim and indeed the list of issues prepared by the parties pointed us towards this method of assessing this claim. Detriment: Issue 3.5[17]We have considered whether the reduction in salary by agreement and following a request from the claimant to transfer was detrimental treatment. We have considered the submissions of Ms Kaye to the effect that the move to the band 1 store and the reduction in salary were the result of a supportive action by the respondent and agreed in writing by the claimant and thus did not amount to a detriment to the claimant. We do not agree with that submission. That submission fails to take account of the inactivity of the respondent throughout the 12-month period prior to April 2017 when the request to transfer was made. We accept that the claimant felt he had no choice but to request the transfer in April 2017 and agree to the reduction of £4000 per annum in his salary which was presented to him by BW a matter of days before the transfer was to take place and without discussion of any kind. A detriment is defined effectively as a disadvantage. We have no hesitation in concluding that the reduction in salary, even in the context of an ostensible agreement by the claimant, was a detriment to him and the provisions of section 39(2)(d) of the 2010 Act are engaged. It was treatment which clearly disadvantaged the claimant to the tune of some 15% of his then current salary. The submissions of the respondent to the contrary are not accepted. Comparators: Issues 3.6 and 3.7[18]We consider whether the respondent treated the claimant less favourably than the comparators.[19]We refer to our findings of fact. We conclude that the two comparators were treated more favourably than the claimant in that they both moved to stores in lower bands and yet were paid, at least for a time, at a salary range attributable to their previously higher banded store. The discretion which we find exists in relation to the store pay scale to pay at a salary level attributable to a higher banded store was exercised in relation to the comparators but not so much as considered, let alone exercised, in relation to the claimant. There is less favourable treatment of the claimant in this regard for when he was moved, he was obliged to accept a substantial pay cut.[20]Thus we engage with the question of material difference. Section 23(1) of the 2010 Act requires that we are satisfied by the claimant that there is no material difference between the relevant circumstances relating to the claimant and his two comparators. We have considered the submissions made to us and find ourselves in agreement with the submissions of Mr Bronze set out at paragraphs 24 - 28 of his written submissions. The respondent made much of the fact that the comparator Laura Brooks was requested by the respondent to move store and that that was a material difference. We do not agree with that submission. The comparators and the claimant were all store managers moving to different stores in different bands. The claimant was treated less favourably than the comparators. The discretion to pay at a different banded store rate which exists was considered and exercised in relation to the comparators but not in relation to the claimant. We have considered the factor raised by Ms Kaye that the claimant moved through three bands of store from 4 to 1 whereas the comparators moved across only one band of store from 4 to 3 or 3 to 2. We have seen nothing to suggest that the discretion which exists in relation to the salary scale only applies if a manager is moving across one band of store only. The circumstances of the claimant and the comparators are not materially different in this regard and we are satisfied the treatment of the claimant was less favourable than that afforded to the comparators and that there is no material difference in the circumstances applicable to any of them.[21]If that is wrong, then we note that the comparator Laura Brooks requested a move from a band 3 store to a band 2 store but yet retained a salary in band 3 which is said to have been attributable to a “keying error”. We do not accept that explanation. The claimant was treated less favourably than his comparators. Was the treatment of the claimant because of disability? Issue 3.8[22]We have considered if there are facts from which we could decide that the respondent contravened section 13 of the 2010 Act. We have concluded that the claimant was treated less favourably than the comparators when his salary was reduced when he moved from a band 4 store to a band 1 store in April 2017. We note that less favourable treatment alone is not sufficient to shift the burden of proof to the respondent - there must be some additional factor. We conclude in this case there are several factors which lead us to say that there is sufficient to shift the burden of proof to the respondent. We refer in particular to our conclusions at paragraphs 12-14 above. The inactivity of BW in relation to the claimant’s health in a period of at least 12 months leading up to April 2017 is remarkable. The fact that we did not hear from BW and the fact that the witnesses from whom we did hear chose not to address or engage with the allegations in respect of the claimant’s health and disability discrimination, which were clearly before them, is also a remarkable feature of this case. The cavalier approach of the respondent to the provisions of the 2010 Act is also a sufficient additional factor in itself to lead us to the conclusion that the burden of proof shifts to the respondent in this case.[23]We have considered the explanation advanced. The explanation is that the salary bands attributable to the different banded stores are effectively sacrosanct and that is why the claimant’s salary was reduced as it was. We do not accept that that is so and we note again the position of the comparators which clearly points away from any such rigid position. In addition, we have seen no policy document or written evidence from the respondent that that is in fact the policy of the respondent. We note the evidence of Ms Brooks reducing her salary when she moved to a lower banded store at her own request. We have not heard from Ms Brooks. We note that that occurred after this claim was instituted. There is no evidence that such was the policy of the respondent before the claimant was moved. We share the scepticism of Mr Bronze in relation to that particular piece of evidence in respect of Ms Brooks. In any event, Ms Brooks was paid at a higher salary than that attributable to the store to which she moved at her own request. We engage with the submission of Ms Kaye to the effect that the claimant accepted in cross examination that it was clear his salary reduced because of the salary banding. That is not determinative. It is for this Tribunal to consider the question which is at the heart of this claim which is why was the claimant treated as he was? In reaching our conclusion, we have not overlooked the fact that when the claimant moved to a band 1 store, his salary was placed at the mid-point of band 1 rather than a lower point.[24]We conclude that the actions of BW and then DB and CR were materially influenced by the ill health and disability of the claimant. The claimant requested a move to a lower banded store because of his ill health which we conclude amounted to a disability. The respondent knew or should have known that the ill health amounted to a disability. The failure of BW and then DB and CR to engage with the question of the ill health of the claimant or to engage with the reason why the claimant requested a move of store or to consider the exercise of discretion not to reduce salary leads us to the conclusion that their actions were materially influenced – albeit subconsciously – by the disability of the claimant. We infer that all three officers of the respondent failed to consider any outcome other than a reduction in salary despite the availability of discretion and that one of the reasons they did so was the disability of the claimant. We do not accept the explanation advanced by the respondent that the salary scale was the reason for the reduction in salary. There were more factors in play than that and one of the material factors was the disability of the claimant. We do not accept that the respondent has established that it has not contravened the provisions of section 13 of the 2010 Act. 25. in those circumstances the claim of direct disability discrimination succeeds and the claimant is entitled to a remedy. Indirect Disability Discrimination: Issues 3.9-3.10[26]We note that the respondent accepts that it operated a pay banding structure for store managers based on store performance. This is the PCP on which the claimant relies in relation to this claim.[27]We have considered the question of particular disadvantage. In this case we prefer the submissions of Ms Kaye over those of Mr Bronze. The claimant’s case is based on an assertion that a disabled person is more likely to work in a smaller and therefore lower banded store. An additional factor in relation to this particular claim is that particular disadvantage is to be shown to those persons who share the same disability as the claimant.[28]We do not accept the premise that disabled people are more likely to work in smaller and therefore lower banded stores. We received little if any evidence of group disadvantage in relation to this matter. In any event, we conclude that a disabled manager with the disabilities of the claimant was just as likely as a non-disabled manager to work in larger and therefore higher banded store. We accept the case advanced by the respondent that higher banded stores have a greater number of management hours attributed to them and thus there is more scope in a larger store for flexibility in working hours which would more easily accommodate the needs of a disabled employee. We accept that a higher banded store has more employees and therefore greater scope to accommodate the needs of disabled employees. We accept that a higher banded store has a larger variety of roles available within it including administration roles, stock and warehousing roles, driving roles and shop floor work which, if they exist at all in the lower banded stores, are much reduced in number. We accept that in the higher banded stores there is far more scope to assigning a disabled person a specific role to accommodate the disability from which s/he suffers. We note and accept that stores with a higher turnover, and thus a higher band, are not necessarily larger in physical size and we accept that some higher banded stores are located in purpose-built buildings which have a physical lay-out more suited to those with the disabilities of the claimant in particular DDD and LBA.[29]We had no evidence placed before us of group disadvantage and were simply asked to assume that the disadvantage to disabled people was obvious. It is not and we do not agree. Further when the additional factor is taken into account namely that the claimant needs to show group disadvantage to those who suffer from the same disability as him, then there was simply no evidence to that effect. The claimant suffers from rare impairments namely sarcoidosis, DDD and LBA and we had no evidence placed before us that the PCP in this case subjected such disabled people to particular disadvantage in relation to relevant PCP. The combination of impairments which make up the claimant’s disability is so unusual that we are simply not able to draw any conclusions from our general experience to the effect that such people would suffer particular disadvantage in relation to the PCP relevant to this claim. In those circumstances, this claim of indirect disability discrimination falls at this second hurdle and is dismissed.[30]In case that is wrong then we have briefly considered if the respondent acted proportionately to legitimate aims in applying the PCP.[31]The aims relied on were first to ensure parity, fairness and consistency in the pay of store managers nationwide and secondly to ensure that store managers at larger stores are properly and fairly remunerated for the higher-level management required in a store with a higher turnover, a larger workforce and an increased workload. We accept that both such aims are legitimate.[32]We are required to assess objectively the reasonable needs of the respondent in applying the PCP against the potentially discriminatory effect of the PCP on the claimant and then to assess if an appropriate balance has been struck. We conclude that the respondent did not act proportionately to either aim in reducing the claimant’s salary as suddenly and as drastically as it did. A period of salary protection, at least, would have been one way to reduce the discriminatory effect of the PCP on the claimant without damaging the integrity of the PCP in the context of the legitimate aims. That factor allows us to conclude without much difficulty that the operation of the PCP was not proportionate to the legitimate aims in the circumstances of this case. However, in the absence of group and individual disadvantage being established in relation to this particular claim we need not dwell further on this aspect of the matter.[33]The claim of indirect disability discrimination fails and is dismissed. The claim of failure to make reasonable adjustments: Issues 3.11-3.13[34]We have dealt with the question of knowledge above.[35]We note that the PCP referred to in relation to the claim of indirect disability discrimination applies also in relation to this claim.[36]We have considered the question of substantial disadvantage. We remind ourselves that in this context “substantial” means something more than minor or trivial.[37]To test substantial disadvantage we must compare the effect of the PCP on disabled store managers compared to those without a disability. We do not agree with the submission of Mr Bronze that it must be true that a disabled person is more likely to work in a smaller, and therefore lower banded, store.[38]On the contrary we prefer the submissions of Ms Kaye on this point at paragraph 52 of her written submissions. Those were compelling submissions. We repeat the findings we make at paragraph 28 above. For the same reasons we do not accept that a non-disabled employee/manager is placed at a substantial disadvantage by the operation of the PCP. We do not accept that non-disabled employees /managers are placed at even a minor or trivial disadvantage by the operation of the PCP.[39]If that is wrong, then we have engaged with two other matters.[40]Did the respondent have knowledge or constructive knowledge of the alleged substantial disadvantage. If there was one, we conclude that that should have been known to the respondent - had it put its mind to it – at the same time as it should have acquired knowledge of the disability of the claimant. In any event by the time the grievance and grievance appeal were dealt with those matters were abundantly clear and should also have been clear to BW when he acted as he did in April/May 2017.[41]If the claim of substantial disadvantage had been established, then we have considered if the respondent failed to make a reasonable adjustment to alleviate the substantial disadvantage. We conclude that it did - in failing to give some measure of protection to the salary of the claimant at the time of the transfer of stores. We conclude protection for three years would have been reasonable. This would have enabled the claimant to adjust his finances, to have (as in fact has happened) used his abilities to build up the store to which he moved and perhaps move it to a higher band and it would have removed the disadvantage to him of the PCP. The cost to the respondent would have been small (£12k maximum before add-ons) and it would have been an adjustment easily explainable to other colleagues had there been a necessity to do so.[42]We would have concluded there was a failure to make a reasonable adjustment had the claim reached that point.[43]However in the absence of substantial disadvantage the claim of failure to make reasonable adjustments fails and is dismissed. Remedy.[44]If the remedy to which the claimant is entitled has not been resolved between the parties, a remedy hearing will be convened at the earliest opportunity. EMPLOYMENT JUDGE A M BUCHANAN