Mr N Whalley v Blackburn with Darwen Borough Council: 2402370/2021

EMPLOYMENT TRIBUNALS

Case No 2402370/2021

Between

Mr N WhalleyClaimant

Blackburn with Darwen Borough CouncilRespondent

Before

Employment Judge McDonald

Date 16 September 2024

JUDGMENT

[1]The complaint of unfair dismissal is not well-founded and is dismissed.

[2]The complaint of wrongful dismissal is not well-founded and is dismissed.

[3]The complaints of direct disability discrimination is not well-founded and is dismissed.

[4]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.

[5]The complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed.

[6]The claimant’s complaint that the respondent failed to comply with the annual leave provisions in the Working Time Regulations 1998 is dismissed on withdrawal.

REASONS

[1]This was the claimant's claim that he had been unfairly dismissed, wrongfully dismissed, subjected to disability discrimination of various types and that the respondent had failed to honour his annual leave rights.

[2]The respondent conceded that the claimant was at all relevant times a disabled person by reason of calcium deposits causing a musculo-skeletal condition.

[3]The case was due to have been heard in March 2023 but was postponed because of the unavailability of one of the respondent’s witnesses. That meant that we were dealing with matters which occurred some 3½-4 years after they happened. The Hearing and our deliberations

[4]There was an agreed bundle of documents consisting of pages 1-491 (“the Bundle”). References in these reasons to page numbers are to pages in the Bundle. On the first day of the hearing we added a further document at page 130A by consent. That was the Saturday morning litter bin route for Alex Bearhope (“Mr Bearhope”).

[5]After reading the witness statements and relevant documents on the morning of the first day, we heard the claimant's evidence in the afternoon of the first day, throughout the second and on the morning of the third day. He was cross examined by Mr Barron, answered Tribunal questions and was re-examined by Mr Walker.

[6]From the afternoon of the third day we heard the respondent’s witnesses’ evidence starting with Mr Martin Eden (“Mr Eden”) the dismissing officer. At the date of dismissal, he was the respondent’s Director for Environment and Operations. We then heard the evidence of Mr Martin Kelly (“Mr Kelly”), the respondent’s Strategic Director for Growth and Development. He heard the claimant's unsuccessful appeal against dismissal. On day 4 we heard the evidence of Tony Watson (“Mr Watson”), the respondent’s Head of Environment. The final witness was Dwayne Lowe (“Mr Lowe”), who heard the claimant’s second grievance in May 2020. He was the respondent’s Head of Highways, Transport and Networks. Each of those witnesses was cross examined by Mr Walker, answered questions from the Tribunal and where he decided necessary, re-examined by Mr Barron.

[7]We heard oral submissions from Mr Barron and Mr Walker on the afternoon of the final day of the hearing. Because of the limited time available, those submissions focussed almost exclusively on the unfair dismissal and wrongful dismissal complaints. We reserved out decision. We directed that the parties provide written submissions by 22 March 2024 and any submissions in reply by 12 April 2024. In reaching our decision we have taken into account the parties’ oral and written submissions including the respondent’s response to the claimant’s submissions.

[8]The Tribunal met in chambers on 28 May 2024. The Employment Judge apologises to the parties for the delay in finalising this judgment.

The Issues

[9]The issues for the Tribunal to decide were set out in a List of Issues agreed over 2 case management preliminary hearings held by Employment Judge Serr and Employment Judge Allen respectively. That list (as amended) is annexed to this judgment. Amendment to add direct discrimination complaint 3.3A

[10]The claimant’s direct disability discrimination complaint included complaints that he had not been appointed to or given the opportunity to fill vacancies arising from the reorganisation by the respondent in 2019. As clarified in the List of Issues, there were two such roles (3.2 and 3.3). During the claimant’s cross examination evidence it appeared to the Tribunal that the complaints related to three different roles rather than just the two identified in the List of Issues. We released the claimant from his witness oath so that Mr Walker could take his instructions overnight. On the morning of Day 2 Mr Walker confirmed there was a complaint about a third role. That role was the role we have referred to in this judgment as “the Ian Leach Role”. The Tribunal indicated that the claimant would need to apply to amend his claim to add that as a separate complaint of direct disability discrimination. The respondent objected to the application.

[11]We indicated to the parties that we would hear submissions and decide the application to amend at the end of the hearing. We decided that the appropriate approach was to decide the application to amend leaving the question of time limits to be decided alongside the time limit issues relating to the other direct disability discrimination complaints at 3.2 and 3.3 if that necessity arose. In the event, as we explain below, we did not need to decide those time limit issues because those complaints of direct disability discrimination failed.

[12]In deciding the application to amend we took into account the relevant law and in particular:• Selkent Bus Company Limited v Moore

[1996] ICR 836

which says that the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing an amendment against the injustice and hardship of refusing it.

• Selkent suggests that some factors are almost always going to be relevant. The first is the nature of the amendment: whether it is of minor matters such as adding factual detail or is a substantive alteration pleading substantial new facts giving rise to a new claim. The second is the applicability of time limits. If the amendments give rise to a new claim and is not merely a "relabelling" of a claim based on facts already included it is essential for the Tribunal to consider whether the new claim is out of time. The third is the timing and manner of the application. An application should not be refused solely because there has been a delay in making it: it is relevant to consider why the application was not made earlier and why it is now being made.

• Vaughan v Modality Partnership

UKEAT/0147/20/BA

in which the Employment Appeal Tribunal reminded the parties and Tribunals that the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application. The exercise starts with the parties making submissions on the specific practical consequences of allowing or refusing the amendment, and that balancing exercise is fundamental.

[13]We took into account the timing and manner of the application. We find that the reason for the complaint not having been added at an earlier date appeared to be a lack of clarity on the part of the claimant’s representative as to which roles were subject to the complaints of direct disability discrimination. We accept the complaint adds new facts and is not a relabelling of existing facts. In assessing the forensic prejudice to the respondent, we took into account that the claimant had raised a grievance about the Ian Leach Role and that there was documentary evidence of the respondent’s contemporaneous position in relation to it. Mr Watson was able to give evidence about the issue and there was no suggestion that there would have been witnesses who were better placed to give evidence who were denied the opportunity to do so. In assessing the balance of hardship and injustice we also took into account that the claimant had attended the preliminary hearing at which the List of Issues was drawn up in person. Although he was represented at the final hearing, Mr Walker did not represent him at that preliminary hearing. This is not a case where the claimant has been professionally represented throughout. The amendment did not significantly add to the scope of evidence we needed to hear. On balance, we decided that the balance of hardship and injustice favoured granting the amendment subject to the issue of time limits. We did so and added the complaint at 3.3A of the List of Issues. The Annual Leave complaint

[14]One of the questions raised by the Judge at the end of the claimant’s evidence was what claim the claimant was bringing in relation to holiday pay. The claimant’s complaint in his evidence was that the respondent had failed to give him the required length of notice to oblige him to take holiday. He had, however, then taken that period as annual leave. The Tribunal indicated that it was not clear what complaint was being brought about this. If the claimant refused to take annual leave and then been subjected to a detriment the claimant would have a claim. Equally, if he had not been paid for the annual leave he could clearly bring a complaint about that. That did not appear to be the complaint being made. Since it was clear that the Tribunal would not be in a position to deliberate during the four days set aside for the hearing, it was agreed that the parties would set out their arguments and submissions on this complaint in written form. The Tribunal directed that the parties provide written submissions within 14 days and reply, if required, within 28 days.

[15]In his written submissions for the claimant, Mr Walker confirmed that the claimant withdrew his holiday pay claim. In the absence of any request not to do so, we have in our judgment dismissed that complaint on withdrawal.

Relevant Law

[16]In this section of our judgment we have set out the relevant law on the complaints pursed by the claimant. Because the claimant withdrew his holiday pay claim, we have not set out the relevant law on that complaint. Disability Discrimination – Burden of Proof

[17]The claimant brought 3 kinds of complaints under the Equality Act 2010 (“the 2010 Act”). These were a complaint of direct discrimination; a complaint of discrimination arising from disability; and a complaint that the respondent had failed to make reasonable adjustments.

[18]The 2010 Act provides for a shifting burden of proof. Section 136 so far as material provides as follows: “(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 subsection (2) does not apply if A shows that A did not contravene the provision.”

[19]This means that it is for a claimant to establish facts from which the Tribunal can reasonably conclude that there has been a contravention of the 2010 Act. If the claimant establishes those facts, the burden shifts to the respondent to show that there has been no contravention by, for example, identifying a different reason for the treatment.

[20]In Hewage v Grampian Health Board

[2012] ICR 1054

, SC, the need to avoid an overly technical approach to the application of section 136 was emphasised. Lord Hope observed that the burden of proof provisions will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.

[21]That means that where there is "room for doubt", the approach s.136 lays down provides a valuable tool for determining whether the inference of discrimination should be drawn. In Field v Steve Pye & Co

[2022] IRLR 948

EAT HHJ Tayler emphasised that if there is evidence that could realistically suggest that there was discrimination it is not appropriate to just add that evidence into the balance and then conduct an overall assessment, on the balance of probabilities, and make a positive finding that there was a non-discriminatory reason for the treatment.

[22]He said that “where there is evidence that could indicate discrimination there is much to be said for properly grappling with the evidence and deciding whether it is, or is not, sufficient to switch the burden of proof. That will avoid a claimant feeling that the evidence has been swept under the carpet. It is hard to see the disadvantage of stating that there was evidence that was sufficient to shift the burden of proof but that, despite the burden having been shifted, a nondiscriminatory reason for the treatment has been made out.”

[23]He also said that where a claimant contends that there is evidence that should result in a shift in the burden of proof they should state concisely what that evidence is in closing submissions.

[24]As for what is required to discharge the burden at the first stage, that must be something more than a difference in the relevant protected characteristic and a difference in treatment; see Madarassy v Nomura International plc

[2007] ICR 867

, CA. That said, the something more required at the first stage need not be a great deal; see Deman v EHRC

[2010] EWCA Civ 1279

[25]A finding that an employer has behaved unreasonably, or treated an employee badly, will not, however, be sufficient, of itself, to cause the burden of proof to shift; Glasgow City Council v Zafar

[1998] ICR 120

. Time limits for 2010 Act claims

[26]The time limit for bringing a claim under the 2010 Act appears in section 123 as follows:- “(1) subject to Sections 140A and 140B proceedings on a complaint within Section 120 may not be brought after the end of –(a) the period of three 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. (2) … (3) for the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it.” Continuing acts

[27]In Hendricks v Commissioner of Police for the Metropolis

[2003] IRLR 96

the Court of Appeal confirmed that in deciding whether there was conduct extending over a period of time (commonly referred to as a “continuing act”): ‘The focus should be on the substance of the complaints … was there an ongoing situation or a continuing state of affairs in which [officers] … were treated less favourably? The question is whether that is ‘an act extending over a period’ as distinct from a succession of unconnected or isolated specific acts'.

[28]In considering whether separate incidents form part of an act extending over a period, ‘one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents’ Aziz v FDA

2010 EWCA Civ 304

, CA.

[29]Acts which the Tribunal finds are not established on the facts or are found not to be discriminatory cannot form part of the continuing act: South Western Ambulance Service NHS Foundation Trust v King EAT 0056/19. Just and equitable extension of time

[30]In Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

, CA, the Court of Appeal stated that when a Tribunal considers exercising the discretion under what is now S.123(1)(b) of the 2010 Act, ‘there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a claim unless the claimant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.’ However, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds.

[31]In British Coal Corporation v Keeble

[1997] IRLR 336

the EAT suggested that in deciding whether to exercise their discretion to allow the late submission of a discrimination claim, tribunals would be assisted by considering the factors listed in S.33(3) of the Limitation Act 1980. Those factors are in particular: the length of, and reasons for, the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has cooperated with any requests for information; the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action.

[32]In Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

[2018] ICR 1194

, the Court of Appeal stressed that, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and

(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh)." It also said that there was no justification for reading into s.123 a requirement that the tribunal had to be satisfied that there was a good reason for the delay, let alone that time could not be extended absent an explanation from the employee. Any such reason was a relevant matter to which the tribunal could have regard.

[33]More recently the Court of Appeal in Olufunso Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

warned against rigid adherence to a checklist because it can lead to a mechanistic approach to what is meant to be a very broad general discretion, and confusion may also occur where a tribunal refers to a genuinely relevant factor but uses inappropriate Keeble. The best approach for a tribunal in considering the exercise of the discretion under section 123 (1) (b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular “the length of, and the reasons for, the delay". If it checks those factors against the list in Keeble, well and good; but it was not recommended to take that list as the framework for its thinking. Direct Discrimination

[34]The definition of direct discrimination appears in section 13 of the 2010 act and so far as material reads as follows: “(1) A person(a) (A) discriminates against another

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

[35]The concept of treating someone “less favourably” inherently requires some form of comparison, and section 23(1) provides that: “On a comparison of cases for the purposes of section 13 … there must be no material differences between the circumstances relating to each case”.

[36]A protected characteristic need only have a material influence in detrimental treatment for discrimination to be established: Nagarajan v London Regional Transport

[2000] 1 AC 501

. Unlike in and unfair dismissal claim, it need not be the reason or principal reason for the treatment.

[37]The question of what will amount to a detriment was considered in the discrimination context by the House of Lords in Shamoon v The Royal Ulster Constabulary

[2003] ICR 337

: the test is whether a reasonable employee would or might take the view that he had been disadvantaged in circumstances in which he had to work. An unjustified sense of grievance cannot amount to a detriment.

[38]In a case of direct disability discrimination, the respondent must have treated the claimant less favourably because of disability. That implies that the respondent knew of the relevant disability, although that need only be knowledge, whether actual or constructive, of the facts that made the claimant a disabled person under the 2010 Act: Godfrey v Natwest Market Plc

[2024] EAT 81

. Discrimination arising from disability (“a s.15 claim”)

[39]Section 15 of the 2010 Act states:(1) A person (A) discriminates against a disabled person (B) if-- (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[40]There is a need to identify two separate causative steps in order for a s.15 claim to be made out (Basildon and Thurrock NHS Foundation Trust v Weerasinghe

2016 ICR 305

, EAT):• the disability had the consequence of ‘something’;

• the claimant was treated unfavourably because of that ‘something’.

[41]In Basildon the EAT said it does not matter in which order the tribunal approaches these two steps: ‘It might ask first what the consequence, result or outcome of the disability is, in order to answer the question posed by “in consequence of”, and thus find out what the “something” is, and then proceed to ask if it is “because of” that that A treated B unfavourably. It might equally ask why it was that A treated B unfavourably, and having identified that, ask whether that was something that arose in consequence of B’s disability’.

[42]In Pnaiser v NHS England and anor

2016 IRLR 170

, EAT, the EAT summarised the proper approach to establishing causation under S.15:• First, the tribunal has to identify whether the claimant was treated unfavourably and by whom.

• It then has to determine what caused that treatment — focusing on the reason in the mind of the alleged discriminator, possibly requiring examination of the conscious or unconscious thought processes of that person, but keeping in mind that the actual motive of the alleged discriminator in acting as he or she did is irrelevant.

• The tribunal must then determine whether the reason was ‘something arising in consequence of the claimant’s disability’, which could describe a range of causal links. This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

[43]For a s.15 claim to succeed the ‘something arising in consequence of the disability’ must be part of the employer’s reason for the unfavourable treatment. The key question is whether the something arising in consequence of the disability operated on the mind of the alleged discriminator, consciously or unconsciously, to a significant extent (T-Systems Ltd v Lewis EAT 0042/15).

[44]A claimant needs only to establish some kind of connection between the claimant’s disability and the unfavourable treatment. In Hall v Chief Constable of West Yorkshire Police

2015 IRLR 893

, EAT the EAT confirmed that a s.15 claim can succeed where the disability has a significant influence on, or was an effective cause of, the unfavourable treatment.

[45]Where an employer dismisses a disabled employee for misconduct caused by his or her disability, the dismissal can amount to discrimination under S.15 of the 2010 Act even if the employer did not know that the disability caused the misconduct (City of York Council v Grosset

2018 ICR 1492

, CA).

[46]A s.15 claim will only succeed if the employer (or other person against whom the allegation is made) is unable to show that the unfavourable treatment to which the claimant has been subjected is objectively justified as a proportionate means of

[47]The Equality and Human Rights Commission’s Code of Practice on Employment (“the Code”). sets out guidance on objective justification. In summary, the aim pursued should be legal, should not be discriminatory in itself and must represent a real, objective consideration. Although business needs and economic efficiency may be legitimate aims, the Code states that an employer simply trying to reduce costs cannot expect to satisfy the test (see para 4.29). As to proportionality, the Code notes that the measure adopted by the employer does not have to be the only possible way of achieving the legitimate aim, but the treatment will not be proportionate if less discriminatory measures could have been taken to achieve the same objective (see para 4.31).

[48]A failure to make a reasonable adjustment will make it very difficult for the employer to argue that unfavourable treatment was nonetheless justified. The converse is not necessarily true. Just because an employer has implemented reasonable adjustments does not guarantee that unfavourable treatment of the claimant will be justified, e.g. if the particular adjustment is unrelated to the unfavourable treatment complained of or only goes part way towards dealing with the matter.

[49]In O'Brien v Bolton St. Catherine's Academy

[2017] EWCA Civ 145

the Court of Appeal said that the tribunal in that case, which had found that the dismissal in question in that case was in breach of section 15 of the 2010 Act, was also entitled to conclude from this that it had been an unfair dismissal. In City of York Council v P J Grosset

[2018] EWCA Civ 1105

the Court of Appeal said that Underhill LJ in O’Brien was addressing his remarks to the particular facts of that case, and was not seeking to lay down any general proposition that the test under section 15(1)(b) of the 2010 Act and the test for unfair dismissal are the same.

[50]This means there is no inconsistency between a Tribunal dismissing a claimant's claim of unfair dismissal but upholding a claim under section 15 of the 2010 Act in respect of the same dismissal. This is because the test in relation to unfair dismissal is whether dismissal was within the range of reasonable responses available to an employer, thereby allowing a significant latitude of judgment for the employer itself. By contrast, the test under section 15(1)(b) of the 2010 Act is an objective one, according to which the ET must make its own assessment: see Hardy & Hansons plc

[2005] EWCA Civ 846

;

[2005] ICR 1565

, [31]-[32], and Chief Constable of West Yorkshire Police v Homer

[2012] UKSC 15

[51]The burden of proof provisions apply to s.15 claims. Based on Pnaiser, in the context of a S.15 claim, in order to prove a prima facie case of discrimination and shift the burden to the employer to disprove his or her case, the claimant will need to show:• that he or she has been subjected to unfavourable treatment

• that he or she is disabled and that the employer had actual or constructive knowledge of this

• a link between the disability and the ‘something’ that is said to be the ground for the unfavourable treatment

• some evidence from which it could be inferred that the ‘something’ was the reason for the treatment.

[52]If the prima facie case is established and the burden then shifts, the employer can defeat the claim by proving either:• that the reason or reasons for the unfavourable treatment was/were not in fact the ‘something’ that is relied upon as arising in consequence of the claimant’s disability, or

• that the treatment, although meted out because of something arising in consequence of the disability, was justified as a proportionate means of Failure to make reasonable adjustments

[53]Section 39(5) of the 2010 Act provides that a duty to make reasonable adjustments applies to an employer.

[54]That duty appears in Section 20 as having three requirements, and the requirement of relevance in this case is the first requirement in Section 20(3)

[55]Section 20(3) provides as follows:- “the first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”.

[56]The importance of a Tribunal going through each of the constituent parts of that provision was emphasised by the EAT in The Royal Bank of Scotland –v- Ashton

[2011] ICR 632

(approved by the Court of Appeal in Newham Sixth Form College v Sanders [2014]). A Tribunal must identify: a) the provision, criterion or practice applied by or on behalf of an employer, or b) the physical feature of premises occupied by the employer, c) the identity of non-disabled comparators (where appropriate) and 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 or on behalf of an employer’ and the, ‘physical feature of premises’ so it would be necessary to look at the overall picture. The EAT added that although it will not always be necessary to identify all four of the above, (a) and (d) must certainly be identified in every case.

[57]The obligation to take such steps as it is reasonable to have to take to avoid the disadvantage is one in respect of which the Code provides considerable assistance. A list of factors which might be taken into account appears at paragraph 6.28 and includes the practicability of the step, the financial and other costs of making the adjustment and the extent of any disruption caused, the extent of the employer’s financial or other resources and the type and size of the employer. Paragraph 6.29 makes clear that ultimately the test of the reasonableness of any step is an objective one depending on the circumstances of the case. Examples of reasonable adjustments in practice appear from paragraph 6.32 onwards

[58]As to whether a disadvantage resulting from a provision, criterion or practice is substantial, Section 212(1) of the 2010 Act defines “substantial” as being “more than minor or trivial”.

[59]Paragraph 20(1) of Schedule 8 to the 2010 Act provides that: “a person is not subject to the duty to make reasonable adjustments if he or she does not know, and could not reasonably be expected to know:(a) in the case of an applicant or potential applicant for work, that an interested disabled person is or may be an applicant for the work in question;

(b) in any other case referred to in Part 2 of the Schedule, that an interested disabled person has a disability and is likely to be placed at a disadvantage by [the employer’s provision, criterion or practice (PCP), the physical features of the workplace, or a failure to provide an auxiliary aid]”

[60]The employer’s knowledge can be actual or “constructive”. A Tribunal should approach this aspect of a reasonable adjustments claim by considering two questions:• first, did the employer know both that the employee was disabled and that the disability was liable to disadvantage the employee substantially?

• if not, ought the employer to have known both that the employee was disabled and that the disability was liable to disadvantage the employee substantially? Secretary of State for Work and Pensions v Alam

2010 ICR 665

, EAT, and McCubbin v Perth and Kinross Council EATS 0025/13.

[61]The 2010 Act does not require knowledge (whether actual or constructive) of the precise diagnosis of the disability in question, but it does require knowledge (actual or constructive) of the facts constituting the disability. In other words, that the individual is suffering from a physical or mental impairment which has substantial and long-term adverse effects on his or her ability to carry out normal day-to-day activities (Pnaiser at para 69). Unfair Dismissal

[62]S.94 Employment Rights Act 1996 (“ERA”) gives an employee a right not to be unfairly dismissed by their employer. To qualify for that right an employee usually needs two years' continuous service at the time they are dismissed, which the claimant had in this case.

[63]In determining whether a dismissal is unfair, it is for the employer to show that the reason (or if more than one the principal reason) for dismissal is one of the potentially fair reasons set out in s.98(2) of ERA or some other substantial reason justifying dismissal.

[64]The reason or principal reason is derived from considering the factors that operate on the employer's mind so as to cause him to dismiss the employee. In Abernethy v Mott, Hay and Anderson

[1974] ICR 323

, Cairns LJ said, at p. 330 B- C: "A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee."

[65]An employer with grounds to dismiss for a fair reason, such as misconduct, might still be found to have dismissed for an impermissible reason if the latter is the reason operating on his mind: ASLEF v Brady

[2006] IRLR 576

[66]If a potentially fair reason within section 98 is shown, such as a reason relating to conduct, the general test of fairness in section 98(4) will apply. Section 98 reads as follows: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) the reason (or, if more than one, the principal reason) for the dismissal and

(b) that it is either a reason falling within sub-section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this sub-section if it … relates to the conduct of the employee … (3) … (4) Where the employer has fulfilled the requirements of sub-section (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case”.

[67]In a misconduct case the correct approach under section 98(4) was helpfully summarised by Elias LJ in Turner v East Midlands Trains Limited

[2013] ICR 525

in paragraphs 16-22. Conduct dismissals can be analysed using the test which originated in British Home Stores v Burchell

[1980] ICR 303

, a decision of the Employment Appeal Tribunal which was subsequently approved in a number of decisions of the Court of Appeal. Since Burchell was decided the burden on the employer to show fairness has been removed by legislation. There is now no burden on either party to prove fairness or unfairness respectively.

[68]The “Burchell test” involves a consideration of three aspects of the employer’s conduct. Firstly, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case? Secondly, did the employer genuinely believe that the employee was guilty of the misconduct complained of? Thirdly, did the employer have reasonable grounds for that belief?

[69]If a genuine belief is established, the band of reasonable responses test applies to all aspects of the dismissal process including the procedure adopted and whether the investigation was fair and appropriate: Sainsburys Supermarkets Ltd v Hitt

[2003] IRLR 23

. The focus must be on the fairness of the investigation, dismissal and appeal, and not on whether the employee has suffered an injustice. The Tribunal must not substitute its own decision for that of the employer but instead ask whether the employer’s actions and decisions fell within that band.

[70]The circumstances relevant to assessing whether an employer acted reasonably in its investigations include the gravity of the allegations, and the potential effect on the employee: A v B

[2003] IRLR 405

[71]A fair investigation requires the employer to follow a reasonably fair procedure. By section 207(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 Tribunals must take into account any relevant parts of the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015.

[72]Tribunals should not consider procedural fairness separately from other issues arising. They should consider the procedural issues together with the reason for the dismissal, as they have found it to be. The two impact upon each other and the tribunal's task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss Taylor v OCS Group Ltd

[2006] IRLR 613

[73]If the three parts of the Burchell test are met, the Employment Tribunal must then go on to decide whether the decision to dismiss the employee (instead of imposing a lesser sanction) was within the band of reasonable responses, or whether that band fell short of encompassing termination of employment.

[74]In a case where an employer purports to dismiss for a first offence because it is gross misconduct, the Tribunal must decide whether the employer had reasonable grounds for treating the misconduct as gross misconduct: see paragraphs 29 and 30 of Burdett v Aviva Employment Services Ltd

UKEAT/0439/13

. Generally gross misconduct will require either deliberate wrongdoing or gross negligence. Even then the Tribunal must consider whether the employer acted reasonably in going on to decide that dismissal was the appropriate punishment. An assumption that gross misconduct must always mean dismissal is not appropriate as there may be mitigating factors: Britobabapulle v Ealing Hospital NHS Trust

[2013] IRLR 854

(paragraph 38). Wrongful Dismissal

[75]A claim for wrongful dismissal is a claim that the employee has been dismissed in breach of their contract of employment. The relevant law was summarised recently by the EAT in Seyi Omooba v Michael Garrett Associates Ltd (T/A Global Artists), Leicester Theatre Trust Ltd

[2024] EAT 30

:• Where an employee has acted in repudiatory breach of contract, such that it would be open to the employer to accept that repudiation and terminate the employment summarily, that will provide a defence to a claim for damages wrongful dismissal (that is the case even where the employer was not aware of the repudiatory conduct at the time of the dismissal (Boston Deep Sea Fishing Co v Ansell (1988) 39 ChD 339).

• If the breach in issue is of the implied obligation not, without reasonable and proper cause, to act in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee (Malik v BCCI

[1998] AC 20

HL; Baldwin v Brighton & Hove CC

[2007] ICR 680

), that will necessarily go to the root of the contract and amount to a repudiatory breach (see Morrow v Safeway Stores plc

[2002] IRLR 9

EAT).

• Breaches of other terms may, however, require the Tribunal to grapple with the question whether the breach goes to the root of the contract such that it makes further performance impossible (Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd

[1962] 2 QB 26

CA).

Findings of Fact

[76]We set out below our findings of facts based on the evidence we heard and the evidential documents we were referred to. We have set out the findings necessary to decide the issues in the case. That means we have not recorded in our reasons findings about all the evidence we heard or read. We have not, for example, set out a full narrative of the 2 grievance and grievance appeal processes. There was no discrimination complaint about the way those processes were carried out. We have, however, made findings about and recorded matters raised during those processes where they are relevant to the issues we need to decide. Background facts

[77]The respondent is a local authority. Its statutory duties include street cleansing. It is also responsible for maintaining green spaces and amenities, sometimes called the Parks function. The respondent’s Environment Department was responsible for both of those functions. In this judgment we refer to those functions as “Street Cleansing” and “Green Spaces” respectively. The claimant’s working pattern and managers

[78]The claimant was employed by the respondent in its Environment Department from February 2007 until his summary dismissal on 30 November 2020. Prior to 2019 he was employed as Darwen Town Centre Caretaker at Grade E (“the Darwen Caretaker Role”). Following a reorganisation in early 2019, the claimant‘s role was Darwen Town Centre Team Leader (“the Darwen Team Leader role”). That role was also at Grade E.

[79]Until August 2020, the claimant’s pattern in the Darwen Caretaker Role and the Darwen Team Leader Role was Tuesday to Friday 07:00 to 15:30 and Saturday 7:30-12:00. We find that working pattern was important to the claimant for 2 reasons. The first was that it with his and his wife’s childcare requirements. The second was that Saturday working came with a 5% pay increment for weekend working. In cross examination, the claimant accepted Mr Barron’s suggestion that this equated to about £1145.55 per annum.

[80]Both before and after the change in his role in 2019, the claimant reported to Will Lee, Assistant Manager, Street Cleansing (“Mr Lee”). Mr Lee reported to Phil Winstanley (“Mr Winstanley”). He was Environment Manager (Operations) and was responsible for both Green Spaces and street cleansing. Mr Winstanley reported to Mr Watson who was Head of Environment.

[81]Mr Winstanley was a central figure in this case but we did not have a written witness statement from him nor did we hear oral evidence from him. Mr Watson’s unchallenged explanation for this was that Mr Winstanley was not fit to attend the hearing. He had been seriously ill and had retired due to ill-health in 31 December 2022. That meant that for incidents such as meetings which involved only the claimant and Mr Winstanley we only had live evidence from the claimant. That does not mean that we automatically accepted the claimant’s evidence about what happened at those meetings. We also took into account what was said about those incidents in the evidential documents in the Bundle. There were some inconsistencies between the claimant’s written witness statement and his oral evidence when cross examined. In making our findings of fact we took into account those inconsistencies in assessing whether the claimant’s evidence about those incidents was reliable. The 2018-19 reorganisation

[82]In late 2018/early 2019 the respondent made changes to the way its Green Spaces and Street Cleansing functions were organised. There was limited evidence about the reorganisation in the Bundle. In the absence of Mr Winstanley, Mr Watson was best placed to give evidence about it. Except in relation to the application of the Alternative Employment Policy, Mr Walker did not challenge Mr Watson’s evidence about the reasons for the reorganisation and how it was undertaken. We found his evidence to be reliable and base our findings on it. The context for the re-organisation

[83]We find that in common with many local authorities, the respondent faced significant financial pressures in delivering its services. Since 2010 the respondent had lost a third of its annual budget. The Street Cleansing and Green Spaces functions had seen a 40% reduction in funding and were constantly being asked to find savings without any reduction in the expectations of the service delivered.

[84]The 2 major population centres within the respondent’s area are Blackburn and Darwen. Blackburn is by far the larger of the 2 towns in terms of population. We find that of the 2, Darwen Town Centre had limited amenity grounds and green spaces. In contrast, Blackburn had ornamental grounds including the cathedral grounds and planters.

[85]We find that the respondent decided that a reorganisation was needed because savings were needed and because management of the service was not functioning effectively. In particular, it identified a need for a more co-ordinated approach to the work of the Green Spaces and Street Cleansing functions to avoid duplication of work and costs.

[86]The reorganisation involved the creation in December 2018 of a Grade F post of Senior Team Leader in Parks and Amenities (what became the Gary Shaw Role). In early 2019, 2 Town Centre Caretaker roles (including the claimant’s Darwen Caretaker Role) and the Town Centre Grounds Maintenance Operative posts were disestablished and replaced by one Grade E Town Centre Amenity and Cleansing Team Leader role reporting to the new Senior Team Leader.

[87]The restructure was carried out by Mr Winstanley and Mr Watson with advice from the respondent’s HR team. The proposals were submitted to the respondent’s Workforce Management Group (“the WMG”) which includes representatives of the respondent’s management and trade unions. The WMG approved the proposals. The Alternative Employment Policy

[88]One effect of the reorganisation was that the claimant’s Darwen Caretaker Role was redundant. It was part of the claimant’s case that in carrying out the reorganisation, the respondent had failed to apply its own Alternative Employment Policy (pp.104-109). That policy (“the AEP”) set out a duty on the respondent to seek to find alternative employment for any employee whose employment may be terminated, whether due to redundancy, performance, health or other reasons.

[89]Section 5 of the AEP set out the procedure which applied where there was a genuine likelihood of an employee being dismissed. Of relevance to this case, it provided that:• Where there is a genuine likelihood of an employee being dismissed, their line manager or other designated manager will issue and, if necessary, assist the employee in completing R1, the Alternative Employment Form (5.3)

• A central register of employees will be maintained by HR (5.1). Employees on the Alternative Employment Register will be given prior consideration for all suitable vacancies before they are advertised internally or externally. HR will email the vacancies to the employee or to the line manager to print where there is no email (5.4)

• If a manager feels they are unable to appoint to that vacancy they must give objective reasons why and that decision can be challenged by referring it to a Departmental Director and by further appeal (5.5 and 5.6)

• Appointment to a suitable alternative role is usually on a 4 week trial period basis. If the trial period is successful, the employee will be offered the role. In the case of a redundancy process, if the trial is unsuccessful the employee will be declared redundant. The employee can refuse the role after the trial period, but may lose any redundancy payment by doing so (5.7-5.10, 5.12-5.15).

• Alternative employment should normally be on the same grade as the employee’s substantive post. In exceptional circumstances it may be at a lower grade. In such cases pay protection applies on a tapering basis for 3 years (5.16-5.20)

• Employees will not be able to obtain promotion through prior consideration under the AEP. That does not prevent the employee applying for a post at any time that would result in a promotion. (5.11).

[90]The claimant said the AEP had not been followed in 2 ways. First, when the claimant was identified as being at risk of redundancy in early 2019, Mr Winstanley had not issued the claimant with a form R1 or helped him complete it. Second, both Gary Shaw and Ian Leach had been promoted as a result of the reorganisation. The claimant said this clearly breached paragraph 5.11 of the AEP.

[91]The claimant pursued those issues in the grievance he raised in May 2019 (“the First Grievance”), in his appeal against that grievance outcome and in his second grievance raised February 2020 (“the Second Grievance”).

[92]When Mr Watson decided the appeal against the rejection of the First Grievance, part of his rationale was that the AEP “was no longer enacted by the respondent because elements of that policy were contained now within the redundancy policy.” He subsequently (and in evidence at the Tribunal) accepted that that was a mistake and that the AEP was still in place.

[93]The explanation given was that the HR consultant advising Mr Watson had incorrectly advised that the AEP was no longer in place. The claimant was not satisfied with the explanation and in the Second Grievance tried to get to the bottom of why that wrong advice had been given, including by requesting that he be allowed to speak to the HR consultant direct.

[94]From his Second Grievance and the appeal relating to its outcome it is clear he felt strongly that he had been misled and lied to when it came to this issue. There is no legal complaint arising directly from the respondent’s failure to follow the AEP. A failure by the respondent to follow its own policy is, however, something which might be relevant in deciding whether the claimant had proven facts to pass the burden of proof in relation to his disability discrimination complaints.

[95]Mr Watson’s evidence was that whatever the AEP said, in practice, if a role was identified as potentially suitable for an employee at risk, the respondent would consider it a suitable alternative role if it involved grade movement of one above or one below the employee’s current grade. That practice had been in operation for a number of years and was done with the full agreement of the trade unions. He said that the WMG could agree to waive or vary what was said in the AEP.

[96]We accept Mr Watson’s evidence on this point. We find that in practice, the rule in 5.11 of the AEP could and was waived by the respondent to the extent of allowing promotion to one grade above a current role. We accept that the AEP does not say that nor does it suggest that its terms are subject to variation at the WMG’s discretion. We find it understandable in those circumstances that an employee might at least be confused, and potentially suspicious when the respondent failed to follow what its own policy said in black and white. That is particularly the case given the respondent’s HR team’s apparent confusion about whether that policy was still current. The Saturday bins issue

[97]An essential element of the Street Cleansing function was to ensure that public litter bins in Blackburn and Darwen were regularly emptied. It was not disputed that there was a significant difference between the litter bins in the two town centres. Both had outer plastic sleeves which had to be “opened” to retrieve the bin bag to be emptied but they worked differently, making different demands on those emptying them.

[98]In the case of Darwen town centre, most of the bins were of a circular design (“the round bins”). To retrieve the bin bag, the outer plastic sleeve of the bin had to be physically lifted up clear of the metal frame holding the bin bag. Based on the respondent’s manual handling risk assessment (p.188) we find the sleeves weighed 6.3 kg each.

[99]There was a dispute about how high the sleeve had to be lifted so it was clear of the frame, but it was at least between elbow and shoulder height. Depending on the employee’s height and the technique they employed, some employees might lift the sleeve above shoulder height. Emptying each bin involved removing the sleeve, retrieving the bin bag and then lifting the sleeve up to replace it on the frame.

[100]The claimant disputed that the respondent’s manual handling risk assessment had correctly assessed the risk involved in lifting the sleeve. He said it failed to take into account the fact that the sleeve had to be held away from the body when lifting it. We do not need to make a decision about who is correct about that because the case does not turn on that issue. As we explain below, the claimant’s disability meant he was not able to repeatedly lift the sleeves on the round bins regardless of weight or lifting technique.

[101]In the case of Blackburn town centre, the bins were square (“the square bins”). They had a “door” on one side of the sleeve which could be swung open to retrieve the bin bag so that the outer bin covering did not have to be lifted clear to retrieve the bin bag. That avoided the need to lift the sleeve which arose in relation to the round bins.

[102]For the 3 years or so prior to the reorganisation, it was Mr Bearhope’s task to empty the bins in and around Darwen town centre on Saturday morning. That meant the claimant did not usually have to empty any round bins or, at worst, had to empty 2-3 such bins a day. We find that Mr Bearhope’s route (p.130A) involved emptying 70-80 bins including those in Darwen town centre. They were not all round bins but we find a significant number and probably a majority of them were. The undated list of the claimant’s duties (p.77-78) identifies 101 bins to be emptied Darwen boroughwide on Saturday, of which 59 were round bins, 41 square bins and 1 a post mounted bin.

[103]Emptying the round bins were not an issue for the claimant Monday to Friday because there were other employees in his team to whom he could delegate that task. The problem arose after the reorganisation when the claimant would have been lone working on Saturday morning. That is the issue at the heart of the claimant’s reasonable adjustment complaint. Findings of fact relevant to respondent’s knowledge of the claimant’s disability prior to the reorganisation.

[104]The respondent conceded that the claimant was a disabled person at all relevant times due to calcium deposits causing a musculoskeletal condition. Based on the Occupational Health reports we refer to below, we find that that a substantial adverse effect of the calcium deposits was a significant lack of mobility, stiffness and pain in the claimant’s shoulders, particularly his left shoulder. That was particularly relevant to his ability to empty the round bins.

[105]The respondent did not concede that it had knowledge of the claimant’s disability until on or around 28 November 2019 when it received the Occupational Heath Report of that date (“the November 2019 OH Report”)(pp.168-172).

[106]There were 2 Occupational Health Reports in the Bundle dating from before the reorganisation. The claimant did not, by his own admission, have a good sickness absence record. He had been off sick for some 18 weeks at the end of 2015 to January 2016 for reasons related to his shoulder.

[107]Following periods of short term sickness absence in 2017-18 the respondent had obtained an Occupational Health Report in May 2018. That related to the claimant experiencing pain in his right leg which caused him to struggle to drive the hired transit van he used at work. That Occupational Health report confirmed that the claimant was fit to continue his then role which was the Darwen Caretaker Role. It advised that his symptoms were unlikely to amount to a disability under the Equality Act 2010 because the back issue was short term. It recommended that the claimant was likely to benefit from physiotherapy; that the respondent should ensure all risk assessment were up to date; and that if operationally feasible, the claimant might benefit from reducing his driving until he started physiotherapy (pp.123-124)

[108]There was a further Occupational Health Report on 15 August 2018 from a Dr Andrews (“the August 2018 OH Report”) (p.133-134). That was triggered by the claimant having to cover Mr Bearhope’s Saturday bin-emptying duties on 3 occasions in July/August 2018. On each occasion the claimant had experienced stiffness and pain in his shoulders. Those symptoms were worse after the third occasion he provided cover. That led to the claimant telling Mr Lee that he would be unable to cover Mr Bearhope’s round again. That led to Mr Lee requesting an Occupational Health Report so the respondent could understand the claimant’s ability to carry out his role. At that point the role was still the Darwen Caretaker Role.

[109]In the August 2018 OH Report, the claimant acknowledged that his sickness absence record had been poor for the previous 3 years due to problems he was experiencing with his shoulders. Dr Andrews concluded that the claimant was capable and safe to carry out his usual current role. He identified the issue being the frequency with which the claimant was required to carry out the alternative duties (i.e. covering for Mr Bearhope on Saturdays). The recommendation was that the claimant should not carry out work that involved heavy lifting on a regular basis, working above shoulder height or repetitive movements involving either shoulder joint. It also recommended that the claimant obtain an opinion from an orthopaedic specialist forthwith. The report advised that, although ultimately a legal question, the claimant’s case would not necessarily be covered by the disability legislation. That report was addressed to Mr Lee. There was no evidence that Mr Winstanley saw it until May 2019.

[110]On 23 August 2018 a fit note from the claimant’s GP advised that due to Calcific tendinitis he may be fit for work if adjustments were made. It advised that the claimant’s right hip problem was “exacerbated by vehicle” and that “shoulder problem exacerbated if lifts over shoulder height repeatedly”. (p.133). The 3 roles

[111]The claimant’s direct disability discrimination complaint includes the allegation that he was treated less favourably by not being appointed and/or not being given the opportunity to be appointed to 3 roles arising from the reorganisation. As we have explained, there was some confusion about which roles formed part of the claim. There were initially 2 roles identified (3.2 and 3.3 in the List of Issues). Having granted the claimant’s application to amend (subject to time limits) a third role was added (3.3A in the List of Issues). The similarity of the names of the roles led at times to confusion at the Tribunal hearing about which role was being discussed (particularly when it came to the 2 Blackburn roles at 3.3 and 3.3A. To try and avoid that we used the names of the eventual appointees as a shorthand in identifying the roles. We have maintained that approach in this judgment. Those appointees were the actual comparators relied on by the claimant in his complaint.

[112]At the hearing, Jason Nagdi was incorrectly referred to as “Jason Nagwe”. Mr Watson at the start of his evidence confirmed the correct name was Nagdi and we have used that in this judgment and the List of Issues.

[113]There was limited evidence in the Bundle about the roles. The claimant gave very limited witness evidence about them. His main point in evidence was that both Mr Shaw and Mr Leach had been promoted which the AEP did not allow. We found Mr Watson’s evidence the clearest and most reliable when it came to the roles and how decisions were made to fil them. We set out below our findings about the roles, the appointment process and the comparators.

[114]It was part of the claimant’s case that Mr Winstanley “encouraged” him to apply for the Darwen Team Leader role rather than the Ian Leach role at the meeting they had on 17 January 2019. We have set out our findings about that meeting as part of our findings relating to that role.

[115]It was not disputed that the working pattern for all 3 roles was Monday to Friday, rather than the claimant’s preferred working pattern or Tuesday to Saturday. Senior Team Leader in Parks and Amenities (“the Gary Shaw Role”)

[116]This was a role at Grade F, i.e. a grade higher than the claimant’s. The role required horticultural skills because of its focus on managing the parks and green spaces. Prior to his appointment to it, Mr Shaw’s role was a Grade E Team Leader in Green Spaces.

[117]The WMG approved the ringfencing of that role to Mr Shaw because he was the only employee with the extensive horticultural experience required for the role. Mr Shaw was interviewed to ensure that he was suitable for the post and then appointed. We find that was not a competitive interview process. Mr Watson confirmed that had Mr Shaw not interviewed successfully for the role, the role would have been advertised more widely.

[118]Mr Watson confirmed in evidence that had Mr Shaw not been appointed, he would have stayed in his Grade E Team Leader post. Based on that, we find that Mr Shaw was not at risk of redundancy when the role was ring fenced for him. Instead, the ringfencing by WMG was because he had been identified as the obvious candidate for the role given his “vast” horticultural experience,

[119]The claimant did not suggest that he was qualified for the Gary Shaw Role. He accepted in cross examination evidence that he had very limited horticultural experience. His accepted he should not have been appointed to the role. His point was that Mr Shaw should not have been given prior consideration and “slotted into” the Senior Team Leader role because Mr Shaw was on the same grade as the claimant. His being appointed to the Senior Team Leader role on a ringfenced basis was a promotion for Mr Shaw which paragraph 5.11 of the AEP should not allow). Blackburn Town Centre Street Cleansing Team Leader (“the Jason Nagdi Role”)

[120]This role was a Grade E Team Leader role. Jason Nagdi was a Grade D operative in street cleansing. We accept Mr Watson’s evidence that the role was advertised on the notice board and subject to a competitive interview process. Mr Nagdi was appointed after expressing an interest and being successful at interview.

[121]The claimant did not express an interest in or apply for this role. We find that Mr Winstanley did offer the claimant to express an interest in the role even though the time for doing so in the advert for the role had elapsed. The claimant accepted in cross examination evidence that although he was given that opportunity, he did not do so. Blackburn Town Centre and Amenities Team Leader Role (“the Ian Leach Role”)

[122]This role was a Grade E role based in Blackburn rather than Darwen. We find that although broadly equivalent to the Darwen Team Leader role it included a requirement to undertake horticultural maintenance of the more extensive ornamental gardens and green spaces in Blackburn. There was a need for the person fulfilling that role to have grounds maintenance experience and qualifications. The claimant and Ian Leach were ring-fenced for the role and for

[123]The claimant and Ian Leach were ring-fenced for that Blackburn role and for the Darwen Team Leader Role to which the claimant was appointed. The Darwen Team leader role did not require the same level of grounds maintenance experience and qualifications.

[124]Ian Leach was a Grade D Operative in amenities/green spaces. His duties related to gardens, flower beds and other "green spaces" maintained by the respondent. He had more extensive horticultural skills than the claimant. He had to undergo an interview to ensure that he was suitable for the new role but it was not a competitive interview. We find that the WMG approved the appointment because it considered he had the necessary skills for the role. That meant he was promoted, the new role being Grade E. The 17 January 2019 meeting

[125]By a letter dated 10 January 2019, the claimant was invited to a consultation meeting with Mr Winstanley on 17 January 2019 to discuss the changes arising from the reorganisation. There were no notes of the meeting in the Bundle. The claimant recorded that meeting but neither that recording nor a transcript of it were in the Bundle. It had been available during the First Grievance process and Mr Watson took into account what he heard on the recording in deciding his appeal against the outcome of that grievance (p.165-167).

[126]We find that the claimant did not get on with and was suspicious of Mr Winstanley. The fact that he recorded the meeting is, we find, indicative of that. On balance, we find that Mr Winstanley had not at this point seen the August 2018 OH report. We find that he did not read that until 14 May 2019 (p.146). On balance we find that as at 17 January 2019 he would have been aware of the claimant’s poor sickness absence record but had been informed that the August 2018 OH Report said that the claimant was capable of carrying out his role. It did do that but then went on to say that the claimant should not be lifting on a repeated basis. We find Mr Winstanley was not aware of that caveat at the time of the meeting.

[127]We find that at the meeting, the claimant and Mr Winstanley discussed the options available to the claimant. The claimant’s witness statement evidence was that all the options offered would have resulted in a loss of pay. That was because all the roles were Monday to Friday. There was a requirement for emptying the Darwen town centre bins on Saturdays. That was a lone working role which did not require a Grade E Team Leader (there was no team working on Saturday). We find that the claimant wanted to retain his working pattern including the Saturday morning working and the 5% increment that attracted.

[128]We find that at the meeting there was a discussion of whether the claimant would take the Ian Leach Role or the Darwen Team Leader Role. The claimant’s case is that he was denied the opportunity to take the Ian Leach Role. He said in cross-examination evidence that Mr Winstanley preferred Mr Leach to him for the Blackburn role because Mr Leach was “able bodied”.

[129]We do not find that consistent with other evidence. In his witness statement, the claimant said that at the meeting he had proposed that he take the Darwen Team Leader Role if he could continue to work his Tuesday to Saturday working pattern. We find that was the claimant’s preferred option primarily because it meant he retained his weekend working increment. The claimant also accepted in cross examination that working in Darwen was his preferred option.

[130]In cross examination evidence, it was put to the claimant that he did not raise a grievance about not being given the Ian Leach Role. The claimant said that was because he was afraid of making waves. That does not seem to us consistent with the evidence, which suggested that the claimant did not have any reticence about standing up for his rights including through the grievance policy.

[131]The claimant did in his grievance filed on 15 May 2019 (p.150) say that he had expressed a preference for the Blackburn role but that Mr Winstanley had “actively discouraged him from applying for the role both verbally and in writing”. When asked at the Tribunal, he was not able to point to anything in writing where Mr Winstanley had “discouraged” him. In cross examination evidence the claimant said that it was not a case of Mr Winstanley making it so the claimant couldn’t take the Ian Leach Role but making it clear that it was better if he did not.

[132]The claimant’s desired outcome from that grievance was not to be given the Ian Leach Role. Instead, it was to be given the role he agreed to take (i.e. the Darwen Team Leader Role) but “without the added task” i.e. emptying the round bins.

[133]On balance, we find there was a discussion at the meeting of the requirement for greater horticultural skills for the Ian Leach Role. Mr Watson, who heard the recording of the meeting in dealing with the grievance appeal, concluded that Mr Winstanley had offered the claimant the choice of both roles but that the claimant considered the Darwen role more suitable to him. We find that he did so. We find that the claimant’s own view was that the Darwen Team Role was better suited to him in terms of location, demands and the opportunity for Saturday working. Until the round bins issue became apparent, the agreement from that meeting suited both parties. The claimant got to continue working in Darwen with a working pattern which suited his childcare needs and attracted a 5% increment. The respondent had in Ian Leach an appointee to the Blackburn role who had the horticultural skills and experience which that role demanded.

[134]Unfortunately, there was no discussion of the round bins issue at the meeting. We find the claimant at the meeting he agreed he would cleanse Darwen Town Centre on Saturday. We find (and the respondent accepted in upholding part of the claimant’s grievance) that the issue of emptying the bins was not referred to at the meeting. As we have said, we find that at that point, Mr Winstanley understood that the claimant was capable of fulfilling his role because he had been informed that was what the August 2018 OH Report said. It is not clear why the claimant did not raise the issue, unless he was under the impression that Mr Bearhope would be continuing to work Saturdays and could fulfil that role. Confirmation in role and initial discussion about the round bins issue

[135]On 11 March 2019, Mr Winstanley wrote to the claimant to confirm that he had agreed to undertake the Darwen Team Leader role. The letter noted that the claimant had requested and the respondent had agreed that the claimant would undertake the role on a month’s trial basis. It informed the claimant that if the trial was unsuccessful, the only roles that may be available were as an environment operative at grade D or a sweeper/lengthsman role at grade B. It also said that the role the claimant had agreed to undertake was on the understanding that the claimant could carry out all requirement of the position. (p.136). We find the role was due to start in May 2019.

[136]On 26 March 2019, the claimant had a meeting with Mr Lee at which he was told that when his new role started, he would be expected to empty litter bins on Saturday morning. He was given a “Saturday litter bin route” (p.130) which set out the bins which needed emptying between Darwen Vale and Darwen Town Centre. We find that this was in essence Mr Bearhope’s bin round. It therefore included a significant number of round bins. We find that the claimant told Mr Lee that he was worried about aggravating his shoulder condition.

[137]On 30 April 2019, Mr Lee and Eddie Maxwell (Assistant Manager Parks) met with the claimant and his union representative, Gary Shaw. That followed an earlier meeting on 26 April 2019 at which the claimant had raised queries about aspects of his new role. We find that on 30 April 2020 they discussed the requirements of the new role the claimant was undertaking. The claimant confirmed that he would struggle with the requirement to empty the litter bins on Saturday morning. There was no issue on Tuesday-Friday because emptying the bins could be delegated to the claimant’s colleagues. He was the only one working Darwen Town Centre on Saturday, however.

[138]Mr Lee in his email to Mehrun Hafiz (an HR Consultant with the respondent)(“Ms Hafiz”) reported that the claimant was saying that he could at a push manage to lift 15 of the round bins over shoulder height. The difficulty was that there were significantly more bins which needed emptying on a Saturday. The list of the claimant’s duties (pp.77-78) recorded a total of 101 bins of which 59 were round bins. As a result, Mr Lee had told the claimant at the 30 April meeting that he may not be suitable for the Darwen Team Leader role and that the situation may give rise to a capability issue. He told him that there would need to be a further meeting with HR present.

[139]That meeting took place on 10 May 2019. At that point the claimant had not started in his new role. The meeting was attended by Mr Lee, Mr Maxwell, Ms Hafiz, the claimant and Mr Shaw. We find that at the meeting the claimant raised his concerns that the respondent had not followed it’s the AEP because he had not been asked to complete a form R1 and, he alleged, no suitable alternative role was offered to him. He made the point that Ian Leach had been given prior consideration for the Blackburn role but should not have been because the role was a promotion for Mr Leach which para 5.11 of the AEP expressly prohibited. He also alleged that when Mr Lee gave him the list of litter bins to be emptied on a Saturday on 26 March 2019 he did so knowing full well (as, he alleged, did Mr Winstanley) that the claimant would be unable to fulfil that aspect of the role. That meant, he argued, that the role was not suitable. He confirmed that the only aspect of the role he could not perform was lifting the sleeves on the round bins. The claimant at the meeting said he was not certain whether it was lifting the sleeves which had caused the problems with his shoulder but he did not want to “risk it” by undertaking that task regularly.

[140]Ms Hafiz wrote to the claimant on 13 May 2019 to set out initial responses and next steps to address the concerns he raised. We find she had spoken to Mr Winstanley who had confirmed that (as we have found) the Ian Leach Role had been offered to the claimant on the 17 January 2019 but that he had said he preferred the Darwen Town Centre Role. Ms Hafiz confirmed that Mr Lee would discuss the issue of Saturday bin collection with Mr Winstanley and Mr Watson and that the claimant would be referred to Occupational Health for guidance and recommendations.

[141]On 13 May 2019, Mr Winstanley had drafted a letter to send to the claimant in which he told the claimant he would start in his new role on 14 May 2019 (p.144). He reiterated that it was at the claimant’s request that he had taken the Darwen role and retained his working pattern of Tuesday to Saturday. He said that because the claimant had confirmed at the meeting on 10 May 2019 that he could not empty the round bins, which was a requirement of the role on Saturday, they would need to meet to discuss any reasonable adjustment which could be made to the role. He also confirmed that he would refer the claimant to Occupational Health for further advice. He advised the claimant that he would remain on redeployment while they considered any options that might be available.

[142]It was not clear whether that letter was in fact sent. Before it was finalised for sending, Mr Winstanley had read the August 2018 OH Report and noted that it said that the claimant should only be emptying a few bins (p.146). By the time Mr Winstanley sent that email he had also been made aware that the claimant was raising a grievance against him and so he was not the appropriate person to take the matter forward. Events from 15 May 2019 to December 2019 – the First Grievance, further OH reports and meetings The First Grievance and appeal

[143]On 15 May 2019 the claimant submitted the First Grievance. His desired outcome was the “role I originally agreed to take without the added task”. The “added task” was emptying the bins on Saturday. The grievance raised 7 specific allegations about the way Mr Winstanley had dealt with the claimant’s redeployment after his role was disestablished. It included the allegations that 5.11 of the AEP had been breached in making Gary Shaw and Ian Leach’s appointments to their new roles. It alleged that Mr Winstanley had “purposely discriminated” against the claimant, including by adding the Saturday bin emptying task when he knew the claimant could not complete it. He also alleged that Mr Winstanley had avoided meeting with him and when the claimant had managed to speak to him had informed him that the August 2018 OH Report had said he was fit to carry out the said task (of emptying the round bins), a fact which the claimant refuted.

[144]The First Grievance was heard by Gary Johnston at a meeting on 7 June 2019. He did not uphold any aspect of it. He explained why in his outcome letter dated 20 August 2019. We have already referred to the findings where relevant to our findings about the 3 roles above. When it came to the Saturday bins issue, his findings were that:• Management were aware of the claimant's shoulder problem and had put in a temporary measure in place to alleviate some of the lifting requirements of the role.

• The Darwen Team Leader role required the full range of duties to be undertaken and the claimant had accepted the post on that basis.

• There was provision for the claimant as Team Leader to request support from his team to assist with those duties but because he worked alone on a Saturday there was no provision for assistance on that day.

• The claimant had been given the opportunity to return to Monday to Friday working so that he could be supported by the team as that would prevent the need for him to work alone on a Saturday.

• The claimant had declined that offer and remained unable to complete emptying the bins on a Saturday.

[145]We find that the “temporary measure” referred to was that one of the street cleansing operatives working in Blackburn town centre on Saturday morning would travel to Darwen and empty the bins before returning to Blackburn to resume their own duties. That temporary measure continued until the claimant’s working pattern changed to Monday to Friday with effect from 1 August 220. It was not disputed that this meant that the claimant never, in practice, had to carry out the task of emptying the bins in Darwen on a Saturday morning.

[146]The claimant appealed against that grievance outcome. Mr Watson conducted the grievance appeal hearing on Thursday 26 September 2019, reconvening on 10 October 2019. He sent his appeal outcome letter on 17 October 2019. He partially upheld two aspects of the appeal. He found it was not clear why the claimant had not been ringfenced for the wider Blackburn role, though noted that he had not expressed an interest in that role. We understand that to refer to the Jason Nagdi role.

[147]It was at this meeting that the claimant’s complaint about 5.11 of the AEP not being adhered to was rejected because the AEP was no longer in force. As we have noted already above, the respondent subsequently accepted that was incorrect.

[148]The second aspect partially upheld was that there had been no discussion of the bin emptying task at the meeting with Mr Winstanley on 17 January 2019. Mr Watson expressed the view in his appeal outcome letter that clarity of the job role prior to accepting it should have also been identified by the claimant. He accepted that the lack of a reference to litter bin emptying in the role profile and person specification for the Darwen Team Leader role, whilst referenced in other post profiles and person specifications, did not help with clarification. Presumably, however, that was because that role as originally designed was based on Monday to Friday working so would not have included the Saturday bins task.

[149]Mr Watson noted that at the appeal the claimant confirmed that he was looking for adjustments to be made to the bin emptying duties to enable him to continue in his role. Mr Watson said that because the current discussions regarding capability were being dealt with under separate procedures, he would feed back the outcome from his grievance appeal to the relevant officers so they could consider that as part of their ongoing discussions. The July 2019 and November 2019 Occupational Health Reports

[150]The Occupational Health appointment was originally set for the 11 June 2019 but was postponed to 10 July 2019 to give time for the Occupational Health doctor to receive and review the claimant's medical records. The claimant was absent from work due to sickness from 14 June 2019 to 28 June 2019. The reason for absence was recorded as stress.

[151]The Occupational Health report by Dr Andrews was sent to Ms Hafiz on 10 July 2019 (pp.156-158). In it he notes that the claimant had seen an orthopaedic surgeon who confirmed that he had calcium deposits in his left shoulder and other areas of his body. There was effectively no treatment which could be offered. Dr Andrews's prognosis was that the claimant's left shoulder condition was likely in general terms to further deteriorate. He recorded the significant pain and difficulties the claimant had with restricted movement in his left shoulder.

[152]He advised that the claimant was not capable of carrying out any significant manual work particularly if that involved lifting and having to work above elbow level. He recommended that on balance with the available information, the claimant was capable and safe to carry out his "above role" and did not appear to require any other workplace adjustments or restrictions.

[153]The "above role" according to the report is "Town Centre Caretaker", i.e. the claimant's role prior to the reorganisation. For reasons which are not clear, the report does not specifically refer to the main issue which had arisen, i.e. whether the claimant was able to carry out the Darwen Team Leader role if it included a requirement to empty a number of round bins. The recommendation that the claimant was not capable of lifting above elbow height suggested not, which contradicted the overall conclusion that the claimant was able to carry out his role. We did not have the OH referral documents in the Bundle so it is not clear what Dr Andrews had been told about the situation then applying nor which role he was told he was assessing.

[154]The next report was the November 2019 OH Report. At the appointment with her, the claimant confirmed that the Tuesday-Saturday working pattern was no longer required for childcare reasons. Changing it to weekday working only would obviously still impact financially on the claimant because of the loss of the 5% weekend working increment.

[155]The November 2019 OH Report confirmed no improvement from the symptoms observed by Dr Andrews in July 2019. It recommended that a Manual Handling Risk Assessment be caried out. It also recommended that a driving risk assessment be carried out to ensure the claimant was safe to drive a work vehicle. It advised that the claimant's condition may be a disability under the Equality Act 2010 given that the claimant reported it having a substantial long term adverse effect on his normal day to day activities.

[156]On this occasion the referral included a specific question asking whether the claimant was able to lift the sleeves on the round bins to empty them. The answer given was "If lifting the cover is repetitive, heavy, working at an angle which involves lifting above elbow height the answer is NO". The report advised that the Manual Handling Risk Assessment would inform the answer to the question but that based on what the claimant described, the task would fall within significant manual handling.

[157]The report referred to a letter from the respondent dated 20 October 2019 in which it had already considered whether it could be a reasonable adjustment not to require the claimant to empty the bins on a Saturday and decided that was not something which could be sustained due to the impact on the service and other employees. The report noted that as the claimant's childcare requirements had changed, potentially he could move to Monday to Friday working which would avoid the issue because he would no longer be lone working (so someone else could empty the bins he struggled with). That would have financial implications for the claimant. The report also suggested that if re-designing the claimant's job was not feasible other options could be considered such as redeployment or office-based duties. It advised that if no further job redesign was possible and all options for redeployment had been exhausted, consideration could be given to retirement illhealth grounds. Meetings to discuss options

[158]We had very limited evidence about what happened in terms of attempting to resolve the bins emptying issue during this period. It is clear that there was more than one meeting between the claimant, Mr Lee, Mr Winstanley and Adam Whitehead of the respondent regarding the situation but we heard no evidence about them. The letter from the respondent dated 20 October 2019 referred to in the November 2018 OH Report was not in the Bundle. Doing the best with the limited evidence we have we find that throughout this period the claimant was not required to empty the bins in Darwen on Saturday. That was instead being done by the colleague from Blackburn. We accept the evidence from Mr Watson that this was not sustainable as a long-term solution because of the impact in terms of cost and efficiency of that colleague doing that task alongside trying to get his own work done in Blackburn.

[159]We find that there had been discussions about options to resolve the issue. The claimant in his email to Mr Winstanley of 2 February 2020 (p.176-177) referred back to a meeting on 25 September 2020 at which he said he had been given 3 choices. The first was to fulfil the full remit of his role, including emptying the bins on Saturday. The second was to change his working pattern to Monday to Friday, so the issue of emptying the bins when lone working did not arise. If neither of those choices worked out the third option would be to be redeployed. The claimant said that after careful consideration he had decided to fulfil his role. Adam Whitehead said that was not an option (presumably because the respondent had advice from Occupational Health that the claimant should not be carrying out repetitive lifting tasks). It seems to us probable that that is what triggered the referral for the November 2018 OH Report.

[160]We find that at the meetings the claimant had put forward various suggestions which would enable him to continue in the Darwen Team Leader role with the Tuesday to Saturday working pattern. They included changing the day the bins were emptied to a Friday or a Monday; replacing the round bins for square bins; or for Mr Bearhope to carry out the task of emptying the bins. We return to these suggestions below when making our findings of fact about reasonable adjustments. Events from December 2019 to February 2020 – changes to duties, sickness absence and Second Grievance

[161]The claimant's unchallenged evidence was that on 2 December 2019 he was told by Mr Winstanley that he was not allowed to drive work vehicles until a driving risk assessment had been carried out. On Saturday he would drive his own car to Darwen town centre to carry out litter picking. He was still not required to empty the bins. On 14 January 2020 Mr Winstanley held an Occupational Health meeting with the claimant. At the meeting and in the follow up letter Mr Winstanley advised the claimant to complete an R1 form and to actively look at potential job roles which might be suitable. The letter confirmed that the respondent could not continue to sustain the claimant's "inability to fulfil his role" as Darwen Town Centre Team Leader. It advised the claimant that the respondent would proceed to a Case Review Meeting under the respondent’s absence management process. It also raised the possibility of ill health retirement, and asked the claimant to let Mr Winstanley know if he wanted to progress that option.

[162]The claimant challenged what he said was a refusal to postpone the meeting to allow his union representative to attend and why he had now been given an R1 form when he had been previously told that the AEP no longer applied. Those matters are not the subject of complaints in this claim. Mr Winstanley offered to meet with the claimant on 12 February to discuss the points in his letter. The claimant responded that he would prefer not to have a meeting because he was already stressed and anxious about his case review and wanted to concentrate on that.

[163]During that same period the claimant was in touch with Mr Watson about the grievance appeal outcome. Given that that grievance was partially upheld, he asked what the outcome would be. Mr Watson responded to say that he would not comment on that because the matter was being dealt with by other managers. We understand that to refer to the meetings with Mr Winstanley, Mr Lee and Mr Whitehead. He also had a series of exchanges with Mr Watson about the AEP. The claimant had by then established that the AEP was still in place and was trying to get to the bottom of why Mr Watson had been advised otherwise at the First Grievance appeal hearing.

[164]From 21 February 2020 the claimant was absent from work. The fit note he submitted signed him off to 6 March due to “Stress at Work”. Subsequent fit notes filed for the same reason meant that he did not return to work until he started his period of shielding due to Coronavirus in April 2020. The Second Grievance

[165]On 26 February 2020 the claimant submitted the Second Grievance. In it he complained that the respondent had failed to make reasonable adjustments to enable him to carry out his role and that Mr Winstanley had discriminated against him. Specifically, he complained that Mr Winstanley had used the recommendation of the November 2019 OH Report to justify taking him off all duties except for litter picking, which the claimant described as being “the lowest of the low”. He also accused Mr Winstanley of leaving it 3 months to arrange a driving assessment and only doing so after the claimant had gone off sick with stress. Events from March 2020 to August 2020 – March and July 2020 OH Reports, shielding, Second Grievance outcome and change to Monday to Friday working pattern

[166]On 11 March 2020, a Consultant Rheumotologist at Royal Blackburn Hospital wrote a “to whom it may concern” letter about the claimant. It confirmed that the claimant’s hip symptoms were much improved, that his right shoulder was improving but that he continued to have some symptoms in his left shoulder. The letter agreed with the claimant’s view that he was able to work in a physical job at the respondent, was able to abduct his right shoulder beyond 90 degrees and that physiotherapy would hopefully improve his left shoulder. The March 2020 OH Report

[167]Mr Winstanley made an occupational health referral on 16 March 2020. The specific question asked was whether the claimant was able to attend management meetings. The referral explained that the respondent was progressing to a case review as part of the absence management process. It also reported that the claimant had refused to undergo the driving assessment arranged for him. The claimant said Mr Winstanley had not been made aware of the purpose of the referral.

[168]The resulting Occupational Health Report (pp.219-221)(“the March 2020 OH Report”) was sent to Mr Winstanley by Lydia Smith on 31 March 2020. The report assessed the claimant as showing signs of mild clinical anxiety and moderate clinical depression and noted he was on anti-depressant medication. It said that because of those mental health issues the claimant was likely to have been unfit for the driving assessment arranged for him. The report concluded the claimant was unfit for work due to those issues but was fit to attend a meeting. It recommended that the claimant had support to attend the meeting and that short regular breaks were necessary to prevent distressing symptoms interfering with his ability to communicate clearly. It also recommended that a stress risk assessment be carried out because the claimant had raised workplace issues as contributing to his current mental ill health. The report indicated that the Equality Act 2010 was likely to apply to his shoulder issues but not to his mental health issues. Shielding

[169]By the time the March 2020 OH Report was received, the Covid 19-related lockdown had taken effect. The respondent’s employees in street cleansing were considered key workers and continued working during the pandemic.

[170]The claimant received a letter from Burnley General Teaching Hospital dated 8 April 2020 advising him to shield because he had been identified at risk of serious illness if he contracted Covid 19. The claimant had also received a text advising him to shield but had not retained that. The letter said the safest course of action was for the claimant to stay at home for at least 12 weeks.

[171]The claimant did not receive a follow-up letter after 12 weeks. We find that around the end of July/beginning of August 2020 the claimant phoned NHS England and Burnley General Teaching Hospital but neither was able to provide further information. The claimant then contacted his GP who said they could not understand why he had received a shielding letter. We find, however, that the claimant’s GP did not write to the respondent to say that or to say that the claimant should not be shielding.

[172]At points during the disciplinary process and at the Tribunal hearing, the claimant said that he did not really understand why he had been asked to shield. He suggested at one point that the shielding letter might have been fabricated by Mr Winstanley as a prank or as part of trying to force the claimant out. We did not find that credible. We find it far more plausible that the explanation for the shielding letter was the one given by the claimant during the investigation and disciplinary meetings, i.e. that he had had an operation some 2 years’ previously, as a result of which he had been on medication including immuno suppressants and that he had an enlarged heart and a shadow on his lung which affected his respiratory system.

[173]The claimant provided his shielding letter to the respondent. As a result, he was no longer treated as being on sick leave but was treated as shielding. As a public authority the respondent could not take advantage of the furlough scheme, so the claimant was paid full pay rather than sick pay while he was shielding. Subject what we say below about annual leave, the claimant was shielding on full pay until his dismissal. The outcome of the Second Grievance

[174]The Second Grievance was heard by Mr Lowe at a virtual meeting with the claimant and his union representative, Tanya Sweeney, on 26 May 2020.

[175]The claimant confirmed the notes of that meeting at pp.232A-G were accurate. We find that the claimant at the meeting reiterated the solutions he had proposed as adjustments to enable him to keep working Tuesday to Saturday. He also confirmed that he was willing to do the Darwen Team Leader Role working Monday to Friday but pointed out he would lose money as a result. The claimant also again raised the issue about the AEP and feeling he had been lied to about it no longer being current. The claimant said Mr Winstanley was constantly discriminating against him and he had no confidence in “this” (which we understand to refer to the management processes including the grievance) and that he was terrified and felt that HR and management were “In on it” and that he was seen as a “pain in the arse” and that “they want rid of me”. We find that was the claimant’s sincerely held view by this point.

[176]Mr Lowe did not uphold the Second Grievance. The claimant appealed against that outcome. The case review meeting on 21 July 2020

[177]There had been a previous case review meetings. The claimant’s unchallenged evidence was that there had been a telephone review meeting on 28 May 2020 which Mr Winstanley had left “enraged” saying he would never deal with the claimant again. That was because the claimant suggested Mr Winstanley had lied about not telling the claimant the reasons for the occupational health referral in March 2020. There was a further meeting on 4 June 2020 which had been adjourned to enable further information to be obtained. Martine Williams (“Ms Williams”), an HR Consultant employed by the respondent had attended and requested a further occupational health report on the claimant.

[178]That occupational health report was dated 1 July 2020. It noted that the claimant was undertaking physiotherapy online and that his symptoms had improved as a result of being off work and not using his arm to undertake repetitive litter bin tasks. The report recommended that the claimant could return to work once he had clarified with his GP the reason he was being required to shield. It advised that when the claimant returned to work the respondent should carry out a health and safety risk assessment to assess what tasks he could undertake. The report advised that the claimant was vulnerable to symptoms if he continued to undertake duties that could aggravate his shoulders, such as repetitive overhead lifts. When the claimant returned to work that was recommended to be on a phased basis over a 4 week period, starting with 50-60% of the claimant’s hours and tasks. The report confirmed the claimant’s impairment was likely to meet the definition of disability in the Equality Act 2010.

[179]By July 2020 the claimant was being considered for redeployment. He spoke to Ms Williams on 9 July 2020 about the role of Permit Inspector - Highways. He was offered that role on a “prior consideration” basis under the AEP. Ms Hafiz emailed him on the afternoon of that day to say she understood that he had turned down the role. The claimant challenged that, explaining he had been given no details about the role. He also queried why he was being given prior consideration because he had not been told that his job was at risk and that he was on the redeployment register. On 13 July 2020 the claimant contacted Ms Williams and declined the opportunity to be considered for the Permit Inspector role.

[180]The case review meeting was held on 21 July 2020, having been rescheduled (at the claimant’s request) from the 17 July when he could not attend. It was chaired by Mr Watson assisted by Ms Williams. The claimant was supported by Tanya Sweeney, his union representative. It was held by Skype because of the social distancing measures then in place. The meeting was a Stage 3 meeting to consider whether there were grounds for dismissing the claimant on the grounds of capability under the Improving attendance Policy.

[181]There was discussion of the Permit Inspector role and the claimant explained he had declined it because he did not have the relevant training. Ms Williams confirmed that training would be provided. The claimant made it clear he enjoyed his current role. He and Mr Watson went through the July 2020 OH Report and considered which aspects of the Darwen Team Leader role the claimant could and could not do. It boiled down to the claimant being able to all aspects of the job apart from emptying the round bins because of the repetitive nature of that task. The claimant was also unsure whether he would be able to undertake the bulky collection element of the role. He had never had to undertake that task before.

[182]The claimant made it clear that moving his working pattern to Monday to Friday was not desirable because of the reduction in pay but was preferable to his employment potentially being terminated. The meeting discussed alternatives which could allow the claimant to maintain his Tuesday to Saturday working pattern. The claimant raised the fact that he had previously offered to himself pay for the round bins to be replaced with square bins. He said there were spare square bins available. Both Mr Watson and Ms Sweeney said it would not be appropriate for the claimant to pay to replace the bins because it might give rise to issues about liability. Ms Sweeney asked why the bins had to be emptied on a Saturday and Mr Watson explained that there were 1300 who filled those bins and it had been identified as a necessary service request. He confirmed that the respondent’s reduction in finances meant it could not pay overtime so that someone else could also work on Saturday in Darwen to empty the bins.

[183]As a result of those discussions, it was agreed that the claimant would change his working pattern to Monday to Friday. That meant he was no longer required to work on Saturday so the issue with emptying the round bins no longer arose. The change resulted in the claimant losing the 5% enhancement for weekend working which Mr Watson confirmed was not protected.

[184]The outcome letter from that meeting dated 27 July 2020 recorded that the claimant was in a position to return to work from 3 August 2020. However, because the claimant had accrued annual leave entitlement he would take a period of 2 weeks’ annual leave following 1 August followed by a phased return to work.

[185]The claimant’s change of working pattern meant the PCPs relating to bin emptying ceased to apply to him (even notionally) from 1 August 2020. We say “notionally” because in practice the claimant had never been required to empty the bins on a Saturday since he took up the Darwen Team Leader role. Findings of fact relevant to the proposed reasonable adjustments

[186]In addition to the findings of fact above we make the following findings of fact relevant to the reasonable adjustments complaint. We find that there was a need to empty the Darwen town centre bins on Saturday because they would by then usually be full as a result of the Darwen night-time economy on a Friday night. Not emptying the bins on Saturday would have led to them being full and overflowing and led to an increase in litter in the town centre.

[187]We accept Mr Watson unchallenged evidence was that the cost of replacing each round bin in Darwen would be around £300-£500 including installation. We also accept that the installation would involve cost in terms of the time of operatives to carry out the installation. Mr Watson’s estimate in his witness statement of the number of round bins which would need replacing was around 20. That seems to us to be an underestimate given the number of round bins shown on the claimant’s Saturday route. However, taking that lower figure, the cost of replacing the round bins would be at least £10,000. In cross examination, the claimant said he would have been willing to pay about a £1000 towards the cost. August - September 2020 – Second Grievance appeal, requirement to take leave

[188]The claimant’s change of working pattern was confirmed with effect from 1 August 2020. His intention was that he would take one week’s leave from 3 August 2020, do 2 weeks’ phased return, take a further week’s leave then do another 2 weeks’ phased return (p.270-271). The Second Grievance appeal

[189]The claimant’s appeal against the outcome of the Second Grievance was heard by Lee Kinder, the respondent’s Head of Property and Projects, on 20 August 2020. At the appeal the claimant argued that the adjustment which had been place (i.e. the Saturday colleague from Blackburn traveling to Darwen to empty the bins) should continue. He said that changing his work pattern to Monday to Friday, resulting in his losing 5% of his pay, was not a reasonable adjustment.

[190]Mr Kinder did not uphold this (or any) part of the appeal. His conclusion was that it was not in the long term viable to continue the arrangement that had been put in place nor were the other solutions the claimant had put forward (changing the bins or the rota for emptying the bins) reasonable.

[191]The claimant also said that Mr Winstanley had discriminated against him in a number of ways. That included in failing to apply the AEP correctly and in making the March 2020 OH referral without, the claimant said, fully informing him. During the appeal the claimant said that Mr Winstanley had only provided him with the Darwen Team Leader Role because Mr Winstanley was aware that the claimant knew that Mr Winstanley was ignoring the AEP by promoting staff when they should not be promoted. Mr Kinder did not uphold those complaints. That complaint was not upheld.

[192]The claimant in his appeal had again raised the issue of his being misled about whether the AEP was still in force. Mr Kinder concluded that this matter had been dealt with by Mr Watson.

[193]At the hearing, the claimant confirmed that he had not yet been able to take the driving risk assessment because he was shielding.

[194]On the 26 August 2020 Mr Kinder sent the claimant a letter confirming the grievance appeal outcome. In that letter Mr Kinder noted that there were other, less manual, jobs available within the respondent and advised the claimant to let his line manager know if he wanted to be considered for one of those positions. Continuing to shield and annual leave

[195]Shielding nationally was paused from 1 August 2020. However, because of increases in Coronavirus cases in Blackburn and Darwen the shielding guidance was not relaxed in those area. The position was under constant review throughout August and September. While nationally restrictions were lifted, they remained in place in Blackburn and Darwen until 21 September 2020.

[196]With effect from 21 September 2020 the position was different in different wards in Blackburn and Darwen. Because rates were falling in 9 wards in South and West Blackburn, Darwen and rural areas, restrictions were relaxed. Those more relaxed restrictions meant that, amongst other things, a person who had been shielding could go to work as long as the workplace was COVID secure; could go outside as much as they liked but still keep social interactions low; could visit businesses including pubs and shops while socially distancing.

[197]In the remaining 8 areas, the restrictions were relaxed to the extent of allowing the formation of “bubbles” with other households but all other restrictions remained in place. We find the claimant lived in one of those 8 “restricted” wards.

[198]Throughout August and September 2020, the claimant was in email correspondence with Ms Williams, Mr Watson and Kim Derbyshire, the respondent’s Lead HR Consultant about the respondent’s requirement that he take at least 40% of his accrued annual leave by the end of September 2020. On 3 September 2020, Mr Watson wrote to the claimant to confirm that all employees, including those who were shielding or unable to work from home, were required to take 40% of their annual leave entitlement before 30 September 2020 and 60% by 31 December 2020. In the claimant’s case that meant he was required to take 15 days of annual leave prior to September 2020. He confirmed that the claimant’s annual leave would start on 10 September 2020 and continue until 30 September 2020 “irrespective of any local decisions relating to shielding”.

[199]The claimant withdrew his holiday pay complaint in this case but the dispute about annual leave is potentially relevant as context to his dismissal. It was part of the claimant’s case is that he was dismissed because he was “not a yes man”. The dispute also forms the basis of our finding about whether the claimant knew he was shielding when the incident on 25 September 2020 which led to his dismissal took place. The claimant at points in the Tribunal hearing suggested that he did not know whether he was required to shield.

[200]In summary, the claimant’s position was that he should not be required to take annual leave while he was shielding. He argued that the respondent had not given him the required notice to do so and that, in any event, he could not benefit from the leisure and enjoyment annual leave was intended to provide if he could not go out and was effectively a prisoner in his own home. He also disputed that the unions had agreed to the 40% requirement and challenged Mr Watson and others to provide a copy of the singed agreement.

[201]On 8 September 2020 the claimant had emailed Ms Williams to acknowledge they were in unprecedented times and that “we have no idea when shielding restrictions will be lifted”. In those circumstances he confirmed he would be willing to forego the required notice to take leave if Ms Williams could confirm that everyone across the council and not just the Environment department were being required to take 40% of their leave before 30 September 2020 including employees who were currently shielding.

[202]Although in Ms Williams’s absence, Mr Watson confirmed that the requirement applied to all the respondent’s employees even if shielding, the claimant challenged that. He said he had spoken to other un-named employees (including some who were shielding) and they were not subject to the requirement to take leave. Ms Derbyshire confirmed in her response of 25 September 2020 that although the requirement was applied to all, exceptions were made due to workload where agreed with managers.

[203]In response to the claimant’s suggestion that he was not getting the intended benefit of leave, Ms Derbyshire suggested in her email that it was for the claimant to choose whether to relax or not while shielding. She confirmed the claimant was not logged as sick but was shielding. That email was sent at 16:34 on 25 September, the day of the incident which led to the claimant’s dismissal.

[204]The final email communication relating to this issue in the Bundle was from the claimant to Ms Derbyshire on 29 September 2020 (p.286). In it, he asked again whether he was being “forced to take leave at the moment” because “shielding has been extended to the 5 October in my ward”. He asked Ms Derbyshire to confirm when he needed to restart work “(Assuming shielding is not extended”). He said that as Ms Derbyshire was aware, he would prefer not to take his leave until shielding had ended.

[205]Based on those exchanges we find that the claimant was aware as at 25 September 2020 that the ward in which he lived was still subject to the restrictive shielding restrictions. That meant the advice for those shielding was to stay at home as much as possible and keep visits outside to a minimum. We accept that the claimant had not received a follow up shielding letter. We do not accept his evidence that he was unable to find out what the relevant restrictions were. It is clear from the email correspondence that the claimant was aware he should go outside as little as possible. That was the basis for his argument that he should not be being required to take leave while he was shielding. We also find that the claimant was very capable and did seek advice and obtain information from the internet about the relevant restrictions and about his relevant employment rights (including by contacting his union and ACAS).

[206]We also find, based on those exchanges, that by August and September 2020 there was a lack of trust between the claimant and the respondent. We find the claimant felt he was being singled out for different treatment. He did not, by this point, trust what he was being told including by Mr Watson. We find the roots of that lay in the claimant feeling he had been misled about the AEP. For their part, the claimant’s immediate managers such as Eddie Maxwell, Will Lee and Mr Winstanley sometimes found the claimant difficult to deal with because they took the view he challenged everything. That included matters which he appeared to challenge “on principle” regardless of their impact on him (like the promotion of Gary Shaw to the Senior Team Leader Role which the claimant accepted he himself was not qualified for). We find there was some resentment towards the claimant from colleagues who had had to continue to work during lockdown while he was shielding. There was an element of suspicion amongst those immediate managers that the claimant should not be shielding because he had not received a follow up shielding letter (pp.310- 311). The disciplinary process and the claimant’s dismissal

[207]The incident which led to the claimant’s dismissal happened on Friday 25 September 2020. The claimant and his wife were seen having a drink in the King Edward VII pub in Blackburn at around 7.20 p.m. The claimant did not dispute being in the pub with his wife. They were seen by Mr Lee’s partner, Kirsty Thomason, who was also in the pub and reported that the claimant had said “hi” to her. Mr Lee’s partner had been having a conversation with the claimant's wife not knowing who she was. Ms Thomason in her email statement dated 18 October 2020 said that the claimant then finished his drink and he and his wife left the pub shortly afterwards.

[208]On the following day, Mr Lee texted Mr Watson to report the incident. Mr Watson was on leave and so did not get the message (which was to his work phone) until he returned to work the following week. Suspension

[209]On 2 October 2020 Mr Winstanley rang the claimant at home to tell him that he was going to be suspended from work pending an investigation into serious misconduct. The shielding restrictions were due to end on 5 October 2020 so the claimant would have been due to return to work imminently had he not been suspended.

[210]The claimant's suspension was confirmed by a letter dated 2 October 2020 which the claimant received on 5 October 2020 which set out the reasons for suspension and the potential disciplinary rules broken. The allegation was that having submitted a shielding letter which meant that the claimant was unable to work, the claimant had not been adhering to shielding guidance. The letter said that guidance stipulated that he was only able to leave his home for outdoor exercise with members of his household. The letter noted that the claimant had been paid full pay throughout the shielding period. The letter did not give details of the specific allegation, i.e. that he had been seen drinking at the pub on 25 September.

[211]The potential disciplinary rules broken were set out in a series of bullet points as follows:• Unprofessional conduct and/or failure to disclose the same;

• Serious breach of trust and confidence;

• Theft, fraud or dishonesty;

• Failure to follow the respondent’s policies and procedures;

• Serious non compliance with the respondent’s regulations;

• Potential to being the respondent into disrepute;

• Breach of behaviours framework;

• Breach of Code of Conduct.

[212]The letter confirmed that the claimant had been suspended because the allegations were potentially gross misconduct and warned that if proven they could lead to dismissal. A copy of the respondent’s disciplinary policy was included. The Investigation meetings

[213]Steve Cox was appointed as the investigating officer. On 9 October 2020 he invited the claimant to an investigation meeting on 19 October 2020. The letter repeated the allegation and potentially disciplinary rules broken from the suspension letter. It did not give details of the specific incident or date on which it took place. On 15 October Mr Cox wrote a further letter to the claimant (page 357) asking him to bring any letters that he had received advising him to shield to the investigation meeting.

[214]The investigation meeting took place on 19 October 2020. The claimant was represented by Ros Billingham of the Unite union. Mr Cox was assisted by Ms Sidat of the respondent’s HR function.

[215]Mr Cox explored with the claimant why he was required to shield and how he had been informed of the requirement to do so. The claimant said that he himself wasn’t sure why he had been asked to shield, nor was his GP. When Ms Sidat asked to see the original shielding letter in full the claimant said that it was over six months ago and he would not have the original letter. He said he had moved house since then, so the original letter had got lost in the move. He confirmed he had not received any further letters about shielding. The claimant queried why he was being asked the questions about shielding and pointed out that he had not been told the specifics of the allegation against him. He said he had spoken to “my lawyer” and been advised that the allegation should be clear. He pointed out he had been shielding since March and the alleged breach could have happened any time since then. He refused to answer any further questions until he knew what he was supposed to have done”. It was at that point Mr Cox confirmed for the first time that the allegation was the claimant had been seen in a pub during the shielding period.

[216]When asked by Mr Cox, whether he was in the pub the claimant said that it had been months and “I don’t know. I went once when I got caught short”. When asked by Mr Cox whether he was in the pub having a drink the claimant said, “No, didn’t have a drink. Also, I was on leave, how do you know it wasn’t then?”. The claimant explained that he was on leave from 10 September to around 30 September.

[217]Ms Sidat asked if the claimant had raised that issue with anyone. The claimant said that he had rung Martine Williams and asked if he could come back to work. Her answer was that he could not. The claimant's case was that he wanted to come back but was not allowed to.

[218]The meeting was adjourned, with Mr Cox saying they would find out more information about the allegation and then reconvene the meeting. The claimant said that from his point of view he had “hell from [the respondent]”. He referred to being lied to by Mr Winstanley and Mr Watson about the status of the AEP and the March 2020 occupational health referral. He said that he could not help but think that the respondent was “trying to get me on something”. Ms Sidat reassured the claimant that neither Mr Cox nor herself had any details of his history, which meant that they would be independent and allow Mr Cox to carry out a fair investigation.

[219]On 20 October 2020 Mr Cox sent the claimant a letter inviting him to a reconvened investigation meeting on 22 October 2020. That letter set out the detail of the allegation against him, specifying that it was alleged that although he had advised that he was unable to attend work he was drinking with others at the King Edward VII pub at Guide at 19:20 on 25 September 2020 and was therefore not complying with the shielding guidance which was the basis of the council supporting him. It repeated the warning that the allegations under consideration constituted gross misconduct and if proven at a disciplinary hearing could lead to the claimant's dismissal.

[220]The reconvened investigation meeting was attended by the same people as the original meeting. We find that the claimant produced the first two pages of the shielding letter but said he did not have the rest nor the text message he had received at the time of that letter. There was a discussion about the reasons for shielding and the claimant said he was on a number of medications and believed it was either because of those or because of a heart defect. The claimant said he could not remember whether management had contacted him to confirm that he should shield and that he would continue to be on full pay. He claimed that every time shielding was extended, he did not know what the rules were and that management had given him no support other than when he initiated contact with Ms Williams. He said he had tried to return to work but been told by Ms Williams that was not possible. He referred to a “difference of opinion” with Mr Winstanley and said the first time during shielding that Mr Winstanley had contacted the claimant was on 2 October 2020 to tell him he was suspended.

[221]We find that when asked about the events on 25 September the claimant said that the rules allowed him to go out for two hours. He said that on one occasion (which he believed was 25th) he was on a walk with his wife and had diarrhoea so needed to use the bathroom. As the pub was the nearest place they decided to go in and saw that it was “patrons only”. The claimant said that his wife had sat down and as it was table service only had got a drink. The claimant said he came out of the toilet then went back to the toilet and said that he was worried he could not get home without needing the toilet again, so they stayed between 10 and 15 minutes and then left. The claimant did not specifically deny or confirm whether he had had a drink.

[222]There was a discussion of the leave the claimant had been required to take from 10-30 September 2020. Mr Cox provided a copy of Mr Watson’s letter of 3 September, pointing out that it specifically said that those who were shielding must not go out and any face-to-face contact must be avoided and that it warned that disciplinary action may be taken if employees failed to follow shielding guidance. The claimant said that he was on leave [on 25 September] so was free to do as he pleased. He also said that he was not sure what restrictions applied locally. He alleged that the respondent was not complying with the law by forcing him to take leave when he could not relax, referring to the exchange he had had with Ms Derbyshire about that.

[223]The claimant also referred to extenuating circumstances. He was moving house and there were issues about Land Registry registration. He felt trapped and forced to stay at home. He also said his relationship with his Mr Lee, Mr Winstanley and Mr Watson had broken down. He said he knew it was Mr Lee’s partner who saw him in the pub (at this point her email statement had not been disclosed). He alleged that Mr Winstanley wanted him out of the [respondent]. When asked why he thought so, the claimant said that was because they had had issues. He said, “I’m not a yes man, and I think that they don’t like me”. He asked why, when Mr Watson’s letter said he was to take 3 weeks holiday, they had booked him for two weeks’ holiday on the respondent’s HR system and the third week as shielding, “when it so happens I’ve been in the pub, why would they do that?” We understand the claimant to have been suggesting that his managers were trying to manipulate the system to “catch him out”. The claimant also reported that his mental state had not been fantastic and that he has been off with work-related stress before shielding. The investigation report

[224]Mr Cox decided that the information gathered supported a reasonable belief that the claimant had breached the respondent’s disciplinary policy. He wrote to the respondent on 30 October 2020 to confirm that a disciplinary hearing would be held and that it would be chaired by Mr Eden. His letter confirmed that if allegations were substantiated, they could constitute gross misconduct and could result in the claimant's immediate dismissal.

[225]Mr Cox concluded that the claimant was still under shielding restrictions on the 25 September 2020. He annexed to his report copies of sample shielding letters setting out restrictions in place at various points; Mr Watson’s letter of 3 September 2020; and the email from Ms Derbyshire on 25 September 2020 in which she confirmed the claimant was still shielding. He reported the claimant’s concern that the shielding letter might have been a hoax. Mr Cox noted there was a considerable confusion at the start of shielding with letters emanating from various sources and it was not possible to say with certainty whether the letter was genuine or not. However, it was submitted by the claimant and his manager had accepted it. He noted (and we find) that the guidance Ms Williams had received was that anyone who had received a shielding letter must continue to shield even if they had not received a subsequent letter.

[226]Mr Cox reported the claimant’s concerns about his being required to take “compulsory leave”. He noted that there was a requirement for all of the respondent’s staff to take 40% of their leave by the end of September 2020 to avoid excessive build-up of leave.

[227]When it came to the 25 September incident, Mr Cox reported the incident itself was not in doubt. He annexed to his report Ms Thomason’s email statement. It was not in dispute that the claimant had been in the King Edward VII public house on 25 September 2020 and had had a drink. That meant he was not complying with the shielding guidance in place and when he was being financially supported by the respondent to shield. Although the claimant indicated that that was only for a medical reason (i.e. being caught short) it was avoidable had he stayed closer to home. Mr Cox’s view was that it was unlikely the claimant would have thought that this action would have been identified by someone nor that they might report it and that it was unlikely he would have thought to report it to his manager.

[228]Mr Cox’s report went on to explain how the conduct would breach each of the 8 disciplinary rules set out in the investigation letter. In summary, he said that there was a very clear expectation that while the respondent continued to pay the claimant, he must follow the shielding guidance. The failure to do so by being in the pub was a breach of that expected behaviour on the claimant’s part. As a public authority seeking to ensure central and local government guidance about shielding was complied with, that breach was viewed as a serious one. It had the potential to bring the respondent into disrepute where its own employees were seen not to comply with the guidance it was giving. Mr Cox also concluded that the evidence showed a degree of dishonesty by the claimant. By that, he said he meant that the claimant by disregarding shielding restrictions had “flouted” his part of the arrangement that the respondent would pay the claimant full pay while he was shielding.

[229]The report included a brief section on mitigating circumstances. Mr Cox noted that the claimant had been under considerable stress and worry since he began shielding and due to issues relating to his house move. The Disciplinary Hearing on 27 November 2020

[230]On 12 November 2020 Mr Cox wrote to the claimant confirming that the disciplinary hearing would be on 27 November 2020 at 11.00am. He enclosed with that letter the report which he intended to present at the hearing. The claimant had been given the opportunity to bring any witnesses he wanted to the hearing but confirmed there were none. He was asked to send any information he wanted the hearing to consider in advance. On 19 November the claimant emailed Mr Cox amendments to the meeting notes for the reconvened hearing on 22 October 2020, emails from Ms Derbyshire, emails from Ms Williams and the Government’s guidance on annual leave.

[231]Mr Eden chaired the disciplinary hearing. He was assisted by Nicola Raynor, one of the respondent’s HR consultants. Also in attendance were Mr Cox, the claimant, his union representative and a notetaker.

[232]Mr Cox presented the management case. That presentation reflected the contents of his investigation report. The management case was that although the claimant had claimed he had not been able to attend work (because of shielding), he had not been adhering to shielding guidance. In response to the claimant’s contention that he had only used the pub because he needed to use the toilet, Mr Cox said that that raised the question why the claimant had not decided to exercise closer to home and that the claimant had “exposed himself to risk, knowing he had to comply with shielding guidance”.

[233]The claimant was then given a chance to question Mr Cox. The main points he raised where that the incident took place after the 12 week period referred to in his shielding letter had ended; that he had not received a follow up letter and could not know for certain whether he was still shielding and, if so, what restrictions applied; that he was on leave rather than shielding when the incident happened; and that the respondent was breaching rules by requiring him to take leave while shielding when he could not relax or benefit from leave.

[234]When it came to the evidence about the incident, the claimant questioned why Ms Thomason’s witness statement was not signed until 10 November 2020. Mr Cox explained that he had been chasing for a signed version of the statement since the unsigned version was emailed on 18 October 2020. The claimant also asked whether there had been a breach of confidentiality. He did not explain what he meant by that. It seems to us the allegation may have been that the fact that the claimant was shielding had been disclosed to Ms Thomason (presumably by her partner, Mr Lee).

[235]The claimant also put it to Mr Cox that he was only in the pub for 20 minutes. Mr Cox said he could not comment on that specifically but that the claimant was putting himself at risk by being in the pub.

[236]Neither Mr Eden nor Ms Raynor had questions for Mr Cox.

[237]The claimant was then given an opportunity to present his case. He said that he had looked for shielding advice on the Government website and there was no advice whatsoever. Instead, he said the advice given for those shielding was personal to those who received the shielding letter. He said he had been very cautious when first advised to shield (including sending his son away for 3 months). However, after speaking to his GP (who said they were not clear why he was required to shield) and to Burnley Hospital he had “let his guard down”.

[238]The claimant confirmed his version of events. He said that when he was caught short it was either a 25 minute walk home or use the toilet in the pub. He had not expected to get caught short and was not aware that he was breaking any council rules. He said that he had no reason to shield and had asked to return to work but HR advised that he continue to shield. He said that he did not feel he had broken any rules. He had an exemplary record at the council having worked for them for 17 years. The claimant also suggested that he had been treated differently to other employees who were shielding. He named 2 other employees and said neither had received a letter similar to the 3 September 2020 letter he had received from Mr Watson. Mr Eden pointed out that neither of the employees named were managed by Mr Watson.

[239]Mr Davies added that the claimant was on leave when the incident happened and asked what had that got to do with the employer (i.e. repeating the claimant’s previous assertion that as he was on leave he could do what he wanted). He said that the rules were constantly changing from the Government and for a person to go into the pub for 10-15 minutes and then face dismissal was absolutely ridiculous. Mr Davies pointed out that the claimant's GP said he should not be shielding anyway. He asked how much closer to home the claimant should have stayed. Mr Davies said that the claimant had not purposely broken regulations and that the way he was being treated was not right.

[240]The claimant then answered questions from Ms Raynor and Mr Eden.

[241]In answer to Ms Raynor he provided a more detailed version of what happened. He said that the pub had track and trace. He was not sure if it was an app or a paper to sign but his wife did it. The claimant said he went straight to the toilet. He said the pub had two entrances, one was an entrance and one was an exit. He went to the toilet again. There was table service only and the barmaid came to his wife and she ordered two half pints. The claimant said he had a bad case of diarrhoea on the day. He confirmed that they had only stayed for 20 minutes. He said he was worried that he might get caught short again. He confirmed he had known Kirsty for years and he was “not friendly to say the least”. He confirmed that Kirsty had spoken to his wife. Ms Raynor asked whether the claimant had an ongoing stomach issue and the claimant said he had a one-off incident of diarrhoea on that day. In answer to Mr Eden’s question, he confirmed the pub was one he had used before.

[242]The claimant explained that by “letting his guard down” after the initial 12 weeks he meant that he was not as stringent, e.g. his son had come home. He said that he had followed the guidelines “to a tee” up to that point. He said he felt he had “lost three months of my life” by effectively being trapped at home. When his son returned home he started to go out exercising with people in the house. When asked by Ms Raynor whether he had visited any other public places while shielding, the claimant said he had not and that it was his livelihood “so I stuck to the guidance”.

[243]The claimant was asked about contact between him and management. He said he had had little contact and that Mr Winstanley had said he would no longer have any dealings with him. He confirmed he had not raised the issue of the shielding letter being a hoax with the respondent.

[244]The claimant also provided his explanation for why he had been sent a shielding letter (which we have discussed above). When asked by Mr Eden whether he was currently fit for work the claimant said he had been ready for work since June or July.

[245]Mr Cox then summed up on behalf of the management, reiterating the case set out in his investigation report. The claimant then made submissions repeating the points he had made during the hearing. He repeated his claim that the respondent had not given him the length of notice the law required to be able to force him to take leave and that he could not relax and enjoy leave if he was subject to the shielding restrictions while on leave. He said he was on annual leave when the incident happened. He said that since April he had been struggling with his mental health and stress at work. He had taken the initial shielding letter very seriously but did not get any other letters and had tried on two occasions to come back to work. This was, he said, not the first time he had been “misled” by Mr Watson. The claimant said his problems had started when the respondent had eliminated his old post and two staff got promotions. He referred to the issue of the AEP and Mr Watson having told him that it was no longer in use when it was. He said he had therefore lost all faith in Mr Watson and Ms Derbyshire. TW and KD.

[246]The claimant said his only crime was to use a public toilet when on annual leave while Mr Watson and Ms Derbyshire made his life hell. The claimant accepted he may not have made the best decision but otherwise he would have soiled himself.

[247]We find there was no discussion during the disciplinary hearing of the issue of the Saturday bins rota or the disability on which the claimant bases his disability discrimination complaints in this case. The decision to dismiss

[248]The meeting was adjourned to Monday 30 November 2020 so Mr Eden could consider his decision.

[249]At the reconvened hearing, Mr Eden gave the claimant his decision. He said that the claimant had submitted a shielding letter which had prevented him from attending work, which meant he had been at home since April shielding and on full pay. The shielding guidance stipulated he should only leave his home for outdoor exercise with members of the household. It was not disputed the claimant was in the pub. He referred to the claimant’s explanation and said that it seemed odd that the claimant would drink anything let alone a half pint of alcohol when the claimant had felt so unwell and knew he had a 25 minute walk home. Mr Eden also found it was clear the claimant objected to being placed on what was in the claimant’s view “enforced leave”. The claimant had cited the notice in terms of what the employer was obliged to give to require an employee to take leave and cited the law about being able to relax and enjoy leisure when on leave. Mr Eden noted that the claimant had stated in the investigation meeting that what the claimant chose to do when on leave was up to him.

[250]On the balance of probabilities Mr Eden believed that the claimant did go for a walk and did choose to visit the public house, either planned or impromptu, because he was on leave, and whilst he was on leave the claimant felt he had a right to enjoy his leisure time and relax. The claimant had a drink and (as the witness stated) finished his drink before he left the pub. Mr Eden believed the claim that the claimant had diarrhoea was false and had been used as an excuse to explain why he was in the pub whilst shielding. After careful consideration, and taking into account the mitigating circumstances, Mr Eden therefore found the allegations had been proven and that the disciplinary rules had been broken.

[251]In those circumstances Mr Eden concluded that the claimant’s actions did amount to gross misconduct. Having taken into account the claimant's previous employment and length of service and the potential sanctions available, he decided “with regret” that dismissal was the only option. He confirmed that the claimant's employment was terminated for reasons of gross misconduct with immediate effect from Monday 30 November 2020. He confirmed his decision in his letter dated 4 December 2020 (pages 401-412). The appeal against dismissal

[252]On 14 December 2020 the claimant appealed against the dismissal. The primary ground of appeal was that the respondent was not justified in sacking someone “just because you don’t believe them with no [evidence] to support this reason”. The claimant repeated his version of events. He repeated the point that since the respondent was forcing him to take leave they could not expect him to follow shielding restrictions. He also claimed (for the first time) that after his initial 12 week shielding letter had expired the respondent should have put him on a medical suspension if they were not willing to let him return to work and should not have enforced him shielding. He referred to the mental health issues he had had prior to shielding, the additional anxiety arising from Covid and the stress involved with his moving house

[253]The appeal was heard on 13 January 2021 by Mr Kelly. He was supported by Jill Brown, an HR consultant. Mr Cox and Mr Eden attended as witnesses and the claimant was assisted by Steve Davies, his union representative. There was also a notetaker present.

[254]We find that the hearing to a large extent went over the same ground covered at the disciplinary hearing, with Mr Eden confirming the rationale for his decision not to believe the claimant’s version of events. There was again discussion of whether the claimant was covered by the shielding restrictions at the time the incident happened. He said the shielding guidance was advisory only. He said he had been advised by ACAS that the respondent should have placed him medical suspension if he was no longer covered by a shielding letter but refused to allow him back to work. In terms of new points, the claimant queried whether there had been any “complaint” to instigate the disciplinary process and raised again the possibility of there having been a breach of confidentiality in relation to his shielding. He also, for the first time said in response to the point that he had drunk the drink that the half pint had cost him £2 and “I wasn’t going to leave it and walk away”.

[255]Mr Davies, addressed the meeting. He said that he had taken legal advice and that the intrusion into the claimant's personal life went too far: the claimant was entitled to do what he wanted when he went out – what he does with his holiday is up to him. Mr Davies also suggested that the dismissal was out of order, was against the Human Rights Act and had cost a lot of money. He said that he was going to instruct the union’s solicitors to start proceedings against the respondent to go to an Employment Tribunal because he was not happy with what he had seen. He referred again to the fact that the person who had raised the complaint was not a member of the public but was married to the claimant's manager.

[256]The claimant then addressed the meeting. He referred to his length of service and the fact that he had an exceptionally good working relationship with all his managers apart from Mr Winstanley. The claimant thought he was a very good employee, had always tried his best and worked to a good standard. He said he was rarely off sick (that is not consistent with the evidence about his sickness absences) and that he would never bring the respondent into disrepute. He said that there was no evidence to support what Mr Eden was saying – that it was just his feeling. He again reiterated his version of events and said that the respondent should take into consideration his mental health – he was shielding at the time and it was very difficult.

[257]After a 25 minute adjournment, Mr Kelly confirmed that his decision was to uphold the dismissal. He confirmed that appeal outcome in a letter dated 18 January 2021 (pages 421-429). He addressed the points raised by the claimant in his appeal in his letter. In summary:• He acknowledged the claimant’s 14 years’ service. Given that length of service, he would have expected that the claimant would know the behaviours expected of council employees.

• He was satisfied that shielding guidance was made clear to the claimant. Mr Watson’s letter of 3 September was clear that if he was shielding those shielding rules still applied.

• The claimant had not submitted any medical information to suggest that he should not be shielding. The claimant had submitted the shielding letter so it was clear that he intended to shield as instructed in the letter, thereby remaining at home on full pay.

• In terms of the only reason being that the claimant was in the pub was to use the toilet, Mr Kelly said that it was of concern that the claimant had entered a pub particularly because he was worried about contracting the virus and that it was even more concerning that in the account of having diarrhoea and using the toilet he would consume an alcoholic drink knowing that he had a 25 minute walk home even if it did cost him £2.

• There was no evidence to suggest that the witness who reported the matter knew that the claimant was shielding, only that she had seen him in the pub and relayed that information to her partner who would have known that the claimant was shielding.

• In terms of the claimant's suggestion that he had a good sickness record, Mr Kelly’s conclusion was that that was not the case and in fact the claimant had had several periods of absence throughout his employment.

• In terms of the allegation that the claimant had not had management support through shielding absence, Mr Kelly’s understanding was that HR colleagues remained in regular contact and that rhe relationship between the claimant and Mr Winstanley had broken down. The claimant could at any time have contacted other managers in the department. Mr Kelly was satisfied that HR did support the claimant and have regular contact with him. He understood the claimant was receiving counselling. Findings of fact relating to the wrongful dismissal complaint

[258]In deciding whether the claimant was wrongfully dismissed we must make our own findings of fact about what happened on 25 September 2020.

[259]We find that the claimant was by that point frustrated by what he saw as his unfair treatment by the respondent. We find that by that point he had lost trust in the respondent. We find that he felt misled and lied to about the AEP issue. He was also disgruntled that he had had to lose his 5% weekend working increment because his working pattern had changed to Monday to Friday. By 25 September 2020 there was added to that his disgruntlement that the respondent had required him to take leave when he was, as he saw it, shielding.

[260]Earlier on 25 September 2020 he had received an email from Ms Derbyshire telling him that it was up to him to decide whether to relax while shielding. By that point the claimant had been shielding for nearly six months. We accept that he found that stressful and that that stress was made worse by the fact that he was looking to move house and experiencing complications around that. We accept as genuine his evidence that he felt "imprisoned" in his own home. We can see how in those circumstances Ms Derbyshire telling him to choose to relax while shielding could be seen as at best insensitive and at worst insulting.

[261]We find that the claimant was, as at 25 September 2020, aware that he was still shielding and of the were restrictions in place in his ward. Despite him arguing to the contrary during the disciplinary process, we find that Mr Watson's letter of 3 September 2020 and the email exchanges with Ms Derbyshire made it clear to the claimant that he was still required to shield. We do not accept that he was unable to find the relevant information about the restrictions applying. The case as a whole shows that the claimant was very adept at finding out necessary information about his legal rights and situation.

[262]We accept the claimant's evidence that he did not set out to visit the pub when he went for a walk with his wife on 25 September 2020. We find that the claimant was caught short and decided to use the toilet in the pub. We do not accept his evidence that he suffered from diarrhoea. We find that having used the toilet he and his wife then chose to stay in the pub. We find the fact that he decided to drink an alcoholic drink supports that. If he had had diarrhoea, we find it implausible that he would have done so. We do not accept his explanation at the appeal hearing that having paid £2 for the drink he decided to drink it. It seems to us that if he was suffering the serious and urgent stomach problems that he alleged, he would simply have left the drink. Findings of fact relevant to time limits

[263]As we explain below, we did not need to decide the time limit issues in this case. For the sake of completeness, we set out our findings of fact relevant to time limits. We find that the claimant was aware of his rights under the Equality Act 2010 at the latest by 19 February 2020. On that date he raised the Second Grievance which specifically alleged that the respondent had failed to make reasonable adjustments. The claimant was regularly represented by his trade union. In his email of 5 August 2020 the claimant specifically referred to “taking the respondent to industrial tribunal based on discrimination“(p.289).

Discussion and Conclusions

[264]We have found it more convenient to set out our conclusions about the direct disability discrimination complaints at 3.2 to 3.4 and the reasonable adjustment complaint first, rather than following the order in the List of Issues. That is partly because they come first chronologically and partly because they provide a context for our conclusions about the complaints which relate to the claimant’s dismissal. The numbers in brackets below refer to issues in the List of Issues annexed to this judgment. The respondent’s knowledge of the claimant’s disability and its effect

[265]The respondent accepts it had knowledge of the claimant’s disability from the November 2019 OH Report, i.e. on or around 28 November 2019 but denies it has actual or constructive knowledge earlier. That means it accepts that it had knowledge of the claimant’s disability when he was dismissed, which is the earliest unfavourable treatment relied on in the discrimination arising from disability complaint (4.1).

[266]The claimant submitted that the respondent had actual or constructive knowledge of his disability and its effect from the 10 July 2019 OH Report. That being so, the duty to make reasonable adjustments could not have arisen until July 2019. For that duty to arise, the respondent must have had either actual or constructive knowledge of his disability (5.1) and the substantial disadvantage at which the PCPs (5.2.1 and 5.2.2) placed him by that date.

[267]As Pnasier makes clear, knowledge (whether actual or constructive) requires knowledge (actual or constructive) of the facts constituting the disability, i.e. that the claimant was suffering from a physical impairment which had a substantial and longterm adverse effects on his ability to carry out normal day-to-day activities.

[268]We prefer the claimant’s submission on this point. We find that respondent has knowledge of the claimant’s impairment and its effect by the July 2019 OH Report.

[269]The 15 August 2018 OH Report referred to the claimant's shoulder problems. The fit note dated 23 August 2018 specifically referred to Calcific tendinitis and advised that repeated lifting over shoulder height exacerbated the problem with the claimant’s shoulders. It seems to us that the respondent (in the person of Mr Lee, the addressee of the report) had by the end of August 2018 knowledge of the impairment and that it was having a substantial effect on the claimant’s day to day activities. By the time it received the 10 July 2019 OH Report, which repeated the previous information about the impact of the claimant’s impairment, there had been almost 11 months since the August 2018 OH Report setting out similar effects with no indication the effects were going to improve. We find that by 10 July 2019 the respondent knew or could reasonably be expected to know that the effects had lasted 12 months or were likely to. There was no indication the condition was going to improve. We find that from the 10 July 2019, it could reasonably have expected to know that the claimant was disabled. The direct disability discrimination complaints arising from the 2019 reorganisation (3.2-3.7)

[270]For a direct discrimination complaint to succeed the claimant needs to show that he was treated less favourably than a comparator in the same material circumstances and that the reason for the less favourable treatment was his disability. The burden is initially on the claimant to prove facts from which the Tribunal could conclude that discrimination has taken place. Only then does the burden pass to the respondent to provide an adequate non-discriminatory explanation for the treatment. For the complaint to succeed the claimant also has to show that the treatment amounts to a detriment, i.e. something which a reasonable employee would or might view as a disadvantage rather than an unjustified sense of grievance. The Gary Shaw Role (3.2)

[271]The claimant in evidence accepted that he should not have been appointed to this role because he did not have the horticultural skills and experience it required. We find that no reasonable employee would or might view not being appointed or considered for a role as being a disadvantage when they themselves accepted they were not qualified for it. The claimant might feel that the respondent was not following its own policies but we find that did not amount to a detriment for the purposes of the Equality Act 2010. This complaint fails on that basis.

[272]If we are wrong about that, we would have found that Mr Shaw was not an appropriate comparator. This was not the case of the respondent slotting in Mr Shaw to prevent the claimant getting a chance to fill a role for which he was equally qualified. Unlike the claimant, he had the extensive horticultural skills and experience required for the role to which he was appointed. He was not in the same material circumstances as the claimant who was not qualified for the role.

[273]We also find the claimant has failed to discharge the burden on him of showing that any less favourable treatment in relation to this role was because of his disability (3.5). He has not proven facts which enable us to draw that conclusion. Mr Watson’s unchallenged evidence was that the WMG approved the ring-fencing of the role to Mr Shaw because in their view he was the obvious best internal candidate for that role because of his skills and experience. It might be argued that slotting him into the role without competitive interview was not consistent with the AEP when it does not appear his substantive post was at risk. However, a failure to follow its own procedures does not in itself amount to evidence of discrimination because of the claimant’s disability, especially where there was no suggestion that the claimant was otherwise suitable for the Gary Shaw Role.

[274]This complaint fails. The Jason Nagdi Role (3.3)

[275]We found that Mr Nagdi was appointed after a competitive interview. The claimant was given the opportunity to express an interest in the role even after the official closing date had passed. He did not do so. We find that no reasonable employee would or might view not being appointed or considered for a role in which he was not interested as being a disadvantage. The claimant might feel that the respondent was not following its own policies but we find that did not amount to a detriment for the purposes of the Equality Act 2010. This complaint fails on that basis.

[276]If we are wrong about that, we find that the claimant was not treated less favourably than his comparator, Mr Nagdi. He was not denied the opportunity to apply for the role. The evidence was that the claimant was given the same opportunity to express an interest in the role as Mr Nagdi but chose not to. Arguably, the claimant was treated more favourably than Mr Nagdi because he was given an extended opportunity to express interest in the role.

[277]When it comes to the failure to appoint the claimant, we find there was no less favourable treatment because Mr Nagdi was no longer in the same material circumstances as the claimant. Unlike the claimant, Mr Nagdi had expressed an interest in the role.

[278]In the absence of a detriment or less favourable treatment this complaint fails. The Ian Leach Role (3.3A)

[279]The claimant’s complaint is that he was not appointed to this role and/or not given the opportunity to fill it. We found that he was given the opportunity to apply for the role at the meeting with Mr Winstanley on 17 January but preferred to take the Darwen Team Leader role. The complaint fails because the alleged less favourable treatment did not occur.

[280]For the avoidance of doubt, we also do not accept that Mr Winstanley “actively discouraged” the claimant from applying for the Ian Leach Role. We found that after discussing what the role involved (including the Monday to Friday working pattern) the claimant decided he preferred the Darwen Team Leader Role.

[281]If the complaint did not fail because of the absence of less favourable treatment, we would have found that the claimant had failed to prove facts to pass the burden of proof in relation to this allegation, i.e. that any less favourable treatment was because of his disability (3.5). The claimant asserted that Mr Winstanley preferred Ian Leach for the role because he was “able bodied”. We found that Mr Winstanley had not at the time of the meeting read the August 2018 OH Report. At the date of the meeting Mr Winstanley did not have actual or constructive knowledge that the claimant was suffering from a physical impairment which had substantial and long-term adverse effects on his ability to carry out normal day-today activities. He did not therefore know the claimant had a disability and, following Godfrey, we find that he could not have treated the claimant less favourably because of it. Had the burden passed, we would have found that the respondent had provided an adequate non-discriminatory explanation for preferring Ian Leach to the claimant for the Blackburn role, namely the greater demands for horticultural skills and experience that role required.

[282]We did not accept the claimant’s suggestion that the horticultural element of the Ian Leach Role had been engineered or exaggerated to exclude him from that role. We found the explanation for that element of that role given by Mr Watson to be convincing. As we said in our findings of fact, until the round bin issue became apparent, the claimant taking the Darwen Team Leader role suited both parties.

[283]This complaint fails. The added task of emptying the round litter bins on Saturdays (3.4)

[284]The claimant alleged that the was given the added task of emptying the round litter bins on Saturdays because of his disability. We do not accept that. We found there was a genuine need for the Darwen town centre bins to be emptied on Saturday. The claimant was the only person working in Darwen on Saturday. We find that is why he was given the task of emptying those bins. We find any non-disabled employee lone working on Saturday would have been given that same task. There was no less favourbale treatment because of disability.

[285]As Mr Barron submitted, to accept the claimant’s case we would have to accept that Mr Winstanley had from January 2019 deliberately engineered a role which the claimant could not do. That would include foreseeing that the claimant would ask to work Tuesday to Saturday rather than the Monday to Friday working pattern set for the Darwen Team Leader (and the Ian Leach Role) so that that would result in the claimant being a lone worker on Saturday and being forced to empty the bins which he could not do. We accept Mr Barron’s submission that that explanation lacks credibility.

[286]It also is not consistent with our finding that Mr Winstanley was not aware until 14 May 2019 of what the August 2018 OH Report said and was until then working on the basis the claimant could fulfil his role. Our finding is that the respondent and Mr Winstanley did not have constructive knowledge of the claimant’s disability until July 2019 which means (per Godfrey) he cannot have discriminated against the claimant because of that disability in March 2019. Finally, it seems to us that if it was indeed Mr Winstanley’s plan to force the claimant out by trapping him in a job he could not do, it is surprising that instead of doing so the respondent covered the Saturday task for over a year and then agreed to the claimant continuing in post Monday to Friday so that he retained his job.

[287]Even had we found that there was less favourable treatment, therefore, we would not have found that it was because of disability.

[288]This complaint fails. Time Limits for complaints 3.2-3.4 (3.6 and 3.7)

[289]We do not have to decide the time limit points relating to these complaints because we have found they did not amount to acts of discrimination. The complaint of failure to make reasonable adjustments (5.1-5.7)

[290]In relation to this complaint, the dispute between the parties focussed on 2 issues. The respondent did not dispute that it applied the PCP requirements to empty the round bins including when Saturday lone working (5.2.1 and 5.2.2). (Mr Barron pointed out in his written submissions that the claimant never actually had to empty the round bins while fulfilling the Darwen Team Leader Role. That task was covered by his colleague from Blackburn. We do not find that means the PCP was not applied however. It seems to us that the correct analysis is that the PCP was applied but that the respondent had put in place an adjustment to alleviate the disadvantage in the short to medium term by getting another employee to carry out the task.)

[291]The respondent did not contest that those PCPs would put the claimant at a substantial disadvantage in that he found it difficult to empty the round bins unassisted. Based on the numerous Occupational Health reports we refer to in our findings, we find that the claimant would be so disadvantaged (5.3). His disability impeded the mobility of his left shoulder making it difficult for him to lift the sleeves to empty the round bins. Based on the OH reports and the claimant’s evidence of the times when he covered for Mr Bearhope in July and August 2018, we find the repetitive lifting involved in the task of emptying the round town centre bins unassisted resulted in him experiencing stiffness and pain.

[292]The first disputed issue was when the respondent had actual or constructive knowledge of the claimant’s disability, a necessary precondition or the duty arising (5.1). As we have explained above, we find the respondent had constructive knowledge of the claimant’s disability from 10 July 2019. For the duty to make reasonable adjustments to arise, the respondent also had to have knowledge that the PCPs put the claimant at a substantial disadvantage (5.4). We accept the claimant’s submission that the respondent also had that knowledge by the time of the 10 July 2019 OH Report. We find that the duty to make reasonable adjustments arose from 10 July 2019.

[293]The second dispute issue was whether the adjustments contended for by the claimant (5.5.1-5.5.3) were reasonable. We find that there is a substantial degree of overlap between the 3 identified adjustments. 5.5.1 and 5.5.3 in particular seem to us to substantially overlap with the only difference being the date when it is said the task of emptying the round bins took effect. As we understand the suggested amendments, they can be summarised as:• Removing the requirement for the round bins to be emptied at all on a Saturday.

• Removing the requirement for the claimant to empty the round bins, i.e. for someone else to do it.

[294]When it comes to the first of those, we find there was a clear need to empty the Darwen town centre bins (which included a large number of round bins) on a Saturday. Emptying them on a Friday would not meet the need because of the litter generated on a Friday night. An adjustment which resulted in the bins not being emptied on a Saturday was not, we find, a reasonable adjustment.

[295]The alternative was for someone else to take on the task of emptying the bins. The difficulty with that argument was that the claimant was lone working on a Saturday. There was no one else working in Darwen town centre to empty the bins. The only adjustment which could achieve that end was for someone else’s working pattern to be changed so they could do that work. That inevitably involved costs - if, for example, Mr Bearhope had been paid to empty the bins on a Saturday that would mean the respondent paying both the claimant and Mr Bearhope (at weekend rates) for doing a job for which only one person was needed. In the face of the respondent’s reduced budgets and demands on services we do not accept that would have been a reasonable adjustment.

[296]The respondent in fact did put in place an adjustment which meant that the claimant never had to empty the round bins. That was for a member of staff who was working in Blackburn Town Centre to travel to Darwen Town Centre on Saturday to empty the bins. He did so on top of his duties in Blackburn which, we accept, meant he fell behind with those duties. We find that was not a sustainable long-term solution because of the inefficiencies involved.

[297]In summary, we find that none of the proposed reasonable adjustments identified at 5.5.1 to 5.5.3 were reasonable adjustments.

[298]Although not included in the list of issues, the claimant had also suggested a further reasonable adjustment in his meetings with the respondent, which was the replacement of the round bins with square bins. We accept that would have removed the disadvantage to the claimant because their sleeves did not have to be lifted to be emptied. We find, however, that that was not a reasonable adjustment given the cost involved in replacing them. We accepted Mr Watson’s evidence that it would cost at least £10,000 to implement the change. Even if it had been appropriate for the claimant to pay towards that (and we find that both the respondent and the claimant’s won trade union had concerns about the liability implications which might arise) the claimant’s evidence was that the most he could contribute would be around £1000. Given the respondent’s financial situation, we do not accept that it would have been reasonable for the respondent to expend at least £9,000 (and we find in reality more) replacing the bins.

[299]We find that the respondent had made a reasonable adjustment in the short to medium term, but that none of the proposed adjustments were reasonable. The respondent did not fail in its duty to make reasonable adjustments. Time Limits for the reasonable adjustments complaint (5.6 and 5.7)

[300]We do not have to decide the time limit points because there was no breach of the duty to make reasonable adjustments. The discrimination complaints relating to the claimant’s dismissal (3.1, 4.1-4.7) Direct disability discrimination (3.1)

[301]The claimant alleged that he was treated less favourably because of his disability by being dismissed on 30 November 2023 (3.1). For that complaint to succeed, the claimant’s disability does not have to be the reason or principal reason for the dismissal, it need only be a material influence on it. The burden is initially on the claimant to prove facts from which we could conclude that was the case. We find that he has failed to do so.

[302]There was no evidence from which we could conclude that the claimant’s disability influenced Mr Eden’s decision to dismiss him on 30 November 2020. The claimant’s disability (and the Saturday bins issue) was not an issue raised during the investigatory meetings or the disciplinary hearing. To the extent there was any discussion of the claimant’s health, it turned on the reason why the claimant had been sent a shielding letter. The medical conditions referred to by the claimant in the context of that discussion focused on heart and lung conditions. Those were not the disabilities on which the claimant based his direct disability discrimination complaint. We find that the claimant’s disability played no part in Mr Eden’s decision to dismiss him. This complaint fails. The complaint of discrimination arising from disability (4.2-4.5)

[303]The claimant also claimed that his dismissal and failure to uphold his appeal against dismissal amounted to discrimination arising from disability in breach of section 15 of the Equality Act 2010.

[304]The respondent accepted that at the time the claimant was dismissed it had knowledge of his disability (4.1). It was also not in dispute that dismissing the claimant and refusing his appeal amounted to unfavourable treatment (4.2).

[305]The key issues were whether the dismissal and refusal of appeal were because of something arising from the claimant’s disability. That involved consideration of two separate questions. The first is whether the matters put forward by the claimant at 4.3 “arose in consequence of his disability”.

[306]In relation to 4.3.1, namely the claimant’s inability to fully perform his role, the respondent conceded that this did arise from his disability. However, the respondent disputed that the requirement to shield (4.3.2) was something which arose from the claimant’s disability. We accept that submission. We remind ourselves that the disability relied on in this case was the claimant’s musculoskeletal condition. As we understand paragraph 4.3 of Mr Walker’s written submissions, the also accepted that the requirement to shield was not on account of the disability relied on by the claimant in this case. For the avoidance of doubt, had we been required to decide the point we would have found that the requirement to shield did not arise from the claimant’s pleaded disability. It arose from his heart and lung conditions. That means the complaint based on 4.3.2 fails.

[307]In relation to the complaint based on 4.3.1, the next question was whether the claimant’s dismissal or the refusal of his appeal was because of the claimant’s inability to carry out his full role. Mr Walker submitted that the decision to dismiss was an opportunity which the respondent was looking for to get rid of the claimant because they considered him to be a “problem employee”. We accept Mr Barron’s submission that in Mr Walker’s oral submissions he focused on the claimant nor being a “yes man” as being the true reason for his dismissal rather than anything arising from his disability.

[308]We bear in mind that for this complaint to succeed the “something arising” need not be the reason or principal reason for the dismissal so long as it is a material influence on it. The burden is, once again, on the claimant to prove facts from which we could conclude that discrimination occurred. We accept Mr Barron’s submission that the claimant has introduced no evidence that would suggest his dismissal related to his inability to carry out his role. There was no indication that Mr Eden had been involved in the discussions about the claimant’s ability to carry out his role.

[309]By the time the incident on 25 September 2020 took place, the position in relation to the claimant’s role had been resolved by his moving to a Monday to Friday working pattern. We accept that from the claimant’s point of view this was not entirely satisfactory because he had lost his weekend working increment. From the respondent’s point of view, however, the problem of the claimant’s inability to carry out the bin emptying on a Saturday had been sorted out. There was no need to dismiss him to resolve that issue. In any event, as we have said, there is no evidence of that issue playing any part in Mr Eden’s decision to dismiss or the refusal of the appeal.

[310]We find that the claimant’s inability to fully perform his role played no part in the decision to dismiss or to refuse his appeal. The burden of proof does not pass (4.4) and in those circumstances we do not need to consider whether the respondent has adequately explained decision to dismiss (4.5) nor whether it has shown that the decision to dismiss was objectively justified (4.5). The complaint of discrimination arising from disability fails. Time limit issues relating to 3.1 and the discrimination arising from disability complaint (3.6 and 3.7; 4.6 and 4.7)

[311]We have decided that the claimant’s dismissal was not an act of direct disability discrimination, nor was it an act of discrimination arising from disability. In those circumstances the time limit issues relating to those complaints do not arise for determination. Unfair Dismissal

[312]In an unfair dismissal case, it is for the respondent to show the reason or principal reason for dismissal. In this case the respondent submits the reason for dismissal was the claimant’s misconduct in breaching the shielding guidance.

[313]Mr Walker in his oral submissions suggested that the real reason for the dismissal was that the claimant was not a “yes man”. In support of that, Mr Walker referred to Mr Eden’s explanation for his decision to dismiss at the reconvened disciplinary hearing. In giving his reasons Mr Walker had referred to the claimant’s objection to being forced to take leave. Mr Walker said that showed that Mr Eden had taken into account factors other than the misconduct in deciding to dismiss. We prefer Mr Barron’s submissions on this point. We find that Mr Eden took into account the claimant’s objection to having to take leave in assessing the claimant’s version of events about what happened on 25 September 2020. He took into account the claimant’s being aggrieved about being forced to take holiday in deciding whether or not on the balance of probabilities the claimant had chosen to visit the pub in breach of shielding guidance. We find it was reasonable for him to take into account the context of the incident in assessing the claimant’s behaviour on that day. That was particularly given that the claimant had on more than one occasion asserted that he was on leave so could do what he liked. Taking that context into account is not the same as dismissing the claimant because he objected to having to take leave.

[314]We find that the reason for dismissal was misconduct rather than any ulterior reason to penalise the claimant for not being a yes man or for standing up for his annual leave rights (1.1). That is a potentially fair reason under s.98 of the ERA (1.2).

[315]We then need to decide whether the respondent acted reasonably in treating that as sufficient reason to dismiss the claimant. When it comes to the limbs of the Burchell test, Mr Walker did not suggest that the investigation or the procedure followed was outside the band of reasonableness. Mr Cox carried out a thorough investigation during which the claimant had the opportunity to answer the allegations made against him. It could be argued that there were some flaws to begin with, in that the claimant was not initially told the specifics of the incident giving rise to the allegation of misconduct. That was rectified at an early stage in the procedure and there is no doubt that the claimant understood the allegation made against him and had an opportunity to respond to it. The investigation followed up the points raised by the claimant including the confusion about whether he should have been shielding and what he understood about the position at the date of the incident. There was a disciplinary hearing at which the claimant was represented and given an opportunity to challenge the findings of the investigation and to put his case forward. The claimant was afforded the right to appeal. We find the investigation (1.4.3) and the procedure followed (1.4.4) were well within the band of reasonableness.

[316]We find that Mr Eden (and on appeal Mr Kelly) genuinely believed that the claimant was guilty of the alleged misconduct. We find that they genuinely believed that the claimant was shielding when the incident occurred and that the claimant disregarded the requirements of the shielding guidance by staying in the pub and having a drink (1.4.1).

[317]The focus of the claimant’s challenge was on whether there were reasonable grounds for that belief (1.4.2) and whether the sanction of dismissal was within the band of reasonable responses (1.4.5).

[318]Dealing first with whether there were reasonable grounds for the belief that the claimant was shielding when the incident occurred. The claimant’s case was that as he did not receive a follow up letter to the initial shielding letter, he should not have been shielding and should have been allowed to return to work. His evidence was that his GP had told him that they did not understand why the claimant was required to shield. At the time of dismissal, the position so far as the respondent was aware was that the claimant had received an initial letter and text requiring him to shield. He had presented that to his manager and as a result was shielding on full pay from April 2020. The claimant accepts that his GP did not write to the respondent to raise doubts as to whether the claimant needed to shield.

[319]As at September 2020, the position was that there was nothing to say the claimant should not be shielding. The investigation pack included the email from Ms Derbyshire to the claimant dated 25 September 2020 which confirmed that he was shielding and the letter from Mr Watson dated 3 September 2020. Mr Eden and Mr Kelly were aware that the claimant’s own argument was that he should not be being required to take leave because he was shielding. In those circumstances, we find there were reasonable grounds for the belief that the claimant was shielding when the incident occurred and that he knew that he was.

[320]We find there were also reasonable grounds for the belief that the claimant was not, as he submitted, on leave and so could “do what he wanted”. Mr Eden and Mr Kelly had before them the letter from Mr Watson of 3 September 2020 which confirmed that those shielding must not go out and that people most at risk were strongly advised to stay at home at all times. The claimant’s own argument with Ms Derbyshire was that he should not be required to take leave while shielding. Her email confirmed that he was still shielding as at 25 September 2020.

[321]We also find there were reasonable grounds for believing the claimant had broken the shielding guidance by going to the pub. Mr Eden had to assess whether, on the balance of probabilities, he accepted the claimant’s version of events about why he had gone to and stayed in the pub. We find there were reasonable grounds for his belief that the claimant had stayed in the pub not because he had had diarrhoea but because he had chosen to stay to finish his drink. He was entitled to take into account the evidence that the claimant had finished his alcoholic drink and that was not consistent with his account that he had suffered an urgent stomach issue. We do not accept Mr Walker’s submission that in order to have reasonable grounds for that aspect of his conclusion the respondent would need medical evidence about the effect of alcohol in those circumstances. Mr Eden was also, as we have said, entitled to take into account the context for the incident which included the claimant’s being aggrieved by the requirement to take leave while shielding.

[322]We find that there were reasonable grounds for the respondent’s belief that the claimant was guilty of misconduct by breaching shielding guidance (1.4.2).

[323]As to whether dismissal was within the band of reasonable responses, Mr Barron’s submission was that in this case it was particularly important for the Tribunal to have regard to the wording of s.98(4) of ERA which asks whether “in the circumstances” the employer acted reasonably or unreasonably in treating the reasons as sufficient for dismissing the employee. Those circumstances, he submitted, included the context in which the incident happened. We accept his submission that the respondent had a key role in public health and in ensuring that employees abided by the various restrictions then in place. We also accept that this was particularly important in the respondent’s local authority area where rates of infection had fallen more slowly than nationally, leading to local restrictions being imposed when national restrictions were in general being relaxed. In those circumstances, Mr Barron submitted, it was important that the respondent were not seen to fail to take action where its employees failed to follow the guidance it was encouraging residents to comply with. Failing to take action in the claimant’s case could, he submitted, have resulted in deaths. He stressed the respondent did not dismiss the claimant to “send a message” but that a failure to dismiss would have sent the wrong message.

[324]Mr Walker submitted that the assertion that failing to take action against the claimant could result in deaths was laughable and a clear exaggeration. He said that submission might be sustainable if the case involved a senior employee but not when the employee was a lower grade employee such as the claimant. Given the respondent did not publish information about dismissals, Mr Walker submitted, dismissal in this case was not an appropriate sanction.

[325]We remind ourselves that the question we are asking is whether this employer, in the circumstances, acted reasonably in treating the misconduct as justifying dismissal. The dismissal must fall within the band of reasonable responses. We have decided that in this case it did. We do think that the seriousness of the public health situation faced by the respondent was a relevant circumstance. We find that the respondent was entitled to take the view that the claimant had broken its trust by failing to follow shielding guidance when he was shielding and on full pay and that his actions were particularly serious given their potential to bring the respondent into disrepute. We find that in this case dismissal was within the band of reasonable responses (1.4.5).

[326]Applying the test of fairness in s.98(4) we find that the respondent did act reasonably in all the circumstances in treating the claimant’s misconduct as sufficient reason to dismiss the claimant. Wrongful dismissal / Notice pay (2.1-2.3)

[327]It was not disputed that the claimant was dismissed without notice (2.1-2.2). The issue is whether the respondent was entitled to do that because the claimant was guilty of gross misconduct (2.3).

[328]We found that the claimant (knowing that shielding restrictions applied to him) decided to stay and have a drink in the pub. In other words, we find that was not a matter of necessity but a matter of choice.

[329]We find that the claimant’s actions must be taken in context. The respondent was a public authority in an area where Covid deaths were high and where levels of Covid had not fallen as they had in the rest of the country. The respondent was the body tasked with encouraging compliance with the guidance around Covid, including shielding. The claimant must have been aware of those circumstances and of the importance of the respondent’s employees being seen to comply with the shielding guidance. Mr Watson’s letter of 3 September 2020 emphasised that by making it clear that failing to abide by shielding restrictions would be a disciplinary matter.

[330]We find that the claimant did decide to “flout” those guidelines by staying in the pub to have a drink. We accept the respondent’s case that that was a breach of trust. The respondent had been paying the claimant full pay on the understanding he was shielding. By breaching the guidance the claimant was breaking his part of that bargain.

[331]We do find that behaviour amounted to a breach of the implied term of trust and confidence and was a fundamental repudiatory breach of contract entitling the respondent to terminate without notice. Employment Judge McDonald Date: 16 September 2024