Mr C Oldale v Peach Law Ltd and Ms D L Armitage: 2406676/2023

EMPLOYMENT TRIBUNALS

Case No 2406676/2023

Between

Mr C OldaleClaimant

Peach Law Ltd and Ms D L ArmitageRespondent

Before

Employment Judge Phil Allen

In person for claimant

Mr D Bunting (instructed by counsel) for respondent

Date 5 August 2024

JUDGMENT

[1]The claimant had a disability at the relevant time by reason of a mental impairment, bipolar affective disorder.

[2]The complaints of direct disability discrimination against both respondents are not well-founded and are dismissed.

[3]The complaints of unfavourable treatment because of something arising in consequence of disability against both respondents are not well founded and are dismissed.

REASONS

[1]The claimant was offered employment by the second respondent on 9 February 2023, as a Legal Director of the first respondent. The employment was due to start on 11 April 2023. The offer was withdrawn on 27 March 2023. The claimant alleged disability discrimination (direct and discrimination arising from disability) against both the first respondent and the second respondent personally (the managing director of the first respondent). The respondents denied discrimination. Claims and Issues

[2]A preliminary hearing (case management) was conducted on 13 October 2023. The claims being pursued were clarified. The case management order appended a proposed list of issues.

[3]The parties were due to agree a list of issues, but one was not agreed. At the start of this hearing, the parties did not disagree that the list of issues was that set out in the case management order. Both parties made their submissions in reliance on that list of issues.

[4]That list of issues is appended to this Judgment.

[5]Prior to the hearing, the respondents accepted that the claimant had a disability at the relevant time by reason of bipolar affective disorder. The claimant also relied upon PTSD. The respondents had not accepted that was a disability at the relevant time. As explained below, immediately before submissions on the third day of the hearing, the claimant withdrew his reliance on PTSD as also being a disability at the relevant time.

[6]This hearing had been listed to address liability issues only. Remedy issues were not to be determined and they have been omitted from the list of issues appended.

[7]The respondents were given the opportunity to enter an amended response following the preliminary hearing. The draft list of issues made clear that any legitimate aims to be relied upon in the defence of the discrimination arising from disability claim would need to be included in that amended response. The respondents did not submit an amended response. The impact of that on issue 3.6 is addressed in more detail in the Judgment below.

Procedure

[8]The claimant represented himself at the hearing. Mr Bunting, counsel, represented the respondents. The claimant was a litigant in person. On a number of occasions during the hearing, the claimant emphasised his ill-health and the impact that had upon his preparations and ability to present his case. The claimant has had many years’ experience as an employment solicitor, and described himself in the business plan he prepared (175) as having had extensive experience across all areas of employment law including Employment Tribunal litigation. The claimant therefore had a considerably greater knowledge of employment law and far greater experience of Employment Tribunals, than would usually be the case for a litigant in person.

[9]The hearing was conducted in-person with both parties and all witnesses attending in-person at Manchester Employment Tribunal. The possibility of the hearing being postponed

[10]On Friday 26 July 2024, the claimant sent the Tribunal an email attaching a medical report from his GP, also of the same date. Within the report (but not the email) it was said that “We would appreciate it if you could consider postponing the employment tribunal in order to allow Mr Oldale more time to prepare for it”. I erroneously considered that, by sending the email and the report, the claimant was making a further application to postpone this hearing (a previous application to postpone having been expressly withdrawn by him). The respondents’ views were sought, and they objected to the postponement application. I made the decision on Friday that, due to the lateness of (what I believed was) the application and in the light of the respondents’ objections, the application would be determined at the start of this hearing and the parties were informed.

[11]At the start of this hearing, we expected to be asked to consider the claimant’s application to postpone the hearing. However, the claimant stated that he was not seeking to postpone the hearing, but rather he was applying to strike out the responses. It was further clarified with him whether he was seeking a postponement and he made very clear that he was not. He said that what the GP had said was an error. As a result, no application to postpone was considered, the claimant’s position being that one had not been made. Application to strike out the response

[12]The claimant did make an application to strike out the responses. That application had been made in an email of 16 July 2024 (C71). It had not previously been determined by the Tribunal (albeit the Tribunal had sent correspondence to the parties about the preparation required for the hearing following that date). The claimant at the start of this hearing sought to pursue that application.

[13]The claimant had produced a separate bundle containing the documents upon which he wished to rely in making that application. However, he had provided only one copy bundle for the Tribunal (rather than three) and it initially appeared that the bundle he had prepared for the respondents’ counsel was incomplete (albeit the missing pages were subsequently located). The respondents’ counsel also sought time to review the documents provided. An adjournment was taken both to obtain additional copies and to provide the respondent’s counsel with the time sought. Exceptionally the Tribunal staff copied the bundle for the claimant, so that each member of the panel had a copy. The Tribunal also took the time to review the contents of the bundle. Where a number is referred to in this Judgment prefaced by a C, that is a reference to the copy of the bundle that the claimant prepared for his application.

[14]After the adjournment, from 11.15 am until 12.10 pm, the claimant made his submissions orally that the responses should be struck out. His submissions were detailed and cogent and addressed the parties’ preparation for the hearing in some detail and also addressed the relevant law and how it should be applied to the claimant’s application. The respondents’ counsel responded to the application orally from 12.10 pm until 12.45 pm, also addressing both the material circumstances and the law. We adjourned, both to consider our decision and to take time for a lunch break, and the parties were asked to return for 2.15 pm so that we could inform them of our decision. Our decision on the application to strike out the responses

[15]At 2.15 pm on the first day of the hearing, we informed the parties that the application to strike out the responses had been refused. We informed the parties verbally of our reasons for doing so and what we said has been detailed below. The parties (and the claimant, in particular) relied upon authorities in their submissions. We did not endeavour to reproduce all that had been said nor did we endeavour to refer to each of the authorities raised.

[16]The claimant sought to strike out the response relying upon three subsections of rule 37. We considered each of those subsections separately and decided whether what was required to engage the possibility of strike out had occurred.

[17]The claimant relied upon rule 37(1)(b). That said that we may strike out all or part of a response on the grounds that the manner in which the proceedings had been conducted by or on behalf of the respondent had been scandalous, unreasonable or vexatious. We agreed with the respondents’ representative’s submission that the element with the lowest threshold was whether the conduct had been unreasonable and therefore we focussed on whether that had been met. The respondents acknowledged that they had not been perfect, and they had not. We viewed the correspondence between the parties as being irritable, on occasion not really helpful, and sometimes not written with the focus of agreeing the best way forward in preparing the case. However, fundamentally, the respondents had prepared and provided a physical unpaginated bundle by 22 March, four months before the hearing. A physical paginated bundle was provided by 27 April, three months before the hearing. There had been later versions, but the vast majority of the documents had been included in the bundle produced by that date. The respondents had been ready to provide their witness statement possibly by 9 May (as the representative suggested) but certainly by 7 June (as set out in the document at C62), one and a half months or approximately six weeks before the hearing. There had been a dispute about the precise contents and arrangement of the bundle, but the respondents’ approach to that in and of itself was not unreasonable. As a result, we did not find the respondents’ conduct of the proceedings to be unreasonable and that threshold to consider strike out was not met.

[18]We then considered rule 37(1)(c). That said that we may strike out all or part of a response for non-compliance with any of the Tribunal rules or with any order of the Tribunal. The respondents had not complied with the Tribunal’s orders. They did not provide their documents on the date ordered. They did not prepare the bundle in accordance with the orders or provide an agreed paginated bundle as ordered, as set out at 5.2 of the case management orders. The respondents had also not provided their witness statement on the date ordered, albeit the parties had themselves agreed to vary that date. As a result, the respondents had failed to comply with the Tribunal’s orders and so the threshold for a strike out order under rule 37(1)(c) had been met.

[19]Rule 37(1)(e) applies where it is no longer possible to have a fair trial/hearing in respect of the response (or the part to be struck out). We did not agree that a fair hearing was not possible. We had witness statements and a bundle of documents, as well as a supplementary bundle. We were ready to hear the claim and response and we believed that we had the time available to do so.

[20]We noted what the claimant had explained, based upon the case law, that we needed to consider whether a fair hearing was possible in this hearing window.

[21]Considering whether to strike out under rule 37(1)(c), we needed to consider the magnitude of the non-compliance. As already explained, a paginated bundle had been prepared incorporating the majority of the documents and provided by 27 April, and the respondents were ready to exchange witness statements by early June. We had to consider the prejudice to the parties and accepted that the delay had to an extent prejudiced the claimant. However, more importantly and significantly, if we struck out the responses, the implications for the respondents would be of the utmost seriousness because they would be unable to defend a claim for discrimination and would be likely to be found to have discriminated against the claimant. That was serious for both respondents, but particularly serious for an individual. We reminded ourselves that an order to strike out a response is draconian. On that basis, we decided that we would not exercise our discretion to strike out the responses for the non-compliance with the orders which had occurred.

[22]Crucial to our decision, was that fact that we considered that a fair hearing was still possible in the three days available. A number of cases have emphasised the importance of that factor when considering an application to strike out, and we decided that a fair hearing remained possible in this case. That was reflected by the fact that the claimant had not pursued an application to postpone the hearing at the same time or alongside his application to strike out, but had been clear that he was not seeking to postpone the hearing. The process thereafter

[23]After we made our decision, we moved on to address the documents, the statements, and the issues.

[24]An agreed bundle of documents was prepared in advance of the hearing. Where a number is referred to in brackets in this Judgment, that is a reference to the page number in the bundle. A short supplemental bundle was also prepared and provided, and numbers prefaced with an S are references to the numbers in that supplemental bundle. We read only the documents in the bundles to which we were referred, including in witness statements, or as directed by the parties. At the start of the second day, the respondents handed up a handful of additional documents. The claimant, very fairly, did not object to us seeing and considering those documents. They were added to the supplemental bundle.

[25]We were also provided with witness statements from each of the witnesses called to give evidence at the hearing, which were: the claimant; and the second respondent. On the afternoon of the first day, we read the witness statements and the documents referred to in them.

[26]As we sought to confirm the issues with the parties and the accuracy of the list on the afternoon of the first day, the claimant said that we had evidence that he was too unwell to carry on and he said that he had slept in the waiting room for forty minutes. He described himself as spent. It was highlighted that he had not sought a postponement and he was asked if that was what he was now seeking, but he said he was not applying for a postponement. When asked what he was seeking, the claimant said he was seeking guidance about what he was meant to do.

[27]We explained to the claimant that we could not provide guidance. However, broadly, there were only two options which appeared to be available: postponement; or the hearing proceeding. It was confirmed that we could make adjustments to the process. The claimant asserted that he was too unwell to carry on and referred to a hearing in his family proceedings the previous week and a family-bereavement. He said that what he wanted was to go to bed. The claimant also stated that in the morning, as he had been making a strike out application, clearly, he wasn’t going to ask to postpone. As part of the discussion, the respondents’ counsel’s views were sought about whether he could identify any alternative options. The claimant stated that he agreed with the respondents’ view (which had been put forward in their response on 26 July to the postponement application), that a postponement would not make anything better as the claimant would still have to go through what he described as the bloody awful process.

[28]It was emphasised to the claimant that the Tribunal would make any reasonable adjustments which needed to be made including taking additional breaks when required (as had been stated at the start of the hearing). Two additional options were then raised with the claimant: taking a short break at that time; and not commencing evidence on the first day (we still needed some time to read the statements and related documents and, although we had envisaged starting to hear evidence on the afternoon of the first day, the remainder of the day could be taken as reading time).

[29]The claimant agreed that a break would assist. He also said that: he was not fit enough to proceed with the hearing; and he said his Doctor on Friday had made clear that over the next two days there was a concern about the impact on his health. He was concerned about not being able to present his case as well as he was able. The respondents’ counsel’s position was that he needed to take instructions and therefore welcomed a break, but the respondents’ preference (prior to the afternoon starting) had been to commence the evidence on the afternoon of the first day. A fifteen-minute break was taken.

[30]After the break, the claimant confirmed that there was nothing else which he wished to say. The respondents’ representative highlighted that there was no benefit to a postponement and said that a postponement would be prejudicial to the respondents and possibly prejudicial to the claimant as well. The possibility of the claimant withdrawing the claim was mentioned if he felt unable to proceed.

[31]We confirmed that, whilst there was no application to postpone, we could not in any event see any benefit to a postponement as there was no evidence or indication that the claimant would be better able to have his claim heard at a later date. We decided that we would not start hearing evidence on the first day, and the remainder of the first day would be taken as reading time. That would give the claimant the night’s break until he needed to give evidence. It also gave him the time to consider whether he wished to withdraw (which would be entirely a matter for him) and we said he should take the period overnight to think. The claimant responded that he would do his best to give evidence because he felt that this was a final desperate attempt by the respondents’ representative(s) to bully him and to make him ill and he would see that they did not get away with it. The hearing was adjourned at approximately 3.10 pm on the first day and the remaining time take by us to read.

[32]We heard evidence from the claimant on the morning of the second day, who was cross examined by the respondent’s representative, before we asked him a question. At the end of the first day, we had highlighted to the respondent’s representative the need to be mindful of the claimant’s health when cross-examining him and he appeared to approach cross-examination in an entirely appropriate manner including sign-posting the subject matter of questions. At the start of the second day, we also discussed the time to be taken in cross-examining the claimant, as limiting the time for cross-examination was something suggested by the Equal Treatment Bench Book. As the respondents’ representative indicated that crossexamination would take two and a half to three hours, we said that crossexamination of the claimant was to be completed during the morning. We also took an additional break during the morning (in addition to the usual mid-morning break). Cross-examination was completed shortly after 1 pm.

[33]For the respondents, we heard evidence from the second respondent. She gave evidence on the afternoon of the second day, when she was cross-examined by the claimant, we asked a question, and she was briefly re-examined. During the afternoon there were conversations with the claimant about the time required. He initially indicated that he thought he would complete cross-examination during the afternoon. When he expressed concern about the limited time, the claimant was reassured that he was not being time limited, and cross-examination could continue into the following day if required. Later in the afternoon, it was also discussed with the claimant whether he wished to complete cross-examination that afternoon or carry on at the start of the following day. The claimant preferred to complete the cross-examination and did so at approximately 4.15 pm.

[34]After the evidence was heard, each of the parties was given the opportunity to make submissions. Prior to submissions on the third day of hearing, the claimant withdrew his contention that he had a disability at the relevant time as a result of complex PTSD, explaining that he did not believe that it made any difference to his case. The respondents’ representative made his submissions orally at the start of the third day (those submissions lasting approximately fifty minutes). At the end of the second day, the claimant had indicated that he felt unable to make submissions. He was reassured that he was not required to do so, but the option to make submissions was left open for him on the third day if he wished to. On the third day he explained that his submissions would not be as detailed or as structured as would normally be the case, as a result of his health and the efforts required during the hearing. He did in fact make relatively detailed and entirely cogent submissions on the third day, those submissions lasting approximately twenty-five minutes. In his submissions, the claimant focussed upon the facts, rather than the law.

[35]We reserved Judgment and, accordingly, this document contains our Judgment and the reasons for it.

Facts

[36]The claimant was admitted as a solicitor in 2009 and at the relevant time for these proceedings had been thirteen years post-qualification. He was a specialist employment solicitor. He worked in private practice until 2016. In 2016 he worked for Citation. After a break in employment between April 2021 and August 2022, he became Head of Employment at Aticus Law.

[37]The claimant was diagnosed with bi-polar affective disorder in 2017.

[38]The claimant had a break in his employment between the end of April 2021 and August 2022. He, at least in part, attributed this break to his mental health.

[39]The claimant was employed by Aticus Law Limited from 15 August 2022. The claimant has separately brought an Employment Tribunal claim against Aticus Law Limited. We were provided with the particulars of claim (233).

[40]The claimant was ill over the Christmas and New Year period at the end of 2022 and the start of 2023. He was due to return to work on 3 January 2023 but was absent on ill health grounds. It was the claimant’s evidence that he tried to go back to work and was in the office on 9 January 2023 (and during his evidence he also suggested possibly one or two other days, but he could not evidence those days). Thereafter he was absent. The claimant did not return to work at Aticus Law. He resigned on 10 February 2023.

[41]The first respondent is a small business with, at the time, three employees, and now four employees. Those numbers include the second respondent who is the managing director. She is an experienced employment solicitor.

[42]The potential role at the first respondent was brought to the claimant’s attention via a recruitment consultant (Mr Gibbons). We were provided with an exchange of emails between the second respondent and the recruitment consultant of the 5 and 9 December 2022 in which the consultant said that he had spoken to the claimant, and he felt that he could self-generate circa £60,000 of fees in year one (84). It was the second respondent’s evidence that she had spoken to the consultant about the need for a candidate to have sufficient following to (what was described as) wash their face.

[43]As part of the potential recruitment process, the claimant met with the second respondent on 11 and 26 January and 8 February 2023. In his witness statement, the claimant told us that he had always been open about anything related to his illness and he has not hidden it. However, it was common ground between the parties that the claimant did not in fact mention his impairment or his absence from work during the three interviews. He was not asked about it, nor was he asked about the period he had taken away from work in 2021-2022.

[44]When interviewed, the claimant said he would like to continue to work four days per week. The second respondent did not ask why. She agreed he could do so.

[45]There was a point of significant difference between the parties about precisely what the claimant said about whether he was in work at the time during the interviews (and the first two in particular). In summary, the claimant’s evidence was that he did not say he was in work at any time. He said he did not tell the second respondent one way or the other and he referred to the general statistical chance that any person would be in work or absent (referring to there being a 5% chance that a person would be off sick). The claimant said that he did not mislead the second respondent, he did not lie, and the second respondent did not ask. The second respondent’s evidence was that he did, including referring to returning to the office after one of the meetings and talking about the work he was undertaking with Aticus Law in the present tense. When cross-examined about the interviews, at one stage in his answers, the claimant said that he could not tell us exactly what he had said, and he did not think that anybody could for a conversation which had happened a year and a half ago.

[46]We were provided with the claimant’s CV, which was the basis for some of the conversation during the first interview. The CV had been provided to the second respondent by the recruitment consultant. In the covering page (S7) the consultant said that the claimant had elected to take a career break after five years with Citation, before recommencing his career with Aticus Law. It was the claimant’s evidence that he had never referred to it as a career break himself. The CV detailed the claimant’s working history and there was nothing included in it between April 2021, when his employment with Citation ended, and August 2022, when he commenced working for Aticus Law (S8).

[47]For the second more formal interview held at the first respondent’s offices, the claimant had provided a business plan. The version disclosed by the respondents included in the bundle had two pages and the second respondents’ manuscript comments. The version disclosed by the claimant (which appeared to be complete) had three pages (175). In that document, the claimant described himself as having a successful record of business generation. He detailed (with initials but not full names) four existing clients as the existing client base, and he summarised the work he had undertaken for them. For three of those clients, he ended the points by saying that he had a good relationship, and they were likely to want to follow the claimant to the first respondent. His business plan recorded his restrictive covenants. The business plan was discussed at the second interview. It was the second respondent’s understanding that the claimant had a good relationship with Aticus Law and she believed that he had said he would be able to (or hoped to) agree to take the employment work with him as (other than a Trainee) there was no other employment solicitor working at Aticus law.

[48]At the third interview meeting, the second respondent offered the claimant employment. The offer was emailed (99) and the claimant accepted by email (101). The claimant resigned from his employment with Aticus Law by email and informed the second respondent that he had done so on the same day. In the email making the offer of employment (100), the second respondent included a paragraph which set out that the claimant was to bring his own clients and to develop new clients and that he had to operate as if there was no work for him to do at the first respondent. That paragraph went on to say that they had also discussed speaking to the claimant’s current firm about the transferral of work if they could not resource it. That expectation was not reproduced in the subsequent email and letter containing the more formal offer.

[49]In his submissions, the claimant raised as a credibility issue the second respondent’s reliance upon her belief that the claimant was expected to bring a following with him. He contended that was not something which had been expected at the time. The second respondent’s position was that the first respondent was a small firm, and it would not have been able to employ the claimant in a senior role without him bringing clients with him and his own work. To the extent it was necessary for us to do so, we found that the second respondent had expected the claimant to bring work with him and had explained the need to do so, because we accepted that was consistent with what was said in the documents including the initial email from the recruitment consultant and, most notably, what was said in the offer email (100) and the reference to the claimant bringing his own clients.

[50]On 9 February, the claimant responded by email (99). In the email he said he was delighted to accept the offer. There was no dispute that the offer was for the claimant to work four days per week. In the response, the claimant said “Does it work for you if the 4 days I work are Monday, Tuesday, Thursday and Friday? I could look at any other option, but would need to explore alternative arrangements for the children to make it happen”. When being cross-examined, the claimant explained that what was said did not explain that he worked four days a week because of childcare, he was simply explaining the need to adjust his childcare arrangements if the day which he did not work changed.

[51]On 10 February, the second respondent wished the claimant good luck with his resignation and asked him to let her know how he got on. The claimant replied that he had tendered his resignation and had left proposals for bringing clients with them (being Aticus Law’s partners) (101). In her email, the second respondent had also referred to them both being out the office next week, based upon her being on holiday and her understanding that the claimant was also going on holiday, albeit unbeknownst to her the claimant had not been in the office at Aticus Law for some time.

[52]On 20 February, the second respondent sent the claimant an offer letter from the first respondent and asked him about his discussions. The claimant responded that he was being ignored by the partners at Aticus Law.

[53]On 24 February the claimant informed the second respondent that Aticus Law were clearly upset with his decision and had stated that they would not be allowing him to take any clients with him (110). He went on to say he would not do anything in breach of his covenants, but referred to the fact that should there be some motivation to ensure a clean break he hoped for a compromise. In crossexamination, the claimant accepted that was a reference to contact through ACAS with Aticus Law which he hoped would culminate in an agreement which would enable him to bring clients with him. That did not prove to be successful.

[54]On 6 March the second respondent set out some terms which had been agreed. She said she attached the revised contract to her email. The claimant did not receive it as an attachment. During the hearing it was agreed that nothing material turned upon whether or not it was attached. On 7 March the claimant informed the second respondent that he had finished at Aticus Law, and was away for a couple of weeks. The email was sent shortly before he departed for Mexico (or possibly shortly after arrival). The second respondent became concerned about the lack of a signed returned contract, she explained to us that was because she was concerned that she would lose the claimant as the first respondent had lost out to larger firms in the past.

[55]Whilst in Mexico, the claimant went to lengths to obtain a sim card so that he could speak to the second respondent. He also picked up food poisoning, which meant that he was ill upon his return.

[56]Around that time there was a telephone conversation between the claimant and the second respondent. The precise timing of it and what was said was in dispute. However, in his witness statement, the claimant said that the second respondent had enquired about him being away and the claimant had told her that he had been issued with a sick note for his period of notice as Aticus was a toxic working environment. The second respondent disputed that was what was said.

[57]We were provided with some text messages exchanged between the claimant and the second respondent. A meeting was arranged for 22 March. On 22 March the claimant texted the second respondent “would you mind awfully if we caught up another day? I’ve come back with food poisoning and am still suffering” (146).

[58]On 23 March, Edward Judge, the Managing Partner of Aticus Law, provided a reference by email to the second respondent (122). The second respondent had asked a number of questions in her reference request. His email did not answer those questions. It said simply: “1) Craig Oldale was employed by the firm from the 15th August 2022, he has been on sick leave since 3rd January 2023 to date. 2) Head of Employment. 3) We received a resignation email from Craig Oldale on the 10th February, providing 2 months notice, albeit notice being served whilst on sick leave. It is not firm policy to comment any further in relation to references”

[59]It was the second respondent’s evidence that she did not contact Mr Judge at the time having received the reference (albeit she has spoken to him subsequently since she retracted the claimant’s job offer). She said that she wished to speak to the claimant and hear what he had to say. In summary, her position was that what she was informed in the reference was not consistent with what she believed the claimant had told her previously and she believed that the claimant may have been dishonest.

[60]A telephone conversation took place on 24 March 2023. The claimant had not wished to speak because he was unwell, however the call still took place. There was a significant dispute between the claimant and the second respondent about precisely what was said. The second respondent provided a note (128) which she said she typed immediately following the conversation. The claimant provided his own note (S5). That was prepared a few days later, on 27 March 2023.

[61]It was common ground between the two accounts that the second respondent started the call by referring to the reference from Aticus Law. She informed the claimant that the reference stated that the claimant had been off work since the 1 January, to which the claimant responded that could not have been the case since 1 January had not been a working day. At some point in the conversation, the second respondent referred to not having the reference letter in front of her. The claimant mentioned that his son had been ill on one day and he said Aticus Law had accused him of a lack of commitment or professionalism. The claimant said that he did not want to start somewhere where honesty was an issue. The claimant said he was feeling nauseous. It was agreed that the two would speak again and there was reference to coffee.

[62]What else was said in the conversation was disputed. In summary, the claimant said he had provided an account about recent issues and had referred to having been quite ill over Christmas and New Year and said he had been signed off in January because working at Aticus had been awful and it had had a significant impact on his health. The second respondent said that the claimant informed her that he had been off since serving notice but not before that. She said she found the claimant’s answers to be evasive and contradictory. In answers to questions put in cross-examination, the second respondent said that at some point she just wished to end the call and did not know how to do so, because she wanted to think about what had been said. As explained in our decision below, we did not need to determine what exactly was said in the course of the conversation.

[63]In his disability impact statement (76), the claimant said that in the conversation on 24 March, when he expressed on the phone how ill he was, he mentioned only the food poisoning (he said for fear of stigmatisation).

[64]On 27 March, the second respondent emailed the claimant a letter withdrawing the offer (135). In that letter she said “In light of our discussion on Friday 24 March 2023 surrounding the reference received by your current employer, in which it became clear that you have been dishonest with me during the interview process and indeed contradictory when questioned about it, I am retracting the offer of employment on the basis of dishonesty. The contract has not been validly executed but even if it were, dishonesty is a fundamental breach entitling us to dismiss with immediate effect. I am extremely disappointed with the position that we have been put in”. The claimant was critical about the lack of detail provided. The second respondent believed that what was said was clear.

[65]Shortly after receiving the letter, the claimant emailed back denying in the strongest possible terms that he had been dishonest (134). Further emails were exchanged thereafter.

[66]When giving evidence, the second respondent stated that she retracted the job offer on the basis of the claimant’s dishonesty. She stated that she had not been aware of the claimant’s disability prior to rescinding the offer, and the reason the offer was withdrawn was due to the claimant’s dishonesty and that she could not trust him. The claimant, in his evidence, was adamant that he had not been dishonest in his conversations with the second respondent.

[67]We were provided with parts of the claimant’s GP records and the consultations recorded included those on 10 January, 20 January, 6 February and 16 February 2023 (203). On 10 January 2023 the GP recorded (what is described in the notes as) the “problem” as being bipolar disorder. Thereafter all the entries recorded the “problem” as Mixed anxiety and depressive disorder. On 5 April 2023 the claimant was recorded as having been unwell since travelling to Columbia (something which we assume was an error in the records) (201).

[68]In his disability impact statement (73), the claimant referred to having contracted food poisoning while away in March 2023 and, by the time he had returned to the UK, he said he was severely depressed. He described spending time in bed and avoiding interaction. He referred to the phone call on 24 March 2023, and said, “I mentioned only the food poisoning for fear of stigmatisation”. In his witness statement, the claimant said that on his return to the UK on the morning of 21 March 2023 he had been severely depressed, and he went on to say “I think this is probably because the food poisoning weakened my overall ability to deal with my mental health, but also because I was unable to keep down my medication”.

[69]We heard a lot of evidence. This Judgment does not seek to address every point about which we heard or about which the parties disagreed. It only includes the points which we considered relevant to the issues which we needed to consider in order to decide if the claims succeeded or failed. If we have not mentioned a particular point, it does not mean that we have overlooked it, but rather we have not considered it relevant to the issues we needed to determine. Both the claimant and the respondents’ representative in submissions raised matters which they said impacted upon the credibility of the claimant/second respondent. We considered all that was said. However, we have only referred in this Judgment to the matters we considered relevant to the decisions which we needed to reach (as explained) and have not addressed everything that was said as being relevant to credibility, nor have we referred to all of the evidence to which the parties referred in submissions.

The Law

[70]The claim relies on section 13 of the Equality Act 2010 which provides that: “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.”

[71]The characteristics protected by this provision includes disability.

[72]Under Section 23(1) of the Equality Act 2010, when a comparison is made, there must be no material difference between the circumstances relating to each case. The requirement is that all relevant circumstances between the claimant and the comparator must be the same and not materially different, although it is not required that the situations have to be precisely the same.

[73]Section 136 of the Equality Act 2010 sets out the manner in which the burden of proof operates in a discrimination case and 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 sub-section (2) does not apply if A shows that A did not contravene the provision”.

[74]At the first stage, we must consider whether the claimant has proved facts on a balance of probabilities from which we could conclude, in the absence of an adequate explanation from the respondents, that a respondent committed an act of unlawful discrimination. This is sometimes known as the prima facie case. It is not enough for the claimant to show merely that he has been treated in a way which he says is less favourably. In general terms “something more” than that would be required before the respondents are required to provide a non-discriminatory explanation. At this stage we do not have to reach a definitive determination that such facts would lead us to the conclusion that there was an act of unlawful discrimination, the question is whether we could do so.

[75]If the first stage has resulted in the prima facie case being made, there is also a second stage. There is a reversal of the burden of proof as it shifts to the relevant respondent. We must uphold the claim unless the respondent proves that it did not commit (or is not to be treated as having committed) the alleged discriminatory act. To discharge the burden of proof, there must be cogent evidence that the treatment was in no sense whatsoever on the grounds of the protected characteristic.

[76]In most cases there is a need to consider the mental processes, whether conscious or unconscious, which led the alleged discriminator to do the act. Determining this can sometimes not be an easy enquiry, but we must draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions). The subject of the enquiry is the ground of, or the reason for, the alleged discriminator’s action, not her motive.

[77]We need to be mindful of the fact that direct evidence of discrimination is rare, and that Tribunals frequently have to infer discrimination from all the material facts. The protected characteristic does not have to be the only reason for the conduct, provided that it is an effective cause or a significant influence for the treatment. As the respondents’ representative emphasised, the explanation for the less favourable treatment does not have to be a reasonable one. Unfair or unreasonable treatment by a potential employer does not of itself establish discriminatory treatment.

[78]The way in which the burden of proof should be considered has been explained in many authorities, including: Barton v Investec Henderson Crosthwaite Securities Limited

[2003] IRLR 332

; Shamoon v Chief Constable of the RUC

[2003] IRLR 285

; Hewage v Grampian Health Board

[2012] ICR 1054

; Igen Limited v Wong

[2005] ICR 931

; Madarassy v Nomura International PLC

[2007] ICR 867

; Royal Mail v Efobi

[2021] UKSC 33

[79]The respondents’ representative relied upon Nagarajan v London Regional Transport

[1999] IRLR 572

when highlighting the importance of establishing that the less favourable treatment was on the prescribed ground. He drew parallels with the Court of Session decision in Singh v Biotechnology and Biological Sciences Research Council.

[80]Section 15 of the Equality Act 2010 provides:(1) A person (A) discriminates against a disabled person (B) if — (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

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

[81]For unfavourable treatment there is no need for a comparison, as there is for direct discrimination. However, the treatment must be unfavourable, that is there must be something intrinsically disadvantageous to it.

[82]In Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

the Employment Appeal Tribunal held that: ''the approach to s 15 Equality Act 2010 is now well established … In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? and

(ii) did that something arise in consequence of B's disability? The first issue involves an examination of the putative discriminator's state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.”

[83]Pnaiser v NHS England

[2016] IRLR 170

outlined the correct approach to be taken: “From these authorities, the proper approach can be summarised as follows:(a) A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.

(b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The 'something' that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises….

(d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

(e) For example, in Land Registry v Houghton a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (h) Moreover, the statutory language of s.15(2) makes clear … that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the 'something' leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so... (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed.”

[84]As said in that Judgment, section 15(2) provides that section 15 does not apply if the respondents show that they did not know, and could not reasonably have been expected to know, that the claimant had the disability. That applies to knowledge of the disability, not knowledge that the specific something arises in consequence of the disability.

[85]The respondents’ representative relied upon the decision of the Employment Appeal Tribunal in Wilcox v Birmingham CAB Services Limited

UKEAT/0293/10

with regard to knowledge and imputed knowledge. That authority makes clear (as the respondents accepted) that as a matter of principle it did not matter that the respondent did not know a precise diagnosis, if that respondent knew or could reasonably be expected to know that the claimant suffered from an impairment within the meaning of the Act. However, the Act does require that the relevant respondent should know that the employee is suffering from a mental impairment whose adverse effects are both substantial and long term. It/she must know or be reasonably expected to know those requisite matters.

[86]Section 15(1)(b) provides that unfavourable treatment can be justified where it is a proportionate means of achieving a legitimate aim. That requires: identification of the aim; determination of whether it is a legitimate aim; and a decision about whether the treatment was a proportionate means of achieving that aim.

[87]We also took into account the EHRC Code of Practice on Employment. The Code says (in paras 5.8 and 5.9) that something that arises in consequence of the disability means that there must be a connection between whatever led to the unfavourable treatment and the disability. The consequences of a disability include anything which is the result, effect, or outcome of a disability. Some consequences may not be obvious. Conclusions – applying the Law to the Facts

[88]We did not need to consider and determine issue one in the list of issues. Prior to the hearing, the respondents had conceded that the claimant had a disability at the relevant time as a result of bipolar affective disorder. At the start of the submissions on the third day of hearing, the claimant withdrew his contention that he also had a disability at the relevant time as a result of complex PTSD, explaining that he did not believe that it made any difference to his case. As a result, we found that the claimant did have a disability at the relevant time, with that disability being bipolar affective disorder.

[89]We considered the claimant’s complaints of direct disability discrimination. As was recorded at issue 2.1, the alleged less favourable treatment relied upon was the withdrawal of the job offer on 27 March 2023. The first issue which we needed to decide was issue 2.2, which was whether the claimant had proven facts from which we could conclude that, by the respondents withdrawing the job offer, the claimant was treated less favourably than someone in the same material circumstances without a disability would have been treated? As was recorded in the list of issues, the claimant relied upon a hypothetical comparison (there was no actual comparator).

[90]The first thing which we considered, as it was important for issue 2.2, was the second respondent’s knowledge of the claimant’s disability. For the purposes of this claim, there was no difference between the knowledge of the first and second respondent.

[91]During his submissions, the claimant contended that the second respondent had actual knowledge of his disability because she spoke to Mr Judge about it after the reference had been provided by Mr Judge (but before the decision to retract the offer was made). The second respondent’s evidence was that she did not speak to Mr Judge at the time. After receiving the reference, her wish was to speak to the claimant about it. We entirely accepted the second respondent’s evidence about that as being true and accurate. We did not find that she spoke to Mr Judge at the time. We found her approach to wish to speak to the claimant, to be an entirely legitimate and appropriate response to what was said in the reference, and, in any event, we accepted that is what she did. We found that the second respondent did not actually know about the claimant’s disability or medical history at all, when she made the decision to withdraw the job offer which had been made, save for what she had been told in the reference of 23 March 2023 (122) and what she was told in the conversation with the claimant on 24 March (which is addressed in more detail below).

[92]Besides what is described in the previous paragraph, there was no other evidence that supported a contention that the second respondent knew anything about the claimant’s ill health or his disability. As a result, we found that the second respondent did not know about the claimant’s disability. That is, applying what was said in Wilcox, she did not know that he had suffered from a mental impairment whose adverse effects were both substantial and long term. The respondents’ representative accepted that she did not need to be aware of precisely how the impairment was diagnosed or described. However, as he submitted, she did need to be aware of the impairment, its impact, and that it was long term. She was not.

[93]As the second respondent was not aware of the claimant’s disability, she could not treat him less favourably as a result. The claimant’s direct discrimination claims accordingly did not succeed. Nonetheless, we did go on to consider the other direct disability discrimination issues which arose from issue 2.2.

[94]The respondents’ representative in his submissions, addressed the question of the appropriate comparator for determining issue 2.2. We found that the appropriate hypothetical comparator in materially the same circumstances, was someone who the second respondent believed had misled her. It was also someone who had taken a career break, worked four days per week, and had an absence record with Aticus Law equivalent to the claimant’s absence. It would be someone about whom the second respondent had received the email reference from Mr Judge with the same statements (even if, as the claimant contended, what was said was not entirely accurate). It was someone who had not informed the second respondent that he had been absent throughout the meetings and emails and had conducted themselves in the same way as the claimant had done. On that basis, we did not find that the claimant had proven facts from which we could conclude that he had been treated less favourably than a hypothetical comparator in comparable circumstances (but without his disability) would have been. In addition, and in any event, we also found that the second respondent would have withdrawn the job offer made to such a hypothetical comparator where that comparator was in materially the same circumstances.

[95]Save for what we have recorded, issues 2.3 and 2.4 did not need to be determined in the light of our decision on issue 2.2. We concluded that the claimant had not proven that the withdrawal of the job offer was because of disability, not least because the second respondent was not aware of his disability at the time that the decision was made.

[96]We then considered the claimant’s claim for discrimination arising from disability. Issue 3.1 recorded that the unfavourable treatment relied upon was the withdrawal of the job offer. The respondents’ representative accepted in submissions that the claimant having his job offer withdrawn was unfavourable treatment for him (the relevant question under section 15 being unfavourable treatment, in contrast to what we have found about less favourable treatment for the section 13 claim).

[97]Issue 3.2 was whether the respondents knew, or could reasonably have been expected to know when she/it withdrew the job offer, that the claimant had the disability? As with issue 2.2 there was no difference between the knowledge of the first and second respondent when considering this issue.

[98]As we have already recorded when considering knowledge for issue 2.2, we did not find that the second respondent actually knew that the claimant had the disability at the time the decision was made. The claimant did not tell the second respondent about his disability or his ill health in the interviews (or in any telephone conversations prior to the reference) – that was not in dispute. In his disability impact statement (76) the claimant explicitly recorded that on 24 March 2023 in the telephone conversation with the second respondent, he mentioned only food poisoning and not any other conditions. His own typed note of the conversation on 24 March (S5) contained no account or statement of the claimant telling the second respondent about his disability. The second respondent did not know about the claimant’s disability at the time she withdrew the job offer.

[99]We then considered whether the second respondent could reasonably have been expected to know that the claimant had the/a disability. In his witness statement, at paragraph 41, the claimant very clearly set out the matters upon which he relied when contending that the second respondent should reasonably have been expected to know.

[100]The claimant relied upon the fact that he had been out of work for fifteen months. That was the gap in the claimant’s employment history between Citation and Aticus Law. The claimant’s CV (S8) showed that as being from April 2021 to August 2022. Mr Gibbons, the recruitment consultant, in his covering note (S7) said that the claimant had elected to take a carer break. Whilst those were the words of the consultant and not the claimant himself, they were still the words used to inform the second respondent. In her evidence, which we accepted, the second respondent said that the claimant in his first interview had mentioned his marriage difficulties and one of his children. We accepted that evidence and did not find that the second respondent, from this information, should reasonably have been expected to know that the claimant had a/the disability. The second respondent had information upon which to base her view that the gap was for reasons other than disability, and we would not expect an employer to assume or reasonably know that such a gap between employments had been due to a disability.

[101]The claimant also relied upon the fact that the second respondent knew that he had struggled with his health as a result of his treatment at Aticus Law and that this had resulted in him being signed off sick for over three months (as she was informed by Mr Judge). He also relied upon the fact that Aticus Law had seen fit to put the respondents on notice about his sickness absence. Until 24 March 2023, the second respondent did not know that the claimant had been absent from work, prior to absence for some part of his notice period. On 23 March the second respondent became aware that the claimant had been absent on sick leave since 3 January (or, at least, that is what she was told). That reference talked about the period of sick leave and not the causes of the sick leave. On 24 March, the second respondent gained further knowledge from her conversation with the claimant.

[102]We considered what the second respondent was told in the conversation on 24 March. As both the claimant and the respondents’ representative emphasised in submissions, there was a significant difference between the parties about what exactly she was told. However, even if we reached our decision based only on the claimant’s own evidence about what was said, and particularly considering carefully his note (S5), we did not find that the second respondent could reasonably have been expected to know that the claimant had a disability from what was recorded in it. What he said was that he had been quite ill over Christmas and New Year and that working at Aticus had been quite awful and had caused him to be signed off in January. Therefore, even though the second respondent was aware of the claimant’s three months of absence (or thereabouts), she had been given by the claimant a general explanation which we did not find had immediately signposted a disability or from which she reasonably should have concluded or known that he had one. We understood that the respondents’ case was that the telephone call had not taken place as the claimant recorded. If we reached our decision based upon the second respondent’s evidence and record (128) there was no question of the second respondent being put in a position where she could reasonably have been expected to know that he had the disability. As a result, we did not need to make a decision about whose account was accurate, as we did not find that the second respondent would have been reasonably expected to know of the disability based on the claimant’s own account (if we considered it as an accurate account).

[103]The claimant relied upon the fact that he had worked for Aticus Law four days per week and that he wished to work four days a week for the first respondent, as meaning that the second respondent should reasonably have been expected to know about his disability. The second respondent’s understanding was that the number of working days and the request related to childcare. That view was corroborated by what was said by the claimant in his email of 9 February 2023 (99) when he spoke about needing to explore alternative childcare arrangements if the days changed (irrespective of whether the claimant meant that). We could see no reason whatsoever for the second respondent to assume that this working pattern was related to disability. Based upon our own experience, we did not find that an employer would be expected to assume or would reasonably be expected to know that a part-time working arrangement was due to disability as opposed to other reasons (the vast majority of times, in our experience, it would be due to caring responsibilities).

[104]The claimant also relied upon what he described as the second respondent’s first-hand experience of speaking to the claimant when he was unwell. That appeared to relate to the conversation on 24 March. Whatever the claimant’s reason for doing so, he chose only to refer to food poisoning as the explanation for his illhealth on that occasion. In a WhatsApp message of 22 March (146) he had referred to having come back from Mexico with food poisoning and had said “am still suffering”. That clearly provided the second respondent with an alternative reason for any perception of the claimant’s conduct in that call. In his submissions, the respondents’ representative also raised the inconsistency in the claimant’s case between this argument and the fact that the claimant told us he could recall exactly what had been said in the call on 24 March and that he had fully and cogently explained his position in it. We acknowledged that inconsistency. We did not find that the claimant’s manner in that conversation or what he said, meant that the second respondent should reasonably have been expected to know that he had a/the disability.

[105]Having considered each of the factors relied upon individually, we also considered collectively whether all of the factors together meant that the second respondent should reasonably have been expected to know that the claimant had a disability. We still did not find that she should have done so, considering all of those factors together.

[106]As a result, and for the reasons explained, we did not find that the respondents should reasonably have been expected to know that the claimant had a disability. Having reached that decision, the claimant’s complaint of discrimination arising from disability could not succeed. We did however go on and consider the other issues in any event.

[107]Issue 3.3 required us to decide whether any, or all, of three things arose as a consequence of the claimant’s disability. 108. 3.3.1 was recorded in the list of issues as the claimant’s sickness absence. We took that to mean the absence from Aticus Law from 3 January 2023 (less any day or days when the claimant worked). The GP record of his consultation with the claimant on 10 January 2023 (205) recorded that the issue was as a result of bipolar disorder and that appeared to be the reason given for the claimant’s first fit note (from the GP record). Whilst the later GP records provided different reasons, nonetheless we accepted that the claimant’s sickness absence from Aticus Law arose in consequence of the claimant’s disability.

[109]Issue 3.3.2 contended that the things arising in consequence of the claimant’s disability were symptoms demonstrated by the claimant, including during the telephone call of 24 March 2023. Whilst food poisoning had been the cause of the claimant’s ill health on that date, in the part of the claimant’s witness statement to which we have referred at paragraph 68 (and upon which he was not challenged), the claimant explained that he had returned to the UK on the morning of 21 March severely depressed, which the claimant thought was probably because the food poisoning weakened his overall ability to deal with his mental health because he was unable to keep down his medication. On that basis and accepting that evidence, we found that any symptoms demonstrated by the claimant on 24 March were in part in consequence of the claimant’s disability and the claimant’s inability to keep down his medication. However, as we have already addressed in relation to the conversation on 24 March, the claimant was able to engage and explain his position in that conversation. We accepted that the claimant’s high anxiety levels were worse, as he described, but we did not find that the claimant demonstrated difficulty in, or was unable to, communicate effectively in that conversation. We did not find that the claimant did demonstrate symptoms of his disability in that call (or more generally).

[110]For issue 3.3.3 we were asked to decide whether the claimant’s decision not to disclose to the second respondent that he was off work due to his condition prior to his notice period, until 24 March 2023, was something which arose in consequence of his disability. Based upon the claimant’s own evidence, there was no such decision. However, we did not accept that evidence. We found that the claimant must have made a decision not to explain that he was absent on ill health grounds, at some point during the three interviews and the exchanges of emails which preceded the second respondent receiving the reference. Accordingly, we found that at some point he did make that decision. However, we did not find that there was any genuine evidence that the reason for that decision was in consequence of the claimant’s disability. In broad terms, the decision was related to the absence, but there was no genuine evidence that it was a consequence of the claimant’s disability (even in part). We did not find that the claimant’s decision not to disclose that he was off work at Aticus Law when he spoke to the second respondent, was something which arose in consequence of the claimant’s disability.

[111]In issue 3.4 it was asked: has the claimant proven facts from which the Tribunal could conclude that the unfavourable treatment was because of any of those things? We found that the reason for the retraction of the job offer was the second respondent’s belief or perception that the claimant had not been honest with her. Irrespective of the accuracy of that view, we entirely accepted the second respondent’s evidence that that was why she made her decision. We did not need to decide (nor have we) whether the claimant was in fact dishonest. As the respondents’ representative emphasised in his submissions, the key issue was what the second respondent believed, and we accepted her evidence about that belief.

[112]On that basis, the decision to retract the job offer was not because of the claimant’s sickness absence from Aticus Law, it was because the second respondent had formed the view that the claimant had been dishonest in what he had said to her. That perception of dishonesty was not any of the things found to have been the something arising from the claimant’s disability. As a result, we did not find that the unfavourable treatment was because of the things relied upon and found to have arisen in consequence of the claimant’s disability.

[113]For issue 3.6, had we needed to have done so, we would not have found that the respondents were justified, that is that the treatment would have been a proportionate means of achieving a legitimate aim. We would not have found that it/she had a legitimate aim. That was for the simple reason that no such aim or aims had ever been pleaded. No legitimate aims were pleaded in the initial grounds of response. The respondents were given the opportunity to put forward any such aims in a revised response, but they did not do so. The first time that any actual potential legitimate aims were raised, were in the submissions at the end of the hearing. As a result, we would not have found any legitimate aims, as none had been advanced as parts of the respondents’ pleaded cases. That addressed the potential issues set out as issue 3.6 in the list.

[114]For the reasons explained, the claimant’s complaint of discrimination arising from disability did not succeed because the respondents did not have actual or imputed knowledge of the disability, and also because the claimant had not proven what was required as set out at issue 3.4.

Summary

[115]For the reasons explained above, the Tribunal did not find for the claimant in any of his claims against the respondents. Employment Judge Phil Allen 5 August 2024