Mr Arthur Moan v Optimal Strategix Group Ltd: 2416875/2018

EMPLOYMENT TRIBUNALS

Case No 2416875/2018

Between

Mr Arthur MoanClaimant

Optimal Strategix Group LtdRespondent

Before

Employment Judge A M Buchanan

Members

Mrs P J Byrne and Mr C S Williams

Ms L Quigley (instructed by Counsel) for claimant

Mr T Wood (instructed by Counsel) for respondent

Date 7 January 2020

JUDGMENT

It is the unanimous judgment of the Tribunal that:

[1]The claims of direct disability discrimination are well-founded and the claimant is entitled to a remedy.

[2]The claims of disability discrimination by failure to make reasonable adjustments are well-founded in part and the claimant is entitled to a remedy.

[3]The claims of discrimination arising from disability are well-founded and the claimant is entitled to a remedy.

[4]By consent, the claim for wrongful dismissal is well-founded and the claimant is entitled to a remedy.

[5]The claim of ordinary unfair dismissal advanced pursuant to sections 94/98 of the Employment Rights Act 1996 (“the 1996 Act”) is dismissed on withdrawal by the claimant.

REASONS

1.1 The claimant instituted proceedings on 23 November 2018 supported by an early conciliation certificate (“ECC”) on which Day A was shown as 22 November 2018 and Day B as 22 November 2018. An earlier claim form was rejected for want of an early conciliation certificate. A timely response was filed in which the respondent denied all liability to the claimant.

1.2 At a private preliminary hearing before Employment Judge Holmes on 1 March 2019, the various claims advanced were defined and case management orders were made including an order for a list of issues to be filed.

1.3 The matter came before this Tribunal as set out above. Reasonable adjustments were made to the conduct of the hearing to accommodate the disability of the claimant taking account of the guidance from the Equal Treatment Handbook of February 2018. Regular breaks were taken throughout the hearing in particular during the time the claimant was giving evidence. The Tribunal room was slightly rearranged to accommodate the needs of the claimant who is a wheelchair user.

1.4 The Tribunal met in Chambers on 22 November 2019 to complete its deliberations and this Judgment is issued with full reasons in order to comply with Rule 62 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

1.5 At the outset of the hearing the claimant applied to amend the list of issues which had been filed. In essence this was an application to amend the claim of failure to make reasonable adjustments. The Tribunal considered the application in that light and reminded itself of the guidance in Selkent Bus Company -v- Moore

1996 IRLR 661

. The Tribunal allowed certain amendments but not others. The list of issues set out below reflects the issues before the Tribunal in light of the decision made on the amendment application.

The claims

[2]The claimant advanced the following claims to the Tribunal:-2.1 A claim of direct disability discrimination relying on the provisions of sections 13 and 39 of the Equality Act 2010 (“the 2010 Act).

2.2 A claim of disability discrimination by failures to make reasonable adjustments relying on the provisions of sections 6, 20/21, 39 and Schedule 8 of the 2010 Act.

2.3 A claim of discrimination arising from disability relying on the provisions of sections 6, 15 and 39(2)(c) and (d) of 2010 Act.

2.4 A claim of wrongful dismissal relying on the provisions of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the 1994 Order”). At the outset of the hearing the respondent accepted liability for this claim RESERVED JUDGMENT Case Number: 2416875/2018 but no concession was made in respect of the amount of damages flowing from the breach of contract.

2.5 A claim of ordinary unfair dismissal was withdrawn by the claimant at the outset of the hearing on the basis that it was accepted that the claimant did not have the qualifying service required by section 108 of the 1996 Act necessary to advance such a claim.

The Issues

[3]Having considered the application from the claimant referred to above, the issues in the various claims advanced to the Tribunal were as follows: Section 13 of the 2010 Act: Direct discrimination 1. Did the respondent:1.1 Adjust the claimant’s role and responsibilities by:

(a) Removing direct line reports (Neil Davis, Jasneet Suri and Jamie Doyle)

(b) Abolishing/undermining his role as Sales Team Leader by employing David Culley as Sales Director on 9 July 2018 and having him report to the CEO as opposed to the claimant.

1.2 Exclude the claimant from/ not require the claimant to attend the 3-day team meeting from the 31 July - 2 August 2018 at Head Office in USA;

1.3 Exclude the claimant from/ not require the claimant to attend the meeting on the 28 August 2018 in Sweden. 2. If so, did the Respondent treat the claimant “less favourably” than it would have treated a hypothetical Vice President of Sales who was not disabled? 3. If so, was the reason for said treatment because of the claimant’s disability or not? Section 15 of the 2010 Act: Discrimination arising from disability

The Issues

[1]The claimant relies on the following as acts of unfavourable treatment:1.1 Imposition of a Performance Improvement Plan (“PIP”)

1.2 Failure to allow the claimant to attend the USA meeting

1.3 Failure to allow the claimant to attend the meeting in Sweden

1.4 Failure to support or to adequately support the claimant

1.5 Dismissal

[2]Save for 1.4 it is admitted that the above were done by the respondent and would constitute “unfavourable treatment”.

[3]In treating the claimant as above, was the reason for said treatment due to “something arising in consequence of the claimant’s disability” or not? In particular:3.1 Was/were the claimant’s performance and/or sales figures affected by the fact he worked part-time for 2 months due to his disability or not?

3.2 Was the claimant’s performance and/or sales figures affected by the fact he did not attend the USA and Finland trips and, if so, was this connected to his disability or not?

3.3 Was the claimant’s performance adversely affected by the fact that the claimant was not office based or not and, if so, was this connected to the claimant’s disability or not?

3.4 Were the issues with the claimant’s behaviour including the fact that he held a meeting at his home office due to something arising in consequence of the claimant’s disability or not?

3.5 Was the claimant’s performance/behaviour generally affected due to something arising in consequence of his disability or not?

[4]If so, was such treatment a proportionate means of achieving a legitimate aim or not namely ensuring that the respondent has sales people that contribute to the income of the company, and do so at a level commensurate with their status and experience. Sections 20/21 and Schedule 8 of the 2010 Act: Failure to make Reasonable Adjustments

The Issues

[1]The claimant relies on the following “provision, criterion or practices” (“PCP”):1.1 Requirement for home working including that the claimant pay for his own home office;

1.2 Requiring other members of staff to be present in the office in order for the claimant to work

1.3 Not engaging with Access to Work until office move was completed;

1.4 Meetings should not be conducted with colleagues at home office

[2]Were the above applied by the respondent to the claimant or not?

[3]If so, did the same place the claimant at a substantial disadvantage as compared with non-disabled employees or not?

[4]At the material time, did the respondent know or reasonably ought to have known that the claimant was disabled or not?

[5]If so, did the Respondent take such steps as it was reasonable to have to take to avoid the disadvantage or not?

Findings of Fact

[6]Having considered all the evidence both oral and documentary placed before us and in particular the way the oral evidence was given, we make the following findings of fact on the balance of probabilities:6.1 The claimant was born on 20 February 1973. He has a successful background in sales. The claimant’s successful track record impressed RS and was a major factor in the claimant being made an offer of employment with the respondent.

6.2 On 11 August 2017, whilst on holiday in Spain, the claimant suffered a serious accident which has resulted in him becoming paraplegic. During the course of exchanging messages with SD in the period September 2017 until March 2018 (page 76), the claimant referred more than once to being optimistic that he would walk again. In November 2017 the claimant referred in a message to SD that he was to use a wheelchair (page 80).

6.3 The respondent concedes that the claimant was a disabled person for the purposes of section 6 of the 2010 Act for all purposes in relation to the claims advanced pursuant to sections 13 and 15 of the 2010 Act. The respondent concedes that it had knowledge of that disability at all material times for the purposes of the claims advanced under sections 13 and 15. No such concession is RESERVED JUDGMENT Case Number: 2416875/2018 made in respect of the claims advanced under sections 20/21 of the 2010 Act in respect of any disadvantage suffered by the claimant.

6.4 The claimant was introduced to the respondent in January 2018 through SD who by coincidence later became the managing director of the respondent and the effective line manager of the claimant. The claimant was interviewed by RS on 21 February 2018 (page 102) and in readiness for that interview prepared a presentation (page 89 onwards). RS saw that the claimant was a wheelchair user but chose to make no enquiries of the claimant about that. The claimant did not say to RS that he would no longer need a wheelchair at any time because, as a paraplegic, that was highly unlikely ever to be so. The claimant did indicate that he needed two months of intensive physiotherapy to help improve his condition and to help him achieve a level of fitness to be able to undertake full time duties and thus it was indicated that the claimant would need to work part time in the first two months of any employment - if such employment was offered.

6.5 We find that RS assumed wrongly that, after a period of time, the claimant would no longer be a wheelchair user. Stereotypical attitudes were in play in that RS assumed the claimant would not be able to undertake the role under discussion if he was a permanent wheelchair user and that being fit for work meant for RS that the claimant would be out of his wheelchair. There was no discussion at interview of any reasonable adjustments save in respect of part time working hours for the first two months of any employment. Our conclusion that discriminatory stereotypical attitudes were in play is reinforced by the content of the ET3 where an assumption is made that female members of staff would not be able to help the claimant evacuate Station House Altrincham (where the claimant was to work).

6.6 On 22 February 2018 RS wrote to the claimant with details of an offer of employment (page 102) in which the start date was to be 1 March 2018 at “our Manchester office”. When he replied to that proposal (page 105) the claimant stated that his rehab team had recommended he scale up his activity through March and April 2018 and so he suggested to RS that he work in March 2018 for 2/3 hours at home each day to help him recover from a pressure sore he had developed. He would work from 12noon until 5pm daily in April 2018 in the office and then full time from May 2018 onwards. The claimant suggested he forego salary in March 2018 but that he be paid in April 2018 on a full-time basis to reflect his working hours in March 2018. The claimant signed the offer of employment on 8 March 2018. The claimant was to head up a new sales team and achieve sales for the respondent in the UK and elsewhere in Europe from a standing start. The respondent was established in the USA but not in the UK and Europe at this point.

6.7 On his first day in the office the claimant completed a personal details form (page 116) on which he wrote: “Due to a spinal cord injury could be prone to Autonomic Dysreflexia which can be considered a medical emergency. AD is over stimulation of the nervous system”. In addition, in the first working week the claimant asked for assistance to bring his wheelchair from the boot of his car to his driver side door when he arrived at the office each day. The claimant had dealings mainly with the Office Manager/PA to RS namely Louise Holland (“LH”) from whom the Tribunal did not hear. In those circumstances we accept the evidence of the claimant in relation to his interactions with LH.

[7]We received detailed written submissions from the representative of the respondent by way of opening and closing submissions which were supplemented by concluding oral submissions and these are summarised. The claimant provided detailed written closing submissions which were supplemented by oral submissions and these are summarised. Respondent7.1 In respect of the adjustment claims, there must be a correlation between the particular disadvantage relied on by the claimant and the steps taken to alleviate the disadvantage. This is a comparative exercise to test whether the individual PCP had the effect of producing the relevant disadvantage between those who are and those who are not disabled. The test of what is a reasonable adjustment is an objective one. The claimant had presented with an optimistic position that he would walk again to SD and on balance it is likely that is how he presented at interview to RS. The respondent should not be criticised for failing to check whether the effects of the impairment were going to be permanent.

7.2 Detailed submissions were made in respect of each of the PCPs asserted and the adjustments contended for.

7.3 The respondent would have benefited from the evidence of LH. The evidence of RS was credible, consistent and detailed. The claimant did not express any disadvantage caused by not being present in the office or any displeasure around not attending trips abroad or that his performance had been impacted by his disability.

7.4 A requirement to work at home did not disadvantage the claimant when compared with non-disabled employees also required to work at home. There was no disadvantage to the claimant in not being present in the office for he had the use of Skype and a mobile telephone. The claimant moved to his home office for other personal reasons. The claimant could not work in the office because the requirements of the landlord prevented him doing so.

7.5 The failure to engage with ATW did not cause a disadvantage to the claimant and in any event, there was no adjustment which would remedy that situation. There was no disadvantage in the PCP that meetings should not be conducted at the claimant’s home and it was not reasonable that they should as this could generate other liabilities for the respondent. That was an appropriate concern.

7.6 The claimant was not prevented from attending the training session in the USA. There was no detriment to him. There is no prima facie case of direct disability discrimination in relation to the presentation in Sweden. The explanation that the claimant had not been involved in writing the bid should be accepted. This was RESERVED JUDGMENT Case Number: 2416875/2018 nothing more than a business decision and the claimant’s disability had no influence on that decision at all.

7.7 The reason that the claimant’s team was changed had nothing to do with his disability and no prima facie case is established. In any event the explanation offered by the respondent should be accepted.

7.8 The USA trip and the presentation in Sweden were not discriminatory exclusions and they did not affect the claimant’s sales performance. Working part-time for two months did not affect the claimant’s performance. None of the targets set for the claimant were met. The claimant suggested that his performance had not been impaired at all and that his dismissal was unfortunate and that he was happy to work his notice period.

7.9 In oral submissions it was stated that the evidence of RS should be accepted and that it was clear he acted in good faith throughout. Reliance was placed on the documentary evidence which cannot be distorted by the passage of time and is the best guide to the events and the motivation for those events. The case advanced by the claimant that the respondent did not know what to do with him as a disabled employee and did not want to deal with him are all clearly untrue when seen against the documentary evidence. The respondent learned on 12 April 2018 that the claimant’s use of a wheelchair was permanent but nothing happens after that date to evince a change of attitude. The respondent invested in the claimant by appointing additional sales staff and he did not register any concerns in respect of his treatment during his employment in particular in relation to the presentation in Sweden. The basic position is that the claimant did not meet his targets and was ultimately dismissed. His disability played no part in that decision and all claims should be dismissed. Claimant

7.10 The claimant set out detailed written submissions extending to 23 pages.

7.11 In oral submissions it was submitted the question of the respondent’s motive or intention was not relevant to the question of liability for direct discrimination. It is clear the claimant’s role changed. His status changed and this is a detriment. The claimant lost responsibility for all his reports by hook or by crook and only the respondent knows the reason. There are gaps in the respondent’s evidence on this matter and indeed on many other matters. There is no evidence of the resignation of Jasneet Suri. The Tribunal was invited to join the dots in light of the lack of transparency in the evidence provided by the respondent. Members of staff were dismissed without any consultation with the claimant. There was a claimed restructure but no evidence to support such a restructure. It beggars belief that there should be no documents to support a restructure if one in fact took place and it should be inferred that it did not. Both witnesses for the respondent were disingenuous and unhelpful and would not answer straightforward questions. The claimant was side-lined and the question must be asked what was the reason for that. The respondent’s witnesses patently told lies and there is no good reason for them to have done so and the question must be asked why did they do so. Witness statements contained obfuscation of the worst kind and they were designed to mislead and in fact produce a case which was not RESERVED JUDGMENT Case Number: 2416875/2018 heralded in the response. The respondent is a multi-million business professionally represented throughout which has sought to deliberately mislead the Tribunal. The absence of LH as a witness is a startling omission: such witnesses as the respondent did call clearly colluded in the preparation and presentation of their evidence. Their statements are full of hearsay and lack transparency. Important documents have not been produced. Their evidence cannot be trusted and an adverse inference should be drawn. The disability of the claimant was clearly a factor in the removal of the claimant’s reports and status.

7.12 In cross examination the respondent abandoned the explanation that the reason for the claimant not being allowed to go on the American trip was because there was no insurance and he was too experienced. Those who did attend were, like the claimant, vice presidents of sales globally. The respondent now says the claimant could have gone. The reality is there was no reason for the claimant not to attend and the only explanation can be his disability. The comparator is a vice president of sales who was not a paraplegic. The vacuum which exists to explain the claimant’s absence from the American trip can only lead to the conclusion that disability was a factor. There was no medical evidence obtained by the respondent and no risk assessment carried out in relation to the claimant’s ability or otherwise to attend the team meeting in America. The respondent did nothing but it acted in an overly cautious manner. The respondent was flustered by the situation with the claimant and did not get its act together – the solution was to put the claimant out of sight and so out of mind. The comparator would have travelled to the USA.

7.13 In relation to the trip to Sweden, there is no reference to insurance. The claimant offers to give up his holiday but received no reply. The claimant was meant to be going on that trip and there was no reason why he should not go. The explanation now given that others on the team did not go has not previously been pleaded. The reference to “given the situation” on page 251 is disastrous at best. The explanation provided by the respondent for the claimant not to attend is wholly unconvincing. It is self-evident the claimant should have gone. This was a big pitch and the question arises did the claimant not go because a vice president of sales in a wheelchair would look bad? The claimant does complain about the matter on 10 August 2018 and received no response (page 279).

7.14 There is no sustainable defence to the adjustment claims. The claimant was deprived of the choice of working either in the office or at home and that is a substantial disadvantage. He suffered a lack of interaction with colleagues, a lack of physical space and had to pay for his home office. Reliance is placed on the personal evacuation plan (PEEP) but that has not been produced and no risk assessment has been produced. There are gender-based assumptions made in the form of response. The concerns of the employees about having to assist the claimant were placed above the concerns of the claimant himself and as a result a level playing field was not achieved. The respondent has not produced a list of employees working at Station House and it has been like pulling teeth to find out who did work there. The number of employees does not hold water from day one, the wheelchair movement issue disappeared by week two, the pressure sore was a non-issue. The respondent did nothing to make adjustments and the obvious adjustment was to allow the claimant to work at the office.

[8]The Law Direct Disability Discrimination8.1 We have reminded ourselves of the provisions of section 6 of the 2010 Act and also of section 13 which reads: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

8.2 We remind ourselves that direct evidence of discrimination is rarely forthcoming and thus there are particular rules in respect of proving unlawful discrimination referred to below. It is now readily accepted that discrimination need not be conscious. Some people have an inbuilt and unrecognised prejudice of which they are unaware. A discriminatory reason for the conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of ‘significant influence’, see Lord Nicholls in Nagarajan v London Regional Transport

[1999] IRLR572

at page 576. In some cases discrimination is obvious. However, the Tribunal in most cases will have to discover what was in the mind of the alleged discriminator. In Nagarajan (a case involving RESERVED JUDGMENT Case Number: 2416875/2018 race discrimination but equally applicable to alleged disability discrimination) Lord Nicholls said at page 575 that: “Direct discrimination, to be within section 1(1) (a), the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to enquire why the complainant has received less favourable treatment. This is a crucial question. Was it on the grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in the obvious cases, answering the crucial question, will call for some consideration of the mental process of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision would have to be deduced, or inferred, from the surrounding circumstances”.

8.3 The Tribunal has reminded itself of the provisions of section 136 of the 2010 Act and the detailed guidance in Igen -v- Wong & Others

2005 IRLR 258

. That case of course was dealing with sex discrimination under the Sex Discrimination Act 1975 but is equally applicable to disability discrimination claims under the 2010 Act

8.4 In Madarassy v Nomura International Plc, in the Court of Appeal, Lord Justice Mummery said at paragraph 56: “The court in Igen v. Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”. And later at paragraphs 71 and 72: “Section 63A(2) [Sex Discrimination Act] does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or a situation for which comparisons are made are not truly like the complainant or a situation of the complainant; or that, even if there has been less favourable treatment of the complainant it was not on the grounds of her sex or pregnancy. Such evidence from the respondent could if accepted by the tribunal, be relevant as showing that contrary to the complainant’s allegation of discrimination, there is nothing in the evidence from which the tribunal could properly infer a prima facie case of discrimination on the proscribed ground. As Elias J observed in Liang (at paragraph 64), it would be absurd if the burden of proof moved to the respondent to provide an adequate explanation for treatment which, on the tribunal’s assessment of the evidence, had not taken place at all”.

8.5 The Tribunal has reminded itself of the guidance in the decision of Underhill J in Amnesty International –v- Ahmed

2009 IRLR 844

who after dealing with cases of

Discussion and Conclusions

[9]We approach our conclusions by dealing with the various disability discrimination claims advanced and issues arising in the following order:9.1 The claims of direct disability discrimination.

9.2 The claims in respect of alleged failures to make reasonable adjustments.

9.3 The claims in respect of discrimination arising from disability. Matters of general application

[10]Before dealing with the specific disability discrimination claims advanced, we make some general findings which are relevant to each of the discrimination claims advanced in terms of the drawing of inferences from the primary facts found by us and also in terms of whether there exists the required additional so-called Madarassey factor before the burden of proof would shift to the respondent to explain any less favourable treatment found to exist by us in terms of the direct discrimination claims advanced.10.1 The two witnesses who appeared before the Tribunal for the respondent were two of the most unimpressive this Tribunal has encountered. It was plain that their evidence had been written either together or for them by a third party as several of the paragraphs in both statements were identical. When asked about this, the witnesses denied that they had colluded and denied that the words were other than their own and said that any similarity was coincidental. This was patently untrue and had a serious bearing on our assessment of their credibility and reliability as witnesses.

10.2 Both witnesses for the respondent were severely damaged in the course of cross examination. We accept the submission of Ms Quigley that RS consistently sought to avoid answering questions put to him but rather sought to answer questions he wished had been put to him. RS failed time and time again to give a straight answer to a straight question and sought to shift the focus away from questions he was obviously finding it difficult to answer. RS sought to explain under cross examination the movement of staff away from the claimant by reason of a “restructure”. This alleged restructure was not heralded in any pleading and indeed was not referred to in the witness statement of RS but emerged in cross examination. The respondent is a relatively large international company but no documentary evidence of any kind has been produced to evidence any such restructure. We reject any suggestion of a restructure leading to the claimant’s sales team being moved elsewhere: the only evidence of that came from RS on whom we find we can place only very little reliance as a witness. We conclude that there was no restructure.

10.3 In the course of giving evidence the respondent’s witnesses referred to various documents said to exist which have not been produced to us. It was said that there was a capability procedure which would have dealt with the imposition of a performance improvement plan. That procedure was not produced to us. We infer that if it had been produced, it would not have justified the imposition of the PIP on the claimant in the manner and timescale which was applied in this case. Other RESERVED JUDGMENT Case Number: 2416875/2018 documents referred to were not produced including a grievance policy, a staff handbook and an organogram which apparently showed the structure of the respondent company and reporting lines. It was very difficult to obtain evidence from the respondent’s witnesses as to the number and identity of staff who worked at Station House, Altrincham at the relevant time. That straightforward evidence should have been available without difficulty, but it was not. We can make no findings as to who worked there and when. The claimant on whom we could place reliance as a witness was barely permitted to attend that office at all. The witnesses for the respondent could not or chose not to help us on that matter. We infer the respondent had something to hide. In addition, the respondent chose not to produce to the Tribunal the personal evacuation plan to which its witnesses referred as having been imposed on it by the landlord of the Building.

10.4 None of the witnesses for the respondent, and indeed none of the members of staff referred to by those witnesses, had received any training of their responsibilities under the 2010 Act.

10.5 At no time did the respondent seek any medical advice or Occupational Health advice on the claimant’s condition or on the type of adjustments which were needed in order to ensure that the claimant was not disadvantaged in the workplace. It was clear that the respondent simply did not know how to manage a disabled employee and chose to solve the problem by asking the claimant to remain away from the workplace, which he did for the whole of his employment except for certain days during the first two weeks of his employment by the respondent.

10.6 A character central to the events involving the claimant was Louise Holland. She was the life partner of the witness SD and we infer that she had made SD aware, before he began his own employment with the respondent in July 2018, of the difficulties she perceived she was having with the claimant and the adjustments necessary for him in the workplace. We accept that Louise Holland knew that SD had referred the claimant to RS as a potential employee and we infer that she told SD that the claimant was a permanent wheelchair user when that matter became known to her during the early weeks of the claimant’s employment. She was a central witness to the events of relevance to us. She remains an employee of the respondent company but yet was not called to give evidence and no meaningful explanation was given to us as to the reason for her absence as a witness. We infer that there was something to hide.

10.7 The claimant gave straightforward evidence in relation to his dealings with the respondent. The central facts are that the claimant began work on 26 March 2018 on a part time basis and did not begin full-time work until 1 June 2018 and yet by 31 October 2018 found himself summarily dismissed. The claimant was employed as a Vice President of Sales to oversee the sales of the respondent company in the UK from a standing start. It is common sense that to build up contacts and sales will take time in such circumstances. The respondent’s witnesses accepted that in the industry in which the respondent operated, a period of at least nine months should be allowed for leads to be established and orders obtained - particularly in the light of the type of goods being sold by the respondent company and particularly when, as in this case, the claimant was operating from a standing start. The claimant was not allowed that opportunity. We do not overlook the situation that in the period of his employment the claimant did not achieve any sales contacts or sales. However, RESERVED JUDGMENT Case Number: 2416875/2018 when the claimant returned from a holiday in late August 2018, he found himself immediately placed on a PIP for a two month period and then summarily dismissed in circumstances which lead us to infer, without hesitation or difficulty, that the decision to dismiss was pre-ordained and that the PIP was not a genuine attempt to improve the claimant’s performance but rather window dressing to remove someone from the respondent’s employment whose presence was a cause of problem and concern for the respondent. The question for us is whether the claimant’s disability was at least a factor in the thinking of the respondent which lead them to act as they did towards the claimant in the various ways covered by the various claims advanced.

10.8 In respect of the claims of direct disability discrimination, all those matters lead us to conclude that the additional factor is present which leads us to look to the respondent for an explanation of any less favourable treatment which we find to be present and as alleged by the claimant. It is to that question that we now turn.

[11]Direct Disability Discrimination claims: section 13 of the 2010 Act. Adjustments made to the role and responsibilities of the claimant11.1 We conclude that in the period from the end of June 2018 until 29 August 2018 the sales team for which the claimant was responsible was removed from his direct line reporting and effectively his role as Sales Team Leader for the UK was removed from him. We find that ND was dismissed by the respondent in July 2018 and that the claimant was not consulted about that dismissal or about the decision by RS that he should not be replaced. We find that Jamie Doyle was removed as a line report of the claimant without any consultation with the claimant or without any apparent rationale. David Culley (“DC”) was recruited by RS in July 2018 and given a line report direct to RS without any apparent rationale or explanation to the claimant despite DC being a member of the UK sales force for which the claimant was responsible. DC then replaced the claimant on the American visit and Sweden trip despite having less experience than the claimant and despite having less involvement in the Cargotec project than the claimant. We find that the claimant was not consulted about the absence of the employee Jasneet, who assisted the claimant - albeit from a different office, or the conversations which led to her subsequent resignation. The effect of all this was that within a short period of two months the claimant’s UK selling team had effectively disappeared. The claimant was effectively side-lined and the question must be asked why was this so? The side-lining of the claimant was clearly a detriment within section 39(2)(d) of the

11.2 The claimant relied on a hypothetical comparator with which to test this allegation of less favourable treatment. How would a hypothetical non-disabled UK sales director with all the same material circumstances have been treated? The claimant was paid a substantial salary and was employed to create from a standing start a UK sales department which involved working up sales leads and then sales. A sales team was gradually put in place to assist him. It was accepted that a period of nine months was acceptable for such a new position to show results. The claimant began full time duties only from the beginning of June 2018 and yet three months later found himself on a PIP with a clearly pre-ordained outcome. We have no hesitation in concluding that the hypothetical comparator would not have been RESERVED JUDGMENT Case Number: 2416875/2018 treated in that way. Despite the absence of sales leads and sales, more time would have been allowed for the process to come good. There are sufficient additional factors to which we refer at paragraph 10 above for us to seek an explanation from the respondent.

11.3 The respondent failed to provide any real explanation for this treatment of the claimant. In the course of cross examination, RS came to rely on a “restructure” as the reason these changes were made. That evidence was not heralded in the form of response (ET3) to these proceedings and was not referred to in his relatively brief witness statement. It emerged for the first time in cross examination and we wonder why that was so. No documentation of any kind was produced to support the so-called restructure and we accept the claimant’s evidence that, if there was such a restructure, he was not told about it or consulted about it in any way. We reject that explanation. We conclude there was no re-structure at all. We conclude that that evidence was an attempt by RS to mislead this Tribunal. We infer that the disability of the claimant, bringing with it into the workplace the problems perceived to exist by the respondent, was a material factor in the adjustments made to the claimant’s role between the end of June and the end of August 2018.

11.4 We have considered if there are time issues in relation to this particular claim. The adjustments to the claimant’s role occurred over a period of time but we conclude that the removal of the claimant’s team only became clear and was only complete at the end of August 2018. That being so, we conclude there are no time issues in respect of this particular claim as the provisions of section 123 (3)(a) of the 2010 Act apply. Any act occurring on or after 23 August 2018 is in time by reference to the ECC submitted on 22 November 2018. Should that conclusion be wrong, then we have considered if time should be extended by reference to the provisions of section 123(1)(b) of the 2010 Act. Any delay in advancing this particular claim is a short one, we accept that the claimant only had realisation that his disability had become a factor in his treatment by the respondent in mid-August 2018 and in particular when the PIP was imposed at the end of August 2018. The respondent has been able to deal with this allegation without any apparent difficulty in terms of the evidence relied on and available to it. The prejudice to the claimant in not extending time would be greater than that to the respondent if time was extended. We conclude that, should an extension of time be required to enable this claim to be advanced, it would be just and equitable for the period to be extended to 23 August 2018 to enable this claim to be considered.

11.5 The claim of direct disability discrimination in this regard is well-founded and the claimant is entitled to a remedy. Excluding the claimant from the American visit 31 July – 2 August 2018

11.6 We conclude that the claimant was excluded and not allowed to attend the three-day training meeting for Vice Presidents of Sales held in the United States of America on the above dates. We accept that this was an international meeting for experienced sales staff employed by the respondent and that the course was presented by an external consultant paid for by the respondent to deliver highly relevant training and strategy advice to employees of the respondent holding positions similar to that of the claimant. As a new director of sales in a new market area - the UK - everything points to the logic, and indeed necessity, for the RESERVED JUDGMENT Case Number: 2416875/2018 claimant to attend this meeting. We accept the evidence of the claimant that he indicated that he was prepared to pay himself for the appropriate insurance cover for the period of the trip or to sign a waiver in respect of any liability arising from the absence of insurance. We accept that the document produced to us (page 249) clearly evidences the claimant’s understanding that his inability to attend related to his issues with mobility and therefore with his disability.

11.7 We test this allegation by considering if the hypothetical comparator relied on by the claimant would have been treated in the same way. We conclude without difficulty that he would not. The course in America was designed to help employees of the claimant’s level of seniority with selling skills. The claimant was fulfilling a new role in a new market and clearly the skills being trained were highly relevant. The hypothetical comparator, who would have had no mobility issues and thus no difficulty with insurance cover, would have attended that course. The denial of permission to attend the course is clearly a detriment within section 39(2)(d) of the

11.8 We look to the respondent for an explanation – there being several reasons for us to do so as we set out in paragraph 10 above. RS stated in cross examination that one of the reasons for the claimant’s non-attendance was that he was too experienced to attend. That explanation is rejected. It is clear that it was originally intended that the claimant should attend the course and that others employed by the respondent at a similar level of seniority and experience to the claimant did attend it. The explanation is frankly risible. The respondent through RS also stated in cross examination that others of the claimant’s level did not attend because that was their own choice and also that the claimant could have gone if he had wanted to go. Those explanations are contradictory. It was also asserted that the respondent could not obtain insurance cover for the claimant to travel. That last explanation was patently untrue when close consideration is given to the such of the insurance documents of the respondent as were produced. The various explanations advanced are rejected and we infer that the issues with the claimant’s mobility and hence his disability were at the heart of the reason for his exclusion from the USA course. It was LH who was clearly charged within the respondent for dealing with insurance cover and liaising with insurers in respect of the claimant’s ability or otherwise to travel. We did not hear from LH. We infer the claimant could have travelled on the respondent’s insurance but that a decision was taken that he should not attend because of his disability. The claimant’s disability was a material factor in his non-attendance on that course.

11.9 We have considered if there are time issues in relation to this particular claim. The exclusion of the claimant from the USA course was clear by the end of July 2018 and thus the claim is some 23 days out of time. We have considered if time should be extended to enable this claim to be considered. Any delay in advancing this particular claim is a short one, we accept that the claimant only had realisation that his disability had become a factor in his treatment by the respondent in midAugust 2018 and in particular when the PIP was imposed at the end of August 2018. The respondent has been able to deal with this allegation without any apparent difficulty in terms of the evidence relied on and available to it. The prejudice to the claimant in not extending time would be greater than that to the respondent if time was extended. We conclude that, should an extension of time be RESERVED JUDGMENT Case Number: 2416875/2018 required to enable this claim to be advanced, it would be just and equitable for the period to be extended to 23 August 2018 to enable this claim to be considered.

11.10 The claim for disability discrimination is well-founded and the claimant is entitled to a remedy. Excluding the claimant from the presentation in respect of Cargotec in Sweden in August 2018

11.11 We conclude that it had clearly been the intention of the respondent that the claimant should attend the presentation to Cargotec. This is evidenced in an email (page 246) sent by RS to the claimant on 6 July 2018 and from the claimant’s reply on the same day making it clear he would fly into Sweden from his holiday to make the presentation given the importance of the deal. The claimant had led the preparation for the pitch to Cargotec and when that exchange of emails took place DC was not employed. Whilst this lead had been obtained for the respondent by RS, it was the claimant who had led on the “working up” of the lead and this lead was central to the claimant being able to meet his interim targets. We conclude the claimant was excluded from the presentation by deliberate decision of RS and that that decision was a detriment to the claimant falling within section 39(2)(d) of the

11.12 We test this allegation by considering how the hypothetical comparator relied on by the claimant would have been treated. We conclude that the comparator would have journeyed to Sweden to make the presentation. It was logical for the person who had been leading the work on the bid to make the presentation and for his offer to break into his holiday in order to attend to be accepted – particularly given the importance of the project for the respondent in general and for the claimant in particular. In not being allowed to attend the presentation the claimant was treated less favourably by the respondent in comparison to the hypothetical comparator.

11.13 We look to the respondent for an explanation. In cross examination and for the first time, RS sought to explain the decision on the basis that the claimant had been away on holiday in the days leading up to the presentation and the fact that the respondent was only to present to a team of four people and did not want to take a disproportionately large party. If that was the reason, then the question arises why was the claimant not told that was the case at the time – for no explanation was offered to him and he was left to deduce his presence was not required and was not told directly by RS or anyone else from the respondent that that was the case. The evidence of RS on this point was confused and unreliable and no cogent explanation was given for the claimant’s absence from the presentation which logically he needed to attend.

11.14 The explanations advanced by the respondent for the claimant’s nonattendance are rejected. We infer that the claimant was not allowed to attend the presentation to Cargotec because he was a wheelchair user, and as such, was not wanted at an important and prestigious presentation. There is no cogent explanation advanced by the respondent for the claimant’s treatment and no documentary evidence supplied of any kind to support what the respondent asserts RESERVED JUDGMENT Case Number: 2416875/2018 to be the explanation. We infer that the disability of the claimant was a material factor in the decision to exclude the claimant from the presentation.

11.15 We have considered if there are time issues in relation to this particular claim. The exclusion of the claimant from the presentation was notified on 22 August 2018 (page 251) and occurred on 28 August 2018. Given the date of the presentation, there are no time issues in relation to this particular allegation. If that decision should be wrong then we have considered if time should be extended. Any delay in advancing this particular claim is a short one, we accept that the claimant only had realisation that his disability had become a factor in his treatment by the respondent in mid-August 2018 and in particular when the PIP was imposed at the end of August 2018. The respondent has been able to deal with this allegation without any apparent difficulty in terms of the evidence relied on and available to it. The prejudice to the claimant in not extending time would be greater than that to the respondent if time was extended. We conclude that, should an extension of time be required to enable this claim to be advanced, it would be just and equitable for the period to be extended to enable this claim to be considered.

11.16 The claim for direct disability discrimination is well-founded and the claimant is entitled to a remedy. The claim of failure to make reasonable adjustments: sections 20/21 of the 2010 Act Knowledge of Disability

11.17 At the outset of the hearing the respondent conceded that there was no issue to be resolved in respect of its knowledge of the claimant’s disability in respect of the claims advanced under sections 13 and 15 of the 2010 Act. No such concession was made in respect of the reasonable adjustment claims and thus we consider that matter at the outset of our consideration of these claims. The second strand relating to knowledge of the substantial disadvantage to the claimant of any PCP imposed will be considered when we deal with each individual claim.

11.18 We note we must decide if the respondent had knowledge, and if so when, of the facts constituting the disability of claimant – the respondent does not need to know that as a matter of law the consequences of such facts are that the claimant was a disabled person for the purposes of section 6 of the 2010 Act. We must consider whether and when the respondent knew the claimant had a physical impairment which had a substantial and long-term adverse effect on his ability to carry out normal day to day activities. We find that the respondent knew or should reasonably have known by not later than the first day of his employment on 26 March 2018 that the claimant had a spinal injury, that he was a wheelchair user and could not walk. We accept that the claimant at interview on 21 February 2018 tried to make light of his injury but he did not tell the respondent that he was going to be able to walk again. The respondent was aware at interview that the claimant had been injured in an accident over 7 months previously. When completing a personal details data form for the respondent on his first working day, the claimant advised that he had a spinal cord injury. The respondent knew the claimant needed a disabled parking bay on a long-term basis before his employment even began and would need the use of an evacuation chair to leave the Building in the event of an RESERVED JUDGMENT Case Number: 2416875/2018 emergency. When completing a BUPA form for the respondent on 1 April 2018 the claimant declared that he had a spinal cord injury and paraplegia. On 12 April 2018 the claimant provided the respondent with a report from his consultant in spinal cord injury which confirmed the claimant had a spinal cord injury and was a paraplegic. A letter from the claimant’s GP dated 26 April 2018 sent to LH confirmed that the claimant had paraplegia “at the T9 level”. We conclude that the respondent could reasonably have been expected to know of the disability of the claimant by the first day of work for the claimant on 26 March 2018 given that the claimant arrived for work in a wheelchair. It fell to the respondent to do all that was reasonably expected of it to find out if the claimant had a disability. There was every basis for the respondent to make discrete enquiry of the claimant about the matter. The respondent could reasonably have been expected to know of the claimant’s disability by 26 March 2018 at the latest. The impairment was obvious and the substantial and long term adverse effects on day to day activities should reasonably have been known by that point. Requirement for home working

11.19 It is accepted by the respondent that the claimant was required to work from home from 5 April 2018 and that from 1 June 2018 the claimant provided himself at his own expense with a home office in a cottage close to his home. This requirement for the claimant not to work at Station House was re-iterated time and again during the brief period of the claimant’s employment. We conclude that this requirement was a PCP falling within section 20(3) of the 2010 Act.

11.20 We conclude that in order to assess the substantial disadvantage element of this claim, we should compare the claimant to a person holding the same position as the claimant within the respondent’s organisation but one who was not a paraplegic. There would have been no question of the non-disabled employee being required to work from home as the claimant was required to do. The nondisabled employee would have had the option to work from home, as did several of the employees of the respondent, but there would have been no compulsion and, had that comparator employee wished to attend the office for any reason, he could have done so. That element of choice was wholly removed from the claimant by the PCP and that, in our judgment, amounts without more to a substantial disadvantage in the sense of a disadvantage which was more than minor or trivial. The role which the claimant fulfilled was intended to be office based as the claimant’s contractual terms made clear. The PCP prevented the claimant from accessing the facilities available at the office of the respondent, prevented the claimant having direct and easy interaction with colleagues and prevented the claimant forging close links with colleagues which were all the more important in a new selling role which the claimant filled. We conclude that the PCP placed the claimant at a substantial disadvantage.

11.21 We conclude that the substantial disadvantage was known to the respondent or should reasonably have been known to the respondent. Both parties to the claimant’s contract had intended the position held by him to be office based. The respondent knew the claimant was deprived of the choice whether or not to attend the office. The respondent knew the claimant wanted to attend the office because he did so in the first two weeks of his employment until finally prevented from doing so by the respondent. We agree with the submission of Ms Quigley to the effect RESERVED JUDGMENT Case Number: 2416875/2018 that there is no requirement for the claimant to grieve the matter before the respondent can be said to be fixed with knowledge of the disadvantage. The claimant was in a new post and was trying to fulfil his duties without “rocking the boat” as he put it. He was “being humble” as he also put it. That does not mean the respondent can say that it was unaware of the disadvantage which is blatant and obvious. In any event the claimant made plain his wish to return to the office not least on 1 May 2018 when he wrote to the respondent (page 177) that he was “eager to get back in the office this week”. The respondent also knew that the claimant had no viable home office at his home in the period from 5 April 2018 until 31 May 2018 and had no separate room in which to work. The respondent knew that the claimant took it upon himself to find an alternative property where he was able to have a home office – notwithstanding that there were other domestic reasons for that alternative property to be found. We conclude that the respondent did have the requisite knowledge of the substantial disadvantage caused to the claimant by this PCP.

11.22 The reasonable adjustment contended for by the claimant was to be allowed to work in the office. This brings into sharp focus the various and changing reasons relied on by the respondent to prevent the claimant working in the office at Station House. The first reason relied on by the respondent related to the fact that the claimant needed help on his arrival at, and departure from, the office to move his wheelchair from the boot of his vehicle to his driver’s door. In fact, this was only the situation until 9 April 2018 for after that date the claimant made it known that he had mastered lifting the chair into his vehicle himself and did not require assistance. The second reason relied on for preventing the claimant attending the office was that he had revealed on 9 April 2018 that he had autonomic dysreflexia (“AD”) and that as a result the respondent needed to consider adjustment of its policies and consent from the claimant’s GP. However, this overlooks the fact that the claimant’s GP made it plain that the claimant was fit to work and that the claimant told the respondent that in fact his reference to AD was out of an abundance of caution and that he did not suffer any ill effects from that condition. We further accept that, even for the brief period of time when it might have been reasonable for the respondent to be concerned about the AD condition, the claimant made it clear that, if an attack occurred, he would need only to lie down and would not need assistance as such. The respondent relied on the need for clarity as to the claimant’s medical condition. However, the action taken by the respondent to seek such clarity was unreasonable. The respondent did not seek its own referral of the claimant to occupational health nor did it carry out a risk assessment in relation to the claimant’s occupation of the Building. By 30 May 2018 the respondent relied on the need for it to engage with its employment attorneys in order to consider the question of the claimant’s attendance but there was no evidence before us that any such engagement took place. As time moved into June 2018 the respondent relied on the need to recruit additional staff and the fact of a forthcoming office move (to the third or, as it turned out, the second floor of the Building) before the claimant could be allowed to work in the Building. We do not accept the evidence of the respondent with regard to these matters. The evidence as to which members of staff worked at Station House, and when, was confused and we can make no firm findings on that point: it is for the respondent to satisfy us that there were insufficient staff numbers working there to allow the claimant to be assisted from the building in the case of emergency and it has failed to do so. There was an office RESERVED JUDGMENT Case Number: 2416875/2018 at Station House throughout the time the claimant was employed and it was manned by more than one member of staff. SD worked mainly from the office when he started work for the respondent in July 201 but no attempt was made to return the claimant to the workplace. We conclude that there were more than 2 staff working in the office at all times during the claimant’s period of employment.

11.23 The respondent sought also to rely on the requirement of the landlord of the Building for there to be a personal evacuation plan for the claimant in the event of an emergency as a reason why he could not work in the Building. Any such requirement or plan was not produced to us and nothing other than vague assertions as to its contents and requirements were given to us. The fact remains that the claimant did work in the Building for two weeks with the knowledge of the landlord, who was instrumental in asking other occupiers to change car parking spaces in order to accommodate the claimant, and so any such objection did not apply at that time. We had no explanation as to why it should have suddenly become an issue after two weeks of the claimant working in the Building. We infer and conclude that there was no such objection from the landlord and that this was further evidence of delay and obfuscation on the part of the officers of the respondent who clearly did not know how to deal with the issues arising from the claimant’s disability.

11.24 We conclude that the respondent saw the claimant’s attendance at the office as a problem once it came to realise that the claimant was disabled, as it did, at the outset of his employment. With that knowledge came a realisation that it had duties to fulfil towards the claimant as a disabled employee – duties with which it was not familiar and which it did little, if anything, to inform itself about. We find ourselves in agreement with the submission of Ms Quigley that the respondent really had no reason to exclude the claimant from the office at Station House – other than perhaps for a short time whilst it made appropriate enquiries and carried out appropriate risk assessments. We agree that the picture painted, through the emails we have seen and from the evidence of RS in particular and from the absence of LH as a witness, is one of inaction and shifting nebulous reasons of an employer who did not know how to address the problems posed to it by the claimant’s disability. The picture also emerges of an employer who did not know or understand its duties towards its disabled employee, who took no meaningful steps to inform itself of those duties and who chose to find a solution by removing the claimant from the office and then, with the problem out of sight, put the issue out of mind to the extent that nothing was done at all which could have resulted in the return of the claimant to the office environment. The letter and spirit of the 2010 Act is to enable disabled employees to work on a level playing field with non-disabled employees so far as possible and to be retained in the workplace. In this case the respondent achieved the exact opposite of that position and failed in its duty to make reasonable adjustments to the PCP which was so obviously in play and which caused such obvious substantial disadvantage to the claimant. The adjustment contended for of being allowed to work in the office with appropriate policies and plans in place would have removed the disadvantage from the claimant. The claim of failure to make a reasonable adjustment to this PCP is wellfounded.

Discussion and Conclusions

[1]The parties having reached terms of settlement on remedy in this matter, the hearing is adjourned to enable those terms of settlement to be implemented.

[2]If neither party shall on or before 4pm on 22 July 2020 apply for the case to be restored to the list for hearing, the question of the remedy due to the claimant pursuant to the Judgment on Liability arising from the hearing on 22-25 October 2019 and 22 November 2019 shall, with the claimant’s consent given today, be treated as concluded without further order.

[3]This hearing was dealt with by the Tribunal as constituted above with the written consent of both parties pursuant to section 4(1)(b) of the Employment Tribunals Act 1996. Case Number: 2416875/2018 A M Buchanan EMPLOYMENT JUDGE