Trevor FarleyClaimantSunderland City Council PUBLIC PRELIMINARY HEARINGRespondent
Before
Employment Judge SweeneyDate 29 December 2022
JUDGMENT
[1]The complaint of unlawful deduction of wages under section 23 Employment Rights Act 1996 (‘ERA’) was presented after the period in section 23(2) ERA and the Tribunal was not satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period. Accordingly, the claim is dismissed[2]The following complaints under the Equality Act 2010 are struck out pursuant to rule 37(1)(a) of the ETs (Constitution & Rules of Procedure) Regulations 2013 on the ground that they have no reasonable prospect of success: 2.1. Direct discrimination on grounds of age; 2.2. Direct discrimination on grounds of sex; 2.3. Direct discrimination on grounds of disability; 2.4. Indirect sex discrimination; 2.5. Harassment related to age; 2.6. Harassment related to sex; 2.7. Harassment related to disability; 2.8. Victimisation[3]This does not affect the complaints of indirect disability discrimination, indirect age discrimination and failure to make reasonable adjustments as set out in the case management summary of the public preliminary hearing of 17 January 2022, which shall proceed to a final hearing. Case No: 2502170/2020 JUDGMENT having been given to the parties on 17 January 2022 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided.
REASONS
[1]The Claimant presented a Claim Form (ET1) to the Employment Tribunal on 21 November 2020. The proceedings were listed for a preliminary hearing on 23 February 2021 before Employment Judge Martin. She observed that the claims were unclear and that substantial further information was required to understand them and the basis on which they were being pursued. She identified ‘potential’ claims and issues and gave directions for the Claimant to serve further information by 06 April 2021 (paragraphs 1.1 to 1.8 of her Orders). She identified that the Claimant ‘appeared’ to be making complaints under 10 legal headings, which she listed in paragraph 3 of her case management summary. It is clear that Judge Martin did her best to discern what the complaints might be and structured the questions in her case management summary for the benefit of the Claimant, the Respondent and the Tribunal.[2]The Claimant provided information in response to Judge Martin’s orders. The matter then came before me at a further telephone preliminary hearing on 25 May 2021. As I set out in paragraph 7 of the case management summary of that hearing: “Mr Farley provided further information in response to those orders by way of a 22-page document. However, that information, rather than clarifying matters, only served to complicate matters further. I stressed that I was not being critical of Mr Farley. It is clear to me that he put a lot of work into producing that document. However, the document is not an easy read. I believe Mr Farley took on board what I was saying, which was intended to be constructive, with a view to ‘knocking his claim into shape’. Whether his complaints are of any merit is for another day. The difficulty at the moment is understanding what they are. Having noted that he was complaining of age discrimination, I asked Mr Farley to tell me, in simple language what was the worst ‘bad thing’ he was complaining of, so that this could form the basis of a discussion as to how he should present his complaint in a coherent way.”[3]The hearing in May 2021 involved a wide-ranging discussion where I endeavoured to structure the actual things that the Claimant was complaining of, in a way that could be understood and placed within relevant statutory provisions. I set out an illustration of our discussion in paragraph 9 of the case management summary. In seeking to understand his complaints, I asked the Claimant to describe to me what his complaint was regarding volunteer work at the crematorium. I recorded the complaint in paragraph 10 of the case management summary. In asking him to explain what the detriment was, he explained that so long as he feels it is a detriment that is enough to show that it is or that he has been subjected to a disadvantage.[4]I encouraged the Claimant to put his case clearly and succinctly. In paragraph 13, I set out in writing what we had discussed at the hearing: “Rather than spread his net as wide as he can, he should concentrate on the real issues, the real complaints. At the moment he has adopted a shotgun approach, saying to me (for example) that Mr Scott wanted him removed because of his age, because of his disability, because of his sex, because of other things. If he persists in running a case which cannot be understood and which alleges every possible permutation of discrimination he can think of, he runs the risk, as I explained that parts of his complaint could be struck out or (I would add) a deposit order made.”[5]At a further private preliminary hearing on 28 October 2021 there was another long discussion about the claims. By this time, Mr Farley had revised the complaints in a 12 page document dated 16 June 2021, referred to as ‘Revised Particulars of Claim’ in which he referred to the complaints as being: 5.1. Direct discrimination; 5.2. Harassment; 5.3. Failure to make reasonable adjustments; 5.4. Equal pay; 5.5. Unlawful deduction of wages[6]Those were the complaints that he was seeking to advance to a final hearing.[7]I directed that a public preliminary hearing be listed to consider whether the first three of the above should be struck out pursuant to rule 37(1)(a) (reasonable prospects of success) or whether a deposit order should be made and to determine a time point in relation to the fifth claim of unlawful deduction of wages. The complaint of equal pay was to be case managed separately.[8]The Respondent had prepared a bundle of documents for the purpose of the public preliminary hearing on 17 January 2022. The structure and outcome of the hearing is set out in my case management summary and orders sent to the parties on 21 January 2022.[9]The Claimant had prepared written representations in advance of the strike out hearing, in a 17-page document dated 02 December 2021.Mr Farley confirmed at the outset of the hearing that this document also contained the witness evidence he intended to give on the out of time issue in relation to the claim of unlawful deductions (see pages 3-4 of that document). On page 16, the Claimant mentioned a number of statutory provisions, some of which had never been identified or discussed before and also referred to section 27 EqA 2010 (victimisation), which had not featured in his Revised Particulars of Claim.
Relevant Law
[10]Rule 37(1)(a) ET Rules 2013 provides that all or any part of a claim or response may be struck out if, among other things, it has no reasonable prospect of success. This requires the tribunal to form a view on the merits of a case. Tribunals should be slow to strike out claims under this ground, recognizing that it is a draconian step. Particular care is required where cases are badly pleaded. The EAT has given guidance to tribunals in the case or Cox v Adecco and others [2021] I.C.R. 1307. The Claimant’s case must ordinarily be taken at its highest. Many claims are expressed incoherently or at great length in such a way that it is difficult to discern what the actual acts complained of are, or where they sit within the statutory provisions relied on. It is not unusual in employment tribunal litigation for litigants, especially unrepresented litigants, to raise multiple complaints over many years.[11]It is not enough to say ‘I don’t understand what the complaint is’. Tribunals must make a reasonable attempt to identify the claims and the issues before considering whether to strike out. Where there is lack of clarity in what is pleaded, especially by litigants in person, the tribunal should strive to establish more precisely what the claimant is arguing, if necessary by making amendments which properly reflect those arguments.[12]In Anyanwu v South Bank Student Union [2001] I.C.R. 391, the House of Lords highlighted the importance of not striking out discrimination claims except in the most obvious cases as they are generally fact-sensitive. The tribunal must consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospect of success: Balls v Downham Market High School and College [2011] IRLR 217. It is, as the authorities make clear, a high test, which involves taking the claimant’s case ‘at its highest’. That means examining the pleaded facts and for the purposes of the strike out consideration assuming, unless there is a completing reason not to, that the Claimant’s version of events is correct.[13]In Ahir v British Airways plc [2017] EWCA Civ 1392, the Court of Appeal observed that tribunals should not be deterred from strike out even discrimination claims that involve disputes of fact if they are entirely satisfied that there is no reasonable prospect of the facts necessary to find liability being established, provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been explored. This was echoed by a further Court of Appeal decision in the case of Kaur v Leeds Teaching Hospitals NHS Trust [2019] I.C.R. 1.[14]In Chandhok v Tirkey [2015] IRLR 195, Langstaff J observed at paras 19-20 that the cases in which a discrimination claim could be struck out before the full facts had been established are rare, giving examples of where there is a time bar to jurisdiction, where there is no more than an assertion of a difference of treatment and a difference of protected characteristic.[15]In Madarassy v Nomura International plc [2007] I.C.R. 867, CA, Mummery LJ said: “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 committed an unlawful act of discrimination.”[16]The ‘more’ required need not be a great deal but there must ordinarily be ‘something’ more and the ‘something’ must usually be identifiable or discernible. Further, although not irrelevant to the issue of inference, the fact that a claimant has been subjected to unreasonable treatment, is not, of itself, normally sufficient to as a basis for an inference of discrimination as to cause the burden to shift to the respondent: Glasgow City Council v Zafar [1998] I.C.R. 120, HL.[17]In cases of harassment, contrary to section 26, there must be unwanted conduct ‘related to’ a protected characteristic. In Land Registry v Grant [2011] ICR 1390, where he cautioned tribunals that they must not cheapen the significance of the words of section 26 requiring the effect of a violation of dignity, or the creation of an intimidating, hostile, degrading, humiliating or offensive environment, and that those words are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.[18]In cases of victimisation (section 27 Equality Act 2010), the employee must have been subjected to a detriment because he/she did a protected act.[19]In detriment claims under section 48 ERA 1996, in contravention of section of that Act, the rights in question are set out in section 44(1) and (1A).[20]Section 23(2) ERA 1996 provides: that: “Subject to subsection (4), an Employment Tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with - (a) In the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made”[21]Subsection (4) provides that: “Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.”[22]First, the Claimant must show that it was not reasonably practicable to present this claim in time; second, if he succeeds in doing that, the employment tribunal must consider the time within which the claim was in fact presented to be reasonable. What is reasonably practicable is a question of fact in every case. The onus of proving that it was not reasonably practicable to present the play in time rests on the claimant: Porter v Bandridge [1978] I.C.R. 943.[23]Whilst the issue may be a question of fact for the tribunal to decide, nevertheless the provision should be given a liberal construction in favour of the employee: Dedman V British building and engineering Appliances Ltd [1974] I.C.R. 53, CA. Discussion and conclusion[24]The hearing of 17 January 2022 was listed to consider: 24.1. Whether to strike out parts of the Claim or order a deposit; 24.2. Whether the complaint of unlawful deduction of wages was presented out of time and if so, whether time should be extended;[25]I struck out a number of the complaints and dismissed the unlawful deductions claim. Strike out[26]I take and apply the principles derived from the above cases (Chandhok, Madarassy and Zafar), not as ‘rules of law’ as such, but as important points of principle to bear in mind when analysing the prospects of success of the Claimant’s complaints (taking them at their highest) and in exercising my judgement on whether to strike out any part of the Claim.[27]The Claimant, despite being given every opportunity to do so, had failed to articulate a coherent case of direct discrimination or harassment which could be advanced to a final hearing. Having tried very hard – but ultimately failing - to identify such a case from the Claimant’s pleadings and further information, I concluded that some of his complaints, as I was able to identify them, had no reasonable prospect of success. Direct discrimination/harassment[28]The Claimant uses these phrases interchangeably. Of course, that is not unusual, as it is often the case that the two are pleaded in the alternative (section 212 Equality Act 2010 providing that they are mutually exclusive). I had extracted from the Revised Particulars what I understood to be the acts/failures complained of (this was not a replacement for the Revised Particulars, but an attempt to identify what it was said the Respondent had done).[29]The test on considering whether to strike out a part of a claim is whether it has no ‘reasonable’ prospect of success. It is not whether it has ‘no prospect’. Nevertheless, as I reminded myself, it is a high test and the exercise of the power is to be used sparingly.This is a case which has every appearance of being a wide-ranging grievance and general dissatisfaction with his employer and where the Claimant is unable to identify anything other than the things he complains of and his various protected characteristics. There is a real danger that a full-hearing involving everything that the Claimant wishes to complain of, going back many years, is rendered the equivalent of a grievance hearing, in which the Claimant simply makes reference to multiple statutory provisions because they look to him as if they fit with what he is saying. I appreciate that many of the statutory provisions are not easy to understand, especially for litigants in person. It was for that reason that I tried to extract the acts/failures complained of with a view to applying the relevant provision.[30]The Claimant had used the terms ‘bullied’ and ‘harassed’ to describe his treatment. Those are of course, descriptive terms. That is why Judge Martin ordered him to set out the actual conduct relied on (para 1.6 of her order). In reviewing what the Claimant said in response to that order, and in reviewing the Revised Particulars, I noted that there was still a distinct lack of specificity. Further, where there was specific reference to conduct (see the Appendix to the October 2021 hearing) there was little, if anything, from which it could properly be inferred, that the unwanted conduct related to any particular characteristic.[31]For example, Mr Farley was unable to say in what way the failure to arrange a timeous appeal (paragraph 13 of the October summary) related to any of the protected characteristics. As regards paragraph 16.1 of the October summary, he said that the conduct related to age because it was said to him and Mr Ashby and they were of a certain age. He said it related to ‘disability’ because he regarded it as a comment on his and Mr Ashworth’s ‘abilities’ and therefore, in his opinion, to ‘disabilities’. As regards paragraph 23.2 of the October summary he said that Helen Stubbs believed he had spoken rudely and she was drawing an unfavourable comparison with how people at the shipyard spoke to each other – wrongly believing the Claimant to have worked on a shipyard. Mr Farley said that, although he did not know what she meant, he would say this was age-related harassment because of the fact that the shipyards closed over 40 years ago and that reflects on his age. Taking it at its highest (and assuming Ms Stubbs said what the Claimant contends, namely that he used to work in the shipyards) there is no reasonable prospect of a tribunal concluding that the conduct related to age, as opposed to his manner, which is how he described it today. Further, bearing in mind the words of Elias LJ in Land Registry v Grant, I was of the view that there was no reasonable prospect of a tribunal concluding that the single, passing comment had the purpose or effect of creating the proscribed environment, especially given that the Claimant did not understand what she meant at the time and has ascribe a meaning to it after the event.[32]When I asked the Claimant whether he was relying on anything other than the fact of his various protected characteristics and the treatment complained of in the Appendix or the Revised Particulars, or anywhere else, he said that he was not. He argues that he has been the victim of direct discrimination (or harassment) in the way complained of by the fact that he happens to be a man of a certain age or a man of a certain age with respiratory issues and the fact that (as he alleges), these things happened to him. For example, the fact that the crematorium or office was not covid-19 secure. He argues that, taken with the fact that he is a man of a certain age with respiratory issues, those things mean that ‘it is discrimination’. As he put it more than once, it was ‘common sense’ that these things amounted to discrimination on grounds of disability, age and sex. I should say that, although Mr Farley relies on the combination of his characteristics in his claim of direct discrimination (despite section 14 Equality Act 2010 not being in force), I considered his arguments on the basis of him having separate characteristics.[33]On looking further through the Appendix, and having previously considered in detail the original ET1, the further information and the Revised Particulars, where Mr Farley describes events as undermining, or humiliating or that he was shouted at and that managers were unpleasant or derogatory or biased, or bullying or harassing, the allegations are largely devoid of content. What he regards as setting out with clarity the things that the Respondent did, I conclude to be his characterisation of the things that they allegedly did. Thus, he describes everything as bullying or harassment without identifying what it is that amounts to bullying or harassment. I consider there to be no reasonable prospect of him being more specific at a final hearing (and he has been ordered to be specific) nor do I consider there to be any reasonable prospect of a tribunal concluding that the motivation (conscious or subconscious) for interacting with the Claimant in the way he alleges to be because of or related to any of his protected characteristics or because he presented an equal pay grievance back in 2014.[34]Adopting the phrase from Madarassary, the Claimant has not pointed to and confirmed he will not be able to point to ‘something more’. He comes back to the fact that he is a man of a certain age with respiratory issues. I was satisfied that as regards the complaints of direct discrimination and harassment, there was no reasonable prospect of the claims succeeding – indeed no reasonable prospect of the Claimant establishing a prima facie case.[35]Having concluded that there was no reasonable prospect of success, I retained a discretion whether to strike out or not. I considered whether an amendment of the claims might be ordered so as to avoid that result. However, I was not at all confident that this would bring any further clarity or improve the prospects given the history of the proceedings thus far. Whatever way one looks at it, the case Mr Farley is advancing relies simply on the fact that he has protected characteristics and the things he complains of happens (as he alleges). Indirect sex discrimination[36]This had not been identified by me in paragraph 1.2 of the orders of 28 October 2021. That was because, as I understood it from the extensive discussion at that preliminary hearing, the Claimant’s complaint as described in paragraph 31 of that case management summary was limited to one of disability. During the public preliminary hearing of 17 January 2022, Mr Farley said that it should also refer to sex and also to age.[37]I struck out this complaint in so much as Mr Farley wished to argue indirect sex discrimination. I did so because Mr Farley confirmed that he will not be adducint any evidence on the effect of covid on women and men generally. There is no reasonable prospect of establishing group disadvantage. I must say that it seems an unnecessary point in any event, given that his real position is that he is in his 60s and has a respiratory condition confirmed, he says, as asthma and bronchitis. It is well recognised that covid is a greater risk to older people and to those with underlying health conditions (especially respiratory conditions) and it seems to me that the addition of a third protected characteristic is unnecessary in any event. Whilst this was not identified in my order of 28 October 2021, for the reasons stated above, I was satisfied that no prejudice was caused to the Claimant by me considering whether to strike it out and it would be disproportionate to have a further hearing to consider whether to strike that part of the claim out. Victimisation[38]The same goes for the complaint of victimisation. That had been identified as a ‘potential’ claim by Judge Martin when she issued her orders back in February 2021. Judge Martin directed the Claimant to identify the protected act(s) and detriment(s) relied upon in paragraph 1.7 of her orders. The Claimant’s response to that order was set out in 6 paragraphs. However, it did not feature in the Claimant’s Revised Particulars – thus it was not identified in my order paragraph 1.2 in October 2021. It resurfaced at the public preliminary hearing, when the Claimant made a passing reference to it on page 16 of his written representations (page 236 of the hearing bundle). Therefore, it appeared that the Claimant wished to revive that part of his claim.[39]The Claimant has used the terms victimisation and discrimination interchangeably.[40]Mr Farley said that he had also done protected acts, and that he felt victimised, that the things that happened to him were because he had done these acts. After a discussion about this, he said he had done protected acts as follows: 40.1. he presented a team grievance in 2014 – 2015 against the WFT grading and claiming equal pay; 40.2. he presented a grievance about the job application for the Housing officer role in 2019; 40.3. he presented an equal pay complaint and grievance about his job description in 2020; 40.4. he presented a grievance about bullying, harassment and lack of duty of care in 2020[41]He says that his pay was cut (in 2016-2017), his role of Housing surveyor was downgraded on WFT to a technical officer role because he complained about equal pay and that all of the bullying and harassment he has experienced was because of this. To the extent that he complains of direct discrimination and harassment on grounds of the combined characteristics of sex, age and disability, Mr Farley said that the things complained of were done also because he had presented these grievances.[42]As with his complaints of direct discrimination and harassment, the Claimant points to nothing other than that he presented grievances. I concluded that this complaint had no reasonable prospect of success for the same reasons as given in respect of the complaints of direct discrimination and harassment and that it was proper and proportionate for me to strike out at this hearing.[43]For completeness, I did not strike out a complaint under section 48 ERA for contravention of section 44 because, on my analysis, there was no such complaint pleaded on the Claim Form and none which, on a fair reading of it, could be discerned. Further, it did not feature in the Revised Particulars. Nevertheless, in light of the reference to section 44 in the Claimant’s written representations of 02 December 2021, I revisited the information provided by him in response to Judge Martin’s case management order at paragraph 1.8. I have to say that I do not know why it was identified as a ‘potential’ claim (it may have been the simple reference to ‘HSW’ in the Claimant’s Claim Form, but that is insufficient). In any event, upon reading the Claimant’s further information in response to Judge Martin’s order at paragraph 1.8, there is nothing there that brings the complaint squarely within section 44. However, there being no discernible pleaded claim in the ET1 or in the Revised Particulars, there was nothing to consider striking out. Unlawful deductions – time point[44]The complaint here is that the Claimant was paid less than that which was properly payable to him back in March – June 2017. The Claimant gave evidence and was cross-examined.
Findings of fact
[45]On 05 March 2020, the Claimant first raised a query regarding pay protection which was paid back in 2016 to 2017 (page 149). As a result of what he was told (on which I emphatically make no findings) he says he only received pay protection from 01 June 2016 to about March 2017, whereas he should have been paid protected pay up to the 01 June 2017.[46]The Claimant had always received a monthly pay statement which set out his gross and net monthly pay. Despite reading his monthly pay statements when they arrived, the Claimant did not at the time notice any shortfall in his monthly pay in March, April or May 2017. The Claimant knew what the pay protection arrangements were and had raised a dispute about the fact that he was in pay protection as a result of the Respondent’s workforce transformation project.[47]The Claimant does not know and is not able to say how much, if anything, he was underpaid in March, April or May 2017. He has not retained any pay slips or statements relating to that period of time.[48]Although on 05 March 2020 he queried whether he was underpaid back in 2017 (without ever having noticed any shortfall) he did nothing more about it until November 2020 when he complained about the (unidentified) shortfall to HR. Nothing had prevented the Clamant from presenting a complaint to the employment tribunal between March 2020 and November 2020. Indeed, in cross examination, when asked by Mr Forster why he did not present a claim in that period, he said that he would not ‘present a claim for that sort of figure’.[49]What I take the Claimant to mean by that is that the figure was so low that he would not present a claim just for that. How he could regard it as a ‘low’ figure was odd, given he was singularly unable to say what had been deducted.[50]The original time limit expired on 31 August 2017. Mr Farley contacted ACAS on 17 September 2020 and an EC certificate was issued on 31 October 2020. The complaint was presented on 21 November 2020. Discussion and conclusion[51]Mr Farley had not persuaded me that it was not reasonably practicable to have presented his complaint in time – the burden rests firmly on him to do so. His explanation for not presenting a claim before he did was that he never knew that he had suffered any deduction of wages until March 2020, even though he accepted receiving monthly pay statements and that he had disagreed at the time with the new grade for his post under the Respondent’s workforce transformation (WFT). He did not know what deduction, if any, was made or when. His claim is, putting it bluntly, hopeless, in any event.[52]Further, although he was unable to say what deduction, if any, was made, he believed as of March 2020 that something had been deducted. His explanation in evidence for not presenting a complaint then was that he would not present a complaint just for that amount.[53]I had no hesitation in concluding that it was reasonably feasible for the Claimant to have presented a complaint within three months of the last alleged deduction – if anything, he was in a ideal position to know what it was that was deducted (if at all) back in 2017 because he was in receipt of the monthly payslips. If he was ignorant of the fact that a deduction was made (and I am far convinced any was) then his ignorance was unreasonable, given that he had the very means to determine whether he had been paid less that was properly payable.[54]Further, he did not present his complaint within a reasonable period. It was over three years since the time-limit expired when the Claim was presented. That is not a reasonable period. In those circumstances the claim is out of time and must be dismissed. I would add again that it was hopeless in any event, given he accepted he did not know and was not in a position to say what if anything had been deducted.[55]Therefore, the complaint of unlawful deduction of wages is dismissed.
Findings of fact
Findings of fact
[1]This matter came before me this morning as the postponed stage 1 equal pay hearing, which had originally taken place on 11 May 2022. On that occasion, various case management orders were made, particularly relating to the claimant’s challenge to the respondent’s Job Evaluation Scheme known as “Work Force Transformation” (WFT). By Notice of Hearing dated 22 July 2022 the parties were informed that the postponed hearing would resume on 8 September 2022 at 10 o’clock at the Newcastle upon Tyne hearing centre. A copy of the Notice of Hearing appears on the Employment Tribunal file, addressed to the claimant at the address which appears on his claim form. The Tribunal file shows that the notice was sent to the claimant by email. The claimant’s out-box shows that the notice was sent to the claimant at 11:39am on 22 July and was not “bounced back” to the Tribunal. I am satisfied that the claimant was properly served with the Notice of Hearing. By 10am this morning the claimant had failed to attend the hearing and had not arrived 10:50am. A telephone call was made to the claimant, who indicated that he was unaware of today’s hearing. The claimant nevertheless agreed to travel to the Employment Tribunal as quickly as possible and eventually arrived at 12 noon. Mr Farley explained that he had not received Notice of Hearing and apologised for any oversight which may have been involved. I accepted that Mr Farley has always attended previous hearings in these proceedings and I am satisfied that he would not have deliberately failed to attend. The hearing therefore commenced at 12 noon.[2]The claimant has brought a number of complaints against the respondent, including unlawful age discrimination, unlawful sex discrimination, unlawful disability discrimination, unlawful deduction from wages and a claim for Equal Pay. Some of those claims have already been struck out and some are to proceed to a final hearing with a time estimate of 5 days, on 17 October 2022. The complaint relating to Equal Pay has been separated from the other claims.[3]The source of Mr Farley’s complaint is that in 2015-2016 the council undertook a Job Evaluation Scheme known as “Workforce Transformation”, as a result of which his job was re-graded and as a consequence of which his salary was reduced by some £2,500 per annum, following a period of pay protection. The claimant’s various complaints to the Employment Tribunal relate to the injustice he believes he has suffered because of that re-grading and deduction in his salary.[4]The claimant’s complaints of failure to pay equal pay are brought pursuant to the provisions of the Equality Act 2010. Those provisions outlaw gender-related pay differences. They do not legislate for fair pay, nor do they enable tribunals to award a claimant more pay than a comparator. A claim of equal pay is thus a complaint which involves unlawful sex discrimination. If there is no sex discrimination involved then, whether Mr Farley is happy with his pay or not, there can be no successful equal pay complaint. Throughout this stage 1 hearing, the Tribunal endeavoured to remind Mr Farley of that basic principle. Unfortunately, Mr Farley continued to refuse to accept that basic premise. It is difficult not to sympathise with Mr Farley, who genuinely believes that the re-grading of his role and subsequent reduction in salary was not only unfair, but a grave injustice imposed upon an employee with over 20 years’ service to the council. Throughout this hearing, Mr Farley remained unable or unwilling to accept that this perceived injustice did not of itself mean that there had been a breach of the equal pay provisions in the Equality Act 2010.[5]The claimant’s equal pay complaint has already been case managed at 3 earlier hearings before Employment Judge Martin and Employment Judge Sweeney. At the hearing before Employment Judge Sweeney on 25 May 2021, the claimant was invited to identify those posts with which he wished to compare his pay. Those were identified and agreed by the claimant as follows:-(i) Environmental Health Officer (undergrad) - trainee to qualified.(ii) Building surveyor.(iii) Private sector housing initiations officer.(iv) Housing officer.(v) Development officer, housing.(vi) Enforcement technical support officer. The claimant confirmed that all of those posts are graded higher than his (which is at Grade 5). However, he says that his work is very similar to those posts and he believes that those roles have a mix of men and women. It is therefore for the claimant to establish that the duties he undertakes in his role as a technical officer (Grade 5), are similar to those, following the downgrading of his previous role as a building surveyor. The claimant must then go on to show that female employees undertaking those broadly similar duties are paid more than him. That is the irreducible element of a complaint under the equal pay provisions.
REMEDY
[6]At the original stage 1 hearing on 8 July 2022, it was clearly recorded that those are the 6 roles which the claimant names as comparators for the purpose of these proceedings. The respondent’s defence to the claimant’s allegations in simple terms is as follows:- There are no female private sector housing initiatives officers, nor are there any female (housing officers.) building surveyors. Accordingly, the claimant could not possibly succeed in a complaint of failure to pay equal pay in relation to those posts. The respondent maintains that the female (building surveyors and private sector housing initiatives officers) enforcement technical support officers and trainee environmental health officers are all paid less than the claimant and accordingly there could never be a successful complaint of failure to pay equal pay in respect of those posts. Finally, in respect of the other roles, (namely Environmental health officer, housing officer and development officer, housing) , the respondent’s position is that there is or was in place at the relevant time a valid Job Evaluation Scheme, which amounts to a valid job evaluation study which produced higher grades for those posts than the post occupied by the claimant. Pursuant to section 131) (5) and (6) of the Equality Act 2010, the respondent maintains that the Tribunal must therefore determine that the claimant’s work is not of equal value to either of those roles, unless the Tribunal has reasonable grounds to suspect that the evaluation contained in the study was based on a system that discriminates because of sex or was otherwise unreliable.[7]The claimant today did not challenge that there are no female (private sector housing initiatives officers or (housing officers.) building surveyors) enforcement technical support officers and trainee environmental health officers. The claimant did not challenge that the female building surveyors and private sector initiatives officers are paid less than him. Accordingly, the complaints in respect of those comparators can have no reasonable prospect of success.[8]That leaves the posts of EHO, development officer (housing) and (enforcement technical support officers) housing officers. The respondent says that those are covered by the WFT Job Evaluation Scheme. The respondent invites the Tribunal to dismiss the claims based upon those comparators on the basis that the WFT determined that the claimant’s work is not of equal value to any of those roles.[9]Section 131(6)(a) and (b) permit the claimant to show that the job evaluation study was based on a system that discriminates because of sex or was otherwise unreliable. It is for the claimant to establish either of those. The burden of proof lies upon the claimant, although the threshold is accepted as being relatively low. In Bromley and Others v H&J Quick Limited [1988 ICR 623] the Court of Appeal found that the onus is on the employer to show that the job evaluation study does not discriminate on the grounds of sex. However, that decision was prior to the implementation of the Equality Act 2010, under which the Tribunal must find that the work is not of equal value, unless it has reasonable grounds for suspecting that the valuation was based on a discriminatory system or as otherwise unreliable. The claimant must therefore point to evidence relating to one or more of the evaluations contained in the study. It is not sufficient for the claimant to rely upon mere assertions. (Hartley and Others v Northumbria Healthcare NHS Foundation Trust – ET case number 2507033/2007). The evidence should be strong enough to give the Tribunal “reasonable grounds” for suspicion that there might such grounds. That would require the claimant to show at least something which may cause the Tribunal to suspect that the system used in the WFT discriminates because of sex. That means the values the system sets on different demands are not justifiable regardless of the sex of the person on whom the demands are made. Equal regard must be had to factors favouring men (physical effort) and to those which are neutral or favour women (mental effort) and any difference between the values set by the system on the different demands must be objectively justified.[10]At the hearing on 8 July 2022 the claimant was ordered to provide further information in the following terms:- “The claimant must send to the respondent (and copy to the Employment Tribunal) the basis of any challenge the claimant wishes to make against the respondent’s graving scene known as Work Force Transformation, which the respondent maintains amounts to a Job Evaluation Scheme within the meaning of section 55(4) and (5) of the Equality Act 2010. If the claimant maintains that Work Force Transformation was based on a system that discriminates because of sex, a claimant must explain in detail how the system discriminates because of sex. If the claimant maintains that the Work Force Transformation was “otherwise unreliable” then the claimant must explain in detail the basis of that unreliability.”[11]The claimant subsequently produced two documents, which he today informed me were his compliance with those Orders. Those documents are dated 18 July 2022, headed “Witness statement of Trevor Farley” and one dated 19 August 2022, headed “Basis of claims challenges as at Point 3 of EJ Orders received 22 July 2022”. The first of those runs to 10.5 pages and the second one runs to 21.5 pages. At today’s hearing I invited the claimant to identify to me those parts of either document where he identified any part of the Work Force Transformation which was tainted by discriminatory factors. The claimant was unable to do so. His response was that, following the Work Force Transformation, the only roles which were downgraded, were those of himself and his two male colleagues. The claimant could not identify any job classification system where the criteria for men and women was different or drawn up in any way so as to indicate any discrimination on the grounds of sex. The claimant took me to the scores allocated to his role, which appear at pages 243-244 in the bundle. I explained to the claimant that it was not the role of the Employment Tribunal to undertake a reassessment of any other criteria or the scores allocated under that criteria. At page 244 the claimant identified that the assessment form contains spaces for 5 signatories to sign the form and only 3 signatures have been provided. The claimant’s case was that this made the scheme “unreliable”. Ms Heard reminded the Tribunal that the requirement in the scheme was for a minimum of 2 persons to carry out the assessment and that in the claimant’s case it had been carried out by 3 persons. The claimant then pointed out that one of the missing signatories related to “assurance rep”, that this meant that the study had not been “quality assured” and was therefore “unreliable”. Again, Ms Heard pointed out that there was no requirement for the individual assessments to be “quality assured”, whatever that meant. There had been no challenge at the time by the trade union relating to the number of signatures or the absence of a “assurance rep”. The claimant had failed to show that the absence of an assurance rep made any difference to the assessment or the outcome of this study. The claimant had certainly not shown that any such absence amounted to reasonable grounds for suspecting that the study was unreliable.[12]In neither of his documents and in none of his submissions was the claimant able to satisfy the Tribunal that the assessment carried out under the Work Force Transformation in terms of effort, skill and decision making was possibly tainted by sex discrimination. The claimant could not produce any evidence which could lead the Tribunal to suspect that the system discriminated because of sex because any difference between the values that the system sets on different demands was not justifiable regardless of the sex of the person on whom the demands are made.[13]The real thrust of the claimant’s dissatisfaction with the scheme is shown on page 12 of the document dated 19 August 2022 when the claimant states: “The respondent has provided no discernible defence as no evidence has been provided to justify the pay cut.” As is referred to in the paragraphs above, the claimant has throughout these proceedings failed to differentiate between a difference in pay and a difference in sex, rather than continue to rail against the re-grading of his role and subsequent reduction in pay. Paragraph 7 on page 13 of the same document the claimant again states: “I will ask the judiciary to consider a legitimate basis for a £2,500 pay cut be justified by respondent when the factors of:-• Knowledge/educational qualification requirements/skill based.• Responsibility for people – (duty of care is a fundamental daily requirement of my role).• Responsibility for outcomes.• Communications/liaison requirements and IT skills.• Mental demands/capabilities.• Interpersonal skills.• Initiative and independence.• Responsibility for physical resources, among others. do not appear to have been assessed via accurate job description and person specification as these were not indicated or provided up to and for 8 July 2022 hearing or any allocation rationale”. Much of the claimant’s complaint in that regard is that the respondent had “deliberately withheld” the various job descriptions and person specifications, which the claimant says he required to enable him to carry out his analysis of the reliability of the Work Force Transformation. It had already been pointed out to the claimant that he had at an earlier hearing confirmed that he was in possession of a full copy of that job evaluation study. The Tribunal rejected the claimant’s argument that because the respondent had failed to provide the job descriptions and person specifications in a timely manner, then the entire job evaluation study was unreliable.[14]Section 131(5) and (6) of The Equality Act 2010 states as follows: (5) Subsection (6) applies where —(a) a question arises in the proceedings as to whether the work of one person (A) is of equal value to the work of another (B), and(b) A's work and B's work have been given different values by a job evaluation study. (6) The tribunal must determine that A's work is not of equal value to B's work unless it has reasonable grounds for suspecting that the evaluation contained in the study— (a) was based on a system that discriminates because of sex, or (b) was otherwise unreliable.[15]The Tribunal found that the claimant had failed to establish any evidence which could amount to reasonable grounds for the Tribunal to suspect that the Work Force Transformation was based on a system that discriminates because of sex or was otherwise unreliable.[16]Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 states as follows:-(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds — (a) that it is scandalous or vexatious or has no reasonable prospect of success;(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.[17]In respect of the comparators identified by the claimant, they are either not females, or are paid less than the claimant or involved in roles which fall foul of section 131(5) and (6). The Tribunal is satisfied that the Work Force Transformation satisfies the definition of “a job evaluation study” set out in section 80 of the Equality Act 2010 which states as follows:- (5) A job evaluation study is a study undertaken with a view to evaluating, in terms of the demands made on a person by reference to factors such as effort, skill and decision-making, the jobs to be done — (a) by some or all of the workers in an undertaking or group of undertakings.[18]The Tribunal is satisfied that none of the claims relating to the equal pay provisions of the Equality Act 2010 have any reasonable prospect of success. Those claims are struck out and are dismissed. G Johnson[1]On 7 April 2020 by instructing the claimant to work from the office to perform his role the respondent applied a PCP which it applied or would apply to persons of a younger age group to the claimant (who was in the “over 60s” age group) but which put persons of the claimant’s age group at a particular disadvantage. Alternatively[2]On 7 April 2020 by instructing the claimant to work from the office to perform his role the respondent applied a PCP which it applied to or would apply to persons who did not have the claimant’s disability (respiratory condition which was subsequently diagnosed as asthma and bronchitis) but which put persons with the claimant’s particular disability at a particular disadvantage.• The particular disadvantage was the increased risk to the health of those of the claimant’s age group and/or persons with the claimant’s particular disability, should they contract Covid and the associated worry that goes with that.• The PCP put the claimant at that disadvantage.• The respondent cannot show the PCP to be a proportionate means of achieving a legitimate aim.[3]On 29 April 2020, by instructing the claimant to visits shops as part of his role, the respondent applied a PCP which it applied or would apply to persons of a younger age group to the claimant (who was in the over 60s age group) but which put persons of the claimant’s age group at a particular disadvantage. Alternatively.[4]On 29 April 2020, by instructing the claimant to visit shops as part of his role, the respondent applied a PCP which it applied or would apply to persons who did not have the claimant’s disability (respiratory condition which was subsequently diagnosed as asthma and bronchitis) but which put persons with the claimant’s particular disability at a particular disadvantage.• The particular disadvantage is the increased risk to the health of those of the claimant’s age group and/or persons with the claimant’s particular disability, should they contract Covid and the associated worry that goes with that.• The PCP put the claimant at that disadvantage.• The respondent cannot show the PCP to be a proportionate means of achieving a legitimate aim. Section 20-21 Equality Act 2010 – Failure to make reasonable adjustments• On 6 April 2020, but for the provision of an auxiliary aid (namely appropriate PPE – masks/visors/hand-sanitiser/signage/social distancing instructions/written instructions on safety) the claimant would be put at a substantial disadvantage in relation to employment (specifically in relation to the work he had agreed to do at the crematorium) in comparisons with persons who are not disabled (specifically those who are not disabled by respiratory issues).• The substantial disadvantage was the increased risk to the claimant’s health, should he contract Covid and the associated worry that goes with that risk, leaving the claimant with little option other than to refrain from working at the crematorium.• The respondent failed to take such steps as were reasonable to provide the PPE and put social distancing measures in place and provide appropriate signage and written instructions for staff.• On 7 April 2020 the instruction to the claimant to work at the office to perform his role would, but for the provision of an auxiliary aid (namely the appropriate PPE as above) social distancing measures and written instructions on safety to staff put him at a substantial disadvantage in relation to his employment in comparison with persons who are not disabled, (specifically those who are not disabled by a reason of respiratory issues).• The substantial disadvantage to the claimant was the increased risk to the claimant’s health by working in the office, should he contract Covid and the associated worry that goes with that risk.• The respondent failed to take such steps as were reasonable to provide the PPE and put in place social distancing measures and provide written instructions on safety.• On 7 April 2020 by instructing the claimant to work in the office to perform his role, the respondent applied a PCP which put the claimant at a substantial disadvantage in relation to his employment in comparison with persons who are not disabled (specifically those who were not disabled by reason of respiratory issues).• The substantial disadvantage to the claimant was the increased risk to the claimant’s health from working in the office, should he contract Covid and the associated worry that goes with that risk.• The respondent failed to take such steps as were reasonable to take to avoid that disadvantage.• It would have been a reasonable adjustment to remove the requirement to work in the office and to permit the claimant to continue to work from home.• On 29 April 2020, the instruction to the claimant to visit Chester Road, Pallion Road, Hilton Road and Shiny Row to check on whether businesses were closed for trading, but for the provision of an auxiliary aid (namely provision of the above appropriate PPE, social distancing measures being in place and the provision of written instructions on safety) put him at a substantial disadvantage in relation to his employment in comparison with persons who were not disabled (specifically those who were not disabled by reason of respiratory issues).• The respondent failed to take such steps as were reasonable to provide the PPE and to put in place social distancing measures and provide written instructions on safety.• On 29 April 2020, by instructing the claimant to visit Chester Road, Pallion Road, Hilton Road and Shiny Row to check on whether businesses were closed for trading, the respondent applied a PCP which put the claimant at a substantial disadvantage in relation to his employment in comparison with persons who were not disabled (specifically those who were not disabled by reasons of respiratory issues).• The substantial disadvantage to the claimant was the increased risk to the claimant’s health, should he contract Covid and the associated worry that goes with that risk, leaving the claimant with little option other than to take sick leave.• The respondent failed to take such steps as were reasonable to take to avoid that disadvantage.• It would have been a reasonable adjustment to remove the requirement to visit shops and to permit the claimant to continue to work from home and/or instruct another employee or colleagues to carry out the work in precincts/shops.[5]At page 158 in the bundle, Employment Judge Sweeney listed the issues which this Tribunal would have to decide at the final hearing. The relevant extracts state as follows “The issues to be decided at the final hearing” The above claims are those which will be determined at the final hearing. The issues in those claims are now set out below. Mr Farley should note that one of those issues is whether his complaints have been presented in time and if not, whether it is just and equitable for time to be extended. When he comes to prepare his witness statement he should focus on what evidence is relevant to the claims and issues.• Was the claimant a disabled person within the means of S.6 of the Equality Act 2010 at the date of the alleged discrimination. This involves considering:-(i) did the claimant have a physical impairment of his lungs (respiratory condition subsequently diagnosed as asthma and/bronchitis)?(ii) did the impairment have a substantial and long term adverse effect on the claimant’s ability to carry out normal day to day activities? Section 19 Equality Act – indirect disability discrimination• Did the respondent apply to the claimant a provision criterion or practice which it applied or would apply to persons who do not have the claimant’s disability?• If so did the PCP put or would it put persons with the claimant’s disability at a particular disadvantage when compared with persons who do not have the claimant’s disability?• Can the respondent show that the PCP was a proportionate means of achieving a legitimate aim? Section 19 Equality Act – indirect age discrimination• Did the respondent apply to the claimant a provision criterion or practice which it applied or would apply to persons in the younger age group to that of the claimant (over 60s)?• If so did the PCP put or would it put persons in the claimant’s age group at a particular disadvantage when compared with persons in a younger age group?• Did it put the claimant at that disadvantage?• Can the respondent show that the PCP was a proportionate means of achieving a legitimate aim? Sections 20-21 Equality Act – failure to make reasonable adjustments• But for the provision of an auxiliary aid, would the claimant be put at a substantial disadvantage in relation to his employment in comparison with persons who do not have his disability?• If so, what if any steps was it reasonable for the respondent to take to provide the auxiliary aid?• Did the respondent fail to take such steps?• Did a PCP of the respondents put the claimant at a substantial disadvantage in relation to his employment in comparison with persons who do not have his disability?• If so what if any steps was it reasonable for the respondent to take to avoid the disadvantage?• Did the respondent fail to take such steps? TIME POINTS• Were the claimant’s complaints presented within the period in section 123(1)(a) Equality Act 2010?• If not, were they brought within such period as the Employment Tribunal thinks just and equitable? REMEDY• What, if any, declaration or recommendations should be made in the event that any of the claimant’s claims are upheld?• What compensation should the claimant be awarded in respect of: (i) financial losses; (ii) injury to feelings[6]At the start of and throughout this 5-day Hearing, the claimant was reminded that those were the only claims and issues which would be considered by the Tribunal. Despite those frequent reminders, the claimant on numerous occasions during his own evidence, during his cross-examination of the respondent’s witnesses and during his closing submissions, insisted upon referring to claims and issues which had either never been raised previously or which had been dismissed or struck out at earlier hearings. The Tribunal found the claimant to be an intelligent and articulate individual, who continues to perceive that he is the victim of a grave injustice at the hands of the respondent, his employer. That sense of grievance goes back to the respondent’s implementation of a job evaluation scheme in 2015-2016, as a result of which the claimant’s role was down-graded which resulted in a loss of his income, following a period of pay protection. That sense of injustice flavoured the claimant’s pursuit of these remaining claims to the extent that it frequently became a diversion from the claims and issues which have been identified above. Acknowledging that the claimant is a litigant in person, faced with experienced solicitors and counsel, and in accordance with its obligations under the Overriding Objective (to deal with cases fairly and justly), the Tribunal frequently attempted to direct the claimant towards these remaining claims and issues. Unfortunately, the Tribunal’s directions in this regard were either overlooked or completely ignored by the claimant in the manner in which he conducted this hearing. In particular, the Tribunal repeatedly drew the claimant’s attention to the requirement for him to prove facts from which the Employment Tribunal could infer that, in the absence of an explanation from them, the respondent had committed any acts of unlawful age or disability discrimination. Such facts would have to relate to the 3 incidents referred to above, namely the claimant’s work in the crematorium, the claimant’s work in the office or the claimant’s work inspecting shops and business premises. Unfortunately, much of what was said by the claimant and many of the questions he asked of the respondent’s witnesses related to matters wholly unconnected to those 3 incidents. As is set out below, the facts surrounding those three incidents (ie what exactly happened) were not really disputed. The difference between the claimant’s version and that of the respondent’s witnesses was, in essence, whether those facts constituted acts of unlawful age or disability discrimination. The Tribunal found the claimant to be a generally unpersuasive and unreliable witness, prone to exaggeration in respect of his own evidence and evasive when answering questions in cross-examination or from the Tribunal. The Tribunal’s findings of fact are based upon the claimant’s evidence and his answers to questions in cross-examination, the evidence of the respondent’s witnesses and their answers to questions in crossexamination and the contents of the documents in the voluminous hearing bundle. Those findings of fact are made on the balance of probabilities.[7]The claimant alleges that he suffers from a respiratory condition which constitutes a physical impairment which is long term and has a substantial adverse effect on his ability to carry out normal day to day activities. It is for the claimant to prove that his respiratory condition satisfies the definition of “disabled person” in section 6 of the Equality Act 2010.[8]The claimant’s evidence in this regard is contained in his disability impact statement dated 6 April 2021 which is at pages 41-62 in the bundle. The claimant also relies upon his witness statement dated 30 September 2022, the medical notes and records which appear in the bundle and the occupational health referrals and reports which are also in the bundle.[9]The claimant states:- “I have had respiratory issues for approximately 50 years. I have had chronic daily coughs and sputum production that could be discoloured and large in volume on some days. I suffered from intermittent wheezes at times of physical exertion and in certain conditions. I feel a shortness of breath at times of physical exertion and have the need to take a rest. When in damp, cold, dusty conditions, I suffer a chill or catch a cold or flu, I find that these quickly seem to affect my chest and cause extra amounts of hard to shift sputum and give a general feeling of being unwell and of pain, tightness and irritation in the chest/respiratory system with fatigue. Prolonged coughing is a draining experience that causes me weakness and wanting only rest or sleep and this brings an effect of low mood. I have noticed becoming feverish and with hot sweats when ill. This is depressing for me when there is an occurrence as I cannot function properly. I have lost count of the number of times that I have had assessments at various medical venues. Bronchitis/allergic association has been mentioned to me many times since my teens by medical practitioners, but my diagnosis for asthma was given to me on 9 November 2020. The respiratory episode I experienced over late 2019 and into early 2020 was especially worrying and debilitating. I was fighting to catch every breath, my breathing was very laboured with large production of chest mucus. My own belief is that age is a contributory factor with my illness with a natural decline in lung function occurring as stated to me by clinicians. As with previous infections I was much weakened by my January 2020 respiratory illness and felt that I was still weak and vulnerable upon my return to work on 23 February 2020 and I had lost weight and body tone. Walking upstairs or prolonged walking leaves me breathless as does prolonged physical activity which always seems to make my chest more “productive” of mucus and also leaves me breathing heavily. I avoid shopping when shops are busy and at the height of the pandemic I went to a local convenient store that opened at 6am for milk and basics. Mornings were always times of excessive mucus build up and it remains this way. A need to clear my chest or nose could happen suddenly during the day and this was often very inconvenient during a telephone call or in conversation. Any leisure activity could be interrupted by a symptom – as described at any time without warning. I now avoid public transport and places of large person circulation. Driving was problematic when coughing or requiring a tissue quickly. Properties in disrepair and older properties often associated with tenant/private rent sector are often damp and mould affected and I regularly and quickly feel the effects upon me. I rarely feel like going out, driving, socialising or walking. Colder damper weather seasons are generally the worse for me and I always take the precaution of layering warm clothing, shoes and wear a warm hat. I believe my daily dedication to cardio fitness, breathing exercising including box breathing, healthy living, good dietary habits and positive proactive and reactive mental attitude has greatly helped over time. I understand the benefits of fresh air, the outdoors and walk daily where and whenever possible. I will not give in to any respiratory/physical condition but understand that I have to adjust to them and the constraints that are imposed upon me in daily living and in going to work. I practice calm. “[10]In his witness statement at paragraph 6 “protected characteristic,” the claimant refers to “Age 65 (relevant to Covid) and disabilities of asthma/bronchitis (especially relevant to Covid). My respiratory medication was changed on 8 March 2022 as the clinician diagnosed a COPD (Chronic Obstructive Pulmonary Disease). Pulmonary embolisms were discovered in both lungs in 2022 following extensive two day health intervention.”[11]The claimant’s description of his symptoms and their impact is not consistent with, or supported, by the medical evidence within the bundle. There has been no formal diagnosis of asthma, other than a note in his records that doctors suspected that he may have asthma. That diagnosis was in November 2020, which is after the dates when the alleged acts of discrimination took place. In March 2020, shortly before the alleged acts of discrimination are said to have taken place, the claimant’s GP recorded that the claimant had undergone spirometry tests which were normal and that other tests relating to the claimant’s lung function did not reveal any underlying condition. From 2015 to 2020 there are references to “chest infection”, “flu like illness” and “chronic cough”. Those conditions were treated with antibiotics and led to the claimant’s recovery.[12]There is an occupational health report dated 29 May 2020 at page 913 in the bundle. The OH doctor records that the claimant told him he was “under investigation of respiratory systems and work related stress”. It goes on to record how the claimant advised him that he had “longstanding respiratory symptoms since his 20s for which he has undergone multiple tests and investigations in the past. He reports that he continually experiences symptoms like wheezing, sniffles, sneezing and catarrh. He reports that the symptoms are present. He reports that the symptoms are present on a daily basis, the severity may vary. He advised me that he had flu like symptoms at the end of December 2019 which affected his health and respiratory system. I understand that his GP treated this with three courses of antibiotics. He was also given an inhaler which he continued to use on an as needed basis. He continues to report ongoing symptoms of varying severity which he self manages. He advised me that he continued to have symptoms while undergoing his normal work duties, however these have not affected his normal working on a day to day basis as such until this pandemic or unless he became unwell as in December.”[13]It is accepted that the claimant was unwell in December 2019/January 2020, as evidenced by his fit notes from his GP which indicated that he had a “flu like illness”. That again was treated with antibiotics and the claimant had recovered by March 2020 so that he could return to work. By January 2020 the claimant had returned to fitness work in the gymnasium.[14]In his claim form presented on 21 December 2020, the claimant has ticked the box at section 8.1 to say that he was discriminated against on the grounds of age, and the box to indicate that the was discriminated against on the grounds of sex, but has not ticked the box to indicate he was discriminated on the grounds of disability. In answer to the question at section 12.1, “do you have a disability”, the claimant has ticked the box marked “no”. Nowhere in the particulars attached to the claim form is there any mention whatsoever of unlawful disability discrimination of any kind.[15]In a further document dated 16 February 2021, which was submitted by the claimant to the Employment Tribunal prior to the first case management hearing on 23 February 2021, the claimant for the first time indicated an intention to pursue a complaint of unlawful disability discrimination. At paragraph 10 (page 32 in the bundle) the claimant states that “management failed to make reasonable adjustments that led to my sickness and also in making a return to work”. At page 33 in the bundle, the claimant lists those “reasonable adjustments management/the employer may have provided/could have included”. It was on the basis of those particulars that Employment Judge Martin agreed that there was a claim for unlawful disability discrimination, when she conducted the first preliminary hearing on 23 February 2021.[16]In terms of his complaints of unlawful age discrimination, the claimant puts himself in the age group of “over 60s” and seeks to compare himself with persons in the age group of below 60 years of age.[17]At the time of the alleged acts of discrimination, the claimant was employed by the respondent as a Technical Officer. The claimant’s duties included dealing with service requests from members of the public who live in rented accommodation. Those service requests are investigated and action taken on them on an informal or formal basis, to ensure that the accommodation is safe to live within, free from significant hazards and compliant with mandatory safety requirements. The claimant’s duties also included inspections of empty properties and from time to time dealing with other organisations within the council such as refuse, pest control and drainage services. The claimant principally dealt with service requests concerning disrepair within privately rented properties, dealing with empty properties which are open to access, refuse accumulation and referrals from the Housing Option Team in relation to property inspection. Throughout the relevant period of time, the claimant’s line manager was Mr Phillip Scott, principal environmental health officer. Mr Scott’s unchallenged evidence to the Tribunal was that, during the period when the claimant reported to him, the claimant had various periods of sickness absence. Those were from 11 November 2019 to 22 November 2019 due to a back related problem; 6 January 2020 to 22 January 2020 due to a chest infection and thereafter continuously from 29 April 2020 up to the date of this hearing. Marion Dixon, the respondent’s environmental health, trading standards and licensing manager, also confirmed that she was aware that the claimant had been absent from work in November 2019 when he had “tweaked his back whilst on holiday” and in January 2020 when he suffered a chest infection which “responded well to antibiotics”. Neither of those absences exceeded 20 working days and thus did not trigger the council’s absence management procedure.[18]By March 2020, the impact of the Coronavirus meant that severe restrictions were imposed by central government upon the way most workers in the country performed their duties. By 12 March 2020 central government advised that anyone with a continuous cough or fever should self-isolate for 7 days. By 16 March the government advised everyone in the UK against non-essential travel and contact with others and that they should work from home if possible and avoid visiting social venues such as pubs, clubs or theatres. On 18 March 2020 central government announced that all schools in the country would close from the afternoon of Friday 20 March, except for those looking after the children of keyworkers and vulnerable children. On 20 March 2020 central government announced that all cafes, pubs and restaurants were to close forthwith and for the first time the government introduced what became known as the “furlough scheme”. Local government was charged with carrying out checks to ensure that such closures were adhered to for public safety. However, local government was not included in the furlough scheme, as those employees were considered to be crucial to the fight against the virus. In effect, local government workers became “essential workers” and were expected to continue performing their duties in so far as they could be performed within the Coronavirus restrictions. On 21 March 2020 it was announced that people at the highest risk of complications from the virus would need to shield themselves from society. Those clinically vulnerably people included those with severe respiratory conditions including cystic fibrosis, severe asthma and severe COPD. On 23 March 2020 central government announced that the public must stay at home except for certain very limited purposes such as shopping for essential items, one form of outdoor exercise each day and to travel to and from work where that was “absolutely necessary” and the work in question could not be done from home.[19]On 23 March 2020 the team in which the claimant worked was informed that all staff were to avoid any face to face contact, unless the visit was absolutely necessary and that staff should refer to their manager for specific advice about relevant health and safety matters. The email from Marion Dixon notifying all members of the team (including the claimant) of these matters appears at page 776 in the bundle. Having received that email, the claimant did not raise any concerns with Miss Dixon or anybody else, nor did he identify himself as vulnerable for any reason.[20]The claimant returned to work from a period of annual leave on 30 March 2020. On 2 April, Marion Dixon asked the principal officer to contact the officers in their teams to see if any were willing to volunteer to work at the Crematorium. Mr Scott spoke to the claimant, who did volunteer to work at the crematorium. The claimant raised no issues about his health or the provision of protective equipment, but did request an assurance that his existing contractual terms and conditions would continue to be met and that his existing role would remain for him to return to. That written assurance was given to the claimant by Mr Scott in an email dated 3 April which appears at page 791 in the bundle. The relevant extract on the letter states as follows:- “As we discussed, the role will start with training on Monday is to operate the music which is played during a service at the crematorium. Whilst I have not been given any specific of operational hours, I understand from looking on the council website that the chapel for services at the crematorium operates between the hours of 9am to 5pm Monday to Thursday and 9am to 4.30pm on a Friday. In respect of your terms and conditions, they would remain the same and your position at the crematorium would be reviewed on a regular basis in order to give resilience to the service and as the national emergency unfolds. After the period of national emergency linked to the Covid-19 pandemic I would expect you to return to your role within my team. I hope this gives you the reassurances that you are looking for and I am extremely grateful that you have volunteered to help out in this time of emergency.”[21]The claimant worked at the crematorium on Monday 6 April 2020 for one day. The claimant’s evidence to the Tribunal was that he did not consider working at the crematorium to be safe, as “social distancing was not possible”. The claimant alleged that there was no personal protective equipment provided and that other employees and/or members of public had access to the room from which he operated the music. The claimant telephoned Mr Scott at 9.10am on Tuesday 7 April to say that he would not be returning to the crematorium. Mr Scott accepted the claimant’s position and advised him to report to the office that day.[22]The claimant alleges that he was “required” to work at the crematorium and that this requirement was part of a provision criterion or practice applied to him by the respondent. The Tribunal found that the claimant was not “required” to work at the crematorium. The claimant in fact volunteered to work at the crematorium, did so for one day and as soon as he stated that he was no longer willing to do so, he was allocated other duties. At that time, there was no regulatory requirement for personal protective equipment (particularly face masks) to be worn. The Tribunal accepted Mr. Scott`s evidence that the public had no access to the music room and that there was no risk to the claimant in working there. The Tribunal did not accept that, but for the provision of any auxiliary aid, the claimant was placed at any substantial disadvantage even if he had been “required” to work at the crematorium. The claimant did not have to work at the crematorium. The claimant did not have to volunteer to work at the crematorium. There was no disadvantage whatsoever in the claimant working in the music room at the crematorium.[23]Having agreed that the claimant did not have to work in the crematorium, the claimant was asked by Mr Scott to report to his normal office, where other duties would be allocated to him. The claimant accepted in cross-examination that when he called to Mr Scott to say he was uneasy about working in the crematorium, Mr Scott “asked him whether he could come into the office to scan some documents”. The claimant again agreed to do so. The claimant did not have to agree to do so, nor did he have to report to the office. At that time, the claimant raised no objection whatsoever about going into the office. The following day, on 8 April 2020, central government informed members of the public that they “must stay at home” but, “can travel to and from work but should work from home if you can”. Upon receipt of that letter, the claimant made it clear to Mr Scott that he was unwilling to come into the office and the claimant did not work from the office after 7 April 2020. The Tribunal accepted Mr Scott’s evidence that he had asked the claimant to come to the office, because the claimant had made it known that he was having “IT issues with his computer” at home. The Tribunal accepted Mr Scott’s evidence that his was a request to the claimant, with which the claimant complied. As soon as the claimant objected to coming back into the office, he was not required to do so. The claimant worked in the office for less than one day on 7 April 2020. Again, there was then no requirement for face masks or other PPE. The Tribunal found that there was no disadvantage to the claimant in working in the office. He was not required to do so and was allowed to work from home as soon as he asked to do so.[24]The claimant continued to work from home from 8 April. It was common ground that the claimant was unable to undertake very much work at all from home, because of the difficulties he was having connecting to the respondent’s computer system. On 29 April, Mr Scott contacted the claimant by telephone and asked the claimant whether he was willing to undertake inspections of various areas of the city to see whether any business were open, in breach of the lockdown rules. Mr Scott explained that the claimant would do a walk-by or drive-by of various streets, but would not be required to enter into any premises. Mr Farley would then have to complete a form which would thereafter be scanned or photographed and sent electronically to another member of staff to log into the respondent’s system. The claimant asked Mr Scott what he should do if he was approached by anyone in the street and was told by Mr Scott that he should always maintain his social distance. Those instructions are clearly set out in an email dated 29 April from Mr Scott to the claimant, which appears at page 817 in the bundle. It clearly states, “You need to walk down the road looking at each business premises and complete the form.”[25]Upon receipt of that email, the claimant telephoned Mr Scott and informed him that he was not prepared to undertake that work as he was “looking after his own health and safety”. The claimant said he would obtain a fit note from his doctor, confirming that he should not be doing this work. The claimant then sent an email (page 820), to which is attached the fit note at page 821 from the claimant’s doctor which states, “Under investigations for respiratory symptoms. Please avoid home visits to clients and observe social distancing rules.” It is again common ground that the claimant did not undertake any of this work. The claimant did not do any walk-by or drive-by inspections. As soon as the claimant made it clear to Mr Scott that he was unwilling to do so, no further action was taken. There was no “requirement” for the claimant to undertake such work. He was never placed at any disadvantage whatsoever.[26]The claimant has been on continuous sick leave from 29 April 2020 up to the date of this hearing. On 4 June 2020 the claimant raised a formal grievance (page 919). That grievance states as follows:- “Please accept this as my complaint and grievance in lieu of a completed council grievance document. I am still on sickness absence and do not have a home printer or suitable home IT equipment to do otherwise. Please find two letters attached which forms part of this complaint in grievance. In addition I will forward you:-(i) Completed occupational health referral form from P Scott.(ii) The work request email from P Scott.(iii) The emails from and to parties on separate individual emails. Hopefully this will provide you all information necessary. It is essential to proceed with this grievance – you will find that I have once again tried at every occasion to discuss with management, however my many attempts appear of little value. Outcome required – to bring a satisfactory resolve to this and all outstanding matters for me and that they are dealt with in a fair and impartial manner.” The two letters referred to in that grievance appear at pages 920 and 922 in the bundle. Nowhere in those letters is there any mention of work at the crematorium, the work in the office or the work inspecting premises. Furthermore, the only medical condition referred to by the claimant is one of “work related stress”. The law.[27]The claims brought by the claimant engaged the provisions of the Equality Act 2010. The relevant sections are as follows: 4 The protected characteristics The following characteristics are protected characteristics—• age;• disability;• gender reassignment;• marriage and civil partnership;• pregnancy and maternity;• race;• religion or belief;• sex;• sexual orientation. 5 Age(1) In relation to the protected characteristic of age— (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group; (b) a reference to persons who share a protected characteristic is a reference to persons of the same age group.(2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages. 6 Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. (2) A reference to a disabled person is a reference to a person who has a disability.(3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.(5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).(6) Schedule 1 (disability: supplementary provision) has effect. 19 Indirect discrimination (1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a)A applies, or would apply, it to persons with whom B does not share the characteristic, (b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c)it puts, or would put, B at that disadvantage, and (d)A cannot show it to be a proportionate means of achieving a legitimate aim. (3)The relevant protected characteristics are—• age;• disability;• gender reassignment;• marriage and civil partnership;• race;• religion or belief;• sex;• sexual orientation. 20 Duty to make adjustments (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. (6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty.(8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section.(9) In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to— (a) removing the physical feature in question, (b) altering it, or (c) providing a reasonable means of avoiding it.(10) A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to— (a) a feature arising from the design or construction of a building, (b) a feature of an approach to, exit from or access to a building, (c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or (d) any other physical element or quality.(11) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service.(12) A reference in this section or an applicable Schedule to chattels is to be read, in relation to Scotland, as a reference to moveable property.(13) The applicable Schedule is, in relation to the Part of this Act specified in the first column of the Table, the Schedule specified in the second column. 21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.[28]The Tribunal was not satisfied that the claimant at all material times suffered from a disability as defined in S.6 of the Equality Act 2010. The claimant relied upon an alleged physical impairment, namely a respiratory condition. The Tribunal accepted that the claimant from time to time had respiratory difficulties, but was not satisfied that this amounted to an impairment which was either long term or had a substantial adverse effect in his ability to carry out normal day to day activities. The claimant’s description of his symptoms was wholly inconsistent with his medical records and the occupational health report. A “chesty cough” or “flu like symptoms” which were treated with antibiotics and from which the claimant recovered, could not amount to an impairment which was long term and had a substantial adverse effect in his ability to carry out normal day to day activities. Knowledge of disability[29]The Tribunal found that none of the managers who had any line management responsibility for the claimant had the necessary knowledge of the claimant’s disability. None of them were in possession of the necessary facts which should have led them to conclude that the claimant may be suffering from a condition which amounted to a disability, or that it may be necessary to carry out any further investigation. All they had were the fit notes supplied on the occasions when the claimant was absent from work and the contents of the occupational health reports. None of those could lead any reasonable manager to conclude that the claimant may be suffering from a condition which could amount to an impairment which was long term and had a substantial adverse effect on his ability to carry out normal day to day activities. Indirect age/disability discrimination[30]S.19 of the Equality Act 2010 requires the claimant to establish that there had been applied to him a provision criterion or practice which is discriminatory in relation to his disability. The claimant must establish that he was put at a disadvantage because of the application of any such PCP. The claimant alleges that the following were applied to him as PCP`s:-(i) a requirement that he work in the crematorium;(ii) a requirement that he work from the office;(iii) a requirement that he undertake street inspection. The Tribunal found that the respondent did not “require” the claimant to work in the crematorium, did not “require” the claimant to work in the office and did not “require” the claimant to undertake street inspections. The claimant was asked to consider whether he would work at a crematorium and volunteered to do so. He did so for one day and then withdrew his consent. No PCP was applied to him. The claimant was asked to report to the office to undertake scanning duties. The claimant had the right to refuse to do so. Indeed he did refuse to do so after working there for less than one day. No such PCP was applied to him. The claimant was not required to undertake street inspection duties. He was asked to do so, but declined. That refusal was accepted by the respondent. No PCP was applied to him. The phrase “provision, criterion or practice” is acknowledged as one which ought to be construed widely and to include formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. It is effectively anything relating to the essential functions of the disabled employee`s employment. (Archibald v Fife Council – 2004 ICR 954). The Tribunal found that in all 3 situations, there was no PCP applied to the claimant, such that the provisions of Ss 19 or 20-21 of the Equality Act would be engaged. The claimant has not provided any statistical evidence to support his contention (had any such PCP been applied to him) that he would have been placed at any disadvantage because of his age. The claimant’s case to the Tribunal was simply that, “Those in age group of 60 and above are more vulnerable because they are more susceptible to suffer from the symptoms of Coronavirus”. In effect, the claimant was inviting the Employment Tribunal to take judicial notice of that contention. The Tribunal was not satisfied that it was appropriate in these circumstances to do so. The Tribunal could see no difference between the vulnerability of persons over 60 when compared to those who are under 60. The claimant had not shown that there was any disadvantage caused to persons over the age of 60. For those reasons, the complaints of indirect discrimination on the grounds of either age or disability, contrary to S.19 of the Equality Act 2010, are not wellfounded. Failure to make reasonable adjustments[31]Ss. 20-21 require the claimant to establish a provision criterion or practice (PCP) which places him at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. For the reasons set out in the immediate paragraphs above, the Tribunal was not satisfied that the claimant had established that the respondent applied to him a PCP of any kind. The claimant was not required to work in the crematorium (he volunteered to do so and withdrew his consent after one day), he was not required to work in the office and he withdrew his consent to do so after less than one day. He was not required to undertake any street inspection work and in fact did not do so. In the absence of any PCP which placed him at any disadvantage, the claims under sections 20-21 cannot and do not succeed.[32]The claimant has not established that, but for the provision of an auxilary aid, he would have been put to any disadvantage. If any danger was due to the nature of the work requested of him, that danger was removed when he was not required to do the work. This claim is simply not made out.[33]Time Point The claimant`s last day at work was 29th April 2020. He entered ACAS Early Conciliation on 17th September 2020 and obtained the EC Certificate on 31st October 2020. He presented his claim form ET1 on 21st November 2020. S.123 Equality Act 2010 requires such claims to be presented to the Tribunal within 3 months of the last alleged act of discrimination. That was 29th April 2020. All these claims are substantially out of time. The claimant has not provided, or attempted to provide, any explanation for that delay. He never alleged any disability discrimination claims at the outset. Only in February and October 2021 did the claimant advance claims of unlawful disability or age discrimination. The claimant has been a Trade Union representative for 2 different unions. He is well acquainted with the Employment Tribunal system. In the absence of any explanation for that delay, the Tribunal was not satisfied that it would be just and equitable to extend time for these claims to be considered. The Tribunal does not have jurisdiction to consider them. 34.For those reasons, all the claims of unlawful age and disability discrimination are dismissed.