Employment Judge Le GrysMs S. Crawshay-Williams (instructed by counsel) for claimantMr G. Anderson (instructed by counsel) for respondentDate 2 February 2024
JUDGMENT
[1]The unanimous judgment of the Tribunal is that the claims in respect of(1) discrimination arising from disability;(2) discrimination on the basis of a failure to make reasonable adjustments; and(3) unfair dismissal are well founded and succeed.[2]The unanimous judgment of the Tribunal is that the claim for a redundancy payment is not well founded and does not succeed.[3]Remedy is adjourned to a further hearing on 8 September 2023. By 26 May 2023 the parties are to agree the instructions for any expert it is proposed to rely upon at the remedy hearing, and for those instructions to the sent to that expert. It is anticipated that the Claimant will propose three experts and the Respondent will select one. By 18 August 2023 the parties are to submit all evidence to the Tribunal to be relied on at the remedy hearing in a bundle not exceeding 250 pages, and confirm that they are ready for the final hearing. Case Number: 2601591/2021 2 _________________________ Employment Judge Le Grys Date: 28 April 2023 Judgment sent to the parties on 11 May 2023 For the Tribunal Office Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Case Number: 2601591/2021 1 EMPLOYMENT TRIBUNALS Claimant: Mr A Rogers Respondent: Microlise Limited Heard at: Bristol On: 24, 25, 26, 27 and 28 April 2023 Before: Employment Judge Le Grys Dr C. Hole Mr E. Besse Representation Claimant: Ms S. Crawshay-Williams (counsel) Respondent: Mr G. Anderson (counsel)
REASONS
[1]The Claimant was employed by the Respondent as a Field Service engineer from 12 July 2010 until his dismissal on 5 March 2021. By way of a claim form received on 16 July 2021 he brought claims for unfair dismissal, discrimination arising from disability, a failure to make reasonable adjustments, and for a redundancy payment. He states that he was dismissed following a re-organisation of the Respondent’s business, having been unreasonably expected to undertake additional work that he could not do because of his disabilities.[2]By way of a response form dated 18 August 2021 the Respondent resisted the complaints. The Respondent’s case is that the business changes were necessary and reasonable efforts were made to engage with the Claimant in order to make adjustments that would allow him to continue in employment. Case Number: 2601591/2021 2[3]The issues to be determined by the Tribunal were agreed at the outset of the hearing as follows: Unfair dismissal It is admitted that the Claimant was dismissed.[5]What was the reason for dismissal? What was the set of facts or beliefs in the employer’s mind at the point it made the decision to dismiss (see Abernethy v Hay, Mott & Anderson [1974] ICR 323). The Respondent asserts that it was some other substantial reason, namely a business reorganisation following which the Claimant refused to accept the altered role, which is a potentially fair reason for dismissal under section 98(2) of the Employment Rights Act 1996.[6]Did the Respondent believe it had sound and good business reasons for the reorganisation (this is a subjective test – see Hollister v National Farmers’ Union [1979] ICR 542, CA and Scott and Co v Richardson EAT 0074/04)?[7]If so, were those genuine and substantial reasons and not arbitrary (Catamaran Cruises Ltd v Williams [1994] IRLR 386 and Willow Oak Developments Ltd t/a Windsor Recruitment v Silverwood and ors [2006] ICR 1552, CA.)?[8]If so, has the Respondent produced evidence to show the reasons were substantial rather than making a bare assertion (Banerjee v City and East London Area Health Authority [1979] IRLR 147, EAT)?[9]Did the Respondent adopt a fair procedure? The Claimant challenges the fairness of the procedure in the following respects;9.1 The Respondent failed adequately to consult with the Claimant and his Trade Union representatives in respect of the proposed contract changes;9.2 The Respondent failed to make reasonable adjustments to the adjusted role to permit the Claimant to fulfil it.[10]Was dismissal of the Claimant for this reason within a range of reasonable responses open to a reasonable employer?[11]If it did not use a fair procedure, what is the percentage chance that the Claimant would have been fairly dismissed in any event and, if so, when would that have occurred?[12]If the dismissal was unfair, did the Claimant contribute to the dismissal by culpable conduct? This requires the Respondent to prove, on the balance of probabilities, that the Claimant committed the misconduct alleged. Case Number: 2601591/2021 3 Redundancy payment[13]Was there a genuine redundancy situation within the meaning of section 139 ERA? The Respondent asserts that there was not such a situation because the need for service work had not ceased or diminished nor was likely to.[14]Was the Claimant dismissed by reason of redundancy? If so, the redundancy payment due is £8,160. Discrimination arising from disability[15]It is admitted that the Respondent treated the Claimant unfavourably by dismissing him.[16]The Respondent admits the following things arose in consequence of the Claimant’s disability:16.1 The Claimant’s joints, knees, right shoulder and hips ache and installation work involved much kneeling, crouching and working in confined spaces, which he was physically unable to do or struggled to do.16.2 The Claimant required medication, which made him drowsy so that he could not drive and was not able to undertake a 12 hour shift.[17]Was the dismissal because of any of those things? The Claimant argues that he was unable to accept the amended role because of those things and so was dismissed. The Respondent does not admit that the Claimant was unable to accept the proposed changes to his contract as a consequence of things arising from his disability, arguing that the Respondent was proposing to make reasonable adjustments to the role so that the Claimant could undertake it.[18]The Claimant admits that the Respondent had the following legitimate aims which were related to a business need: 18.1 To provide a more efficient delivery of service to its customers and to remain competitive.[19]Was the treatment an appropriate and reasonably necessary way to achieve those aims? Case Number: 2601591/2021 419.1 Could something less discriminatory have been done to achieve those aims instead?19.2 How should the needs of the Claimant and the Respondent be balanced?[20]The Respondent argues that its aim was:20.1 Reasonable because it permitted it to remain competitive in the market by combining the service and installation engineers teams so that the single team could better meet customer expectations and demands in order to remain competitive in the market, avoiding the need for two engineers to attend a site; and20.2 Proportionate because it was relatively straightforward to achieve through minimal training and the impact on engineers was low and the Respondent proposed reasonable adjustments which would have ameliorated or removed any disadvantage to the Claimant.[21]There is no dispute about knowledge of the Claimant’s disability. Reasonable Adjustments[22]It is admitted that the Respondent operated the following Provision, Criterion, or Practice (PCP):22.1 The requirement for engineers to conduct installation and service work (PCP1);22.2 The requirement to work a 12-hour shift pattern (PCP2).[23]It is admitted that the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that:23.1 Regarding PCP1, installation work involved a lot of kneeling down, crouching and working in confined spaces which the Claimant struggled with or was unable to do due to his disability;23.2 Regarding PCP2, the Claimant needed to self-medicate with pain relieving medication, which made him drowsy and unfit to drive and he was therefore unable to work a 12-hour shift.[24]It is admitted that the Respondent knew, or could reasonably have been expected to know that the Claimant was likely to be placed at the disadvantages from:24.1 PCP1: all relevant times;24.2 PCP2: 20 January 2021 (on receipt of an Occupational Health report). The Claimant argues the Respondent has known since 18 September 2020, when the Claimant explained he could not work a 12-hour shift. Case Number: 2601591/2021 5[25]The Respondent admits the following steps (“the Adjustments”) could have been taken to avoid the disadvantage:25.1 Not requiring the Claimant to conduct heavy installations;25.2 Limiting his role to servicing and de-kitting;25.3 Permitting the Claimant to work his old shift pattern so that he was able to self-medicate around driving.[26]Was it reasonable for the Respondent to take those steps and when? The Respondent argues that it made the first adjustment but the second and third were not reasonable because they would have placed a disproportionate burden on it and it made or offered the following alternative adjustments, which would have removed or ameliorated any substantial disadvantage, which the Claimant refused:26.1 Carrying out less strenuous installation work which would not be repetitive;26.2 Prioritising servicing work;26.3 Giving the Claimant 25% extra time to complete tasks;26.4 Providing the Claimant with regular breaks away from work;26.5 Removing the requirement to undertake heavy lifting;26.6 Offering part time hours;26.7 A trial period in the new role; and26.8 Offering the Claimant an alternative role as a Resource Planner.[27]Did the Respondent fail to take those steps?
The Hearing
[28]For the Claimant, the Tribunal heard evidence from the Claimant himself and John McGookin, his union representative. For the Respondent, the Tribunal heard evidence from Nathan Eggleston, Gemma Williams, Mark Goulding and Trevor McGahan. There was an agreed trial bundle of 559 pages, to which two additional pages were added during the course of the hearing relating to the instructions given to the Claimant’s GP. Relevant Legal Framework Discrimination arising from disability[29]A person is disabled in accordance with section 6 of the Equality Act 2010 if they have a physical or mental impairment, and that impairment has a substantial and long term adverse effect on their ability to carry out normal day to day activities. In this case it is not in dispute that the Claimant was disabled as a consequence of three conditions during the period January 2018 to March Case Number: 2601591/2021 6 2021, namely arthritis in his knees; arthritis and/or pain in his shoulder and/or arm; and depression.
Conclusions
[30]Section 15(1) Equality Act 2010 provides that a person(a) (A) discriminates against a disabled person(b) (B) if they treat B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Section 15(2) states that this does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[31]In Secretary of State for Justice and anor v Dunn EAT 0234/16 the EAT identified the four elements that must be made out in order for a section15 claim to succeed: 1) There must be unfavourable treatment; 2) There must be something that arises in consequence of the Claimant’s disability; 3) The unfavourable treatment must be because of (i.e. caused by) the something that arises in consequence of the disability, and; 4) The alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.[32]The protection accorded by section 15 does not require the disabled person to show that the treatment suffered was less favourable than that experienced by a comparator. A Claimant is simply required to show that they suffered something broadly akin to a detriment without having to show that somebody else who does not have the disability would have been treated differently. Reasonable adjustments[33]Section 20 EQA creates a statutory duty to make reasonable adjustments. This duty comprises of three requirements, any one of which triggers an application to make any adjustment that would be reasonable. A failure to comply with the requirement is a failure to make reasonable adjustments and an employer will be regarded as having discriminated against the disabled person under section 21.[34]The first requirement applies where a PCP has been applied by the employer that puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. The second requirement applies where a physical feature puts a disabled person at a similar substantial disadvantage. The third requirement applies where the lack of the provision of an auxiliary aid puts the disabled person at a substantial disadvantage in relation to a relevant matter.[35]In each of these there is a duty on the employer to take such steps as is reasonable to avoid the disadvantage. A relevant matter is simply any matter Case Number: 2601591/2021 7 concerned with deciding to whom to offer employment and anything concerning employment by the employer.[36]Section 212(1) EQA defines a substantial disadvantage as something that is more than minor or trivial. Tribunals must identify the nature and extent of the disadvantage and consider whether the relevant PCP, physical feature or auxiliary aid causes greater disadvantage to the disabled Claimant than it does to non-disabled people in relation to whom the requirement is applied.[37]In general, tribunals will not allow overly technical arguments that a PCP has not actually been ‘applied’ to a disabled person to preclude an otherwise valid claim. In Rider v Leeds City Council EAT 0243/11, an employment tribunal found that there had been no actual application of a PCP whereby R must return to her former post because she had not actually been forced to return. On appeal, the EAT stated that the tribunal had taken a very narrow view as to whether the PCP had been ‘applied’. It was satisfied that the instruction to return to the previous post, repeated on a number of occasions, without any consideration of alternative posts, amounted to the application of a PCP.[38]The Claimant bears the burden of establishing a prima facie case that the duty to make reasonable adjustments has arisen and that there are facts from which it could reasonably be inferred – absent an explanation – that the duty has been breached. Once satisfied that the section 20 duty has potentially been triggered, the Tribunal will consider what adjustments could and should have been made. Again, the onus is on the Claimant to identify in broad terms the nature of the adjustment and, having done so, the burden then shifts to the employer to show that the disadvantage would not have been eliminated or reduced and/or that it was not a reasonable adjustment to make. The test of reasonableness in this context is an objective one and the focus must therefore be on whether the adjustment itself can be considered reasonable rather than the process by which the employer reached the decision. Unfair dismissal[39]The test for unfair dismissal is set out in section 98 of the Employment Rights Act 1996. Under section 98(1), it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2), for example conduct, or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.[40]The reason for dismissal is ‘a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee’. (Abernethy v Mott Hay and Anderson [1974] ICR 323, CA.)[41]Under section 98(4) “… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) Case Number: 2601591/2021 8 depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.”[42]It is the Respondent’s case that it dismissed the Claimant for some other substantial reason, namely a business reorganisation following which the Claimant refused to accept the altered role. This is a potentially fair reason for dismissal under section 98(2).[43]Finally, tribunals must decide whether it was reasonable for the Respondent to dismiss the Claimant for that reason. The question is whether dismissal was within the band of reasonable responses open to a reasonable employer. It is not for a tribunal to substitute its own decision.[44]The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed (Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23, CA).[45]Under section 122(2) of the Employment Rights Act 1996, the tribunal shall reduce the basic award where it considers that any conduct of the Claimant before dismissal was such that it would be just and equitable to do so. Under section 123(6), where the tribunal finds the dismissal was to any extent caused or contributed to by any action of the Claimant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable.[46]Where the dismissal is unfair on procedural grounds, the tribunal must also consider whether, by virtue of Polkey v AE Dayton Services [1987] IRLR 503, HL, there should be any reduction in compensation to reflect the chance that the Claimant would still have been dismissed had fair procedures been followed.
The facts
[47]The Respondent provides telematic and technology solutions for fleet operators and product manufacturers. This work includes the installation and maintenance of equipment such as tachographs and tracking equipment in vehicles. The Claimant’s role typically meant that he would be sent to correct faults or technical issues with company vehicles in the South West. Because of the large geographical area this meant that he would spend much time driving, and the work required when on site was often relatively straightforward to correct, taking an hour or less and not involving significant physical activity. Case Number: 2601591/2021 9[48]The Claimant’s contract was originally for 8 hour shifts and did not involve installation work, which was undertaken by a different team. While he would sometimes need to remove parts and replace them he considered this to be maintenance rather than equivalent to installation as he did not, for example, have to deal with some of the wiring. He did not do any installation work in his 10 years at the company.[49]It is accepted that the Claimant was disabled during the period January 2018 to March 2021, as a consequence of arthritis in his knees; arthritis and/or pain in his shoulders and/or arm; and depression. It is also common ground that the Claimant had been able to fully undertake his role as it existed prior to the events that form the basis of the claim with only relatively minor adjustments, such as the provision of an automatic car.[50]In September 2018 the Respondent proposed to merge the service and installation teams and began a consultation process in respect of this. As part of these proposals the Claimant’s title would become “Technical Hardware Engineer” and his role would now include installation work. The Respondent anticipated that these changes would improve efficiencies, reduce its reliance on contractors, improve the quality of their work, and save around £700,000 each year.[51]Shortly after a general consultation meeting on 7 December 2018 about these proposals the Claimant emailed Nathan Eggleston, Head of Hardware Service, raising the issue of his arthritic knee and stating that he could not kneel down on it for very long or stay in the same positions for a long time without discomfort. He believed and feared that requiring him to undertake installations would aggravate his condition. He stated that he had never conducted installations during his employment with the Respondent and asked not to be included in any installation planning for the New Year. Mr Eggleston stated that he had no recollection of this email.[52]On 21 January 2019 the Claimant had a meeting with Gemma Williams, Head of HR Operations, and his line manager, Mark Goulding. During this meeting he raised his mental health issues and Ms Williams wrote down some medication details from a tablet box that he passed to her. While we accept that the Claimant did talk about some medication at this meeting we are not satisfied that he specifically mentioned the need to take pain medication in the morning, meaning that he could not start work before 09:30. Medication of this type is not referred to in his witness statement, and the Claimant said on a number of occasions that his start time at this point meant that this medication did not cause a specific problem that needed to be discussed with his employer. Both Mr Goulding and Ms Williams gave evidence that they believed his concerns about starting earlier were in relation to stiffness in his legs and we accept their evidence in this regard. Case Number: 2601591/2021 10[53]Later that day the Claimant emailed Ms Williams and declined to do any installation work because of his disability. Ms Williams sent a reply on the same date confirming that the next step would be to review information from the Claimant’s Doctor.[54]On 3 April 2019, after around 2½ months had passed, the Respondent received a letter from Dr Rigby, the Claimant’s GP. This stated that he had longstanding problems with his left knee, and in view of this she recommended that he did not regularly kneel as this may exacerbate his underlying issues and cause pain. She further stated that she believed his current work caused him little problem. While the letter is relatively short, the Tribunal does consider it significant that it refers to aggravating his conditions as it did put the Respondent on notice that such work could cause additional problems.[55]Another 2½ months later, on 15 July 2019, the Claimant agreed to a referral to Occupational Health (OH). The provider was listed as Health Assured and it was on their headed paper. While the Claimant did provide this consent, his covering email stated that “regardless of any medical checks that confirms my disabilities I still do not agree to any changes in my contract/profile which need my permission”.[56]On 23 December 2019, a further five months later, the Claimant signed a consent form now allowing a different OH provider, Red Umbrella, to access his medical records. Ms Williams explained that this significant delay was because Health Assured were only conducting telephone assessments and they therefore needed to find a different provider who could actually observe the Claimant in practice.[57]The OH report was provided by Dr Cheesman, who specifically observed the Claimant for around 45 minutes as well as the work of three other engineers, in all over the course of 2 days. He did not see the Claimant complete any installations.[58]Dr Cheesman’s main area of expertise related to psychiatric conditions but his CV also shows a qualification in Design and Ergonomics. He is also experienced in providing OH reports, albeit does say the majority of these related to psychiatric issues. Neither Dr Cheesman nor the Respondent requested medical reports relating to the Claimant, although the Claimant had raised again the fact that he took medication. On sight of the draft report the Claimant raised a number of concerns about accuracy and Dr Cheesman’s qualifications, and Dr Cheesman indicated that he was unable to comment on arthritis in terms of the Equality Act as it was outside of his professional expertise because he was not a medical doctor.[59]In his final report, Dr Cheesman made recommendations including that the Claimant could cope with cab installation but with increased timings, and that he should avoid trailer installation work, but could possibly cope with one-off Case Number: 2601591/2021 11 installations. While the report acknowledges that the Claimant did raise concerns about working in the cold, it does not specifically make any comments or recommendations in relation to this.[60]We accept that the Respondent was entitled to consider the report from Dr Cheesman. They had requested someone who could undertake this specific work and it was reasonable to expect that the OH provider would therefore provide someone suitably qualified. The recommendations of such a report are exactly that – recommendations – and so as long as the Respondent did not then close its mind to the task and treat them as absolute it was reasonable to treat them as a starting point for the subsequent discussions.[61]Despite the report being obtained, the matter was then put on hold and there was a further significant delay. The Claimant had emailed Ms Williams on 18 February 2020, shortly after the report was received, asking for a meeting but following an initial exchange he received no further reply for nearly four months, on 7 July 2020. During this period the Claimant continued in his existing role. In their subsequent conversation the Claimant indicated to Ms Williams that he would not discuss the topic further until a further report was received from his GP, so on 20 July 2020 Ms Williams wrote to his GP requesting this.[62]On 13 August 2020 a second GP, Dr Gately, sent a letter to the Respondent. This stated that the Claimant was fit to do his current role but would struggle with prolonged kneeling/lying. Dr Gately further stated that adding “EBS installation” to his role would be detrimental to his underlying condition. She concluded by stating that she believed it would not be in his best interests to impose other responsibilities/roles that may be detrimental to his health.[63]On 4 September 2020 the Respondent delivered a presentation in which it explained its intention to make a further, separate, contract change. This would see engineers move to a 12 hour shift and weekend working. A letter was sent to the Claimant on the same date confirming these proposed changes.[64]On 18 September 2020 the Claimant attended a consultation meeting about the additional changes with Ms Williams and Mr Goulding. John McGookin, his trade union representative, also attended. The Respondent’s note of the meeting records the Claimant as saying that he could not do a 12 hour shift, as he struggled with the current 8 hours and in the winter it became harder because of the cold. The actions arising from that meeting were that Ms Williams and Mr Goulding would review the Doctor’s report, consider whether the medical and consultation processes should be merged, and that further consultation was required. In his evidence Mr Goulding stated that a change to the requirement that the Claimant move to a 12 hour shift was not considered to be an option. Case Number: 2601591/2021 12[65]Mr Goulding and Ms Williams also stated that the Claimant did not specifically raise morning medication during this meeting. Given that he does not refer to this meeting at all in his statement we accept their evidence on this point.[66]A further consultation meeting was held on 13 October 2020 about the proposed changes, again with Mr Goulding but on this occasion accompanied by Victoria Milnes, HR advisor, rather than Ms Williams. The preparatory notes for that meeting are headed ‘disciplinary investigation’; Mr Goulding was unable to state why. While it is not suggested anywhere that this was a disciplinary process, we note that this record was sent to the Claimant after the meeting and the reference caused him unnecessary additional concern. The error was not rectified at any point.[67]During the meeting the Claimant said that he could not undertake a 12 hour shift as he could not start at 6:00am. He suggested possible adjustments, such as carrying out lighter work on a seasonal basis, his pain being worse in the winter months. The Respondent asked the Claimant to consider whether he could do some installation work. It also asked if he had considered part time work or a job share; the Claimant stated that he could not do these for financial reasons.[68]Following this meeting the Respondent asked the Claimant to consider possible adjustments, with Ms Milnes stating in a letter of 28 October 2020 that it would not be possible for the company to allow him to remain undertaking his current role. The letter further stated that, if agreement could not be reached following a further meeting, one option was to terminate the current contract and offer re-engagement on a new contract that incorporated the changes.[69]On 30 October 2020 there was a third consultation meeting. The Claimant indicated that he may be able to complete some installation work and Mr Goulding highlighted that some such work was relatively short and they were not proposing that he did several in one day, but rather that if the Claimant was already on site or close by and it needed a short installation he could do that. Ms. Milnes offered to put some figures together in relation to job share or part time work, although in the letter that followed the meeting she instead suggested how the Claimant might be able to calculate the figures himself using a particular hourly rate. The letter gave no totals or assurances as to pay protection.[70]That letter, of 6 November 2020, also summarises the reasonable adjustments that the Respondent was prepared to make. These included that the Respondent work with the Claimant to determine whether he could undertake certain installation work, which would not be scheduled to be repetitive and with 25% extra time allowed; the arrangement of further training; and a two week trial period, during which time the Claimant would be accompanied by another engineer to support him during any installation work. The letter also Case Number: 2601591/2021 13 stated that the company deemed it reasonable for him to work 10:00-22:00 shift pattern as the Claimant had indicated that a 06:00 start would not work.[71]In relation to the second engineer accompanying the Claimant the letter does not state how work would be divided up between them. There was also no record as to how the other engineer would be briefed about what the Claimant could and couldn’t do. The Respondent stated in evidence that its expectation was that the Claimant would only do what he could manage and the other engineer would undertake the remaining work, but the proposed reasonable adjustment does not specify such expectations or limitations. The letter further repeats the fact that if agreement cannot be reached then termination was an option.[72]As the Claimant did not agree to the changes he was sent a letter dated 17 November 2020 in which he was told that his contract was being terminated with effect from 24 January 2021. The letter was signed by Ms Milnes from HR, and when giving evidence Mr Goulding could not recall if he had been the one who took the decision to dismiss. It is therefore unclear who in fact decided to terminate the Claimant’s employment. The letter also stated that it was an offer of re-employment on the terms of the new contract, and that the Claimant had a right of appeal in respect of the termination.[73]At no stage in these discussions or the letters that followed were possible alternative roles raised. The Respondent was clear that it would not consider the option of the Claimant continuing in his current role, or continuing to work an 8 hour shift, given its general reasons of costs and the detriment to workplace planning, and felt that the adjustments it had already proposed were the only reasonable way forward. As such, we are satisfied that the Claimant was not offered an alternative position before the decision to terminate was taken, nor had consideration been given by the Respondent to this possibility.[74]On 19 November 2020 the Claimant raised a grievance. This was acknowledged as a grievance and Ms Milnes sent the Claimant a copy of the grievance procedure in response. He was invited by Ms Milnes to a grievance hearing.[75]It was suggested in the Respondent’s submissions that this was in fact an appeal, as paragraph 5.2 of the company grievance policy said that it should not be used in respect of dismissal. However, the correspondence from the Respondent before the meeting referred to it as a grievance, and continued to do so after the meeting when it began describing it as ‘grievance/appeal’. The Respondent did not tell the Claimant that it was now treating the matter as an appeal, nor offer an explanation as to why the word ‘appeal’ had been added, nor remove the word ‘grievance’ from its correspondence. In his evidence Mr McGahan categorically stated that he considered the matter as a grievance, and in line with the grievance policy, which he read and considered before beginning the process. The grievance policy also refers to organisational Case Number: 2601591/2021 14 change and discrimination issues, which it what the Claimant was raising. We are therefore satisfied that this was considered by the Respondent to be a grievance rather than an appeal.[76]The grievance meeting was held on 27 November 2020, with an outcome letter sent on 11 December 2020. Mr McGahan was the decision maker and upheld the original decision. He did state that if the Claimant was prepared to undertake a further OH report then he would be willing to look into this further.[77]This additional OH report was obtained on 13 January 2021 from Lesley Seagars. It stated that the Claimant was not able to do any task which would involve kneeling, crouching, or manoeuvring weights over 10kg, albeit later it qualified this by saying he would not be able to kneel or crouch for extended periods of time. It stated that in her opinion the Claimant would not be able to carry out all aspects of the adjusted role and was not medically fit to work the proposed 12 hour shift, but in light of the fact that the company had indicated that maintaining his current hours and duties were not an option, she recommended that he tried the adjusted duties with alternative medication, reviewed at weekly intervals to see if he was coping and his level of performance. The report acknowledged that tramadol made him drowsy and he would be unsafe to drive while taking it.[78]On 27 January 2021 there was a further meeting with Mr McGahan. During this meeting the Claimant agreed to a trial period and his notice was extended to accommodate this. He agreed to work the 10:00-22:00 shift and would see whether he might be able to adjust his medication.[79]During this meeting the Respondent raised for the first time the possibility of an alternative role. Ms Milnes told him that there were other jobs that he may wish to apply for; when Mr McGookin asked if the renumeration would be the same Mr McGahan stated that it was to be discussed and that he was sure there was some sort of compromise they could come up with. The Claimant also expressed concern about the loss of a company car and working from home but it was suggested that he consider the role. During a break in the meeting Ms Milnes sent him the job description which showed a salary of around £18,500, which was around half of his current salary.[80]We do not find that this discussion amounted to an offer by the Respondent to move the Claimant into an alternative role; it essentially amounted to an offer to discuss the possibility. There was no mention of pay protection and the fact that he was invited to ‘apply’ suggested that it would be part of a competitive process. The reference to a ‘compromise’ also suggests that the Claimant may have to sacrifice at least part of his salary, and the fact that the job advert referred to a substantial lower salary, as well as the previous discussions about job share or part term working, furthered this impression. Whilst Mr McGahan said in evidence that this was not his intention and he would have maintained Case Number: 2601591/2021 15 the salary, this is not what was said and any such intention was certainly not made clear to the Claimant.[81]A letter was sent by Mr McGahan following this meeting, on 29 January 2021. This included proposed reasonable adjustments including a four week trial period, during which the Claimant would complete installation activity deemed less strenuous. There was a reference to some work only being undertaken as part of a two man team, albeit again it did not specify how the work would be divided between the Claimant and the other engineer, or how that engineer would be briefed. It was also again accepted to be reasonable for the Claimant to undertake the 10:00-22:00 shift pattern. His notice period was extended to cover this trial period.[82]During the trial the Claimant experienced difficulties when he was asked by the engineer he was accompanying to undertake some physical work that was beyond his capability. He also raised concerns about some of the other work he had witnessed the other engineer doing, which he said would be beyond his abilities. The Claimant did not feel competent in relation to some other work without additional training.[83]On 3 March 2021 there was a final meeting. The letter that followed offered some similar adjustments as had previously been offered but the requirement to work a 12 hour shift now extended to the 6am-6pm shift. It offered no explanation as to why this change had been made other than a reference to the need to work the same shift pattern as his colleagues. References to 25% additional time were also removed, as were references to further training. When giving evidence Mr McGahan was unable to explain these changes, and suggested that it was because the Claimant had not provided any evidence from his GP to show that he had tried alternative medication. We note that this was not requested in the meetings or the letters that followed, nor was it given as the reason prior to Mr McGahan giving evidence. We therefore find as fact that the Respondent had changed its position and removed adjustments that it had previously considered reasonable without a satisfactory explanation. The Claimant was given until 5 March 2021 to decide whether to accept the adjusted role.[84]The Claimant did not accept the offered adjustments and so on 12 March 2021 the Respondent deemed his employment to have terminated on 5 March 2021. The Claimant responded to the dismissal on the same date saying that he wished his correspondence to be treated as an appeal against his dismissal. On 16 March 2021 he emailed again wishing to raise a grievance.[85]The Respondent replied on 17 March 2021 to state that there were no further routes of appeal, and on 18 March 2021 the Claimant was sent a letter confirming that his grievance was not upheld. Case Number: 2601591/2021 16 Discussions and conclusions Redundancy[86]We deal with this briefly at the outset. The Claimant clarified that the claim for a redundancy payment was included as an alternative and that both the Claimant and Respondent agreed that this was not a redundancy situation. We therefore do not find that the Claimant was entitled to a redundancy payment and this claim is dismissed. Discrimination arising from disability[87]It is accepted that the Respondent treated the Claimant unfavourably by dismissing him.[88]The Respondent also accepts that the Claimant’s joints, knees, right shoulder and hips ached and installation work involved much kneeling, crouching and working in confined spaces, which he was physically unable to do or struggled to do. Furthermore, it is accepted that the Claimant required medication, which made him drowsy so that he could not drive and was not able to undertake a 12 hour shift. Both of these are things that arose in consequence of the Claimant’s disability.[89]We are satisfied that the dismissal was because of these things. While the Respondent suggests that it proposed reasonable adjustments that would have allowed the Claimant to undertake the role, it is common ground that he could not do so without such adjustments and that these could not be agreed. As such, the Respondent’s proposals go to the final question of whether the treatment was appropriate and reasonably necessary. They do not provide an alternative reason for the dismissal, which ultimately remained the fact that the Claimant was not able to do the job as required, in consequence of his disability.[90]The Claimant accepts that the Respondent had a legitimate business aim to provide a more efficient delivery to its customers, and to remain competitive. The business changes were expected to bring considerable savings and efficiencies and it is not suggested, nor do we find, that it was unreasonable for the Respondent to pursue them.[91]The central issue is, therefore, whether the treatment was a proportionate way of achieving those aims, or whether something less discriminatory could have been done to achieve them instead.[92]We are not satisfied that the treatment was appropriate or reasonably necessary for a number of reasons. Firstly, the decision to dismiss was taken without consideration of alternative job opportunities which the Respondent Case Number: 2601591/2021 17 later accepted could have provided an ideal solution. Both Mr McGahan and Mr Goulding said that the Claimant was a good worker and they wanted to keep him employed. In evidence Mr McGahan suggested that the salary would not have been an issue, and his only concern was in relation to the company car; as such, pay protection was clearly both possible and reasonable. While not directly comparable due to a different medical situation and location, the company did take similar steps in relation to SB, another colleague. In all the circumstances the consideration and offering of this role would have been a proportionate and less discriminatory way of achieving the Respondent’s aims. The Respondent instead took the decision to dismiss without such an option having been considered at all.[93]We do not consider that this omission was corrected during the subsequent grievance procedures. The language used suggested that the Claimant would need to apply for any role as part of a competitive process and it was not at all clear that his pay would be protected. The nature of the discussion in fact implied, through language such as ‘compromise’, that there might be a reduction in salary, something the Claimant had already made clear he could not afford. It would have been relatively straightforward for Mr McGahan to have either clarified during the meeting that he thought salary could be maintained but he needed to confirm this before making a firm commitment, or to follow up on this afterwards and notify the Claimant.[94]As such, we are not satisfied that the Respondent has shown that the unfavourable treatment through dismissal, without consideration of possible alternative roles, was a proportionate means of achieving a legitimate aim.[95]In addition to this, the Respondent accepted at an early stage, and before the original decision to terminate, that certain adjustments were reasonable. These included adjustments such as 25% extra time and that the Claimant would not be expected to work the 6am-6pm shift. Such adjustments had been made in light of the medical advice that had been received. The trial period continued to consider such adjustments to be reasonable. Notwithstanding this the Respondent removed these adjustments in its final offer to the Claimant. As noted above, we have rejected the explanation provided for the first time in cross examination that this was because the Claimant had failed to provide certain information from the GP.[96]Given that the adjustments were previously considered to be reasonable we cannot be satisfied that their removal, without explanation or justification, was a proportionate means of achieving a legitimate aim.[97]We further note the Respondent’s decision to bring the consultation period to an end after the trial period. While reference was made to the process having already taken two years and that it could not go on indefinitely, much of the delay was caused by the Respondent itself, for example in obtaining the initial OH advice. Further time then passed when the Respondent decided not to Case Number: 2601591/2021 18 pursue the matter pending the second upcoming contractual changes. It is therefore not a situation where an employer had been working in vain to reach an agreement but was unable to do so in the face of a stubborn employee, finally realising the matter could go no further after an unacceptable delay; instead, the matter had drifted and does not appear to have been considered a priority, particularly given the substantial other changes the Respondent was also undertaking at the same time.[98]Given this, it would have been reasonable for the Respondent to further consider the position at the conclusion of the trial period. It had previously received advice that the Claimant was not medically able to undertake a 12 hour shift, and that further duties could exacerbate his problems. The Claimant had been unable to alter his medication, as suggested in the OH report as a possible way forward, and so the overall position needed to be reviewed in light of this development. Furthermore, the Claimant had not actually attempted any installation work during the trial period and so it remained unclear as to exactly what he could manage. It should also have been clear by this stage that the simple reference to a two man team in the proposed reasonable adjustment – without any further explanation as to what this meant or a briefing to the other engineer – had not adequately protected the Claimant from exposure to work which might put him at risk, or made clear to him exactly what he was being expected to do. It would therefore have been reasonable to consider how this could be clarified.[99]While the Claimant may not have been able to continue in his existing role indefinitely it was not suggested that the position had become untenable by March 2021; the Respondent’s financial position was stable, and there remained some work for the Claimant. It was also never suggested that the Respondent’s aim of reducing its reliance on contractors went as far as an intention to completely remove their use, and so this remained at least a short term option to cover any shortfall. As such, the matter was brought to a conclusion while the information remained incomplete and with an unnecessary urgency. It would have been reasonable, and less discriminatory, for the Respondent to further explore the options at the conclusion of the trial period, rather than confirm the dismissal.[100]Finally, it would have been reasonable for the Respondent to give further consideration to the specific situation of the Claimant. While the focus was on specific physical actions such as kneeling, the Claimant had said on a number of occasions that these were not the only cause of difficulties, highlighting matters such as the impact of the cold. His suggestion that he could therefore try seasonal working, where he did not have to be outside in the winter evenings, does not appear to have been considered at all.[101]Taking all of this into account we are not satisfied that the unfavourable treatment was a proportionate means of achieving a legitimate aim. This claim is therefore well founded. Case Number: 2601591/2021 19 Reasonable adjustments[102]It is agreed that the Respondent operated a PCP to conduct both installation and service work, and another to work a 12 hour shift pattern. While the Claimant remained on his old shift pattern for the majority of the consultation period we are satisfied that these PCPs did apply to him; the entire reason for the dispute was the repeated instruction that they would do so, and he was ultimately dismissed when he did not agree. We therefore do not find that this claim was out of time, an argument which we note was raised for the first time during the course of the hearing.[103]It is also agreed that the PCPs put the Claimant at a substantial disadvantage compared to someone without the disability. It is not suggested that the Respondent was unaware of the disabilities or the disadvantages. While the Respondent does raise an issue in respect of PCP2 before 20 January 2021, when the second OH report was received, there is no doubt that the Claimant had raised the issue of 12 hour shifts and early starts from an early stage, and the Respondent’s letters and notes refer to such issues having been discussed and reasonable adjustments being made as a result. We therefore consider it more likely than not that he had made the Respondent aware of his issues with medication before receipt of the OH report in January 2021, notwithstanding the fact that it may not have been directly discussed on the dates specifically mentioned by Mr Goulding and Ms Williams. While we have not taken it into consideration in reaching this decision, we again note that this was an issue raised for the first time during the course of the hearing, the Case Management Orders recording that knowledge had previously been conceded.[104]The Respondent accepts that it would have been a reasonable adjustment not to require the Claimant to conduct heavy installations, and states that such an adjustment was in place. We are not satisfied that it was. The proposed reasonable adjustment was insufficiently particularised and still required the Claimant to be involved in complex camera installations, only referring to the fact that this would be undertaken as part of a two man team. It did not say what, as part of the two man team, the Claimant would and would not be expected to do, nor were his colleagues briefed in respect of this. The adjustment was, therefore, objectively insufficient in respect of what is agreed would have been reasonable and did not adequately avoid the disadvantage.[105]Furthermore, the Claimant gave clear evidence that installation work was of a wholly different nature to the service work he was already undertaking. The medical information gave clear cause for concern that additional tasks may be detrimental to him. The Respondent accepted that it did not know what he could and could not manage. It is not, therefore, correct to say that there was a clearly defined reasonable adjustment in place that the Claimant would not conduct heavy installations; it is more accurately described as a proposed adjustment to see what his limits were, to some extent based on trial and error Case Number: 2601591/2021 20 rather than sound medical grounds. In this respect it was also not adequate to avoid the disadvantage.[106]For these reasons we are satisfied that the Claimant’s claim that the Respondent failed to make reasonable adjustments is well founded.[107]For the reasons given above we are also satisfied that adjustments limiting the Claimant’s work to his previous role and shift pattern were objectively reasonable, at least in the short term and while the consultation process remained ongoing. While the Respondent disputes that such adjustments were reasonable, however, it did in fact apply them up until the point of termination. We therefore do not make any separate findings in respect of this. Unfair dismissal[108]It is accepted that the Claimant was dismissed. It is the Respondent’s case that this was for some other substantial reason, namely a business reorganisation following which the Claimant refused to accept the altered role. This is a potentially fair reason for dismissal under section 98(2). The burden of proof on employers at this stage is not a heavy one. The employer does not have to prove that the reason actually did justify the dismissal because that is a matter for the Tribunal to assess when considering the question of reasonableness.[109]We are therefore satisfied that the Respondent has shown that the reason for dismissal related to the Claimant’s refusal to accept the altered role. This was given as the reason in the termination letters and again in evidence to the Tribunal. Other than a slightly unclear reference to redundancy, which the Claimant accepted in submissions was no more than an alternative, it has not been suggested that there was another reason for dismissal. We are therefore satisfied that the Respondent has discharged this initial burden.[110]We are also satisfied that the Respondent had sound and good business reasons for the reorganisation, which were genuine and substantial and not arbitrary. The Respondent gave clear evidence as to the business savings and efficiencies, and this is not something that appears to be genuinely in dispute.[111]The key question is therefore whether the decision to dismiss was reasonable in all the circumstances, including the fairness of the procedure.[112]We are not satisfied that the decision to dismiss was within the band of reasonable responses for two key reasons.[113]Firstly, the decision was taken without an adequate exploration of the possible adjustments that could be made to allow the Claimant to continue in employment. These were discussed in detail above and we do not propose to Case Number: 2601591/2021 21 repeat them here. It is sufficient to say in relation to this specific claim that it was outside of the range of reasonable responses for the Respondent to dismiss the Claimant without giving proper consideration to alternative options, including re-deployment, particularly given the size and administrative resources of the employer's undertaking.[114]Secondly, we are not satisfied that the adopted procedure was within the band of reasonable responses. It is unclear as to who specifically took the decision to dismiss. This in itself means that it cannot be shown what decision making process was followed, and therefore be satisfied that this was reasonable. Whoever did make the decision, proper consideration was not given to alternatives to dismissal, something a reasonable employer would have done.[115]Having made the decision to terminate, the Respondent was then clearly unaware as to what policy and process was to be followed in respect of the Claimant’s complaints. This was initially described by the Respondent as a grievance, and then a ‘grievance/appeal’. Mr McGahan was adamant that he followed the grievance policy but his final letter referred to there being no further appeal under the appeal process. Notwithstanding Mr McGahan’s unambiguous statement to the Tribunal we were told by the Respondent in submissions that it was clearly an appeal. In our judgment the Respondent’s approach in this regard was somewhat chaotic, perhaps best demonstrated by the fact that there is still an argument as to what process was even followed, more than 2 years after the dismissal.[116]If it is not clear what policy was being applied then it is impossible to be satisfied that the relevant process was properly followed. Furthermore, this is not merely academic as it had a very real impact on matters such as whether the Claimant had a right to a specific appeal against his termination, conducted by someone independent of the original decision making process. Again, while it was suggested in submissions that any such appeal would have been out of time in any event, we note that we have not been provided with any policies relating to discipline, appeals or termination, and so it is not evidenced that any time limits had in fact passed; the 5 day limit we have been referred to relates to appeals about grievances. Furthermore, the Respondent did not suggest in its letters at the time that an appeal wasn’t being considered because of a time limit, but rather because there was no further right of appeal. In our judgment the decision to proceed without certainty as to what process or policy was being applied was outside the range of reasonable responses.[117]For both of these reasons the claim for unfair dismissal is therefore well founded. Employment Judge Le Grys Date: 25 May 2023 Reasons sent to the Parties: 12 June 2023 FOR THE TRIBUNAL OFFICE Case Number: 2601591/2021 1 EMPLOYMENT TRIBUNALS Claimant: Mr A. Rogers Respondent: Microlise Limited Heard at: Bristol On: 8 September 2023 (in person) and 15 September 2023 (Tribunal meeting in Chambers) Before: Employment Judge Le Grys Dr C. Hole Mr E. Beese Appearances For the Claimant: Ms S. Crawshay-Williams (counsel) For the Respondent: Mr G. Anderson (counsel)
The facts
[1]The Claimant is entitled to recover his losses for a period of 18 months from the date of his dismissal.[2]The appropriate award for injury to feelings is £25,000.[3]The Respondent shall pay compensation in the sum of £500 to reflect the Claimant’s loss of statutory rights.[4]A further hearing shall be listed to determine total compensation in line with the reasons given in this judgment.
Introduction
[1]In its decision on liability, the Tribunal found that the Claimant was unfairly dismissed and that the Respondent subjected him to discrimination arising from disability and discrimination on the basis of a failure to make reasonable adjustments. Case Number: 2601591/2021 2[2]For this hearing on remedy we heard from the Claimant and Gemma Wililams. Both gave oral evidence and were cross examined. We also had an agreed bundle of 322 pages, to which the Claimant added a further 5 pages during the hearing. The Respondent provided written submissions running to 24 pages.[3]Given the number of issues that the Tribunal needed to resolve it was agreed that this hearing would be limited to the determination of issues of principle, and the Tribunal would reconvene on a later date to finalise the exact figures.[4]The Claimant confirmed that he has not received any State benefits following his dismissal and so no issues of recoupment arise in respect of past losses.[5]The Claimant is not seeking reinstatement or re-engagement. These are the principal remedies for unfair dismissal, although orders for reinstatement or re-engagement are rarely made.[6]The Claimant was born in July 1964 and was aged 56 when he was dismissed on 5 March 2021.
Issues
[7]The issues to be decided on compensation were agreed as follows: The Claimant’s basic award is agreed at £8,070.[2]How long would the Claimant have remained in the Respondent’s employment following his dismissal if the Respondent had acted lawfully? In particular:2.1 How long would a further consultation/trial period have lasted?2.2 What are the chances that the Respondent would have fairly dismissed the Claimant following that further consultation/trial period? In particular, what are the chances that the Respondent would have had available and the Claimant would have accepted alternative employment?2.3 How long would the Claimant have been absent from work as a result of the osteoarthritis in his hip (the “hip condition”)? In particular, how long would it have taken the Claimant to be in a position where he was able to work noting:2.3.1 In the real world, the Claimant has been prescribed an arthroscopy operation. Case Number: 2601591/2021 32.3.2 In the hypothetical world, what are the chances that the Claimant would have been prescribed arthroscopy operation. Applying that percentage chance:2.3.2.1 Would the Respondent’s private medical insurance have covered an arthroscopy?2.3.2.2 When would the Claimant have received that operation (noting it was prescribed on 12 August 2021)?2.3.2.3 What are the chances that the operation would have been successful?2.3.3 In the hypothetical world, what are the chances that the Claimant would have been prescribed a hip replacement?2.3.3.1 Would the Respondent’s private medical insurance have covered a hip replacement?2.3.3.2 When would the Claimant have received that operation?2.3.3.3 It is accepted that the hip replacement would have had a 90% chance of success.2.3.4 In either event, how long post-operation would it have taken the Claimant to return to work?2.3.5 What are the chances that, in the interim, the Respondent would fairly have dismissed for capability? In particular, what are the chances that the Respondent would have had available and the Claimant would have accepted alternative employment?2.4 What are the chances that, in the interim, the Respondent would fairly have dismissed for capability? In particular, what are the chances that the Respondent would have had available and the Claimant would have accepted alternative employment?[3]At what point was it or will it be reasonable for the Claimant to have mitigated his loss with alternative employment?[4]If it is appropriate to award future loss:4.1 When will the Claimant become entitled to claim universal credit (at £175.17 per week)? Case Number: 2601591/2021 44.2 The parties agree that an appropriate figure to reflect the loss to the Claimant of:4.2.1 Private health insurance is £18.62 a week;4.2.2 Life insurance/death in service benefit is £5.77 a week.4.3 Is it appropriate to award past losses in respect of private health insurance and life insurance?[5]It is agreed that the appropriate figure to reflect the loss to the Claimant of the company car is £4,914 plus £81 per week. What, if any, discount is appropriate to reflect the extent to which the Claimant used the car for personal reasons?[6]What is the appropriate award for injury to feelings?[7]Does the ACAS code apply to the Claimant’s claim? In particular:7.1 Does the ACAS code apply to SOSR dismissals in principle?7.2 In any event, is the Claimant’s claim one that raises a “disciplinary situation” or a “grievance situation”?7.3 If so, was there an unreasonable failure to follow the code by either party?7.4 If so, what is the appropriate uplift/reduction?[8]Is the Claimant entitled to lost earnings between July 2019 and his Effective Date of Termination on 3 March 2021?[9]Is the Claimant entitled to £14,000 to cover the cost of a hip replacement?[10]It is agreed that the Claimant’s net weekly wage was £420.91; The Respondent’s pension contribution is 4%;[12]There would have been a 3% increase in July 2021, 2022, and 2023. What is an appropriate figure to represent the chances of a pay increase in any future loss? The law on remedy Compensation for unfair dismissal 8. An award of compensation is the most common result in unfair dismissal cases. It is assessed under two heads; the basic award and the Case Number: 2601591/2021 5 compensatory award (see section 118 of the Employment Rights Act 1996 (“ERA”)). 9. The provisions relating to the basic award are contained in ERA sections 119 to 122 and in section 126. The award is calculated according to a formula based on age, length of service and gross weekly pay. A week’s pay is subject to a statutory maximum (see ERA section 227). It is agreed in this case that the basic award is £8,070. 10. The provisions relating to the compensatory award are contained in ERA sections 123, 124, 124A and 126. 11. A compensatory award is intended to compensate for loss actually suffered and not to penalise the employer for its actions. Furthermore, where a loss of earnings would have been taxable in a Claimant’s hands, loss must be calculated net of tax and NI (see British Transport Commission v Gourley [1956] AC 185). The relevant questions are: whether the loss was occasioned or caused by the dismissal; whether it is attributable to the conduct of the employer; and whether it is just and equitable to award compensation. 12. Permissible heads of loss include: past and future loss of earnings, loss of pension and fringe benefits, expenses incurred in looking for other work, and compensation for loss of statutory rights. The award for loss of statutory rights reflects the fact that the dismissed employee will have to work for 2 years in new employment to reacquire the right not to be unfairly dismissed. The award is generally for a conventional amount, at present somewhere in the region of £500.[13]An employee who has been unfairly dismissed must mitigate his loss by taking reasonable steps to reduce his losses to the lowest reasonable amount. This does not mean he has to take ‘all possible’ steps. The burden of proving a failure by a Claimant to mitigate lies on the Respondent.[14]ERA section 124 places a cap on the compensatory award for unfair dismissal. Remedies for discrimination[15]Where a Tribunal finds that an employer has discriminated against an employee, there are three types of remedy available (see section 124 of the Equality Act 2010 (“EQA”)). The Tribunal may:a. Make a declaration as to the rights of the complainant and the Respondent in relation to the matters to which the proceedings relate;b. Order the Respondent to pay compensation to the complainant;c. Make a recommendation that the Respondent take specified steps for the purpose of obviating or reducing the adverse effect of any matter to which the proceedings relate on the complainant. Case Number: 2601591/2021 6[16]Each of these remedies is discretionary but it is highly unusual for a remedy not to be awarded. Compensation for discrimination[17]The central aim of any award of compensation is to put the Claimant in the position, so far as is reasonable, that he would have been in had the discrimination not occurred (Ministry of Defence v Wheeler [1998] IRLR 23 and Chagger v Abbey National plc [2010] IRLR 47). The types of financial loss that are recoverable are, in general, the same as for an unfair dismissal compensatory award and include the value of lost earnings and benefits. The same principles of mitigation apply.[18]There are a number of key differences, however:a. There is no statutory cap on the amount of compensation;b. The Tribunal does not award simply what it considers ‘just and equitable’ but must assess loss under the same principles as apply to torts (see EQA s124(6) and s119(2)), though the two approaches will often lead to the same result.c. The Tribunal can award compensation for non-financial losses such as injury to feelings, aggravated damages and general damages for personal injury.d. The Recoupment Regulations do not apply (recoupment does not arise in this case in any event).e. The Tribunal has power to, and generally should award interest on past losses. Compensation for injury to feelings[19]An award for injury to feelings is intended to compensate the Claimant for the anger, distress and upset caused by the unlawful treatment he has received. It is compensatory and not punitive, but the focus is on the actual injury suffered by the Claimant and not the gravity of the acts of the Respondent (see Komeng v Creative Support Ltd [2019] UKEAT/0275/18).[20]Tribunals have a broad discretion about what level of award to make. The matters compensated for encompass subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression (see Vento v Chief Constable of West Yorkshire Police (No2) [2003] IRLR 102). The general principles that apply to assessing an appropriate injury to feelings award were set out by the EAT in Prison Service v Johnson [1997] IRLR 162, as follows:• Injury to feelings awards are compensatory and should be just to both parties. They should compensate fully without punishing the Case Number: 2601591/2021 7 discriminator. Feelings of indignation at the discriminator’s conduct should not be allowed to inflate the award;• Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could be seen as the way to untaxed riches;• Awards should bear some broad general similarity to the range of awards in personal injury cases – not to any particular type of personal injury but to the whole range of such awards;• Tribunals should take into account the value in everyday life of the sum they have in mind, by reference to purchasing power or by reference to earnings;• Tribunals should bear in mind the need for public respect for the level of awards made.[21]The Court of Appeal in Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102 identified three broad bands of compensation for injury to feelings. There is within each band considerable flexibility, allowing Tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case. Compensation must relate to the level of injury to feelings experienced by the particular Claimant.[22]Presidential Guidance states that in respect of claims presented on or after 6 April 2021, and taking account of Simmons v Castle [2012] EWCA Civ 1039, the Vento bands shall be as follows: a lower band of £900 to £9,100 (less serious cases); a middle band of £9,100 to £27,400 (cases that do not merit an award in the upper band); and an upper band of £27,400 to £45,600 (the most serious cases), with the most exceptional cases capable of exceeding £45,600. This claim was presented on 16 July 2021. Interest[23]A Tribunal can, and usually will award interest on awards of compensation made in discrimination claims under s124(2)(b) EQA and the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (“the Regulations”). Interest is limited to past loss, that is loss to the date of the Remedy Hearing. The current rate of interest is 8%.[24]Interest is awarded on injury to feelings awards from the date of the act of discrimination complained of until the date on which the Tribunal calculates the compensation (see reg 6(1)(a) of the Regulations). Interest is awarded on all sums other than compensation for injury to feelings from the mid- point date (reg 6(1)(b)). The mid-point date is the date halfway through the period between the date of the discrimination complained of and the date when the Tribunal calculates the award (reg 4). Case Number: 2601591/2021 8[25]The Tribunal has a discretion to award interest on a different basis if it considers that serious injustice would otherwise be caused. Other matters common to compensation under the ERA and EQA The burden of proof[26]It is for a Claimant to prove his loss and, generally speaking, this will include proof of the causal link between the unlawful treatment and the loss. In many cases this will be obvious or relatively easy for a Claimant to achieve.[27]As noted above, the Claimant is under an obligation to take reasonable steps to mitigate her loss, but it is for the Respondent to prove with evidence that he has failed to do so. Choice of basis for compensation[28]It is a matter for the Tribunal to decide whether to award compensation either under the ERA or EQA. It must, however, avoid double recovery. The relevance of Codes of Practice[29]Under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A”) an award of compensation for unfair dismissal can be increased by up to 25% if the employer has unreasonably failed to comply with a relevant Code of Practice issued by ACAS or the Secretary of State (there is a corresponding power to reduce awards by up to 25% where an employee unreasonably failed to comply with a relevant Code). This power to increase or reduce does not apply to a basic award for unfair dismissal (see ERA sections 118 and 124A). Conclusions[30]Apart from those awards that can only be made under the ERA, namely a basic award for unfair dismissal and compensation for loss of statutory rights, we have decided to assess the Claimant’s losses under the EQA. This is so that we can award interest on the compensation to which the Claimant is entitled to reflect the time which has elapsed since his discriminatory dismissal. We find that this reflects the justice of the case. Issue 2: How long the Claimant would have remained in the Respondent’s employment[31]We begin by considering the hypothetical position had the Respondent acted lawfully, and the Claimant had not developed the hip condition.[32]It is important context that the Tribunal did not conclude in our liability findings that it would have been reasonable for the Respondent to continue employing the Claimant in his original role indefinitely. At paragraph 90 of our reasons it was noted that the Respondent had Case Number: 2601591/2021 9 legitimate business aims and that it was reasonable for it to seek re-organisation.[33]The issue was instead whether something less discriminatory could have been done to achieve these reasonable goals. The Tribunal found that there had been a failure to consider alternative job opportunities, and previously agreed reasonable adjustments had been removed without explanation. The Respondent also brought the consultation to an end after an ineffective trial period rather than further considering the position.[34]Had the Respondent acted lawfully, therefore, we consider it likely that it would instead have embarked on a further period of consultation. Having recognised that the Claimant had not conducted any installation work during his trial, and that there remained a lack of clarity as to what additional work (if any) he could manage, we find it likely that this would have involved an additional trial. During this the Respondent would have continued with the previously agreed adjustments, and clarified - both to the Claimant and anyone he was working with - the exact parameters of his work, in other words what he was and was not expected to do.[35]As the original trial period was for four weeks it is likely that any new trial would have been for a similar length of time. At the end of this the Respondent would consider the results as part of the ongoing consultation.[36]The Tribunal does not consider it likely that the further consultation would have resulted in the Claimant moving to the adjusted role, even taking into account the reasonable adjustments previously agreed. He had been adamant throughout the process that he could not complete installation work and that this was substantially different to what he was already doing. He had stated that the work he had seen during his first trial was beyond his capability. He had already indicated to the Claimant that, regardless of his medical condition, he would not agree to any changes in his contract. Furthermore, the report of Dr Gately had stated that any additional responsibilities or roles may be detrimental to his health, while the Occupational Health Report of Lesley Seagars dated 13 January 2021 had stated that he could not carry out all aspects of the adjusted role and was not medically fit to work the proposed 12 hour shift.[37]Taking into account both the attitude and approach of the Claimant and the medical advice, therefore, while it would have been reasonable to conduct a further, effective, trial period, we do not find it likely that the Claimant would have moved to the amended role at its conclusion. We instead find that the Claimant would have remained either unwilling or unable to undertake the additional duties.[38]The Respondent would therefore have re-assessed the position. Given that it had previously touched upon the option of alternative jobs, including possible pay protection, it is likely that this would have included a consideration of such alternatives. Furthermore, the Respondent had shown with other employees that it was willing to consider such alternative Case Number: 2601591/2021 10 roles, including the possibility of returning to their original consultation period if these were not successful after a reasonable trial. It was also agreed throughout the process that the Respondent did not want to lose the Claimant and was keen to find a mutually agreeable solution.[39]While the Claimant had expressed doubts as to whether he would be able to undertake an alternative role he had indicated a willingness to consider the options, subject to clarification on issues such as pay protection and whether he would need to apply as part of a competitive process. He was also clear throughout proceedings that he liked working for the Respondent and had wanted to continue doing so, and also expressed his concerns about finding a new employer if he had to leave. Given that the alternative in these circumstances would have been a potential dismissal for capability we find it likely that he would have agreed to explore the possibilities.[40]Taking this all into account we consider it likely that the Respondent would have given a reasonable period to find a suitable alternative role. As a large employer who had shown an ability to find such work for other employees it is likely that it would have been successful in such a search, albeit it may have taken time to identify a position, consult with the Claimant, and make the arrangements for the transfer. Given the time already afforded to the process, however, as well as the fact that it was not time critical that the Claimant’s role changed immediately, it would have allowed for this time.[41]In all the circumstances we find it likely that this process (which, for the avoidance of doubt, includes the new trial period and any further consultation meetings) would have taken up to six months, during which time the Claimant would continue in his existing role. This would give a reasonable period for the alternatives to be explored without placing an undue burden on the Respondent to continue with the present situation indefinitely.[42]At the end of this period we consider it likely that the Respondent would have offered the Claimant an alternative role with an agreed form of pay protection, and that the Claimant would have accepted this revised position.[43]The Tribunal does not find it likely, however, that the Claimant would have remained in the new role for an extended period. During the consultation he stated that he did not believe he could manage such a job for more than six months, and that he believed he only had between one and two years of work left in him. He has also given clear evidence to the Tribunal as to the negative impact that staying in the house has had on him since his dismissal which is likely to have also been a factor in any position that required him to work from home, such that we consider his original estimates during the consultation to be accurate. While he would no doubt have made every effort to make the changes work in order to keep his job, Case Number: 2601591/2021 11 it is highly unlikely that he would have remained in a new position any longer than he had expected to remain in an entirely unchanged role.[44]Taking this all into account we do not find it likely that he would have remained employed by the Respondent longer than 12 months after the point at which changes were made to his role. This reflects the period during which the Claimant would have worked in the new position as well as the possibility of a short period where he reverted to his original role before a final consultation period.[45]The unanimous view of the Tribunal is, therefore, that had the Respondent acted lawfully, and putting the hip condition to one side at this stage, the Claimant would have left the Respondent’s employment no more than 18 months later than he did (comprising of the 6 months additional consultation and 12 months in an adjusted role and final consultation period). The hip condition[46]It is agreed that, following the Claimant’s dismissal but not directly connected to it, the Claimant began to experience difficulty with his hip. It is therefore also agreed that, had the Claimant remained in the Respondent’s employment, this would have impacted his ability to work (albeit the extent of this is disputed).[47]On 24 March 2021 the Claimant visited his GP and described the pain as “so bad feels like will vomit” (p113). On 29 March 2021 his medical notes show that he had been fitted for a walking stick; on 13 April 2021 it is recorded that he was “struggling to go out due to hip pain, struggles to get some of his clothes on” (p112). By 28 April 2021 it was recorded that he “cant [sic] stand or walk for long or far” and had had a bath seat fitted (p111). On 20 July 2021 it was recorded that the Claimant had made enquires about borrowing a wheelchair (p109).[48]The Claimant gave evidence that he believed he would have been absent from work for no more than a couple of weeks as a result of this, which was the time when the pain was at its most severe. After this he began to improve. He said that he was determined to keep working and had been avoiding taking any sickness absences and so would have been motivated to return. While he accepted that he did use a wheelchair for a couple of events in July, these were all day family events where he would be needing to stand or walk for an extended time and he did not routinely need one.[49]While we accept that the Claimant would have been motivated to return to work we do not consider it reasonably likely that the period of absence would be limited to two weeks. The medical notes show an extreme level of pain and, while the Claimant argues that he did not routinely need a wheelchair, the fact that he was making such enquires at all by as late as July strongly suggests in itself that his mobility remained restricted. In Case Number: 2601591/2021 12 addition to this, we note that Dr John’s report of 23 August 2023 indicates that the Claimant’s symptoms cannot be controlled without a full hip replacement (p144), and so these were clearly not issues that would have gone away entirely on their own. Furthermore, Gemma Williams gave clear evidence, which was not specifically challenged and so we accept, that the environment in which the Claimant worked was a potentially dangerous one where employees required full mobility; as such, the use of aids such as walking sticks would not be permitted. When this is all taken into account we do not find it likely that the Claimant would have quickly returned to work, nor that the Respondent would necessarily have permitted this without further assessments and referrals. The Claimant would, therefore, have commenced an extended period of sickness absence.[50]Given our earlier findings as to the Respondent’s desire to keep the Claimant at work, however, as well as its demonstrated willingness to extend periods of sickness absence for longstanding employees where there was a hope or expectation that they would be able to return in some capacity, we do not consider it reasonably likely that the Respondent would have immediately moved to strictly apply the sickness absence policy, particularly in relation to pay. While we accept Gemma Williams evidence that the policy would have permitted this, the Claimant had a clearly defined medical issue and we consider that the Respondent, as a reasonable employer, would have supported him while this was investigated, as it had for others.[51]In the real world, the Claimant was referred for an MRI on 27 May 2021 which was conducted on 12 August 2021. An x-ray also took place on 20 May 2021. Following these assessments it was suggested that he would be suitable for an arthroscopy operation. While the Claimant assumed that he was on a waiting list he heard nothing more about this and no such surgery was ever undertaken.[52]In a new assessment in August 2023 Dr John concluded that a full hip replacement was required and that an arthroscopy operation was unlikely to have ever assisted him. A hip replacement would, however, have a high probability of allowing him to make a full recovery.[53]We do not consider it likely that, had the Claimant remained in employment, the situation would have been permitted to ‘drift’ in the manner that it did in the real world. Both the Claimant and Respondent would have had a clear incentive to see that the Claimant was returned to work as soon as possible, which would likely have seen both parties taking a far more proactive approach to chasing results and ensuring that things were moving towards a positive outcome. This would have included a referral to the Claimant’s private medical insurance and would almost certainly have resulted in much earlier progress than was actually seen.[54]Given the firm conclusions in Dr John’s report we consider it likely that this would have resulted in the early identification of the need for a hip Case Number: 2601591/2021 13 replacement. In contrast, the NHS notes suggest a lower degree of certainty (“may be suitable”, p125) with a need for further assessments. In circumstances where the situation was instead promptly investigated and the matters were properly followed up we find it likely that the need for a hip replacement would have been identified at this earlier stage.[55]We are also satisfied that such an operation is likely to have been covered by the private medical insurance. The email from Vitality (p316) does no more than state that it might be classed as a pre-existing condition in certain circumstances, but that a medical report would be needed to confirm. We do not consider this to take the matter any further forward; at its highest it does no more than state that there is a possibility it could be excluded, but that this would need to be checked. Given that Dr John’s report makes clear that the hip condition is not, in fact, connected to the Claimant’s pre-existing arthritis, we consider it unlikely that any such investigations by Vitality would have come to a different view.[56]We therefore find that, had the Claimant remained employed, the need for a hip replacement would have been identified within a reasonable period and such an operation would then have been organised through his medical insurance. There is no dispute that such an operation had a high probability of success, such that the Claimant would have been essentially placed back in the situation he was in before the hip condition arose.[57]Taking into account the agreed timescales for such an operation to take place we find it likely that the Claimant would have had this surgery, and been fit to return to work, by around the end of 2021. We are further satisfied, given the way in which the Respondent treated others in similar situations, that it would have continued to support him during this time, taking into account the fact that he had a clearly defined treatment path that was likely to see him return to work within a reasonable period.[58]We do not find it likely, however, that this process would have had a significant impact on the total time that the Claimant would have remained employed by the Respondent. It is agreed that a hip replacement would only address this specific health concern and would have had no impact on the Claimant’s original conditions, nor the Respondent’s intention to re-organise its business. As such, even if this health condition was fully resolved, the Claimant would merely have returned to the original consultation period.[59]While the Respondent would have then finished any uncompleted part of the trial period, there is no reason to believe that the outcome would have been any different.[60]Furthermore, while the Claimant may have been unable to work while awaiting his operation there was no reason as to why the Respondent could not have used this time to consider alternative job opportunities, which could then have been put to him immediately on his return. It is therefore likely in this hypothetical scenario that matters would in fact have Case Number: 2601591/2021 14 moved far more swiftly than the 6 months we allowed for had the hip condition not occurred. In addition to this, and as noted above, the Claimant had already indicated that he did not consider it likely that he would continue working for longer than a year or two regardless of the hip condition, and, given that his original conditions remained, there are no reasonable grounds on which to conclude that this would have changed.[61]We further note that both the Claimant’s medical records and his evidence to the Tribunal demonstrated a clear deterioration in his mental health following his dismissal, including a diagnosis of PTSD. As a result of this he described having found everything more difficult. He told us that he considers this deterioration to be connected to his dismissal as it meant he spent a lot more time alone at home, causing him to think about things that he had previously been able to compartmentalise.[62]While we have considerable sympathy for the Claimant’s situation we do not consider that responsibility for these mental health issues can be fairly placed at the Respondent’s door. They are not directly connected to his employment and, even had the Claimant’s situation been dealt with exactly as he would have liked, he would have faced an extended period at home and out of work. While we accept that in this hypothetical situation he would not have been dismissed, it would still have been a time during which he faced considerable uncertainty about his employment situation. Furthermore, any new role that he was offered would also likely have seen him at home for much of the time. In all the circumstances there is a reasonable likelihood that the mental health issues the Claimant is now experiencing, and the associated difficulties that this has brought, would have arisen regardless of the dismissal.[63]As such, while the exact point at which events happened would inevitably have been impacted by the Claimant’s hip condition, the Tribunal does not consider it likely that he would have continued in work beyond the 18 months identified above. The medical condition would instead have resulted in a period away from work, during which the Respondent would have considered possible alternative roles. On his return, and following a short further consultation period, the Claimant remains likely to have accepted such an alternative but his deteriorating mental health, as well as his original estimate as to how long he expected to continue working, was such that he is unlikely to have remained in post for an extended period. In both scenarios, therefore, the Claimant would ultimately have reached his original estimate of one to two years remaining in work, and would then either have resigned or been fairly dismissed for capability.[64]The Tribunal finds, therefore, that the Claimant is entitled to recover his losses for a period of 18 months following his dismissal.[65]Given that this period had already passed by the date of the remedy hearing it follows that we do not find that he is entitled to recover in respect of future losses. Case Number: 2601591/2021 15 Issue 3: Mitigation[66]It is accepted that the Claimant has experienced significant ill health since his dismissal, both as a result of his hip condition and his mental health. He continues to await the required hip operation and his mobility remains highly restricted. He has stated that he is not entitled to State benefits as a result of his savings. In the circumstances we do not consider it reasonable to have expected him to have mitigated his losses during the 18 month period we have identified.[67]While we do not find that the Claimant is entitled to recover future losses, and so no issue of mitigation arises in respect of this, we do briefly note that we do not consider the Claimant’s claim for losses until retirement, a period which would cover more than 10 years from his dismissal, to be reasonable. We are satisfied that the Respondent has shown that there is strong demand for this sort of work and, while the Claimant had concerns that any prospective employer would not make any adjustments for him, they would be under a legal obligation to do so. The Claimant accepts that he has not actually made any attempts to apply and so it is not the case that he has been told that adjustments would not be made. Furthermore, while the Claimant deals with some of the suggested jobs in his witness statement there remain a significant number for which he raised no specific objections. Given that we have not found that his mental health issues can be attributed to the Respondent, as well as the evidence of high demand for workers with the Claimant’s skills and experience, we are satisfied that it would have been unreasonable for the Claimant to fail to mitigate his losses for such an extended period. Issue 4: Future loss[68]As we have not found it appropriate to award future loss no issue in respect of this arises.[69]We are, however, satisfied that the Claimant is entitled to past losses in respect of his private health insurance, life insurance, and employee pension contributions for the 18 month period we have identified. These are fringe benefits which the Claimant has lost and so is entitled to recover, with the value assessed simply by taking the difference between the cost to the employee of the benefit before dismissal and the cost on the open market after dismissal. Issue 5: Company car[70]It is agreed that the Claimant is entitled to claim in respect of the loss of his company car, albeit the parties disagree as to what, if any, reduction should be made to reflect the extent to which he actually used it for personal use.[71]The Claimant was entitled to use his company car for personal use outside of working hours. This would include the ability to use it before or after Case Number: 2601591/2021 16 work, and at weekends. We accept as reasonable the Claimant’s submissions that normal use may well have included matters such as popping to the shops while on the way to or from work.[72]We also note, however, that a central part of the Claimant’s case was that his medication made him unsafe to drive in the evenings, and that his hip condition would have restricted his ability to use it during the period while he was awaiting his operation.[73]Taking this all into account, in our judgment the Claimant is entitled to recover the value of 3/7 of the company car over the 18 month period identified. This covers the loss of use at the weekends while making a modest additional allowance for use during the week. Issue 6: Injury to Feelings[74]The parties agree that this would fall into the middle Vento band, albeit there is disagreement as to where it should fall within this band.[75]In our judgment the matter does fall towards the upper end of the middle band. The Claimant has given clear evidence of the very upsetting nature of the dismissal which we accept and take fully into account. We note in particular the somewhat chaotic nature of his final dismissal from the company for which he had worked for 10 years, which included being told that he had no right to challenge the decision as well as a lack of clarity as to who was actually responsible for the original decision to dismiss. We further note that the dismissal followed a trial period that had been ineffective and did not appear to address his concerns, following which his previously agreed adjustments were removed without explanation. In such circumstances we do find that the upset caused was considerable.[76]In addition to this, while not directly attributable to the Respondent, we do consider that the Claimant’s ability to process the life events that subsequently occurred, including both his hip condition and mental health issues as well as a cancer scare, was impacted by the treatment he received, such as to compound the upset.[77]Finally, we are satisfied that the effect on the Claimant’s feelings has further been compounded by the fact that, but for the discriminatory treatment, it is likely that he would have received the required medical treatment by now.[78]We are therefore satisfied that the appropriate award is broadly towards the top of the middle Vento band, and consider £25,000 to be the just and equitable award for injury to feelings. Issue 7: ACAS Uplift[79]In its liability findings the Tribunal found that the dismissal was for Some Other Substantial Reason [109]. As the reason for the dismissal did not Case Number: 2601591/2021 17 involve a disciplinary offence or matters relating to conduct there can be no basis for awarding an uplift for failure to comply with the Code (applying Holmes v Qinetiq Ltd 2016 ICR 1016, EAT and Phoenix House Ltd v Stockman 2017 ICR 84, EAT).[80]We further note that the claim did not previously include any claim for an uplift or in respect of the procedure, nor was this included in the list of issues in the original Case Management Orders of EJ Bax.[81]Taking all of these factors into consideration we do not consider it appropriate to make any adjustment to the award in respect of this. Issue 8: Lost Earnings[82]The Claimant did not bring a claim for unauthorised deduction from wages, nor did the Tribunal make any findings that it had been discriminatory for him not to have been awarded a pay rise.[83]In such circumstances the Tribunal does not consider it appropriate to make any award in respect of this. Issue 9: Hip Replacement Cost[84]While we are satisfied that the Claimant was likely to have received the required treatment but for the dismissal, he has not, as a matter of fact, suffered any direct financial loss as a result of this. Had he continued in employment and the costs of any treatment been covered by the insurers then this would not have resulted in a direct cost to him. While there is the possibility that he might have paid for this privately it is an inescapable fact that he did not.[85]Furthermore, the Claimant will now be entitled to this treatment on the NHS and so there is no requirement for him to pay privately. While he may choose to do so, this would be a personal decision rather than a future loss that can be directly attributed to the Respondent.[86]In our judgment, therefore, an award for treatment that the Claimant has not received not paid for would effectively amount to a windful payment for losses that he has not suffered.[87]While we accept that the Claimant did lose the opportunity to have the treatment undertaken earlier, we note that we have already made provision for the impact of this as part of our assessment of injury to feelings. In all the circumstances we do not, therefore, consider it to be just and equitable to make any further award in respect of this. Loss of Statutory Rights[88]We are satisfied that a figure of £500 is appropriate, taking into account the Claimant’s length of service. Case Number: 2601591/2021 18 Interest for discrimination[89]We award interest at 8% on those heads of losses arising under the EQA. Employment Judge Le Grys Date: 28 September 2023 Judgment sent to the Parties: 18 October 2023 For the Tribunal Office Case Number: 1401413/2023 10.2 Judgment - rule 61 EMPLOYMENT TRIBUNALS Claimant: Miss R Burleigh Respondents:(1) The Wild Beer Company Limited (In Administration)(2) The Secretary of State for Business and Trade (as an interested party) Heard at: Bristol Employment Tribunal (by video) On: 2 February 2024 Before: Employment Judge Ferguson Members: Ms R Goddard Mr L Wakeman Representation Claimant: Ms K Hampshire, counsel Respondents: None
Issues
Conclusions
[1]The Claimant is entitled to present a complaint under section 189(1)(d) of the Trade Union and Labour Relations (Consolidation) Act 1992.[2]The complaint that the Respondent failed to comply with a requirement of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 is well founded.[3]The Tribunal makes a protective award in respect of the Claimant and orders the Respondent to pay her remuneration for the protected period of 90 days beginning on 15 December 2022.