Mr C Lopez Moreno v Wharfedale Facilities Management Ltd: 2601877/2020

EMPLOYMENT TRIBUNALS

Case No 2601877/2020

Between

Mr C Lopez MorenoClaimant

Wharfedale Facilities Management LimitedRespondent

Before

Employment Judge Wedderspoon

Date 27 September 2021

JUDGMENT

The complaint of victimisation under section 27 of the Equality Act 2010 is dismissed following a withdrawal by the claimant. The claimant’s remaining complaints will proceed to hearing on 26-30 April 2021. RESERVED JUDGMENT ON HEARING A PRELIMINARY POINT The Judgment of the tribunal is that the Claimant was, at the relevant time, a disabled person for the purposes of Section 6 of the Equality Act 2010 by reason of his dyslexia.

REASONS

Conclusions

[1]This preliminary hearing was arranged following a preliminary hearing for case management heard by EJ Wedderspoon 26 March 2021.

Background facts

[2]The Claimant has claimed that he is a disabled person by reason of dyslexia and auditory reduction.

[3]The Respondent has already conceded that the Claimant is a disabled person by reason of his auditory reduction.

[4]The purpose of the hearing is to consider whether or not he has disability status as defined by the Equality Act 2010 by reason of his dyslexia.

[5]The question is important because the Claimant’s claims of discrimination are in many cases underpinned by his condition of dyslexia rather than in his auditory reduction.

[6]The issues for the tribunal to consider are as follows:a. Did he have a physical or mental impairment: dyslexia? This issue has been conceded by the Respondent (see their email to the tribunal 31 March 2021).

b. Did it have a substantial adverse effect on his ability to carry out day-to-day activities?

c. If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

d. Would the impairment have had a substantial adverse effect on his ability to carry out day-to-day activities without the treatment or other measures?

e. Were the effects of the impairment long-term? The Tribunal will decide: i. did they last at least 12 months, or were they likely to last at least 12 months? ii. if not, were they likely to recur? Evidence

[7]This preliminary hearing was a fully remote hearing undertaken through HMCTS’s Cloud Video Platform. No connection issues were noted during the hearing by anyone participating in the hearing.

[8]The Claimant attended the hearing and acted in person. He was supported by his wife in accessing and reading documents during the hearing.

[9]The Claimant served a witness statement and a bundle of documents. The bundle of documents is 169 pages. The bundle of documents also contains an impact statement from the Claimant.

[10]The Respondent had received a copy of the Claimant’s witness statement by email on 17 May 2021 but had overlooked that email. The Respondent had made an assumption that the impact statement in the bundle was the Claimant’s evidence for today.

[11]The hearing was adjourned for 35 minutes at 10:25 for the Respondent’s representative to consider the statement and to determine from it whether or not they would need more time or would be ready to proceed.

[12]After that adjournment the Respondent’s representative confirmed that they were ready to proceed.

The issues

[13]The Respondent’s representative did note that in the Claimant witness statement the Claimant referred to notifying the Respondent of certain matters in paragraph 35. We all agreed that such comments may go to knowledge of disability but that was not an issue for determination today and will be considered at the full hearing. We also agreed that it was not necessary to ignore all of paragraph 35 in the Claimant’s witness statement as some of the content could clearly be relevant to the issues set out above.

[14]The Claimant stated that he would not require any adjustments during the hearing other than time to read and consider documents, which he was granted, and for his wife to support him during the hearing, also allowed.

[15]We took a second break at the close of cross examination of the Claimant at 11:52 at the Claimant’s request for him to take stock and think about my question of whether or not he had anything to add. His request for a 15-minute adjournment was granted. When we resumed at 12:10 the Claimant confirmed that he had nothing further to add.

[16]Numbers in brackets below are references to page numbers in the bundle of documents. Findings of fact

[17]I make the following findings of fact on the balance of probabilities. These findings are not intended to cover all of the Claimant’s evidence. I took into account all of his evidence but it would not be appropriate to repeat it all here. These are the core findings for the purposes of my conclusions.

[18]The Claimant produced a witness statement (10 pages).

[19]The Claimant states that his condition is lifelong, that he has had it as long as he can remember and that he expects it to be lifelong. He states it is a permanent and constant. He states that strategies he has adopted throughout his life do help him to manage the effects to a limited degree but they never remove them.

[20]The Claimant states that his dyslexia was diagnosed at school, aged 6. He produces a letter from his teacher at the time (12) dated 16 November 2020. This states: “Concerns had been raised about Christopher with the Special Needs Coordinator at school as he had difficulties with reading and writing and was showing classic signs of dyslexia. He was put in my class I was able to give additional support to his learning, as I had a Special Needs Assistant who worked with another child in the class, and where possible Christopher worked with her in a small group. This support helped him with his learning as any issues he had could quickly be dealt with. Christopher made progress during the year her was with me, however he was below his age appropriate level of learning when he left our school and moved onto Middle School. They were made aware of the level of support that Christopher received at First School to enable him to access the curriculum fully.” The Claimant is now age 33 years.

[22]The Claimant states he received the support of a Special Needs Assistant throughout primary school. In middle school he struggled with all academic classes and was always placed in the lower ability classes. He struggled to focus, read and write and struggled with time limits, having to take time to spell things out in his head. He made mistakes and misinterpreted questions. He struggled with his speech and said the wrong words. He struggled to process information which affected his working memory. He quickly forgot information. He had not developed coping strategies and would get into trouble because he had not processed requests. He left school with two GCSE, one in art and one in PE. He had private tutoring from Keda Cowling from 1995-1997 using the Toeto-Toe reading system which he states Ms Cowling founded. He produces an email dated 7 October 2020 (11) from Ms Cowling’s son confirming his attendance as a pupil. He states Ms Cowling has now passed away. The email states: “This is to conﬁrm that Keda Cowling (the creator of the Toe by Toe reading system) assessed [the Claimant] 1995 and concluded that he was dyslexic. She taught him with the Toe by Toe reading manual between 1995-1997. Yours faithfully, Kelsey Cowling (Director – Toe to Toe Ltd).”

[23]The Claimant makes the point that he faces similar challenges now, but has developed coping strategies.

[24]The Claimant states that in his adult life he cannot read at what is considered to be a normal level. He avoids reading correspondence if he can leave it to his wife, when he has to read it takes him double or triple the time compared to people around him. He gives examples of phone messages, emails and letters from the children’s’ school, the bank etc.

[25]The Claimant states that he cannot cope with receiving and responding to emails without help with reading, understanding and writing which he states was particularly prevalent during my time with the Respondent because email is the primary way of communicating within the business. He states that he made people around him aware of his condition.

[26]He states that he was assessed for dyslexia in 2010 when he joined the Army. He produces a Student Assessment Report dated 23 February 2010 (13). This states: “Wide Range Achievement Test (Conﬁdence Interval 8 90%) Revision 4 (WRAT 4) Reading - Standard Score 85 (79 - 93) 16%ile (Low Average) Sentence Comprehension - Standard Score 89 (83 - 96) 23%ile (Low Average) Reading Composite - Standard Score 85 (80 90) 16%ile (Low Average) Towre Test of Reading Efﬁciency - Standard Score/Percentile Sight Word Efﬁciency - Standard Score 82/12%ile Phonemic Decoding Efﬁciency - Standard Score 93/32%ile Total Word Reading Efﬁciency - Standard Score 85/16%ile; Adult Reading Tests (ART) - Test 1, Test 2 and Test 3 Reading Accuracy - 4%iIe Reading Comprehension - 20%ile Average speed of reading - 119 words per minute (18%ile) Wide Range Achievement Test (Conﬁdence Interval t 90%) Revision 4 (WRAT 4) Spelling - Standard Score 74 (68 - 83) 4%ile (below average) Symbol Digit Modalities Test - 65/65 at 90 seconds (1st Trial - Above Average) - 45/45 at 2 minutes 38 seconds (2nd Trial - Above Average) Writing Speed (free writing) - 23 words per minute”

[27]The Claimant also produces a report dated 3 February 2021 (i.e. after his employment with the Respondent ended on 21 January 2020). This is significantly after the Claimant’s employment ended. It appears to assume that the Claimant is still employed by the Respondent and makes recommendations for adjustments to his role. It reflects on an assessment on 3 February 2021 but gives no clear opinion as to the Claimant’s condition or its impact during the relevant time. I attach no weight to it because of those issues.

[28]The Claimant states that the effect on his normal day to day activities is substantial. He refers to coping mechanisms, asking for help, using spell check on his phone and trying to focus and remember one thing at a time and avoiding situations where he will not have support to read and write.

[29]He states that he has to avoid some daily tasks unless he is able to be supported in them which include reading books, writing emails, reading letters, using computers, reading out loud, reading at all, saying hello to people he thinks he knows but has forgotten their name. He states that many of his coping strategies stop working for him when he is placed in certain situations such as stressful ones or when tired. He states that often his ability to manage the effects of his impairment will break down in those sorts of situations.

[30]He states that where there is a lot of pressure on him, or he is not getting the support he needs, he can become completely overwhelmed by tasks that involve reading and writing or quickly processing complex instructions. He states that often the information he needs is simply not there in his head and there is nothing he can do except ask someone else or put in place his mitigation strategies. He states that if he does not know how to spell a word, or can’t read a word, then it will not come to him over time no matter how hard he tries.

[31]He states that there are some situations where his dyslexia is easier for him to manage but this is not because his dyslexia improves or worsens - it can just be made easier to cope with in certain situations. He states that these sorts of situations include: earlier in the day; quiet environments; if he is not under pressure and the environment is calm and if he is around people who are understanding of his extra needs. He states that if he receives a written message on his phone he has to sound out the words phonetically and it takes him longer than average to read.

[32]He states that he cannot process anything around him at the same time because all his focus goes onto the reading so he can miss things happening around me or people speaking to him. He states that a short message could take him a few minutes to read, where it might take others seconds. He states that when he has to write a message on his phone he has to ask for help or use spell check and again cannot hear or process anything around him at the time he is writing.

[33]He states that some examples of mistakes he makes include mistaking the letter B for a D, mixing up words such as where, were, which, witch. He states that as he has not been able to learn how to read or write well, he makes the same mistakes over and over again so he doesn’t get quicker at writing over time. He states that if he sees someone he knows he has met before, until he knows them very well he will not know their name. He states that he tries to avoid these situations or remind himself of the name immediately before speaking to them.

[34]He states that this is something that is very difficult and he worries people think he is being ignorant or rude. He states that if asked to drive to a certain address that he does not know he will have to check the information multiple times before getting to the location because he cannot retain numbers and street names. He states that he has to factor in additional time in his days to make sure he checks information and that he often has to be more creative and remember physical features of the places to remind him of them as je will not remember the names.

[35]He states that he will often get things wrong when filling out forms, he struggles with both reading the question and writing his answers so he tries to avoid this as much as possible. He states that he will get his wife to do this for him or ask for help from another person. He states that he will also use his phone for spelling. He states that his wife organises things for him such as his vehicle insurance, doctor’s forms, voting registration, utility bills etc. He states that he has never had a CV. He states that he would make basic errors if he was to do these things.

[36]He states that any letters he receives he passes to his wife to read and she will pick out key information he needs to know. He states that she will respond on his behalf. He states that he tends not to use email but if he does need to write an email, his wife will do this for him.

[37]He states that dyslexia affects his self-esteem on a daily basis, as he knows he will struggle with basic tasks and have to prepare for that in advance. He states that he often comes across words and basic information he feels he should know but he simply doesn’t. He states that he has to ensure he doesn’t put himself in situations where he has to read or write without being in a supportive environment.

[38]The Claimant’s dyslexia impact statement is within the bundle (1-10). This covers both his dyslexia and his hearing loss. The impact statement does not add anything to the Claimant’s evidence set out above.

[39]The Claimant was cross examined during this hearing. He accepted that the 1995 diagnosis letter does not indicate the degree of dyslexia or impact it had. He denied having an assessment on discharge from the Army, or any Pulhheems report, stating none was done. He states he has not asked the Army for his Pulhheems report because he is not aware that any was done. He was questioned about the 3 February 2021 expert report, but I do not repeat his answers here because I attach no weight to that report.

[40]The Claimant refers me to statements from his wife and colleagues which are to be produced at the full hearing in the main bundle (46-113) which he states set out how others help him to manage his dyslexia. I have not read those, nor will I take them into account. Those people are not witnesses before me at this hearing.

[41]I found that the Claimant has established credibility upon the issue of his condition. It was not suggested that anything that he said was untrue. I found his evidence unexaggerated and qualified in a balanced manner, e.g. paragraph 31 above. He was not challenged on any of the evidence that he set out in his witness statement, nor in his impact statement. I found that the evidence given by the Claimant in this hearing was more likely than not to be the truth. Submissions

[42]The Respondent submitted that some of the Claimant’s evidence was not helpful because it was produced a long time ago, such as the email on page 11 or the letter on page 12.

[43]The Respondent urged caution in placing weight upon the 2021 expert report because it was clear that the author believed that she was addressing a continuing mischief and that the Claimant was still employed. It was therefore misconceived and starts from a false premise. The report refers to the impact of the pandemic whereas the pandemic post-dates the Claimant’s employment. She refers to an aggravating condition of tinnitus whereas the Claimant’s stated condition is hearing loss; they are distinct conditions. Tinnitus has not formed part of the Respondent’s concession of disability status.

[44]The Claimant was told in the Respondent’s email 31 March 2021 conceding disability status on the grounds of hearing loss that the Respondent reserves the right to reconsider its position on the question of conceding disability subject to sight of the Claimant’s Pulhheems assessment on exit from the British Army. The Respondent invites me to draw adverse inference from the Claimant’s failure to contact the Army to obtain a copy of the report. The Respondent stated that it was a matter of public record that any person being discharged from the Army would be subject to an assessment.

[45]The Respondent suggested that the impact of the above is that we are left with nothing other than assertions from the Claimant concerning his condition.

[46]The Claimant submitted that he had tried to provide evidence from as early as possible and evidence which is more up to date. He was simply trying to be as fair as possible. The Law

[47]The Equality Act 2010 contains the definition of disability and provides: 6. Disability(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

(2) A reference to a disabled person is a reference to a person who has a disability.

(3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.

(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.

(5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).

(6) Schedule 1 (disability: supplementary provision) has effect.

[48]Section 212(1) of the 2010 Act (General Interpretation) provides that “Substantial” means more than minor or trivial.

[49]Schedule 1 sets out supplementary provisions including: Paragraph 2(1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.

(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

(3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed.

(4) Regulations may prescribe circumstances in which, despite sub-paragraph (1), an effect is to be treated as being, or as not being, long-term.

[50]The burden of proof is on the Claimant to show that he or she satisfies this definition. The standard of proof is on the balance of probabilities.

[51]The Government has issued ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011) under S.6(5).

[52]The guidance states: Section A – Definition of disability A5. A disability can arise from a wide range of impairments which can be: …impairments with fluctuating or recurring effects such as rheumatoid arthritis, myalgic encephalitis (ME), chronic fatigue syndrome (CFS), fibromyalgia, depression and epilepsy; developmental, such as autistic spectrum disorders (ASD), dyslexia and dyspraxia; learning disabilities; mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias, or unshared perceptions; eating disorders; bipolar affective disorders; obsessive compulsive disorders; personality disorders; post traumatic stress disorder, and some self-harming behaviour; mental illnesses, such as depression and schizophrenia; A6. It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa. A7. It is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded. For example, liver disease as a result of alcohol dependency would count as an impairment, although an addiction to alcohol itself is expressly excluded from the scope of the definition of disability in the Act. What it is important to consider is the effect of an impairment, not its cause - provided that it is not an excluded condition. A8. It is important to remember that not all impairments are readily identifiable. While some impairments, particularly visible ones, are easy to identify, there are many which are not so immediately obvious, for example some mental health conditions and learning disabilities.

[53]Section B - Meaning of ‘substantial adverse effect’ B1. The requirement that an adverse effect on normal day-today activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect. This is stated in the Act at S212(1). The time taken to carry out an activity B2. The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity. The way in which an activity is carried out B3. Another factor to be considered when assessing whether the effect of an impairment is substantial is the way in which a person with that impairment carries out a normal day-to-day activity. The comparison should be with the way that the person might be expected to carry out the activity compared with someone who does not have the impairment. Cumulative effects of an impairment B4. An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, when taken together, could result in an overall substantial adverse effect. B6. A person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities. Example - A person has mild learning disability. This means that his assimilation of information is slightly slower than that of somebody without the impairment. He also has a mild speech impairment that slightly affects his ability to form certain words. Neither impairment on its own has a substantial adverse effect, but the effects of the impairments taken together have a substantial adverse effect on his ability to converse. Effects of behaviour B7. Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal dayto-day activities. … B9. Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment, or avoids doing things because of a loss of energy and motivation. It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. In determining a question as to whether a person meets the definition of disability it is important to consider the things that a person cannot do, or can only do with difficulty. B10. In some cases, people have coping or avoidance strategies which cease to work in certain circumstances (for example, where someone who has dyslexia is placed under stress). If it is possible that a person’s ability to manage the effects of an impairment will break down so that effects will sometimes still occur, this possibility must be taken into account when assessing the effects of the impairment. B11. Environmental conditions may exacerbate or lessen the effect of an impairment. Factors such as temperature, humidity, lighting, the time of day or night, how tired the person is, or how much stress he or she is under, may have an impact on the effects. When assessing whether adverse effects of an impairment are substantial, the extent to which such environmental factors, individually or cumulatively, are likely to have an impact on the effects should, therefore, also be considered. The fact that an impairment may have a less substantial effect in certain environments does not necessarily prevent it having an overall substantial adverse effect on day-to-day activities. Section C – Meaning of ‘long-term’ C3. The meaning of ‘likely’ is relevant when determining:• whether an impairment has a long-term effect;

• whether an impairment has a recurring effect;

• whether adverse effects of a progressive condition will become substantial; or

• how an impairment should be treated for the purposes of the Act when the effects of that impairment are controlled or corrected by treatment or behaviour. In these contexts, ‘likely’, should be interpreted as meaning that it could well happen. Section D – meaning of ‘day-to day activities’ … D3. In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern. … D10. … many types of specialised work-related or other activities may still involve normal day-to-day activities which can be adversely affected by an impairment. For example they may involve normal activities such as: sitting down, standing up, walking, running, verbal interaction, writing, driving; using everyday objects such as a computer keyboard or a mobile phone, and lifting, or carrying everyday objects, such as a vacuum cleaner. … D17. Some impairments may have an adverse impact on the ability of a person to carry out normal day-to-day communication activities. For example, they may adversely affect whether a person is able to speak clearly at a normal pace and rhythm and to understand someone else speaking normally in the person’s native language. Some impairments can have an adverse effect on a person’s ability to understand human non-factual information and non-verbal communication such as body language and facial expressions. Account should be taken of how such factors can have an adverse effect on normal day-to-day activities. D18. A person’s impairment may have an adverse effect on day-to- day activities that require an ability to co-ordinate their movements, to carry everyday objects such as a kettle of water, a bag of shopping, a briefcase, or an overnight bag, or to use standard items of equipment. … Example - A young man who has dyspraxia experiences a range of effects which include difficulty co-ordinating physical movements. He is frequently knocking over cups and bottles of drink and cannot combine two activities at the same time, such as walking while holding a plate of food upright, without spilling the food. This has a substantial adverse effect on his ability to carry out normal day-to-day activities such as making a drink and eating. D19. A person’s impairment may adversely affect the ability to carry out normal dayto-day activities that involve aspects such as remembering to do things, organising their thoughts, planning a course of action and carrying it out, taking in new knowledge, and understanding spoken or written information. This includes considering whether the person has cognitive difficulties or learns to do things significantly more slowly than a person who does not have an impairment.

[54]The time at which to assess the disability is the date of the alleged discriminatory act (Cruickshank v VAW Motorcast Ltd

2002 ICR 729

EAT).

[55]The words used to define disability require a tribunal to look at the evidence by reference to four different questions (or ‘conditions’, as the EAT termed them):a. did the Claimant have a mental and/or physical impairment? (the ‘impairment condition’)

b. did the impairment affect the Claimant’s ability to carry out normal daytoday activities? (the ‘adverse effect condition’)

c. was the adverse condition substantial? (the ‘substantial condition’), and

d. was the adverse condition long term? (the ‘long-term condition’). (Goodwin v Patent Office

1999 ICR 302

EAT).

[56]There should be a causative link between the condition or conditions, where they are identified, and symptoms that the condition or conditions produce (Morgan Stanley International v Posavec EAT 0209/13). It need not be a direct link (Sussex Partnership NHS Foundation Trust v Norris EAT 0031/12).

[57]The term ‘mental impairment’ covers learning disabilities.

[58]In Dunham v Ashford Windows

2005 ICR 1584

EAT, a case involving the condition of dyslexia, the EAT accepted that a Claimant is unlikely to establish a mental impairment solely on the basis of ‘difficulties at school’ or because he or she ‘is not very bright’. Expert evidence as to the nature and degree of the impairment is required, although in a case involving learning difficulties, evidence from a doctor is not essential. Medical evidence is not required in every case, especially where there is appropriate expert evidence as to the type and nature of impairment.

[59]If the impairment is not long-term, the next test is whether it is likely to be long-term. The relevant test then whether or not it "could well happen" (SCA Packaging Limited (Appellants) v Boyle (Respondent) (Northern Ireland)

[2009] UKHL 37

). The IDS Handbook on Discrimination states that “establishing that the effect of dyslexia is long term will not normally be a contentious issue, since it will generally have been present from an early age, even if undiagnosed until later in life”.

[60]In Goodwin v Patent Office

1999 ICR 302

, EAT, concerning ‘substantial’ the EAT said ‘What the Act is concerned with is an impairment on the person’s ability to carry out activities. The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. Thus, for example, a person may be able to cook, but only with the greatest difficulty. In order to constitute an adverse effect, it is not the doing of the acts which is the focus of attention but rather the ability to do (or not do) the acts. Experience shows that disabled persons often adjust their lives and circumstances to enable them to cope for themselves. Thus a person whose capacity to communicate through normal speech was obviously impaired might well choose, more or less voluntarily, to live on their own. If one asked such a person whether they managed to carry on their daily lives without undue problems, the answer might well be “yes”, yet their ability to lead a “normal” life had obviously been impaired. Such a person would be unable to communicate through speech and the ability to communicate through speech is obviously a capacity which is needed for carrying out normal day-to-day activities, whether at work or at home. If asked whether they could use the telephone, or ask for directions or which bus to take, the answer would be “no”. Those might be regarded as day-to-day activities contemplated by the legislation, and that person’s ability to carry them out would clearly be regarded as adversely affected.’

[61]"Substantial" is defined in S.212(1) EqA as meaning ‘more than minor or trivial’ and unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial (Aderemi v London and South Eastern Railway Ltd

2013 ICR 591

[62]In Paterson v Commissioner of Police of the Metropolis

2007 ICR 1522

the EAT held that in order to be substantial ‘the effect must fall outwith the normal range of effects that one might expect from a cross section of the population’, but ‘when assessing the effect, the comparison is not with the population at large… what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired although in PP and anor v Trustees of Leicester Grammar School

2014 UKUT 520

, Upper Tribunal (Administrative Appeals Chamber the Upper Tribunal’s held that the statutory definition of ‘substantial’ in S.212(1) should be applied without any additional gloss.

[63]All of the above principles were carefully set out and analysed in the case of Elliot v Dorest County Council

UKEAT/0197/20

which provides a helpful reminder to any practitioner.

Conclusions

[64]Reference to the relevant time below are to the period 26 October 2018 to 21 January 2020 i.e. the period of the Claimant’s employment with the Respondent. This was agreed between the parties at the outset of their submissions. The Claimant’s complaints of discrimination cover his period of employment with the Respondent. Did the Claimant have a mental impairment?

[65]The Respondent concedes the impairment condition. Did the impairment affect the Claimant’s ability to carry out normal day-to-day activities?

[66]The Claimant has articulated clear affect upon his abilities to read, write, complete activities, comprehend instructions, general work activities such as learning, interacting with colleagues and preparing written documents.

[67]His evidence concerning the affect at the relevant time is consistent with his presentation when the expert report was prepared when he entered the Army in 2010. His evidence is consistent with known core challenges of rapid processing of language based information and weaknesses in the short-term and working memory (See Equal Treatment Benchbook May 2021, page 400).

[68]His evidence is not challenged by the Respondent.

[69]The Claimant has described the affects as being permanent features of his life. It is more likely than not that the assessment carried out in 2010 was representative of his condition and its affect at the relevant time.

[70]The Respondent has suggested that the report conducted in 2010 is aged but has not produced any evidence to suggest that the Claimant’s condition may have improved.

[71]In my conclusion on the balance of probabilities the Claimant meets the adverse effect condition at the relevant time. Was the adverse effect substantial?

[72]I remind myself that substantial means more than minor or trivial and that unless the matter can be classified as trivial or insubstantial the impairment must be treated as substantial (Adermi). I remind myself that I must consider the impairment at the relevant time taking account both of the coping strategies deployed and the fact that those may, at times, break down.

[73]The Claimant’s capacity to read, write, complete activities, comprehend instructions, and to complete general work activities such as learning, interacting with colleagues and preparing written documents appear to me to be matters which are essential to everyday activities.

[74]The degree of impact explained in evidence to me by the Claimant, in completing these essential everyday activities, appears to me to readily exceed the threshold of minor or trivial. They including avoiding everyday situations where he will need to use a computer, read or write; having to seek help to write, read or understand everyday communications; needing additional time to digest information, mixing up letters and making mistakes; fearing appearing being rude and lacking self-esteem.

[75]In my conclusion, looking at the impact of dyslexia upon the Claimant’s normal dayto-day activities in round, the substantial condition is on the balance or probabilities met. Was the adverse condition long term?

[76]Dyslexia is a recognised life-long condition. It appears to me that the condition was apparent in the Claimant aged 6, in primary school, and continued throughout his life as is evidenced by his assessment for the Army in 2010 and through the Claimant’s unchallenged evidence of its impact throughout his life.

[77]In my conclusion on the balance of probabilities, at the relevant time, the adverse condition had lasted for at least 12 months and for the purposes of Schedule 1, Paragraph 2 of the 2010 Act is “long-term”. Conclusion on disability status

[78]The Claimant was, at the relevant time, a disabled person for the purposes of Section 6 of the Equality Act 2010 by reason of his dyslexia.

hearing:

[1]The Respondent has made an unauthorised deduction from wages by not paying 2 weeks pay in lieu of notice in accordance with its election to apply a PILON clause in the contract of employment upon termination.

[2]The Respondent is ordered to pay to the Claimant compensation in the sum of £1,153.84 gross.

[3]The Respondent is in breach of contract by not reimbursing the Claimant for expenses properly claimed, and is ordered to pay him damages in the sum of £72.05 All other complaints are dismissed.

[5]The Claimant’s costs application dated 4th August 2021, in respect of an earlier preliminary hearing, will be remitted to Employment Judge Knowles for determination. JUDGMENT having been sent to the parties on 4 October 2021 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided, taken from the recording of the oral judgment delivered immediately upon the conclusion of the hearing:

[1]The unanimous decision of the Tribunal is that the claims of discrimination do not succeed. The claimant will receive some of the monies claimed but the substantive complaints of various forms of disability discrimination fail. Background facts

[2]This has not been an easy case for anybody involved. It has clearly been stressful for the parties and we would also preface our Judgment by saying that it has been painful for the Tribunal to observe the replaying of a breakdown in a very close friendship and personal relationship between the claimant and his wife on one side, and on the other the principal shareholder and owner of the respondent company, Mrs Kinsey, and her husband. In particular on what is a potentially key point as to the credibility of the witnesses the two sides have given diametrically opposed factual accounts. That is on the issue of whether or not the claimant specifically and expressly informed Mrs Kinsey that he suffered from dyslexia, which he does and which has been held to constitute a disability for the purposes of this claim. (The Claimant also suffers from auditory reduction as a result of an explosion which serving in the army in Afghanistan, but there has been no dispute that the Respondent knew of this condition). As a result of that direct conflict on the evidence accusations have been made that one side or the other are telling lies about this matter, and clearly both of them cannot be correct in giving such different accounts as to what happened.

[3]The background to this case is that Mrs Kinsey formed the respondent company in March 2018. In the previous year she had successfully brought a pregnancy discrimination complaint against her former employer and had invested the compensation from that claim in starting her own business. She started it with a friend Mr Joe Stanley who has also given evidence. Mr Stanley however did not himself invest any money in the business but the allocation of shares was 70% to Mrs Kinsey and 30% to Mr Stanley. Mr Stanley was described as the managing director. Shortly afterwards Mrs Kinsey was in conversation with the claimant and his wife. They had met some seven years earlier in 2011 and in particular Mrs Lopez-Moreno and Mrs Kinsey were very close friends. At that point the claimant was still a serving officer in the army but there was discussion as to whether he would leave the services and join Mrs Kinsey in her new business venture. Very rapidly that conversation moved on to a job offer which in fact came from Mr Stanley and it was for the position of operations manager. That offer letter is from June of 2018 so very shortly after the matter was first broached in conversation. There was a reason for putting an offer in writing very early and that was because it would assist the claimant in negotiating his departure from the army. They would have required to see confirmation that he had a job to go to and they considered that was suitable and that would facilitate the process. But there were clearly still ongoing discussions to be had.

[4]We have an exchange of text messages then in around June where there is reference to the hope on the part of Mrs Kinsey that her friend, the claimant, would not only join the business as its operations manager but would very shortly become a director. That was expressed as either his having a particular area of the business within his control or potentially the offer of shares. Both the claimant and his wife conceded that they did not understand the difference between being a director on the board of a company, with statutory legal obligations, and having the title “director” in a job description. There was talk about what his salary, which on the initial offer was £24000 per annum, might rise to if the business was successful and figures in the order of £60,000 for an operations manager were then discussed.

[5]We are satisfied however that those discussions in the summer of 2018 certainly did not have any contractual effect. It is talk of the aspirations that both of them had for the business they were about to embark upon together. There was certainly no certainty as to any offer on the part of Mrs Kinsey that she would, as is now alleged, transfer 10% of the total shares in the company or 10% of her own shares (which of course would be 7% of the total) to the claimant without him investing in the business either. It is instructive to note the claimant’s initial response to that suggestion that he may become a director which was that it was “silly” and confirming “you pay me what you think is appropriate if we make a success of this and I realise it will be a long term venture we’ll see what happens”. And certainly by the time the claimant did start work for the respondents on 26 October 2018 there had been no concluded contractual agreement that he would ever in fact be made a board director nor receive any shares in the business. Indeed the claimant’s own evidence indicates that that alleged promise was not the reason why he joined the respondent company. He does record a subsequent conversation, but this was in around November 2018, where he says there was further discussion about a possible shareholding. That was of course after he had already started employment. He was quite clearly prepared to join as the operations manager without any indication that he would in fact receive any shares. We note of course also that any such discussions were with Mrs Kinsey on a personal basis. It is not for the respondent company to dictate that its principal shareholder should or should not dispose of any of her holding to another person.

[6]So apart from the lack of certainty as to what may or may not have been agreed, we are firmly convinced that there was no intention to create contractual relations at that stage as a result of these discussions about potential shareholdings in the future.

[7]At this point when the claimant joined the business, on Companies House the only two shareholders and directors recorded were the claimant and Mr Stanley. That remained the position until Mr Stanley resigned in October 2019. However we have seen evidence of board meeting minutes from early that year, from August 2018, which indicates that although not registered with Companies House Mrs Kinsey’s husband and her father-in-law were also described as board directors, and it is also clear that her father-in-law Mr Paul Kinsey had by this stage invested money into the business. He also invested further monies. In particular we note that around the end of the claimant’s employment in January of 2020 he is recorded (in an exchange of WhatsApp messages between Mrs Lopez-Moreno and Mrs Kinsey) as having again injected cash to enable bills to be paid at that juncture.

[8]When the claimant joined the business it was not therefore with any concluded contractual offer that he would in fact become a director or a shareholder, and the board at that point was Mrs Kinsey, her husband, her father-in-law and Mr Stanley. Very shortly afterwards as the business was starting to take off and they achieved new larger contracts, his title was changed from operations manager to operations director. That would be entirely in accordance with the aspirations expressed by Mrs Kinsey some few months earlier that he may have an area of the business that was designated to him. But it was simply a title, and he was never also, officially or unofficially, on the board of the company. Mrs Lopez-Moreno similarly was employed by the business on a part time basis and given the title of “head of people”. In the designation of roles there was clearly a recognition of the personal relationship as much as any acknowledgement or particular expertise or experience.

[9]Upon being given that title of operations director rather than manager the claimant’s salary went up from the original offer of £24000 per annum to £27,000, and that is recorded in the written statement of terms and conditions which was signed by him in February of the following year 2019. At the same time on that document it is also recorded that there would be a bonus of “£300 if targets met”. That is imprecise as to when that bonus would be paid and certainly there is no indication of what any targets may have been. There had in earlier discussions been talk of a possible payment of commission if any particular contract was secured by the claimant, or indeed any other employee, but in reality that never seems to have happened. Bonuses evidently were paid on an intermittent basis. We have not seen all the pay slips but we have seen some that certainly shows in the financial year from April of 2019 bonuses were paid. By the time the claimant left in January the following year that was a total of £1400 over the entire period. They were certainly not paid every month and the only inference we can properly draw from this is that there was a discretionary additional bonus on top of salary loosely connected to the general performance of a company rather than to any specific targets met by an individual, and that on occasions the claimant did receive such bonus payments.

[10]As well as receiving those bonuses intermittently on top of his £27,000 increased salary, certainly from July 2019, when we have the payslip, it is apparent that his annual salary had increased once more to £28,000 per annum, again paid in equal monthly instalments. Nobody is at all clear as to the circumstances in which the claimant was accorded these pay increases. Then in October 2019 we can see that his salary increased again to a total of £30,000 per annum. So in the course of one year from joining the business in October 2018 to October 2019 he had received three substantial pay increases and his basic salary had increased from £24,000 to £30,000, which is an uplift of 25%. That does not support the contention that the claimant was denied the opportunity to progress within the respondent company.

[11]As the business was starting to increase others were taken on. in particular around August of 2019. Mrs Kinsey’s husband Anthony started to take a more active part in the business although he was not paid as an employee until some few months after that. He did not become a noted director at Companies House until January the following year, where he is also recorded as being a minority shareholder. And upon somebody leaving the business a friend of Anthony Kinsey’s, James Humphries, was appointed to also work in operations alongside the claimant but with a subsidiary job description. It is right that the claimant was not consulted about the strategic decision to bring somebody else in, but he was clearly aware of the proposed change and appeared to have no problem with that as recorded in the contemporaneous exchanges and messages between him and Mr Humphries, although he now complains that this is evidence of his being side-lined and not afforded the proper status that should have been accorded to him as a nominal director of the business.

[12]But at the same time the business was increasing it is also apparent that there were logistical problems. This is a cleaning business sending out operatives, mostly self-employed, to work at various sites and the contemporaneous documents record that there were a number of issues as to whether operatives were properly allocated and whether equipment was available, and there were recorded customer issues that needed to be addressed. The

Issues

[13]So that is the general background to this dispute. The claimant’s case is that because of his dyslexia and his alleged inability therefore to carry out certain tasks he became the subject of increasing frustration on the part particularly of Mrs Kinsey and that is why from October 2019 onwards he says he was subjected to a campaign of derogatory and belittling treatment excluding him from the opportunity of advancement in the company and ultimately leading to his dismissal. The issues were set out in the Summary attached to a case management order made by Employment Judge Shulman following a preliminary hearing n 20th August 2020.At a subsequent hearing on 26th March 2021 Employment Judge Wedderspoon allowed a number of amendments identified within a schedule ordered by Judge Shulman by way of further particularisation. All of those allowed amendments were, however, characterised by Judge Wedderspoon a clarifying specific acts which formed part of the general allegation of poor continuing discriminatory treatment as set out in the originally pleaded case. Judge Weddersponn also identified a time point, which had apparently been overlooked at the earlier hearing; any allegation before 18th January 2020 are potentially out of time. The relevant sections of Judge Shulman’s Summary (where the relevant legal provisions are also referred to) are now reproduced in the end note to this decisioni.

[14]And as we have said a key factual issue in this case is whether or not it had expressly been disclosed by the claimant and/or his wife to Mrs Kinsey that he suffered from dyslexia. This is an extraordinary position to be in given the longstanding friendship. As is rightly pointed out by the claimant it would , on the face of it, be extremely surprising if his friends had not known of his condition. But equally it would be similarly surprising if in those circumstances if Mrs Kinsey and others denied their knowledge of that fact. Particularly as we have no reason to doubt Mrs Kinsey’s evidence that she has personal experience of those suffering from dyslexia. Her own sister was also employed part time in the business with this condition and as a result Mrs Kinsey was prepared to install appropriate software on her sister’s computer. She was also prepared to be proactive when it came to her attention that a number of the operatives were having difficulty accessing or processing information on the online training necessary for their COSH certification, and therefore she engaged a particular tutorial company to assist. In those circumstances had she been directly aware of any needs on the part of the claimant it would be similarly surprising if she had not been prepared to undertake any changes that may have been thought necessary. Section 136 Equality Act 2010/”the reason why” test

[15]Ultimately, although the question of knowledge of disability is material on the claim under section 15 of the Equality Act and on the claim for failing to make reasonable adjustments, the principle significance of this factual dispute in the overall context of this claim is whether amounts to the claimant having proved a fact from which we could, absent any explanation, conclude that he has been subject to unlawful discrimination under the Equality Act.

[16]After weighing up the evidence we are satisfied that the claimant has not proved that as a relevant fact. He has not been able to establish that Mrs Kinsey is indeed deliberately concealing the extent of her knowledge. Had he done so that proven fact would, we consider, have been sufficient to shift the burden of proof to the respondent to show that any deterioration in the relationship that ultimately led to the termination on 21 January was not as a result of the claimant’s underlying impairment.

Findings of fact

[17]The reason why we conclude that the claimant is unable to meet that primary burden of establishing that fact is that in three key areas within the relevant period we consider that Mrs Kinsey has proved herself before us to be a credible witness. In particular there are, in relation to those three areas, contemporaneous documents that corroborate her factual account, so that it is not simply one person’s word against another. Because we are able to make critical findings on the evidence in favour of Mrs Kinsey, we are entitled to and do also conclude that on balance her evidence on the hotly disputed issue, where there is, however, no clear documentary support one way or the other, is also more likely to be credible. Or, at least there is insufficient evidence to mean that we should prefer the claimant’s account over hers. And those three key areas are from the start of December, the middle of December and the circumstances around the dismissal in January.

[18]Firstly at the start of December Mrs Kinsey called a business meeting to discuss what were perceived as increasingly problematical areas in the operations department of the business. The email setting up that meeting was sent out to the operations team on 6 December. At that stage it is complimentary of the work that the team have been doing immediately prior to that but it identifies that there are increasing issues. As we have said there were as the business was expanding logistical problems coming to light that needed to be sorted out.

[19]We should also observe that contextually at around this time Mrs Kinsey was in the relatively early stages of pregnancy. The contemporaneous documents indicate that that pregnancy was not always running smoothly, and yet she was still working full time. And within the structure of the company although Mrs Kinsey no doubt would have wished others to take more responsibility (and indeed expressed that very clearly in one of her email communications) ultimately she was “the boss” and she has been described in the evidence as “hands on”. She took responsibility and did intervene when she thought it necessary. Again, without going into detail, in a number of her communications she expressly acknowledges the fact that she may not wish to do so., and that’s she may be coming across as somewhat heavy handed, but that she considers it her duty as being responsible for the company to intervene where necessary.

[20]In that context she set up an operations meeting which was used to define the remit of various members of the operations team. The minutes of that meeting were taken by Mrs Lopez-Moreno. It is now contended that that is evidence that the claimant was struggling because of his dyslexia and that changes to the business therefore needed to be made in order to enable him to continue in his role. That is not evident at all in the email setting up that meeting nor in the minutes. This is a purely logistical problem and one which clearly Mrs Kinsey was endeavouring to resolve. She expressed that she wished to have these mattered sorted out before the end of the year and that she believed they could be sorted out. And that again, in our view, is an entirely credible account. It was Mrs Kinsey taking the initiative to address issues across the entirety of the operations team as she saw it,.There was nothing identified at that point that indicated that the claimant was in any particular difficulty because of his dyslexia. And that fixes the initial credibility of Mrs Kinsey within the relevant time frame as at around the beginning of December, when these issues began to come to a head.

[21]The next key issue where we find Mrs Kinsey to be a credible witness is in relation to an altercation that took place on 18 December. That was shortly before the business closed down for the Christmas vacation on the 20th. It is clear that there was a dispute between Mrs Kinsey and the claimant regarding decisions that he had taken in relation to a particular project at Gore Street in Manchester. The issue was to how much work was allocated to the cleaners, and whether that was therefore cost effective. There is no dispute that in the course of that discussion Mrs Kinsey voiced the opinion that this would be bankrupting the business if they carried on. But again we are satisfied that that is not, as is now suggested, a criticism specifically of the claimant. It is certainly not a criticism of him in connection with any problems in processing information as a result of his dyslexic condition. It is simply a disagreement between two senior members of the company, but where one of them is ultimately in charge, as to decisions that had been made. Indeed in the course of the evidence both the claimant and also his witness Ryan Thompson confirmed that that dispute was not as a result of the claimant having failed to process information or having misunderstood information because it was in a written form or sent by email or for any other reason, but that he had taken a decision on the basis of what he understood the information, properly processed, to be. Mrs Kinsey disagreed with that assessment. So there is nothing on the face of it whatsoever to do with his dyslexia.

[22]And that is specifically corroborated by the exchanges that Mrs Kinsey engaged in at the end of that day with Mr Thompson. There she apologies again for perhaps for having come across in a heavy handed way and indicates quite clearly the issue was not solely with the claimant, though ultimately, because of his position as operations director, it would have been expected that he would have identified these issues beforehand and avoided her having to intervene. In his response to that communication, where also Mrs Kinsey expressly refers to herself being highly emotional and upset during the course of that day, Mr Thompson appears to be entirely in agreement with her assessment and is indicating that it is quite right for her as the owner of the company to intervene where she sees issue of this nature. Certainly nothing is identified to indicate that he, Mr Thompson, thought it was specifically directed at the claimant or connected to the claimant’s disability, of which Mr Thompson says he himself was perfectly well aware.

[23]Those issues arose around the same time as there was also an exchange of WhatsApp messages between Mrs Kinsey and Mrs Lopez-Moreno regarding potential issues, not about the claimant but about James Humphries and decisions taken by him. But again in the course of that discussion there is nothing whatsoever that makes any allusion to any of those operational difficulties being as a result of the claimant’s dyslexia. And indeed we observe in the entirety of the WhatsApp exchanges between the two women there is never any allusion to any of those matters.

[24]So again that contemporaneous written evidence confirms, in our view, that the evidence of Mrs Kinsey is entirely plausible and credible when she says it was only around the middle of December that any particular issues started to emerge within the team. We also observe that the business was clearly in substantial cash flow difficulties at this time. On 19 December there is a lengthy email sent out by Mrs Kinsey where she itemises in detail the monies that are still outstanding to the company and it substantiates that she was clearly feeling the financial pressure at that point. That would explain her concerns expressed on 18 December that what she believed to be bad business decisions were potentially “bankrupting the company”.

[25]Mrs Kinsey it is right does not mince her words. She is not averse to using bad language and she is certainly not shy about making her feelings known. But none of those expressed views either at 18 December, which is the key event, nor on any other occasions are, we are satisfied, anything to do with the claimant’s specific difficulties as a result of his dyslexia. If Mrs Kinsey refers to business decisions having been made as showing a “lack of common sense” that is a figure of speech that she evidently uses frequently. It is a yard stick by which she asks members of her teams to evaluate their decision making. It is not, as the claimant would now allege, a specific criticism of him because of his alleged slowness in processing information.

[26]None of the matters that have been prayed in aid from the documentation to suggest this was directed to the claimant in fact bear that out in context. There are issues about, for instance, whether or not sufficient thought had been given to sending a team to Hull on one morning at the end of November, and whether the equipment had been ordered in advance or whether it was appropriate to leave that decision until the morning itself. There are clearly expressions of annoyance and irritation on the part of Mrs Kinsey but addressed, without exception on the recorded documentation, to the entire team and on occasions including Mr Kinsey as well. As we say it blew up in the middle of December, at a time when the business was under specific financial pressure and where identified difficulties in the operations team had been identified at the earlier meeting on the 9th and were still waiting to be addressed.

[27]The third key element within the relevant narrative where we find Mrs Kinsey to be entirely credible is in relation to the circumstances at the end of the claimant’s employment.

[28]No doubt the claimant was upset at being challenged as he had been on 18 December and indeed on other occasions. But there is no indication on the part of Mrs Kinsey that she did not wish these matters to be resolved and to sort out the difficulties within her operations team, and indeed to confirm the position of the claimant as her operations director within that structure. But clearly she was aware that there appeared to be a deterioration in the relationship between the two of them, and she recalls that specifically in a communication to Mrs Lopez-Moreno on 9 January 2020. That is three days after the business had returned following the Christmas break on 6 January. She records then that the claimant was not talking to her. She therefore did not perceive that he was still as committed to going forward with the business as he had been. And she it was who therefore sought to set up a personal meeting between Mr and Mrs Lopez-Moreno and herself and her husband to try and resolve the difficulties, they of course being a friendship group as well as involved in business.

[29]There is one particular event that can be identified around this period that may indicate why Mrs Kinsey perceived this change of attitude on the part of the claimant. Following the return on 6 January Mr Kinsey, again clearly in our view as a continuation of the ongoing discussions about sorting out difficulties within the team and making it more efficient, has sought to have a meeting with everybody and invite their views as to the way forward. He had also expressed in a follow up email his view that if anybody was not any longer committed to the business they could leave with no hard feelings.

[30]That informal meeting on the 6th was, however, not particularly productive and so Mr Kinsey then sought to arrange one to one meetings with the various members of the team, a form of appraisal to follow. Quite clearly the claimant took exception to the fact that he was being treated alongside the other employees. He thought that as a nominal director he should have been afforded special treatment. He believed that he should not simply have been involved in that discussion and invited to express his view within an open office meeting, but that he should have been afforded special treatment. He was clearly upset by what he saw as a derogation of his perceived status within the business, and as we have opined that may therefore explain why it was observable on the part of Mrs Kinsey that he did not seem to be communicating with her.

[31]The informal meeting between the four in fact took place on 16 January. It is repeatedly referred to as being on the 13th. That is clearly incorrect. We can date it from the exchange of WhatsApp messages. This was not however, as the claimant now alleges in the amended particulars, a failure to investigate his complaints of harassment and victimisation when he attempted to raise his concerns about being pushed out because of the limitations imposed upon him by his disabilities. The issues regarding perceived difficulties with Mr Humphries were raised again. We accept Mrs Kinsey’s account as being credible that when that was raised, and after Mr and Mrs Lopez-Moreno had left, that therefore led to an argument between her and her husband because of course Mr Humphries had been brought into the business as Mr Anthony Kinsey’s friend. That sounds entirely plausible.

[32]We also accept Mrs Kinsey’s account that there were some concerns raised by the claimant as to why she was interfering, as he saw it, in the operation side. That is consistent with her acknowledged increased intervention as recorded from the 9th December onwards. That would explain the background to her explaining her greater involvement by reference to the claimant’s particular concern that operatives would contact her in the first instance rather than him. At that point we accept Mrs Kinsey’s evidence that she raised the issue of the claimant’s communications skills, in that he may be perceived as speaking down to those members of staff so that they felt more comfortable in approaching her. That is not, as the claimant now seeks to characterise it, a criticism of his communication skills generally and certainly not a criticism arising from any aspect of his dyslexia. It is in a specific context.

[33]Again we accept as entirely plausible Mrs Kinsey’s account that that meeting appeared for the most part to have resolved the issues, that she received a hug from the claimant and that he said he did not wish to upset her and he would hope the matter could then progress. That it did not we accept is partly as a result on the following day, 17 January, of Mrs Kinsey sending a text message. Although we do not now have it is clear that she resorted to bad language in relation to one particular invoice where there appears to have been a mistake made by the claimant, inviting him to “read the Fucking invoice”. But the context of that, again we accept, has nothing to do specifically with the claimant’s disability. We also note from the WhatsApp exchange messages between the claimant’s wife and Mrs Kinsey that that same day the 17th she records that she had been up all night dealing with difficult invoices, not only the one where she had identified a mistake made by the claimant. There were still clearly significant financial issues within the company and the text to the claimant, e sent at that time of pressure on the business, was part of that context that she was trying to sort out those difficulties.

[34]That was on the 17th. On the 18th it appears that Mrs Kinsey had a hospital appointment. That was a Saturday. The 19th was a Sunday and it then became apparent that there were further particular logistical difficulties for the following Monday. Therefore Mrs Kinsey set up a specific WhatsApp group amongst the operations team, and including also Mr Kinsey, to deal with what she described as “the vans issue”. This in particular was because a number of the operatives were not currently permitted to drive the vans at that point because of failed drugs tests and therefore there was an urgent need to ensure that the teams and equipment were transported to where they needed to be the following week. That is the context in which the claimant was rostered to drive, not that he was demoted to be a “cleaner” as he now purports, but that it was necessary to identify that he and James Humphries were still in a position to drive the vans. This evidently placed huge difficulties upon them and Mrs Kinsey at that point was, apart from being upset, also indicating that she was having to take the lead in organising these matters because they have not been satisfactorily addressed in advance.

[35]There had been due to be an operations team meeting that Monday the 20th but it was postponed to the following day the 21st. In the course of the 20th it is right that the claimant sought to contact Mrs Kinsey by text and asked her to speak to him on the phone and she declined to do so. But in saying that she did not wish to speak to the claimant at that juncture, and certainly that she did not want to have a phone conversation, is not to say that she was bullying or belittling him because of his disability. It is simply at that stage and in those circumstances she did not wish to have that telephone conversation. She was certainly prepared to meet with him and discuss issues in person, and indeed did so the following day on the 21st. And indeed it is accepted by the claimant that although she did not immediately get back to him on the 20th she did eventually contact him and indicated she accepted they did need to speak but the only issue she particularly wished to address at that point on the 20th was the ongoing issue about the invoice that she had raised in intemperate terms on the 17th.

[36]Again not mincing her words throughout the exchanges on the vans WhatsApp group and at the meeting then convened on the Tuesday Mrs Kinsey did describe the problem that had arisen through what she saw as lack of foresight and planning as a “shitstorm”. But again that is not directed at the claimant. It is a comment on operational difficulties and we repeat in the context where Mrs Kinsey was constantly throughout her communications accepting that she may not, in taking on this responsibility, be managing the situation properly but felt under an obligation to seek to resolve the issues because ultimately, as we say, it was her business and she was responsible for dealing with the strategic and financial constraints that resulted from operational difficulties.

[37]We then come to the later events on the 21st. Mrs Kinsey and the claimant were prepared to meet, not on the business premises but in an adjacent public house. He asked to speak to her in private. Mr Kinsey therefore left the meeting at that stage. Again we accept as credible the account given by Mrs Kinsey as to how that meeting progressed. That is that the claimant said that he had issues with her personally and that he did, as he has admitted in evidence, accuse her of lying to him on a number of issues. One was an apparently insignificant issue about the timings of Mr Kinsey leaving home on a particular day, another an ongoing issue about whether or not the claimant had at some stage been copied in to chains of emails recording customer concerns which he and Mr Thompson alleged had never in fact been copied to them. Again we accept as plausible Mrs Kinsey’s account that she sought to turn her laptop round to show him that indeed he had at some point been copied into those exchanges, they did exist and they were real and genuine customer concerns. But the claimant persisted in accusing her of having lied to him and therefore when asked what that meant for their ongoing relationship he said that that it meant they could not work together.

[38]At the conclusion of that initial meeting in the pub we are satisfied therefore that both parties understood that that effectively meant that the working relationship was at an end. The claimant had accused Mrs Kinsey of lying to him, he had accepted that their relationship had effectively broken down and that meant that he could no longer continue as an employee of the company which she owned.

[39]There are two further pieces of evidence that in our view corroborate Mrs Kinsey’s account, one is her description of her being visibly upset at that point so that the landlady came and asked if she was alright, which has the ring of truth about it. The other is recorded in her subsequent written communications with Mrs Lopez-Moreno where she is clearly extremely upset at the accusations that she had been lying.

[40]Immediately after that first meeting Mrs Kinsey sent an email. She therefore sets out her reiteration of the fact that there had been issues the claimant needed to address and that it was not right to accuse her of not having showed him that information. So that corroborates the account that she had already tried to show him this information on screen and he had not accepted it then, so she had put it in a communication immediately afterwards. She also records the confirmation that the relationship had broken down and therefore that he would be exiting the business. We add at this point that again we accept Mrs Kinsey’s evidence that on that realisation that they could no longer continue to work together the claimant suggested that his exit from the business should also involve a pay out similar to that that Mr Stanley had received in October when he resigned as a director and received compensation for his 30% shareholding. But of course the claimant was in a different position in that he had never actually received shares, never been a board member. He still apparently thought that it would entitle him to a financial settlement at the end of employment, and that expression of his belief at that time is consistent with the claim subsequently presented to this tribunal.

[41]Within the email when Mrs Kinsey referred to the exit from the business, she indicated therefore that it would of course involve the working of two weeks’ notice in accordance with the written terms and conditions, but that she would be prepared to allow the claimant to leave immediately if that were more convenient to enable him to secure alternative work. She does not use the phrase “resignation” within that first email. The claimant then spoke to his wife about it, he then went back to speak to Mrs Kinsey. Clearly we accept that he had not intended in terms to say “I am resigning” but when he went back it was not in any conciliatory frame of mind, but again to confront Mrs Kinsey. He said, was she therefore dismissing him? That resulted in a further altercation where again Mrs Kinsey used bad language indicating that he must think she was “fucking mental” if he was trying to suggest that, when it was he who had initiated the conversation about her lying and the acceptance that the relationship was at an end. At that point the claimant, again we accept Mrs Kinsey’s account, sought inaccurately to interpret that as her accusing him of being mental or stupid.

[42]So again with regard to what happened at the end of the relationship we find Mrs Kinsey’s account to be credible. That is that she did not in any way initiate this departure from the business, she was seeking to avoid a breakdown in relationship, as evidenced by her email of 9 January, she had sought and initiated a meeting to try and deal with that issue but it was the claimant who antagonised her by accusing her of lying in circumstances where necessary the relationship could not continue.

[43]It is not necessarily helpful to try and analyse this in terms of a resignation or dismissal, nor indeed a mutual termination. There was a common acceptance that having expressed those views the only outcome was the end of the employment relationship. That was confirmed by Mrs Kinsey’s email sent in the time between the two meetings in the pub and then also in subsequent emails, between n the claimant and Mr Kinsey.

[44]Looking at that pattern of factual events, where we accept Mrs Kinsey’s evidence over the key period, it enables us to answer the crucial question which is why did anything happen in this case? That is not because the claimant was disabled, it is not because of something arising in consequence of his disability and it is not the alleged campaign of derogatory and belittling treatment excluding him from the opportunity to advance in the company nor a general campaign of bullying related to his disability. The claimant has not established that Mrs Kinsey is lying about knowledge of his dyslexia, and nor has he proved any other facts from which we could conclude that there has been a contravention of the Equality Act. Reasonable adjustments

[45]Whether or not anything had ever been said specifically to indicate that the claimant was dyslexic, others in the company clearly knew of that, not least of course the claimant’s wife. In those circumstances it will be sufficient that the respondent company could be said that they should ought to have known the claimant did suffer from dyslexia. The more important question in the context of the reasonable adjustments claim is what actual effect that had on the day to day working. The claimant says he has some difficulties in composing emails. We can well understand that, some difficulties obviously in assimilating information that is in a written form, but he had administrative assistance, particularly in the person of Mr Thompson who took over from the previous assistant Miss Crowther who went on maternity leave, Mr Thompson had access to the claimant’s emails and was therefore able to monitor the position. There is no suggestion that any point where the claimant asks for assistance from anybody in the office for any reason that that was ever denied or refused him. And there is no indication that any further alleged difficulties resulting from his dyslexia and the inability to process information were ever identified or brought to the attention of the respondents.

[46]As we have said we are quite satisfied looking at the totality of the evidence that the reason why the claimant was challenged about his performance was not because of particular issues relating to his dyslexia but because of perceived errors of judgment or lack of common sense in making decisions which he had taken, in the common expectation that he had assimilated and was in fact acting on all information that was relevant. The claimant has been unable, and nor have any of his witnesses, specifically to identify any instance where he says he was communicated to by email that caused a particular problem and he needed therefore the information to be expressed in an alternative form.

The Law

[47]This necessarily is an email based business. Customers and clients will communicate by email. Those were often as we can see looking at the disclosed papers be as a follow up to telephone conversations or as an alternative where it is proved impossible to actually speak to somebody by phone. In order to keep a proper record those emails will necessarily be copied to a large number of people. But nowhere is it identified that there was a specific issue in the claimant receiving information in this form that led to a particular error, let alone that he was criticised for that. We have referred to the issue about the comments about his communication skills being in a specific context. It also appears to be an incident of his condition that at times he is forgetful, but equally in an increasing busy working environment where everybody was inundated with work and emails, again we prefer the evidence of the respondent that such comments about forgetfulness were in the context that matters were being missed across the whole of the term and were not ever intended to, and could not reasonably be construed only as a criticism or harassment of the claimant.

[48]The indirect discrimination claim adds nothing to a failure to make reasonable adjustments claim. The reasonable adjustments claim is specified to be the application of a provision criterion or practice of the efficient running of the business including proper documentation of data. But it is hard to see how that is a provision criterion or practice that can be adjusted. There was also, we are satisfied, no actual requirement that communication be in writing. It was a mixture of communications. As we say that was necessarily by email, it was also by WhatsApp messages or by text messages or by oral discussions and team meetings. The claimnt did engage with all of these methods, and in particular the text and WhatsApp exchanges are in “real time”. On one occasion Mrs Kinsey did express, in perfectly measured terms, a wish that members of the team should not engage in overlong conversations as this was decreasingly efficiency of the business, but that is not in any way suggesting that they should not ever communicate orally nor is it any indication that the claimant was prevented from doing so. Nor did he ever indicate that that would place him at a disadvantage. He was still able to engage in the variety of forms of communication within the business. It is acknowledged there was some difficulties in breakdowns of communication but efforts were made to sort those out and ensure that information was passed to the relevant member of the operations team as soon as possible including the claimant. At no stage, we repeat, has it ever been identified that the respondent could have known that he was said to be particularly disadvantaged. It was sought to be raised only after the events of the 21st January, which were not the engineering of the situation where the claimant could be manipulated into a position where he accused Mrs Kinsey of lying such she could then use that as a claim that he had resigned, but rather an unfortunate breakdown in relationships instigated by his insistence that she was telling lies. Monetary claims

[49]As we indicated there are however some matters where the claimant will succeed financially. The contract provided for two weeks’ notice, it also had a specific PILON clause. In her email on 21st Mrs Kinsey had indicated that the claimant should work his two weeks’ notice but she would allow an alternative. The following day he received confirmation that his alleged resignation was accepted. He replied to that agreeing to the effective termination being effected by way of a handover meeting, which took place on the 24th. There was at that stage an indication that as he was saying he wished to take up the offer of leaving immediately he would be paid four weeks. But that was not what the contract allowed. Subsequent communication almost immediately afterwards on 4 February from Mr Kinsey indicated that that was a goodwill gesture only. But having decided to bring into effect the PILON clause the respondent cannot justify not paying the two weeks’ contractual notice, so the claimant is entitled to two weeks’ gross pay because it is of course taxable.

[50]He is not entitled to the further gratuitous two weeks’ notice. The respondent purported not to pay that additional sum because of an alleged breach of a noncompetition clause in the signed agreement. It is debatable whether that in fact is applicable or enforceable, but as that additional payment is entirely discretionary the respondent is not obliged to make it. And there was no consideration for payment for that further two weeks.

[51]The claimant has not received any payment for the alleged further bonus due. His claim has been unspecific as to whether that was due in November or October of 2019. In neither of those months did he receive a bonus, but equally the claimant has not established any facts or basis on which he was entitled to a bonus. As we have said at the start of this Judgment the indications are that this was a discretionary payment dependent upon general performance of the company, and if it was discretionary there was no obligation to pay it even though the issue has been clouded by what was a subsequent unhelpful exchange about whether or not “targets” as yet unspecified had been met. 52. in terms of the expenses claim we have heard no evidence at all about on what basis the claimant could recover for the Christmas meal of fish and chips. We have had no evidence at all about whether he had paid a sum to a contractor which due to be reimbursed, so we cannot find for him on those matters. But he has alleged that he was due expenses unpaid and submitted in the ordinary course of the employment’s business, that is the sum of £72.05 and that is recorded as three expenses claims submitted in January 2020 shortly before or at the time of the termination and which are simply shown as unpaid without reason. As there is not any explanation as to why should not recover expenses submitted in the proper course we award in the sum of £72.05. There is no breach of contract in relation to shares, as we have said there was no contractual intent and that would have bene a private arrangement between him and Mrs Kinsey in any event. Summary conclusion

[53]For those reasons analysing on the basis as best we can of the evidence we have heard and accepted corroborated by contemporaneous documents we find the claimant has not established any facts from which we could conclude that he has in fact been discriminated against in any of the forms alleged, but rather the reason why matters took place is in accordance with the evidence given by Mrs Kinsey and it is fully explained by her concerns generally about the operational matters, the financial constraints upon the business, and in terms of the termination ultimately by her clear upset at the accusations made against her notwithstanding her previous indication that she would wish to restore that relationship to its previous state. Nor has the claimant shown either that there in fact was, nor that the respondent had or ought to have had any knowledge of a particular disadvantage to him arising out of its customary working practices and which could therefore have been ameliorated by any reasonable adjustment. There are, of course therefore no proven acts of discrimination that would be within time. So for those reasons as we say we conclude that only the two monetary claims for two weeks pay in lieu of notice in accordance with the pylon clause and limited amount of quantifiable expenses of £72.05 succeed, all other claims are now dismissed.