Mr P Ennis v DPD Group UK Ltd: 2603188/2020

EMPLOYMENT TRIBUNALS

Case No 2603188/2020

Between

Mr Peter EnnisClaimant

DPD Group UK Limited PRELIMINARY HEARINGRespondent

Before

Employment Judge Camp

In person for claimant

Mr P Bownes (instructed by solicitor) for respondent

Date 2 June 2023

JUDGMENT

(1) All complaints of disability discrimination are struck out as having no reasonable prospects of success because they are res judicata or the principle from Henderson v Henderson applies to them.

(2) The respondent’s application to strike out the complaint of unfair dismissal un der rule s 37(1 ))( ( is refused.

REASONS

background

[1]The claimant was employed by the respondent as a Collection and Delivery Driver from 9 January 2017 until his dismissal on 30 June 2020 Having gone through early conciliation from 25 July to 25 August 2020, he presented his claim form in this case case number 2603188/2020 which I shall refer to as the “third claim” on 26 August 2020.

[2]The third claim is for unfair dismissal and disability discrimination. It is the third claim because the claimant had previously presented two other claims case number 2601523/2019, presented on 17 May 2019 and dismissed by Employment Judge Hutch inson at a preliminary hearing on 11 June 2020 (the “first claim”) case number 2601988 / presented on 17 June 2020 and dismissed following a final hearing Case No. 2603188/2020 2 of 25 b beforeefore Employment Judge M Butler and Members in January and February 2022, by a reserved judgment sent to the parties on 23 June 2022 (the “second claim”).

[3]There is no obvious overlap between the second claim and the third claim that is relevant to my decision. TThehe judgment dismissing the second claim is subject to an appealappeal11 and I [Employment Judge Camp] have no powers in relation to that claim.

[4]By way of background, see the written record of the preliminary hearing that took place by telephone before Regional Employment Judge Swann on 3 August 2022.

[5]This is a decision on the respondent’s applicationapplicationss of 15 July 2022 to strike out the third claim, or the disability discrimination element of it, on three bases (as set out by REJ Swann, who adoptadopteded the respondent’s solicitors’ wording from thetheirir applicationapplication emailemail):):5.1 5.1 to strike out the disability discrimination element of the claim on the basis of res judicata / issue estoppestoppeell in terms of the issue of whether the cclaimantlaimant waswas disableddisabled;; and/orand/or

5.2 5.2 to strike out the disability discrimination element of the claim on the basis of Henderson v Henderson abuse of process in terms of the cclaimantlaimant seeking to re-argue the disability point on what he says is a new different basis that he could and should have argued in a previous claim; and/or

5.3 5.3 to strike out the whole of the third claim as scandalous or vexatiovexatiouus,s, and/or on the basis of scandalous, unreasonable or vexatious conduct, on the basis of the final paragraph of the cclaimant’slaimant’s email of 12 July 2022 in which he states that he will use these proceedings to mount collateral attacks on previous judicial decisions which he has unsuccessfully challenged on both reconsideration and appeal, as well as mounting such attacks on other parties in the claim rather than addressing the claim itself. This is “application 3”.

[6]AsAs discusseddiscussed nearnear tthehe start of this hearing, mmyy understanding and interpretation of what REJ Swann directed in relation to the first two of these three applications (“applications 1 & 2”) is that:6.1 6.1 I am to make a final, definitive decision as to whether res judicata, issue estoppeestoppell and/or Henderson v Henderson abuse of process applies to the disability discrimination complaints;

6.2 6.2 if my decision on that is in the respondent’s favour, I would then have to decide whether or not, in light of that decision, to strike out those complaints under rule 37 on the grounds that they have no reasonable prospects of success;

6.3 6.3 doing this is technically didistinctstinct from assessing the claimant’s prospects of success on res judicata, issue estoppel and Henderson v Henderson abuse of 1 On 8 November 2022, the EAT wrote confirming that HH Judge Wayne Beard had decided EAT rule 3(7) applied to the appeal. Case No. 2603188/2020 3 of 25 process process at any final hearing. IInn practice in this case it is almost certainly a distinction without a difference.

[7]AApplicationspplications 1 & 2 rely on the fact that at the hearing on 11 June 2020, Employment Judge Hutchinson decided that the claimant was not disabled in accordance with the Equality Act 2010 (“EQA”)(“EQA”).. The basis upon which the claimant opposes those applications includes an assertion that the Employment Judge made that decision only in relation to one condition – an umbilical hernia – and that the disability discrimination complaints in the third claim rely on another condition – divarication of the recti – as well or instead. Facts Facts relevant to applications 1 & 2

Facts

[8]The history is relatively complicated and it is regrettably necessary to set it out in detail and at length.

[9]The first claim was presented on 17 May 2019. It was, or at least became, a claim for disability discrimination only. At the time he presented his claim form the claimant had been off sick from work since 27 January 2019. The problem – and seemingly the main reason a claim was presented at that time – was the claimant’s assertion that he could not return to work unless and until various adjustments were made or reinstated. The adjustment sought were mainly restrictions on heavy lifting and other manual handling tasks and allowing him to drive a smaller van. In May 2019, the respondent agreed to make some adjustments. Its position was that it did not concede and had not concconcedededed that the claimant was disabled, but that it was making the adjustments even so, to facilitate a return to work. The claimant returned to work on 28 May 2019.

[10]There was a routine preliminary hearing for case management by telephone on 23 October 2019. In his written record of that preliminary hearing, Employment Judge Adkinson identified the relevant disability as a “small umbilical hernia”. 1. 1. By “the relevant disability”, wwhathat II meanmean iiss the “physical or mental impairment” said to have, and to have had, a long-term adverse effect on the claimant’s ability to carry out day-to-day activities, in accordance with EQA section 6, that was relied on by the claimant in his claim. I note two things about this:1.1 1.1 EQA section 6 is not concerned with the cause of the “impairment””;;

1.2 1.2 a claimclaimantant may have multiple “impairments” constituting disabilities under the EQA, not all of which are relevant to their claim. It is for the claimant to identify which of them, if any, is or are relevant.

[12]Employment Judge Adkinson also set out the complaints and issues. These included complaints about things that began and/or continued after the presentation of the claim, e.g. reasonable adjustments complaints about [allegedly][allegedly],, “Requiring the claimant to use the large van from about May 2019 onwards on every shift” and “Compelling him to deliver the large or hheavyeavy parcels from about May 2019 onwards on every shift”. Case No. 2603188/2020 4 of 25

[13]The claimant told me at his hearing that at least some of the allegations of discrimination he was making in the first claim related to things he was arguing continued up to June 2020. Whether this is right or not, the point of potential relevance to applications 1 & 2 is that in the first claim, in relation to the issue of whether the claimant was a disabled person under the EQA at all relevant times (the “disability issue”), all relevant times covered the period from early 2019 (if not before) up to and including 11 June 2020, when the decision on that issue was made.

[14]In addition, although in the first claim the claimant alleged that working for the respondent had exacerbated his condition, it was no part of his case that the problems he had that he believed made him a disabled person under the EQA were materially worse or better in June 2020 than they had been in early 2019.

[15]The claimant and respondent were ordered to inform the Tribunal and each other within 14 days if what was written about the claim in that written record of the preliminary hearing was inaccurate or incomplete in any important way. The claimant did not write-in pursuant to that order. In particular, he did not write suggestsuggestinging Employment Judge Adkinson had misidentified or incompletely identified the relevant disability.

[16]What the claimant did do, pursuant to other orders Employment Judge Adkinson made (including an order to provide all evidence relevant to the disability issue)issue),, was to prepare and serve a disability impact statement and disclose some medical information. The disability impact statement, prepared in or around December 2019, on the face of it put forwaforwardrd “a small umbilical hernia” as the alleged disability. The claimant identified the cause of it as being “a congenital defect in the abdominal wall due to premature birth””.. He also referred in the impact statement to having had an ultrasound scan in 2017.

[17]The medical evidence the claimant provided, also in or around December 2019, includeincludedd the report on that ultrasound scan, which took place on 3 March 2017. The report appears to have been an investigation of what is described as a “Midline budge. ? hernia”, “budge” presumably being a typographical error for “bulge”“bulge”.. The report included, “DivarDivariicationcation of the rectus abdominus muscles are identified. A tiny umbilical hernia is seen””.. UUndernder the heading “Conclusion” the only thing written was, “DivarDivaricationication of the rectus abdominus””..

[18]TThehe rectus abdominus (a.k.a.a.k.a. rectus abdominabdominiiss) are two paired and parallel muscles that run vertically from the pubic bone to the sternum. They form the “abdominals” or “abs”. A divarication of them means a separation or gap between them.

[19]In short, what the report said was that the bulge in the claimant’s midline under investigation was an umbilical hernia, as had been suspected, and that its underlying cause was divdivaricationarication or separation of the abdominal muscles. From here onwards, I shall refer to this as the “divarication”.

[20]When the claimant referred in his impact statement to “a congenital defect in the abdominal wall” he meant the divarication. In paragraph 7 of the impact statement, he referred to it as “Diastasis””,, which he wawass clearly using as a shorthand for ddiastasisiastasis Case No. 2603188/2020 5 of 25 r rectiecti or rectus abdominis diastasis, which is the same thing as divarication of the rectus abdominis.

[21]It is reasonably clear that in December 2019 the claimant’s case was that his disability was the hernia and that there was a causal link between ththee hernia and the divarication. 2. 2. He confirmed this first in his impact statement, as above and in its paragraph 7, where he wrote that, “DiastasiDiastasiss [i.e. the divarication] … is the result of a hernia forcing the abdominal muscles to separate””..

[23]He also confirmed this in his written response, emailed on 22 December 2019, to the respondent’s application for a preliminary hearing to decide the disability issue, which began: “The claimant takes issue with the respondent[respondent[’’]s]s requestrequest forfor aa 22ndnd Preliminary Hearing …. [on] the basis that the claimant[[’’]s]s small umbilical’s’s hernia (causation divarication of recti) abdominal separation … [does] not qualify the claimant as a disabled person … [insof[insofar]ar] as the respondent does not accept that the claimant[claimant[’’]s]s conditioncondition hhasas a substantial adverse effect on his day to day activities..””

[24]This response of 22 December 2019 continued: The The claimant sent the respondent an impact statement outlining the following: a) the likelihood … that the claimant[claimant[’’]s]s abdominalabdominal midmid lilinene had failed to properly unite due to premature birth resulting in weakness of the abdominal wall ….., b) In adult males particularly ththoseose over 50 the avoidance of exercise involving heavy weighted squats, dead lifts or lunges outside of a controlled environment unless otherwise instructed under the supervision of a therapist. Such movements also transcend in to everyday life hence the avoidance of picking up and or carrying heavy parcels, since these can further [damage] the abdominal muscles. [original emphasis]

[25]The medical records the claimant provided to the Tribunal and the respondent in December 2019 included, in addition to the report on the ultrasound scan:25.1 25.1 a report dated 21 March 2019 from a Consultant Occupational Health Physician which the claimant referred to in his claim form in the first claim and which, amongst other things, considerconsidereded whether or not he was disabled in accordance with the EQA. Its focus is the umbilical hernia, it referreferredred to adjustments that had been made for the claimant as “hernia adjustments” and it did not mention the divarication;

25.2 25.2 an occupational health report dated 11 April 2019 and an occupational health referral foforrmm dated as having been sent on 13 June 2019.

[26]I mention these at this stage because during thithiss hearing the claimant suggested that possibly both of these, and certainly the former, had not been provided to him by the respondent before they were included in the file or ‘bundle’ of documents, on 6 May 2020, for the preliminary hearing on 11 June 2020. In fact, hhee himselfhimself evidentlyevidently hadhad Case No. 2603188/2020 6 of 25 them them byby DecemberDecember 22019,019, if not before, because he provided them then. Copies were also provided to him and to the Tribunal by the respondent on 2 April 2020.

[27]On 20 February 2020, a preliminary hearing was listed to take place on 22 April 2020. Although the notice of hearing did not say so, the intention was that the disability issue would be dealt with at that hearing. BBothoth sidessides eexpectedxpected it to be. Unfortunately, Covid intervened. A telephone case management hearing took place on 22 April 2020. In his written record of that hearing, Employment Judge Clark recorded that the claimant “was keen to have the matter [i.e. the disability issue] determined today”. In other words, the claimant did not say he felt insufficiently prepared, or lacked the evidence, to deal with the disability issue. There is nothing to suggest he said anything along those lines before or at the hearing on 11 June 2020 either – quite the contrary: in his decision, Employment JuJudgedge Hutchinson recorded that, because of concerns about the claimant not being able to use the video part of the CVP system, he had asked the claimant whether he was sure he wanted to proceed and the claimant confirmed he did.

[28]AA preliminarypreliminary hearinhearingg “To determine the claimant’s disability status at the material time” was listed at Employment Judge Clark’s direction. As best I can tell from looking at the Tribunal file, wwhenhen Judge Clark issued that direction – 22 April 2020 – the claimant had not written anything to the Tribunal altering his position in relation to the disability issue from that he had been adopting in December 2019, namely:28.1 28.1 the relevant impairment was his umbilical hernia;

28.2 28.2 the hernia was caused by, or was the cause of, the divarication, and this was part of the disability issue, albeit the divarication was not being put forward as an impairment under EQA section 6 in its own right.

[29]The divarication was also mentioned in reports from the respondent’s occupational health provider, in particular in a report dated 30 JJanuaryanuary 2020, provided to the Tribunal and the claimant on 2 April 2020, if not (to the claimant) before.

[30]The preliminary hearing to decide the disability issue on 11 June 2020 was via CVP and telephone. GGiveniven when it took place it iiss likely that the Judge conducted it from his home and did not have access to the Tribunal file. This means he would have had before him only the documents in the electronic file / ‘bundle’ prepared for the hearing by the respondent’s solicitors, together with the parties’ written submissions. The only thing I am aware of that was not in ththatat bundle that might reasonably have been included was the claimant’s response document of 22 December 2019. (I am not ssayingaying it was unreasonable to have omitted it from the bundlbundlee).

[31]In the run up to that hearing, on 3 June 2020, the claimant emailed the respondent’s solicitor. His email, which was in the hearing bundle, included this: “I know you are holding out for a decision as to [whether] my hernia / under lying causation divarication of the recti constitutes a disability … The single question remains [whether] or not said hernia resulting as consequence of [weakened] / underdeveloped core muscles (divarication of the recti) … [has] a substantial detdetrimentalrimental impact on my day to day activities … such activities can be transposed into working life……”.”. Case No. 2603188/2020 7 of 25

[32]BBothoth sides prepared written submissions for the hearing. 3. 3. RRespondent’sespondent’s counsel’s written submissions, sent to the claimant and the Tribunal on 9 June 2020202022, stated in paragraph 1, in their “IIntroductionntroduction” section, ““…… the Claimant presented a claim of disability discrimination … Employment Judge Clark listed today’s hearing to determine ‘the Claimant’s disability status at the material time’time’.. The Claimant suffers from a small umbilical hernia which he asserts amounts to a disability”. They also quoted from the ultrasound scan report of March 2017 and the occupational health report of 20 January 2020 and in so doing referred to the divarication.

[34]The claimant’s written submissions of 10 June 2020 stated in terms that they were a response to the respondent’s written submsubmissions.issions. They commented on those submissions paragraph by paragraph. They began, “Paragraph 1 is not disputed”. Whatever hhee intended, that concession by the claimant objectively communicated that he was relying on the hernia as the impairment / disability for the purposes of his claim and that the preliminary hearing was to decide whether his hernia, and not something else, was a disability in accordance with the EQA at all relevant times.

[35]Nowhere in his written submissions ddidid the claimant write anything alonalongg these lines, at least not with any clclarityarity: the condition relied on as his impairment / disability for the purposes of his claim was not just his hernia but the divarication as well or instead. The closest he came to doing so is iinn paragraphparagraphss 8 and 9 of his written submissions.

[36]What he wrote in paragraph 8 to an extent echoed what he had written in his response document of December 2019: Paragraphs Paragraphs 14 to 15 [of the respondent’s written submissions] refer to symptoms associated with divarication of the recti in men and particularly those over 50. A hernia results as a consequence of a complete separation of the abdominus recti … And whilst I have suffered all of my life without undue discomfort or [hindrance[hindrance, working] at DPD … placed [a] substantial strain on my core muscles which are already weak not due to lack of physical robustness but that condition previously identified back in 2018

[37]Paragraph 9 continues with: the the respondent goes on to continue to undermine the serious nature of my condition and its effect on my ability to carcarrryy out day to day … activities … the respondent refers to new conditions, these aren’t new like my hernia they arise as a consequence of divarication of the recti. … … throughout the later part of 2018 I referenced specifically my divarication of the recti and other associated issues … although I did not refer to the medical 2 In his appeal to the EAT, the claimant argued that it was a breach of rule 42 to provide written submissions less than 7 days before a hearing. He misunderstands that rule – rule 42 sets no time limit on the provision of written submissions. Instead it is about what written representations the Tribunal must take into account, particularly where someone chooses not to attend a hearing. Written submissions from parties attending Tribunal hearings, if provided at all, are usually provided less than 24 hours beforehand, and often on the day. Case No. 2603188/2020 8 of 25 name name because I did not know it at the time. My hernia is the result of a hole or defect in the fascia … this was exacerbateexacerbatedd after joining DPD …

[38]That was, to the best of my knowledge and understanding, all of ththee written material the Tribunal and Employment Judge Hutchinson had at the hearing on 11 June 2020 that wawass relevant to the question of what impairment or impairments the claimant was relying on as his relevant disability. TheTherere was some ambiguity in it. However:38.1 38.1 both the Tribunal and the respondent were openly working on the basis that the relevant impairment was the hernia and the claimant did not before the hearing wrwriitete anything saying they were wrong and he appeared at times to confirm they were right;

38.2 38.2 the claimant evidently was relying on the divardivariicationcation as relevant to the disability issue, and the respondent was not suggesting it was irrelevant and in fact itself referred to the divarication;

38.3 38.3 the ambiguity in the claimant’s case on paper was as to precisely how the divarication was said to be relevrelevantant to the disability issue. It may be that the claimant himself was confused about this;

38.4 38.4 mentioning the divarication any number of times is not the same as arguing that it was a disability under the EQA;

38.5 38.5 looking at all the claimant wrote, and particularly at his email to the respondent’s solicitor of 3 June 2020, the position the claimant seems to have been presenting to Employment Judge Hutchinson coming into the hearing was that the relevant impairment and disability was the hernia and that the divarication’s’s relevance was as an underlying cause of the hernia.

[39]Employment Judge Hutchison gave his decision against the claimant on 11 June 2020 itself. The written Judgment and Reasons were sent to the parties on 24 August 202020.20. I shall now go through the relevant parpartsts ofof it.it.

[40]The purpose of my doing so is not so that I can ddecidecidee whether I think Employment Judge Hutchinson got it right or wrong. As I have repeatedly tried to explain to the claimant during this hearing, the correctness ooff his decision is even in theorytheory33 almost entirely irrelevant to anything I might have to decide; and even if I thought he had made a mistake, I have no power to overturn another Employment Judge’s judgment.

[41]The reason I am examining the Judgment and Reasons is to determine, as best I can, precisely what Employment Judge Hutchinson decided on all of the subsidiary issues that formed necessary ingredients of his overall decision. In particular, I am looking at what, if anything, he decided in relation to the divarication, whether taken together with the umbilical hernia or treated as a potential disability in its own right.

[42]The Judgment stated: “The Claimant does not have a disability as defined in Section 6 Equality Act 2010 and his claim of disability discrimination fails and is dismissed.dismissed.”” 3 In practice it is completely irrelevant. Case No. 2603188/2020 9 of 25

[43]The Reasons included the following: 7. 7. … the purpose of the hearing today was for me to determine whether at the relevant time the Claimant suffered from a disability as defined in Section 6 of the Equality Act 2010. In this case he relied on the impairment of the umbilical hernia that was referred to by Employment Judge Adkinson. 8. 8. II hahadd to determine whether this amounted to a physical impairment and whether that impairment had a substantial and long term adverse effect on his ability to undertake normal day to day activities. ….. ….. 10. 10. I repeat that the only physical impairment identifieidentifiedd was the umbilical hernia. 4. 4. Employment Judge Hutchinson quoted from:4.1 4.1 a report from a Dr Brennan, from the respondent’s occupational health provider, of 10 September 2018 in which, after referring to the umbilical hernia, Dr Brennan stated: “Whilst he does have some underlying health conditions, they would seem not to be particularly serious and the problem is more linked to his physical robustness and an underlying health problem.problem.”” I think the word “and” in that sentence from Dr Brennan’s report is a typographical error and should be “than“than”. I cannot be sure that Employment Judge Hutchinson took the same view, but given his conclusions (see below) this seems likely;

4.2 4.2 a further report from Dr Brennan dated 20 January 2020 in which Dr Brennan quoted from a report dated 20 September 2019 that had apparently been received from the claimant’s GP. The quotation from the GP’s report that Employment Judge Hutchinson set out in the Reasons included this: “He [the claimant] was last seen in May. There was mention of a tiny umbilical hernia and [divarication] of recti muscles on a past scan..”” This is the only expexpressress reference to the divarication in the Reasons.

[45]Employment Judge Hutchinson’s conclusions included this: “Mr Ennis has other conditions … some of which are related to his general level of fitness. The medical evidence indicates that that is likely to account for any restrictions that he has told his medical advisers that he has. It is his case that it is the hernia [that] amounts to the phyphysicalsical impairment and I am not satisfied that it does amount to any physical impairment or that it has any effect at all on his normal day-to-day activities.activities.”” II thinkthink thethe seseccondond “that” in the second sentence refers back to “his general level of fitness” in the first sentence.

[46]On my reading of Employment Judge Hutchinson’s decision, it was to the following effect:46.1 46.1 aatt the hearing, the only condition relied on as a relevant impairment was the umbilical hernia; Case No. 2603188/2020 10 of 25

46.2 46.2 the claimant had other conditions, but on the evidence the cause of any adverse effects on his ability to carry out day-to-day activities was probably his general level of fitness.

[47]Almost immediately after the hearing, at 17:15 hrs on 11 June 2020, the claimant emailed the respondent. The email was not copied to the Tribunal. The “Subject” of the email was “Preliminary Hearing Judgement 11/06/2020 (Appeal Notice)Notice)””.. The email included the following: … … the employment judge erred in his overall assessment of my condition and that overall negative impact on my core … My argument that [divarication] of the recti is not directly connected and its subsequent rejection was also made in [error][error].. … … The respondent [has] been aware of both conditions namely divarication of the recti and the resulting umbilical hernia. Yet no consideration was given to the former causation in relation as identified in my impact statement …. … … DonelienDonelien vv LiberataLiberata UUkk Ltd … was submitted … Yet ignored because the employment judge failed to identify a more than casual link between the both ailments and my day to day activities … To To be clear a umbilical hernia is a “side effect” diastasis recti … this is how umbilical hernias appear. WithouWithoutt divarication of the recti there is no hernia or for that matter bulging, lower back pain or any other associated condition referred to in my impact statement or elsewhere in the claim. …

[48]TThathat email was the closest the claimant had come up to that point to stating in writing that he was arguing he was disabled in accordance with the EQA because of two ‘impairments’ / conditions: the hernia and the divarication. Mr Bownes for the respondent (who I understand was not the involved in defending the claimant’s claims in 2020 and has no personal knowledge of what was said during the hearing on 11 June 2020) submitted to me that because of how soon after the hearing the email was sent, I should assume that the claimant’s oral submissions were similar to the email’s contents. He relied on the email as evidence in particular that the claimant must at the hearing have been putting forward both conditions as the relevant disability or disabilities.

[49]I disagree. If the claimant said to Employment Judge Hutchinson what he wrote in the email, the Employment Judge would surely not have put in the Reasons, at least not without qualification, “It is hihiss case that it is the hernia [that] amounts to the physical impairment”. Although an email of ththatat kind, sent shortly after a hearing where a decision has gone against the author of the email, may well accurately reflect what was said at the hearing, it may equally well contain what the author would like, with the benefit of hindsight, to have said (and perhaps has persuaded themselves that they did say)say),, but which they did not, in fact, say.

[50]I do, however, accept that Employment Judge Hutchinson must have been aware that the claimant, on paper at least, considered divadivaricationrication to be relevant to the disability issue. This is because the claimant mentioned it in his impact statement and written submissions, which the Employment Judge had definitely read, as well Case No. 2603188/2020 11 of 25 as as in his email of 3 June 2020, which the Employment Judge had probably read. I also repeat paragraphparagraphss 38 and 44 above.

[51]AtAt leastleast fforor the most part, though, it is impossible to reach firm conclusions as to precisely what Employment Judge Hutchinson had in mind that is not explicit on the face of his decision. For example, the divarication may – or may not – have been one of the things he was thinking about when he quoted Dr Brennan’s discussion of “underlying health conditions” (see paragraph 44.1 above) and referred to “other conditions” in his conclusions (see paragraph 45 above). As well or instead, he may – or, again, may not – have considered the divarication to be legally unimportanunimportant,t, because of an understanding that the claimant was relying on it simply as the cause of the relevant disability (see paragraph 11.1 above). Speculation about thothosese kinds of things is idle.

[52]In emails to the Tribunal (not copied to the respondent) of 18 June, 5 July and 6 August 2020, the claimant referred to the divarication, suggesting – most clearly in the email of 18 June 2020 ((““Conclusion – Divarication of the Recti … is … a substantial physical impairment as defined under the Equality Act 2010 and therefore a disability”) – that it was a disability in its own right.

[53]As already mentioned, the claimant was dismissed for incapability with effect on 30 June 2020, the written Judgment and Reasons was sent to the parties on 24 August 2020, and on 26 AAugustugust 2020 the claim form in the third claim was presented.

[54]The details of the claim provided in the third claim form included: 1. 1. TThehe claimant suffers with divarication of the recti which resulted in herniation of the umbilicus at birth, both conditionconditionss areare thereforetherefore congenitalcongenital.. …. …. 3. 3. A occupational health report identified a small umbilical swelling and what was referred to as other “underlying health conditions ……”” … That other underlying health condition is ‘divarication of the recti’ it is neither minor or trivial … 4. 4. Following on reasonable adjustments albeit in part were put in place albeit denied by the respondent who refused to accept I had disability. 5. 5. Subsequently a claim for discrimination arising from disability was lodged claim 26012601523/2019.523/2019. At a preliminary hearing on the 11 June 2020 employment Judge Hutchinson failed to acknowledge that other under lying condition or the negative impact it [had][had].. … Consequently I have asked for the judgement to be reconsidered. 6. 6. …… FFollowingollowing the judgement on the 11 June 2020 I was invited to return to my substantive role which I was physically unable to do. I requested that they again seek further clarification about my condition and await the outcome of the reconsideration they refused. 7. 7. The outcome … was my dismissal on capability grounds … 8. 8. … [TTherehere were two unsuccessful internal appeals against dismissal. The appeal decision-makers] bbothoth [cited] the earlier opinion of Dr John W Brennan Case No. 2603188/2020 12 of 25 and and the judgement hand down on the 11 June 2020 by eemploymentmployment Judge Hutchinson even though both failed to consider as did my employer whether divarication of the recti was in fact having profound impact on my ability to bend, lift, carry out my substantial role as required or expected by the respondent. … 5. 5. Also on 26 August 2020, tthehe claimant made a reconsideration application.4 For present purposes, the following are the most relevant parts of it: … … umbilical hernia can result in lower back pain. There is a direct correlation between a hernia breach of the transverse abdominis, divarication of the rerecctiti separation of the abdominal interior wall. … … … thethe recrecurrenceurrence raterate [following[following ssurgicalurgical repair] for umbilical hernias which coexist alongside divarication of the recti as in this instance is as high as 61% … It is pointless repairing a abdominal hernia umbilical or otherwise if the underlying condition responsible [for] weakness in the abdominal walwalll responsible for the protrusion (hernia) is not corrected … … … on the 30 June 2020 … I was sacked because I was unable owing to significant functional impairment brought on by both hernia and divaricatdivaricatiionon ofof thethe rectirecti.. ….a ….a further claim … [has] been lodged I fully anticipate … that that contested judgement [Employment Judge Hutchinson’s decision] is revoked and substituted with a decision compatible with section 6 of the Equality Act in respect of both hernia and divaricdivaricationation of the recti …

[56]On 4 September 2020, Employment Judge Hutchinson’s decision refusing the reconsideration application under rule 772(2(1) was emailed to the parties. It included this: The The matters that the claimant has referred to were all considered by the judge at the hearing … The claimant’s application for reconsideration seeks to provide further evidence to him [Employment Judge Hutchinson] which does not change his view at all about whether Mr Ennis suffered from a disability at the rerelevantlevant time. He was satisfied … that there was no evidence that the umbilical hernia had caused him to suffer any impairment and that is why he was satisfied that he did not suffer from a disability …

[57]The respondent, through Mr Bownes, submits that by that decision, Employment Judge Hutchinson confirmed that at the 11 June 2020 hearing he had considered and rejected arguments from the claimant to the effect that the divarication was a relevant disability in its own right and/or was one when taken together with the umbilical hernia. I reject that submission.57.1 57.1 In context, “The matters that the claimant has referreferredred to were all considered by the judge at the hearing” does not mean that every single fact set out in, and allegation made in, the reconsideration application was raised and considered at the hearing. Apart from anything else, the reconsideration application 4 There were at least two versions of this. The relevant version – the one the claimant relied on – appears in the file / bundle for this hearing at pp 193-196. Case No. 2603188/2020 13 of 25 refer referredred toto thingthingss post-dating the hearing, such as dismissal. In addition, the reconsideration decision mentioned “further evidence””,, which must mean evidence that was not before Employment Judge Hutchinson at the hearing.

57.2 57.2 What I think Employment Judge Hutchinson meant was that he had at the hearing considered everything in the reconsideration application of relevance and potential significance to his decision on the disability issue.

57.3 57.3 SeeSee paragraphparagraphss 48 and 49 above.

57.4 57.4 IInn thethe reconsiderationreconsideration decision,decision, tthehe divarication was not referred to aandnd ““thethe umbilicalumbilical herniahernia”” wawass identified as the “impairment””..

57.5 57.5 Whatever may have been reasonably obvious from other documents the claimant produced – e.g. his email to the Tribunal of 18 June 2020 and his claim form in the third claim – in the reconsideration application itself he did not state with any clarity that hhisis case was that he was disabled because of two impairments (the hernia and the divarication), that he had argued this at the hearing on 11 June 2020, and that this was the basis, or a substantial part of the basis, of the reconsideration application. The application does no more than give hints in this respect. And what Employment Judge Hutchinson was dealing with in his reconsideration decision of 4 September 2020 was the reconsideration application, no more and no less.

[58]The claimant subsequently, without success, made a complaint about Employment Judge Hutchinson, again sought reconsideration of this decision, and appealed to the EAT. To the best of my knowledge, he has now exhausted his appeal options.

[59]The appeal to the EAT was based on similar arguments to those advanced by the claimant before me in relation to applications 1 & 2. It was dismissed on 5 July 2022 because of EAT time limits, followfollowinging a hearing before HH Judge Auerbach on that date whwhereere both parties appeared. Although the claimanclaimantt sought to argue the appeal on its merits, the only decision the Judge made on that was that the merits were not so strong that they provided an exceptional reason for permitting time to appeal to be extended. The The law – res judicata, issue estoppel & Henderson v Henderson abuse of process

[60]The respondent’s written submissions contain seven pages devoted to the law in this area. There are sseventeeneventeen related authorities in the bundle of authorities. What has been provided to me comprehensively and accurately covers the relevant ground and I refer to it.

[61]In this decision, the law I am applying is as summarised by Lord Sumption JSC in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd

[2014] AC 160

at paragraphs 17 to 26, which includes, at paragraph 22, the following propositions, for which Arnold v National Westminster Bank plc

[1991] 2 AC 93

is cited as authority: ( (1)1) Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action. Case No. 2603188/2020 14 of 25 (2) (2) Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-exisexistencetence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised. (3) (3) Except in special circumstances where this would cacauseuse injustice, issue estoppel bars the raising in subsequent proceedings of points which(i) were not raised in the earlier proceedings or

(ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it coucouldld with reasonable diligence and should in all the circumstances have been raised.

[62]Circumstances where a decision that would normally give rise to an estoppel of these kinds can be revisited (other than by appeal or reconsideration) include where a party seeks to have a judgment set aside on grounds that it was fraudulently obtained (as in Takhar v GracefieGracefielldd Developments Limited & others

[2019] UKSC 13

) or where new facts come to light that fundamentally change the complexion of the case – sseeee paragraph 25 of Allsop v(1) Banner Jones Limited

(2) Cohen

[2021] EWCA Civ 7

[63]These exceptions to the general ruleruless are, however, of limited scope:63.1 63.1 I, an Employment Judge, have no power to set aside or ignore a judgment of a fellow Employment Judge, even one obtained by fraud. Employment Judges (unless dealing with a reconsideration application pursuant to rule 72(3)72(3))) are required to treat as valid and correct judgments of other Employment Judges, unless and until they are set aside by a Court or Tribunal that hahass the power to do so;5

63.2 63.2 accordingly, if in the Employment Tribunals new evidence emerges which suggests a judgment is wrong, the party wanting to challenge the judgment will need to appeal or apply for reconsideration out of time. An out of time appeal or reconsideration application based on new evidence will not get off the ground unless the party applying is able to show that they could not with reasonable diligence have obtained the evidence at the time the judgment. In the present case, the claimant did not base his appeal to the EAT on new evidence to any substantial extent;

63.3 63.3 specifically in relation to new evidence in the cocontextntext of the disability issue, if a Tribunal has decided that the claimant was not a disabled person because of a particular impairment at a particular point in time, they will not normally be permitted to bring another claim based on allegations that new evidence retrospectively shows that decision to have been incorrect: “it can be difficult for litigants in person to pay for relevant reports and so forth, but that is a problem that many litigants face. It is for the claimant to establish his disability to the requisite standard” (Mr XX v UKBA, from a judgment of Elias LJ dismissing an appeal in proproceedingsceedings started in 2007, set out in the EAT’s 5 I should make clear that if I thought Employment Judge Hutchinson’s decision had been obtained by fraud – and I categorically do not, for reasons explained below – I would not ignore this. Almost certainly, I would stay these proceedings and invite Employment Judge Hutchinson to reconsider the decision on his own initiative under rule 73. Case No. 2603188/2020 15 of 25

[64]DuringDuring ththee present hearing, we discussed the status of Employment Judge Hutchinson’s decision and of the claimant’s arguments that it was wrong. In particular, I wondered aloud whether it made a difference that the appeal had been dismissed for procedural reasons rather than on its merits.

[65]My considered view is that it makes no difference at all in principle. Of course, if the appeal had been dismissed on its merits, my decision-making would in practice be considerably easier. But Employment Judge Hutchinson’s decision is no less valid, and no more susceptible to challenge before me, than any other judgment of aanothernother Judge that has not been overturned on appeal or through reconsideration. 6. 6. Finally on the law, the claimant repeatedly referred in his written and oral submissions to Cox v Adecco & Others

[2021] UKEAT 0339_19

_09040339_19_0904. He appears to think the decision means that, because he was a litigant in person: Employment Judge Hutchinson had an inquisitorial role; there was no onus on him to put forward his own case aatt the hearing on 11 June 2020; the onus was on Employment Judge Hutchinson and the respondent to make his case for him.

[67]If that is what the claimant thinks, he is mistaken. Cox v Adecco is about how Tribunals should approach strike out and deposit order applications made against unrepresented claimants where the claims and issues are difficult to identify. The main point decided is (paragraph(paragraphss 30 to 31 of the decision): “There has to be a reasonable attempt at identifying the claims and the issues before considering strike out or making a deposit order. … RespondeRespondentsnts … need to assist the employment tribunal in identifying what … the claims and issues are””.. That point has no significant bearing on the present case. The hearing on 11 June 2020 was not to decide an application to strike out or make a deposit order; it was a hearing to decide the disability issue. The claims and issues had been identified at the preliminary hearing before Employment Judge Adkinson in October 2019.

[68]Cox v Adecco does not change the law from ththee followingfollowing::68.1 68.1 it is for the claimant to set out and prove their case;

68.2 68.2 in a disability discrimination claim, “it would [not] be helpful to describe the role [of] the Employment Tribunal as “inquisitorial” or as “pro“pro-active.”active.” Its role is to adjudicate on disputes between the parties on issues of fact and law. … The onus is on the applicant to prove the impairment on the conventional balance of probabilities. … If ththereere is an issue on impairment, evidence will be needed to prove impairment. … It is not, however, the duty of the tribunal to obtain evidence or to ensure that adequate medical evidence is obtained by the parties. That is a matter for the parties and their advisers” (McNicol v Balfour Beatty Rail Maintenance Ltd

[2002] EWCA Civ 1074

at [26][26]));;

68.3 68.3 in relation to any claim, “it is not for a tribunal to make a case for a litigant. However much a tribunal feels that a litigant is not making the best case that litigant could, given the facts as they appear to the tribunal, it cannot step into the shoes of the litigant and make foforr itself any case which it appears could Case No. 2603188/2020 16 of 25 have have been advanced successfully in the light of that material” (Dundee City Council v Malcolm

UKEATS/0019/15

(9 February 2016, unreported), at [18][18]).).

[69]TThehe disability discrimination part of the third claim is plainly “abusive and duplicatduplicativeive litigation” (Virgin Atlantic

[2014] AC 160

at 185G) of the kind that the law of res judicata / issue estoppel and the principle in HendersoHendersonn v Henderson have the purpose of limiting.

[70]It is part of tthehe third claim as set out in the claim form that “herniation of the umbilicus” was at all relevant times, going back to 2018, an impairment constituting a disability in accordance with the EQA. Employment Judge Hutchinson decided it was not, over a virtually identical time periodperiod66, and his decision has not been set aside. On any sensible view, that issue is res judicata.

[71]So far as concerns the divarication, I have found (above) that the claimant did not argue at the hearing on 11 June 2020 that it, whether by itself or in combination with the umbilical hernia, was a relevant impairment and disability under the EQA. Accordingly res judicata and issue estoppel do not apply. However, the principle in Henderson v Henderson does. Manifestly, it could have been argued:71.1 71.1 it was raised a week after the hearing (if not before) in the claimant’s email to the Tribunal of 18 June 2020;

71.2 71.2 tthehe claimant’s case seems to be that he did raise it – or at least (paragraph 60 of his written submissions for this hearing) that the divarication was “mentioned countless times so it cannot be Henderson abuse simply because Employment Judge Hutchinson … cchosehose toto ignoreignore itit”;”;

71.3 71.3 the claimant has at times suggestsuggesteded that he was by Employment Judge Hutchinson’s conduct in some way prevented or inhibited at the hearing on 11 June 2020 from raising it orally. Even if that were so – and it is not, I note, an allegallegationation he made to the EAT, nor an inherently plausible one – he has sent many long and detailed documents to the Tribunal and appears to have no particular difficulties expressing himself in writing. TTherehere was nothing stopping him including it –71.3.1 71.3.1 in his written submissions of 10 June 2020. These were four pages long. He could have made the point adequately by adding one or two sentences;

71.3.2 71.3.2 in an email to the Tribunal in accordance with Employment Judge Adkinson’s order referred to in paragraph 15 above;

71.3.3 71.3.3 in the first paragraph of his impact statement, in which he mentioned the hernia only. 6 The only discernible difference is that the third claim covered the period from 11 to 30 June 2020. Paragraphs 13 and 14 above are also relevant here. Case No. 2603188/2020 17 of 25

[72]WWhetherhether the claimant should have raised the point at the hearing on 11 June 2020 and whether it would be an abuse of process for him to raise it in relation to the third claim are two sides of the same coin. My answer to both is “yes”“yes”..72.1 72.1 The third claim overlaps considerably with the first claim; it seems essentially to be the first claim with events from 11 June 2020 onwards added on to it. This is therefore a case where if the third claim were allowed to proceed, the respondent would face having to defend a second set of disability discrimination proceedings about events from early 2019 uupp to early June 2020 when there could and should have been only one.

72.2 72.2 Permitting the claimant, having lost on the disability issue in relation to one impairment, to make only a couple of months later many of the same, or similar, complaints, but relying on a different impairment, would be a recipe for never-ending litigation.

72.3 72.3 It is the claimant’s case, and it seems to be a physiological fact, that the hernia and the divarication are closely connected. Given that the claimant may not in any event rely on the hernia by itself as a disability (because of res judicata)judicata),, there would potentially be considerable technical and practical difficulties in deciding the disability issue and other related issues in tthehe thirdthird claimclaim..

72.4 72.4 Following on from the previous point, kkeepingeeping any disability discrimination claim that was permitted to continue within its proper bounds – i.e. stopping it from infringing the law of res judicata – would bbee particularly hard in the present case because of the claimant’s evident wish to mount a collateral attack on Employment Judge Hutchinson’s decision (see from paragraph 76 below).

[73]Alternatively, if it were the case (and I have found that it wasn’t) that the claimant did argue before Employment Judge Hutchinson that the divarication was a relevant impairment / disability, the respondent’s position would be even stronger. Employment Judge Hutchinson’s decision that “TThehe CClaimantlaimant does not have a disability” would in those circumstances necessarily include a decision that the divarication was not a disability, meaning that too was res judicata. I use the word “necessarily” because if divarication was put forward as a disability, Employment Judge Hutchinson could not properly have issued the judgment he issued without covering it. The claimant could not argue before me that such a decision was wrong or inadequately supported by the written Reasons bbecauseecause thosethose kindkindss of arguments can only be raised in the context of an appeal or reconsideration application and the claimant is out of options in that respect. As Employment Judge Hutchinson’s judgment has not been set aside, I have to treat it as valid and correct.

[74]I shall now deal with particular arguments the claimant has put forward in opposition to applications 1 & 2.

[75]The main argument put forward in the claimant’s written submissions for the present hearing is to the effect that Employment Judge Hutchinson’s decision was wrong. As I did explain a number of times to the claimant during the hearing, and as explained above, even if he persuaded me that it was (and I should make clear that he has not Case No. 2603188/2020 18 of 25 done done so)so),, that would not help him, because I have no power to set aside another EmplEmploymentoyment Judge’sJudge’s decisiondecision..77

[76]The claimant also relies on the principlprinciplee that fraud unravels all. That is not an unqualified principrincipleple and – see paragraph 63.1 above – it does not give me the power to set aside other judges’ decisions. Further, if I did have that power, I would only exercise it if I thought Employment Judge Hutchinson’s decision had been procured by fraud, i.e. if there were a causal link between the fraud and that decision. In any event, what the claimant calls fraud – and I questioned him ccloselylosely about this during his oral submissions – is not so; far from it. 7. 7. The first thing the claimant labels as fraud is the contents of the response form in the first claim. This is on the basis that he believes it contains “lies”. In his written submissiosubmissionsns for the present hearing, hhee attributes these supposed lies not so much to the respondent as to the individual solicitor then conducting the case for the respondent. Before me, he made a suggestion along the lines that solicitors have a duty to check if their clients are lying or telling the truth and to refuse to act if they are lying. He has also suggested that the respondents’ solicitors’ professional duties extendextendeded toto prohibitiprohibitingng thethemm from making applications 1 & 2, becausbecausee of the alleged fraud.

[78]The claimant is wrong about virtually all of this.78.1 78.1 This is not the place for a detailed explanation of legal professionalprofessionals’s’ conduct rules. Suffice it to say that: solicitors act on their clients’ instructions and are under no duty to ensure that their cclientslients are telling them the truth, let alone to refuse to act if they think their clients may not be telling them the truth; even if the claimant’s fraud argumentargumentss had some merit, there would be nothing improper about the respondent’s solicitors making applications 1 & 2.

78.2 78.2 The fact that the claimant disagrees with the version of events set out in the response does not mean there have been lies, still less fraud. Almost all Tribunal claims involve disputes of fact. At any final hearing, the Tribunal will resolve the relevant ones. When it does so, more often than not it does not decide that one side is lying anandd the other side is telling the truth. Instead, it takes into account the imperfections in human memory, and the impossibility in almost all cases of knowing for certacertainin what occurred, and makes a decision that one side’s evidence is more likely to be true than the other side’s and/or that on the balance of probabilities one side’s witnesses have remembered things accurately and the other side’s witnesses have misremembered them.

78.3 78.3 Although I have not looked at this in detail, what the claimant has put forward to prove there are significant inaccuracies in the response [in the first claim] does not self-evidently do so.

78.4 78.4 IItt is highly unlikely that aanyny inaccuracies in the response had any impact at all on Employment Judge Hutchinson’s decision; and I am not satisfied that they 7 Except when appointed to deal with a reconsideration by the President, Vice President or a Regional Employment Judge pursuant to rule 72(3), which is not applicable here. Case No. 2603188/2020 19 of 25 did did. His decision was based on the medical evidence and the claimant’s impact statement and oral evidence, not on allegations of fact made in the response.

[79]The second and final thing labelled fraud is the contents of respondent’s counsel’s written submissions for the 11 June 2020 hearing. The gist of the claimant’s argument is that they selectively quote from a documedocumentnt in the bundle and that what counsel should have done was to highlight other parts of that document and a part of another document (also in the bundle) that he believes helped his cacase.se. HeHe confirmedconfirmed iinn his oral submissions that he was making this allegation in relation to the following parts of counsel’s submissions only:79.1 79.1 iinn paragraph 9 of those submissions, counsel did not quote the sentence beginning “I explained to Mr Ennis” and ending “or to treat it” and the paragraph beginning “In the meantime, Mr Ennis””,, both from the third page of the occupational health report dated 11 April 2019, from Dr Brennan;

79.2 79.2 counsel did not highlight anywhere in his submissions the following, from an occupational health referral form (not a medical report) sent on 13 June 2019: “In the last medical report, we were advised that Peter’s hernia could become strangulated, which is very dangerous”. It is unclear whether the claimant alleges that the sentence coming immediately after that – “Peter has advised this is not the case” – should also have been highlighted.

[80]The argument is misconceived and the claimant’s reliance on it is misplaced. This would be so eevenven if I thought there was anything untoward in counsel’s submissions, which I don’t.80.1 80.1 If counsel had attempted to pull the wool over Employment Judge Hutchinson’s eyes to obtain an advantage for the respondent, as is alleged, this would at worst be a breach of rule 2 and potentially professional mismisconductconduct; it would not be fraud.

80.2 80.2 Employment Judge Hutchinson and counsel could reasonably have expected the claimant to have highlighted in his own written and oral submissions, and potentially in his impact statement, the particular parts of ththee evidence he relied on (which, so far as concerns the two documents this argument relates to, the claimant had had since December 2019 at the latest)).. In particular, given that the claimant in his written submissions commented on respondent’s counsel’s submissions paragraph by paragraph, the Judge was enentitledtitled to assume that if, for example, the claimant felt there wwereere important omissions in paragraph 9 of counsel’s submissions, he would say so in his own submissions.

80.3 80.3 Given what was and was not in the claimant’s submissions and impact statement, I don’t see how counsel could be expected to know or guess that the claimant thought the risk of hernia strangulation was significant in relation to the disability issue. This is particularly so given the evidence from the occupational hhealthealth referral sent on 13 June 2019 that the claimant had said it was not the case that his “hernia could become strangulated which is very dangerous””.. Still less do I think counsel could reasonably be expected to know or guess that the claimant thought the part of the occupational health referral Case No. 2603188/2020 20 of 25 which which included him having said this helped his case and undermined the resprespoondent’s.ndent’s.

80.4 80.4 Respondent’s counsel was entitled to assume that Employment Judge Hutchinson had read the medical evidence and ccertainlyertainly that he would have read the whole of the reports mentioned in counsel’s submissions, not just the parts of them quoted in submissions.

80.5 80.5 I make that assumption. HHavingaving made it, I think it rather improbable that counsel not quoting and highlighting in his written submissions the parts of the medical evidence and the small part of the occupational health referral that it is said he should havhavee quoted and highlighted affected Employment Judge Hutchinson’s substantive decision.

80.6 80.6 This is a very long way away from being a case where a litigant in person is obviously struggling to explain a point to the Employment Judge, or to locate something in the evidence, and where counsel on the other side stays silent despite being able to help; or where counsel fails to draw to the Employment Judge’s attention aann important document the Judge would probably not otherwise notice, tucked away in an obscure corner of a large hearing bundle, that counsel ought to know helps the unrepresented person on the other side; or anything like that.

[81]AnAnotherother thing the claimant is, or may be, relying on to resist applications 1 & 2 is the existence of new evidence.

[82]I have just used the phrase “may be” because the gist of the relevant part of his oral submissions was that the evidence before the Tribunal on 11 June 2020 was more than adequate to prove his case; ththaatt Employment Judge Hutchinson should on that evidence have found in his favour but did not do so due to what he referred to as “untoward circumstances” (unspecifi(unspecified);ed); and that more evidence would have made no difference because Employment Judge Hutchinson was set against him.

[83]If and in so far as ‘new evidence’ is a part of his defence to the respondent’s applications 1 & 2, the new evidence is:83.1 83.1 tthehe report of a CT scan performed on 29 March 2021. The significance of this, the claimant says, is that is shows how large the divarication is;

83.2 83.2 a letter from a GP, Dr Wiesemann, dated 28 July 2022 enclosing a physiotherapist’s letter dated 19 July 2022. Dr WiesemanWiesemannn states that the claimant “is suffering from significant divarication of the recti and also from a small uummbilicalbilical hernia. This is causing him considerable abdominal pains, eesspeciallypecially whewhenn doing any manual work. For further specifics, please see [the physiotherapist’s letter] … Of note is that because of his hernia, it is advisable not to do any physical work because of the risk of strangulation.strangulation.”” The physiotherapist’sphysiotherapist’s, Mr Kelly’s, letter, which apparently followed a self-referral by the claimant, states, amongst other things, that, “His divarication is having a significant impact on the quality of his life, affecting normal everyday tasks such as walking, getting out of chairs and it has led to him being unable to work..”” Case No. 2603188/2020 21 of 25

[84]These pieces of evidence do not assist the claimant so far as these applications are concerned.84.1 84.1 As already explained, absent a successful appeal or reconsideration application, the claimant may not go behind the decision on disability relating to the hernia.

84.2 84.2 TThehe CT scan report says nothing about the effect of the divarication on his ability to carry out day to day activities.

84.3 84.3 The GP’s’s and physiotherapist’s letters post-date the hearing before EmployEmploymentment Judge Hutchinson by more than two years, say nothing about the claimant’s state of health in June 2020 and before, and comparing the description of the state of his health in the two letters of July 2022 with the description in ththee evidence that was before Employment Judge Hutchinson, there would seeseemm to have been a significant deterioration. In particular, it was not the claimant’s position in and before June 2020 that he was unable to work; instead it was that he could work if adjadjustmentsustments werewere made.made.

84.4 84.4 DrDr WiesemanWiesemannn does not express a view as to which symptoms stemmed from the hernia and which from the divarication. He explicitly identifies the hernia as being the thing that prevents the claimant from doing any physical work. Although Mr Kelly does suggest that the divarication is causing significant effects on day-to-day activities, it is not clear to me (withwithoutout wishing to disrespect his expertise and professionalism) how qualified he is to exprexpressess a view on causation, nor whether he is actually expressing his professional view on the cause of the claimant’s difficulties as opposed to reflecting the claimant’s views on this.

84.5 84.5 The claimant’s case as to why he could not with reasonable diligence have presented similar evidence to the Tribunal in June 2020 is opaque. My understanding of his position is that he blames his GP, whose surgery was or had been in special measures. He also points out that from March 2020 onwards the pandemic limited everyone’s ability to access their GPs. However, claim 1 began life in May 2019. Prior to that, there had been discussions about his health between him and the respondent from at least September 2018. The divarication had been identified in 2017. To the best of my knowledge hhee has not suggested that at any relevant stage he asked for relevant evidence from his GP and his GP failed or refused to provide it. He did not apply to the Tribunal prior to the 11 June 2020 hearing for a postponement on that or any other basis. Employment Judge Hutchinson’s decision records (in paragraph 23 of the Reasons) the claimant’s GP writing in September 2019 that he had not been seen in their surgery for some time and (in paragraph 33 of the Reasons) that the claimant had not sought any advice or treatment from his GP “in the 3 years since he discovered the hernia”. In addition, it appears that the claimant self-referred to physiotherapy in 2022 and he has not explexplainedained why he did not do the same between late 2018 and mid 2020. In the circumstances, I am not satisfied that if and in so far as the claimant’s condition was in June 2020 similar to how it is recorded in the GP’s and physiotherapist’s letters of July 2022, that Case No. 2603188/2020 22 of 25 he he could not with reasonable diligence have obtained something similar before the 11 June 2020 hearing.

84.6 84.6 MoreMore fundamentally:fundamentally:84.6.1 84.6.1 as above, the claimant did not argue before Employment Judge Hutchinson that the divarication was a disability, and this was not, even on his own case, on the basis that he lacked the evidence to do so. He can’t in those circumstances rely on this new evidenevidencece as a reason for allowing him to argue that point in relation to claim 3, for the first time. Alternatively (also as above), if he did argue ththee point, it is res judicata and the relevant judgment has not been set aside;

84.6.2 84.6.2 it was for him to prove his case on the disability issue at the hearing on 11 June 2020. He lost on the point. He has no right to come back later with more evidence for a ‘second bite of the cherry’. See paragraph 63.3 above. Applications Applications 1 & 2 – summary & conclusions

[85]TheThe rreses judicata and the principle from Henderson v Henderson apply to tthehe disability discrimination part of the third claim. It would be an abuse of process for any complaints of disability discrimination to continue. Those complaints therefore have no reasonable prospects of success. In ththee circumstances I can see no reason, let alone a good one, why they should not be struck ooutut pursuant to rule 37 and I therefore do so. Application Application 33

[86]Application 3 is the application to strike out the third claim under rule 37 on the basis that it is scandalous and vexatious and/or on the basis that the claimant’s conduct has been scandalous, vexatious and/or unreasonable.

[87]In terms of the law, I simply adopt the summary set out in the respondent’s written submissions dated 17 October 2022. In oral submissions, Mr Bownes for the respondent confirmed:confirmed:``87.1 87.1 hhee accepted that, absent exceptional circumstances, a claim should not be struck out if a fair trial remains possible;

87.2 87.2 the respondent was not arguing that such exceptional circumstances applied. 8. 8. It is not right to characterise the third claim itself as scandalous or vexatvexatiousious; certainly not the unfair dismissal part of it. When it was presented to the Tribunal, the claimant was appealing and was applying for reconsideration of Employment Judge Hutchinson’s decision. Although some of the language the claimant used when chalchallenginglenging that decision has been inappropriate, the claimant had a perfect right to do this and to bring the claim on the basis that he was challenging it. HHee has now exhausted his appeal and reconsideration options, and with that lost the ability to challenge it, but this only impacts on the disability discrimination complaints and makes only them an abuse of process – and they have accordingly been struck out; it does not affect the unfair dismissal claim. Case No. 2603188/2020 23 of 25

[89]There is nothing improper about the unfair dismissal complaint. It was not brought in order to harass the respondent or to challenge Employment Judge Hutchinson’s decision – it was brought because the resprespoondentndent dismissed the claimant on 30 June 2020. The respondent is not suggesting it has little or no reasonable prospects. It seems to be common ground that the claimant was dismissed in the following circumstances: following Employment Judge Hutchinson’s decision, the claimant was asked to return to wworkork in his contractual role without any adjustments in place; his position was that he could not do so; without obtaining further occupational health or other medical evidence, he was dismissed for incapability; at the time of his dismissal, the most up to date occupational health evidence came in a report of 30 January 2020. I could not and do not express a view as to how likely the claimant is to win on unfair dismissal, but on any reasonable view, it is arguable that the respondent should have got more up to date medical evidence before dismissing, and that the respondent should not have treated the question of whether the claimant had a disability as determinative of whether to make adjustments to facilitate a return to work. A duty to act reasonably towards employees who are potentially facing dismissdismissalal for incapability, and to consider alternatives to dismissal, exists in relation to all employees, not just those with disabilities.

[90]WWereere I to strike out the unfair dismissal complaint as well as the disability discrimination complaints, then, I would be striking out a complaint with at least some reasonable prospects of success.

[91]Nevertheless, I agree with the respondent that the claimant has been guilty of unreasonable conduct and, subject to the question of whether a fair trial remains possible, there are grounds for striking out what is left of the third claim under rule 37(1)(b)(1)(b)..91.1 91.1 TheThe claimanclaimantt has made and continues to make baseless allegations of fraud and dishonesty against the respondent and individual members of its legal team – see (e.g.) paragraphs 77 to 80 above.

91.2 91.2 The claimant has made and continues to make baseless allegations of professional misconduct against the respondent’s solicitors as a firm and as individuals. See, for example, what is described at the start of paragraph 72 of the respondent’s written submissions of 17 October 2022, to which the claimant has responded at paragraphparagraphss 48 to 50 of his own written submissions. What happened was: the claimant accused the respondent of making unfounded aanndd deceitful allegations in correspondence to the Tribunal; far from being unfounded allegations, they were allegations that the claimant had written certain things in correspondence which he had in fact written; the entire correspondence was provided to the Tribunal so that the accuracy of the allegations could be ascertained by the TribuTribunalnal; in paragraphs 48 to 50 of his own written submissions, he suggested that what was written in paragraph 72 of the respondent’s written submissions of 17 October 2022 was itself false and that the relevant correspondence hadn’t been provided to the TribTribunalunal; this was untrue, demonstrably so; at the hearing before me, the claimant disingenuously insisted he had not meant to suggest that the correspondence had not been provided. Case No. 2603188/2020 24 of 25

91.3 91.3 The claimant has threatened and/or has said he has reported individuals within the respondent’s solicitors to the SRA simply – so far as I can tell – for acting for the respondent in relation to claimclaimss 1 and 2 and continuing to act for the respondent in claim 3, including in particular makimakingng and continuing to pursue the applications being dealt with in this decision. See for example the emails appearing on the following pages of the hearing bundles: 298, 307, S2-S3 & S5-S6.S6. This included, on 11 October 2022, trying to use the threat of SRA referrals as leverage to persuade the respondent’s solicitors to withdraw the applications.

91.4 91.4 It was obvious from the correspondence and became even more so during this hearing that the claimant wishes to use the third claim as a vehicle for attacking Employment Judge Hutchinson’s decision and replaying the first claim. This is clearly expressed in, amongst other places, the claimant’s emaiemaill to the respondent’s’s solicitors of 12 July 2022, in which he stated: “What ever happens going forward the Tribunal cannot conclude my dismissal was fair without going over my assertions that both the respondent and their legal advisors mislead the TribunaTribunal.l. That involves revisiting the first claim and the medical evidence, even if the disability element is thrown out.out.””

91.5 91.5 The volume and nature of the claimant’s correspondence means the respondent’s solicitors are having to spend a disproportionate amount of their time responding to and dealing with it and, generally, dealing with these proceedings. This presumably means the respondent is having to expend a disproportionate amount oonn legallegal costs.costs.

[92]The difficulty I have with the third application is twofold:92.1 92.1 It would be disproportionate to strike out the unfair dismissal complaint given its potential merits unless a fair trial were no longer possible.

92.2 92.2 A fair trial is possible.

[93]The basis of the respondent’s argument that a fair trial is no longer possible boils down to an understandable fear that the claimant will continue to behave unreasonably and in particular will do his best to drag the first claim into the third claim, inclincludinguding his assertions that the respondent and its legal advisors misled the Tribunal. However, it seems to me to be wrong in principle to decide this kind of strike out application on the basis that the claimant may in the future behave in a way that will mmakeake a fair trial impossible. Moreover, however hard the claimant tries, he is not going to be permitted to raise in relation to the third claim his allegations that the respondent and its legal advisoradvisorss misled the Tribunal during the first claim, nor re-play the first claim. And he is right, at least to some extent, that the Tribunal will not be able to decide on the fairness of dismissal without considering medical evidence that was relied on at the hearing on 11 June 2020. The respondent had a duty in relation to dismissal to consider all the relevant medical evidence that was available to it. Employment Judge Hutchinson’s decision would naturally be a big part of the picture, and it would have been unreasonable for the rerespondentspondent not to have accepted it, but it was not the entire picture. Employment Judge Hutchinson was deciding whether or not the claimant had a disability on the basis of the evidence put Case No. 2603188/2020 25 of 25 before before him, not whether it would be reasonable to require the claimant to come back to work without any adjustments in place, nnoror whether it would be reasonable for the respondent to obtain further occupational health evidence.

[94]Accordingly, I reject the respondent’s application 3 and decline to strike out the unfair dismissal complaint. Employment Judge Camp 13 November 2022 Case number: 2603188/2020 1 EMPLOYMENT TRIBUNALS Claimant: Mr P Ennis Respondent: DPD Group UK Limited Heard: at Nottingham, in public On: 22, 23 and 24 March 2023 And in chambers on 19 May 2023 Before: Employment Judge Clark (sitting alone) Representation Claimant: Mr Ennis in person Respondent: Mr Gidney of Counsel

Facts

[1]Introduction1.1 This is a single claim of unfair dismissal. The underlying dispute between these parties has a long history in the Employment Tribunal with three separate claims raising various statutory complaints. This claim is the last claim to be determined.

1.2 I am told one of those earlier claims presented complaints in the context of health and safety risks during the time of Covid-19. That claim was unsuccessful and the circumstances have not featured in the case before me to any material extent. However, before then the claimant presented his first claim of disability discrimination. That too failed as the claimant was found not to be disabled. That claim did overlap substantially with the claim before me. Mr Ennis sought to relitigate those earlier disability discrimination complaints in this claim. Those aspects that were repeated in this claim have been struck out by EJ Camp at an earlier hearing as an abuse of process under the doctrine of res judicata leaving this unfair dismissal claim. Case number: 2603188/2020 2

[2]Background Matters2.1 That background has given rise to a number of unusual features in this case that warrant summarising at the outset. Central to them all is Mr Ennis’s dissatisfaction with those earlier judicial decisions. That has manifested at times in his approach to conducting this claim and in his relations with his employer before that employment ended. Firstly, Mr Ennis continues to argue that he met the definition of disabled, despite a judgment to the contrary. Secondly, he says the respondent should have delayed a decision on his continued employment until his appeal to the EAT had been concluded about the decision on disability status. Thirdly, he says if the respondent had made its own further enquiries of his medical condition, it would have reached its own conclusion that he was disabled. That sense of dissatisfaction is resolute and, at times, fiercely articulated. It has featured in the contemporaneous evidence before me which, at times, showed a confrontational approach.

2.2 The second unusual feature that arose is that Mr Ennis chose not to give any meaningful evidence in these proceedings. I return to the consequences of that and the approach I have taken in seeking to apply the overriding objective in respect of the evidence before me.

2.3 The third unusual feature is that the medical evidence before the employer could be read to show not only that there was no disability in the legal sense but to question the nature and extent of any adverse effect on his ability to do his job at all. That, and the sometimes confrontational nature of exchanges, has at least raised the question whether the reason, or principal reason, for dismissal is properly described capability or Mr Ennis’s refusal to do his job. Notwithstanding Mr Ennis’s concession that capability was the reason for dismissal, I have had considered that further in my conclusions. 3. Evidence

3.1 For the respondent I have heard from: - a) Hannah Clifford, People Business Partner. She was involved in supporting the management of Mr Ennis’ employment, adjustments, occupational health referrals and the formal stages of the process. b) Lee Malyan, Distribution Centre Manager. He took over as Distribution Centre Manager in early 2019 and made the decision to dismiss Mr Ennis in June 2020. c) Mark Edwards, Regional Manager. He undertook the first appeal. d) Andrew Lee, Head of People. Me Lee undertook the second appeal.

3.2 Mr Ennis did not call anyone other than himself. He has chosen not to advance any meaningful witness evidence and, consequently, was not cross examined. I explored and explained the implications with Mr Ennis at the outset. I was satisfied that this was a considered decision of his and that there was nothing preventing him from setting out a full statement of the facts of his case as he had been ordered to do. He has chosen to use his witness statement as a vehicle to protest about the previous judgments and to accuse the Case number: 2603188/2020 3 respondent’s solicitor of preventing his documents going into the bundle. I deal with the implications of that latter point below, insofar as it affected the content of the hearing bundle.

3.3 The fact that the claimant has not adduced witness evidence that engages with any of the issues presented a further issue for me to further the overriding objective. Mr Gidney had intimated various grounds on which a strike out might be advanced as a result but, after our initial discussion, did not press the application. He accepted that it would be highly unusual to seek a strike out on the first day of a trial of a claim where the respondent carries the legal burden, in part at least. However, the other part of the test applies a neutral legal burden where each party has no more than an evidential burden to address the test of fairness. Mr Gidney was concerned that the respondent should not face ambush in the way the case was advanced or that evidence be adduced through cross examination. Matters were compounded by the fact that the claimant’s ET1 focused on his disability status rather than fairness and did not provide me with an option to using it as a proxy witness statement. Neither party sought a postponement nor, frankly, would that have been an attractive option. I decided justice would be met, and a fair balance would be struck, by taking the following approach: - a) That Mr Ennis could cross examine the respondent’s witness to test and challenge their evidence. b) In doing so, I explained that Mr Ennis could also advance an alternative factual case. If that case was accepted by the witness, it then became evidence in the case. However, should that alternative case be rejected by the witness, in the absence of any contrary evidence of that assertion to be tested by the respondent, I would be left with only the respondent’s evidence on the matter. c) That I would nevertheless consider the points arising as challenges to fairness, the burden being neutral. d) That I would seek to discharge my continuing duty to ensure a level playing field. In particular, I would assist Mr Ennis to formulate the points he wished to make into questions of fact for the witnesses and to ensure his case was put to them. 4. The Hearing Bundle

4.1 An issue arose at the start about the content of the hearing bundle. This flowed from Mr Ennis’s witness statement and his protest that he had not been able to advance the documents he relied on.

4.2 Having explored this matter fully, I did not accept the respondent has acted improperly in the way the bundle has been compiled. This conflict arose largely because of the claimant’s continued assertion he was disabled under the Equality Act 2010. We explored this further at the start of the hearing. It was agreed that the documents omitted related to medical evidence which post-dated the date of dismissal. Mr Ennis sought to rely on Brightman v TIAA Limited

UKEAT/0318/19/AT

to support his contentions. He had not Case number: 2603188/2020 4 brought the documents that he wished to include. I indicated that until I could see what had been omitted I could not decide the matter.

4.3 At 9 a.m. on the second day, Mr Ennis sent an email to the Tribunal, but not the respondent. It appeared to be asking the tribunal to print his notes of cross examination of the respondent’s witnesses. Although unorthodox, I directed them to be printed to assist Mr Ennis. It also included an authority bundle of 4 cases and an attachment called “My bundle for claim 3”. The body of the email, read quickly, seemed to be saying do not print the bundle. In fact, Mr Ennis had intended it to be a request to print 2 copies of the bundle. I raised this with parties. I was told it contained over 100 pages of documents relating to Mr Ennis disability which were the documents he sought to rely on in respect of his disability dated after the decision to dismiss. I directed that the bundle be forwarded to the respondent and I would then consider any application to adduce further documentation.

4.4 After lunch the application was made. I then viewed the unpaginated bundle. There was, in fact, a great deal of duplication with documents that were already in the bundle. Mr Ennis then accepted nothing had been omitted from the hearing bundle that was before the employer when it made its decision and that, consequently, there was nothing of relevance to liability in the claim before me. Mr Ennis’s application reduced to seeking to adduce only three documents relating to his disability which he said were relevant to remedy. We spent some time identifying the three documents in the digital bundle and exploring the way in which they might be relevant to remedy. They appear at digital pages 14, 19 and 34 of Mr Ennis supplementary bundle. I was not convinced that the documents did go to remedy or, even if they did, that they necessarily supported Mr Ennis and I can understand why they had not been included in the hearing bundle. Nevertheless, taking a pragmatic approach, Mr Ennis was keen that they were before me and I decided the balance of fairness meant they were put before me.

4.5 Save for that, I had what was otherwise the agreed hearing bundle running to 507 pages.

4.6 Mr Gidney made oral closing submissions supplementing his written submissions. Despite the usual convention, I invited Mr Gidney to make his submissions first as Mr Ennis was representing himself. Mr Ennis made extensive closing submissions rehearsing his account of the facts. I gave Mr Ennis a substantial margin in doing so and sought to use that opportunity to ensure I had properly grasped the potential live issues of challenge to fairness. However, on a number of occasions I had to remind him it was not appropriate for him to begin to adduce completely new matters of fact for the first time or to seek to re-argue the disability status issue.

4.7 As a result of the conduct of the hearing, the case management issues that arose throughout and the need to allow Mr Ennis an extended period to make his closing submissions, there was insufficient time to deliver an oral decision. Case number: 2603188/2020 5

[5]Issues5.1 Stated simply, in a single claim for unfair dismissal under section 98 the liability issues are whether the employer has shown the reason for dismissal in fact, whether that reason is a potentially fair reason in law, and for me then to apply the general test of fairness.

5.2 In this case, there is no challenge to the reason for dismissal. Mr Ennis accepted that the reason was his capability but that it was not reasonable for the employer to rely on it in these circumstances. In the circumstances of this case, and for reasons already touched on, I have still considered this as a question for me to answer.

5.3 Whilst the second stage has a neutral legal burden, it is usual for parties to advance their evidential burden identifying what aspects of the decision, and the steps taken to reach it, are said to fall without or, as the case may be, within the range of reasonable responses. Mr Ennis’s written case has not helped to identify any particular challenges to that question of fairness. The approach I have taken is to consider fairness in the round and, where I was able to identify particular challenges, to consider those specifically. In that regard, the specific matters identified were:- a) That Mr Ennis should have been given a smaller van. b) That Mr Ennis should have been given a ODF Lite round. c) That the respondent should have maintained the adjustments put in place, assigning a shift supervisor to manually reorganise the six and shape of the parcels and the consequent variation to rounds. d) That the employer should have waited longer before dismissing. This was not advanced in the conventional way, i.e., that waiting longer would have provided time for the employee to regain his fitness to work. In this case, Mr Ennis’s point was that his medical condition would in fact have deteriorated and at some point in the future he would then have met the definition of disability under the Equality Act. e) That the respondent should have waited until his appeal to the EAT on the disability status was decided. 6. Facts

6.1 It is not my role to resolve each and every last dispute of fact between the parties. My role is to make sufficient findings of fact on the matters necessary to resolve the issues between the parties and to put those facts in a proper context. On that basis, and on the balance of probabilities, I make the following findings of fact.

6.2 The claimant was employed by the respondent as a collections and delivery driver. He was taken on as a direct employee after working a spell as an agency driver over one Christmas period. He tells me he was one of a small number of agency drivers offered employment due to his high level of performance and because had been working at full capacity in his role. I find he has worked in this type of role in the past and, as far as I can Case number: 2603188/2020 6 tell, is doing so again since this employment ended. As might be expected, I find the essence of the role is to take parcels from the depot to certain addresses on a particular route. The role also requires drivers to make collections of parcels from addresses which are coming back into the depot. In this case the depot is the Nottingham depot. The depot forms part of a network of depots and larger hubs through which the respondent’s delivery services are organised nationally and beyond.

6.3 It is not in dispute that Mr Ennis was an employee. The respondent also operates its services through third parties and it became necessary in the context of these claims to understand the different forms of contractor relationship with the respondent. Those legal relationship with those third parties can be described at three different levels of economic independence. a) Next closest to that of a directly employed driver is an owner driver worker or “ODW”. That is an independent person who makes their own arrangements for a vehicle and subcontracts to personally provide the service. Their legal status for the purposes of employment law is agreed by both parties to be that of a “worker”. They get a certain rate of remuneration per parcel delivered reflecting the added benefits of holiday and pension etc that entails. b) One step further away is the owner driver franchisee or “ODF”. They are truly independent and have a purely commercial relationship with the respondent and both parties to this agreement accept it attracts no employee or worker rights. c) The third is a multi-route franchisee or “MRF”. This is also a truly commercial arrangement. It is very similar to an ODF save that provides services to more than one route, and thereby the MRF itself has to employ other drivers and make arrangements to provide other vans.

6.4 I find the standard delivery vehicle is a 3.5t sprinter type vehicle, in either long or short wheelbase variation. Above that there are 7.5t and larger vehicles used for specific deliveries and between hubs and depots. One issue in this case is in the availability to employees of smaller vans known as “car derived vans” such as a Berlingo or Partner model. In that regard I make the following findings of fact:- a) I find the small car derived vans are not available for employed drivers. Employed drivers are provided with 3.5t sprinter type vehicles, in either a long or short wheelbase variation, or larger lorries. b) Other category of contractors also use the 3.5t and larger vehicles. c) I have been shown the recruitment literature for ODF’s which provides an option, only available to ODF’s, for what is called an “ODF-Lite”. They do use smaller car derived vans. The materials show this was a campaign to introduce people to the role who might not otherwise have contemplated working as a delivery driver. Case number: 2603188/2020 7 d) However, I find that a smaller van does not necessarily mean the ODF lite driver only delivered and collected small sized parcels of light weight. I do accept the general proposition that to make the route cost effective it must be able to deliver a sufficient number of parcels and that the weight and size limit means there is likely to be a greater proportion of smaller or lighter parcels but this is not absolute. The result is I find ODF lite rounds do still carry larger sized parcels and heavy parcels, at least in the sense of being larger or heavier than Mr Ennis was prepared to carry in the circumstances of this case. e) In or around 2018, the respondent decided to phase out the use of these small diesel car derived vans. At the time it had around 6 of its diesel fleet left available to it all of which eventually came to the end of their working life. By early 2019 there was only one such vehicle left in use, and even then for only a short period thereafter. It was then used as a reserve vehicle for specific problem-solving purposes such as to cover the breakdown of other vehicles or for single deliveries where parcels had been missed. I find it was not, therefore, available for use by drivers on delivery rounds. f) The reason for phasing out the diesel vans was the respondent’s ‘green fleet’ policy. From 2019, the fleet of car derived vans in use became exclusively electric. I find as a fact that the respondent’s policy was built on the back of a government grant scheme to subsidise the installation of charging units at residential premises. I find the respondent did not have charging facilities on site nor was there any commercial equivalent of the residential grant support available to it. For that reason, its policy meant the car derived vans were available only to ODF drivers under their commercial lease arrangements. The reason for that was that, as individuals, they could obtain the grant support for the home charging connection. I also find, and Mr Ennis accepted, that there was no mechanism for employees to reclaim any charging costs from the respondent. For that reason, I find as a fact that the small car derived vans ceased to be available for employees from early 2019.

6.5 In its simplest sense, the delivery system entails movement of parcels from collection points into the depot, then movement in bulk through to hubs where it is redirected back to the appropriate depots and on to final delivery. I have no doubt there are also special systems for international movement and certain types of specialist goods or materials. There were some factual challenges to the technology involved in the sorting process in respect of which I find: - a) The movement of parcels is substantially digitised involving barcode scans and automated sorting, but only to a point. I find as a fact that not all of the hubs have the ability to measure the weight and size of parcels. About 40% of parcels are unable to be checked and rely on any description provided by the sender, if it was known. b) The Nottingham depot has no means of automatically checking the weight or size of parcels. Case number: 2603188/2020 8 c) The computerised process involves the parcel destination being identified and it being added to a route. A route is built for a certain number of parcels taking into account the distance travelled and the estimated time to make all the deliveries. d) Parcels are automatically sorted and delivered by conveyor and chute to an area of the depot floor ready for loading into vans. Drivers arrive at a loading bay at an allotted time, called a “wave”, to collect their parcels and load them onto their vans. e) Where the weight or size of parcels has to be checked, as arose in the context of this case, I find there is no way to do this other than for a shift supervisor to take time out of their work to manually do this. I find this is an intensive and grossly inefficient process.

6.6 Mr Ennis has two medical conditions. An umbilical hernia and divarication of the recti. During the course of the chronology in this case two other health related matters arose. First Mr Ennis fractured his wrist on two separate occasions and was absent from work for a period in early 2019. Secondly, the case overlaps with the onset of Covid-19 and the implications that that brought. For a time, there was a connection between Mr Ennis’s wrist healing and his ability to perform the duties of his role but neither issue goes to the central dispute and what became the decision to dismiss which focuses on his inability to perform the role due to the hernia and divarication of the recti.

6.7 In March 2017, Mr Ennis was referred for investigations. The referral stated: - “mid-line bulge - ? Hernia?

6.8 The results of the scans reported: - “there is no evidence of a (sic) anterior abdominal wall hernia. Divarication of the rectus abdominus muscles are identified. A tiny umbilical hernia is seen. The defect measures 13mm. Minimal movement of the contents is seen. Conclusion: - Divarication of the rectus abdominus

6.9 Mr Ennis suggested, through his questions to witnesses, that he became aware of his hernia diagnosis in 2017 but did not know of the divarication of the recti until 2019. I find that less likely. There is no evidence before me to explain how he learned of the hernia but it is clear that this medical referral in 2017 must have been in respect of that. Both conditions occupy a similar anatomical location. I can infer that this referral was sent to his GP as it says on its face as a result of which it would seem likely that he would have learned of the diagnosis of the umbilical hernia. I struggle to accept that within that process the divarication of the rectus would not also have been communicated to him, especially as it is the only one of the two conditions he relies on which was referred to in the conclusions of the report. However, despite that, the fact Mr Ennis did not refer to that at the time seems to me to indicate either that he did not know of it or that he did not regard it as the cause of any discomfort or restriction he was experiencing. Case number: 2603188/2020 9

6.10 The medical evidence before me shows that divarication of the recti is not an illness or the result of an accident and does not require surgical treatment. It is best described as a variation of normal. I accept that this much of the medical condition was not before the employer in its initial enquiries but it did come to light as a result of its further medical enquiries in January 2019.

6.11 Both conditions are congenital. They did not restrict Mr Ennis’s ability to perform the original agency role as seen from the extent at which his level of performance in that role secured him an offer of employment. It seems not to have had any effect on his previous delivery and driving roles. Nevertheless, he would describe the effect of these conditions as meaning he could not repeatedly bend, stretch, reach or pick up large or heavy parcels.

6.12 Turning to the unfolding dispute in the workplace, over the first 18 months of his employment Mr Ennis was subject to a series of minor disciplinary sanctions in respect of vehicle damage. The threshold applied by the employer is a “blameworthy accident”. Mr Ennis disputed the employer’s decisions. In or around July/August 2018, the claimant raised a grievance about this. He set out various counter complaints which he said undermined his trust and confidence. They included a wide range of concerns about rest periods, delivery targets, volume of work, the investigations conducted into his accidents, breaches of the dignity at work policy and working outside of contracted hours. Within this grievance, Mr Ennis alleged that he was being discriminated against because of his age and disability and that reasonable adjustments were necessary. He set out various extracts of European law and stated: - “In that connection, it as (sic) been relayed to various members of management my inability to lift heavy items unaided due to both age and long term physical impairment in the form of small hernia which I have had since birth”.

6.13 He then set out the financial terms of a settlement he was seeking and the “devasting consequences litigation would have on the company” before concluding: - “Insofar as the issue of making reasonable adjustments I propose albeit previously rejected by the general manager without objective justification the allocation of a long term route comparable with that of a (sic) ODF light driver.”

6.14 For completeness, I find none of the minor vehicle damage caused, and for which he was subject to minor disciplinary sanction, was in anyway connected to Mr Ennis’ physical conditions.

6.15 On 17 August 2018, Hannah Clifford met with the claimant together with Mr Bingham, then the depot manager. They explored the issues raised in his grievance. In particular, they discussed the manual handling issues which included various adjustments and aids including a barrow to assist drivers, the low level of heavy parcels in most rounds, and the positioning of the heavier parcels in the vehicle to ensure their ease of handling. I find the respondent sought to understand the issue further and sought consent from Mr Ennis to obtain an occupational health report. He agreed. Case number: 2603188/2020 1 0

6.16 On the question of consent generally, I find this was sought from Mr Ennis at all necessary stages. At times before me Mr Ennis sought to criticise the contact with Occupational Health or his GP happening when he said it should not have happened, or not happening when it should have. For my part I was not able to identify any material failings on the part of the employer obtaining consent and am satisfied it was conducted appropriately at all stages.

6.17 There is no doubt that the employer’s use of its disciplinary policy on vehicle damage appears to have been the catalyst for Mr Ennis’ change of attitude towards his work. In any event, Mr Bingham confirmed he was not going to pursue the third disciplinary matter in respect of the blameworthy accident. As to the temporary arrangements available pending receipt of the occupational health input, I find: - a) Mr Bingham happened to be facing some temporary changes in the workload at the depot involving new postcodes which coincided with changes to ODF lite drivers’ routes. b) Mr Bingham expressed a means of opening up some of that work for Mr Ennis, but not on all days of the week. c) I find Mr Bingham’s explanation of how that would work was that it was intended to be in place over weekdays only, as opposed to weekends. I find that was an operational constraint he could not control. d) That plan meant Mr Ennis would have access to one of the remaining small diesel vans. e) I find Mr Bingham intended that to be temporary. It was associated with the steps being taken to establish the underlying health issues. It was clearly in the context of what to do whilst the occupational health report was obtained and was available only for as long as it was capable of being practically maintained. f) If find that practicability lasted only as long as there was both the new postcode routes available and small diesel vans available.

6.18 On 10 September 2018 the occupational health report was received. It said Mr Ennis did not have any particular serious underlying health conditions but experienced difficulties linked to his physical robustness. It recommended helping him by ensuring adequate manual handling training. It also suggested the claimant could help himself by taking steps to regain his fitness and strength. The medical evidence before the employer was that both conditions were life-long and congenital. That neither would have any effect on his normal activities and that treatment may be available for the hernia to remove a risk of later protrusion.

6.19 From early 2019 the manager of the distribution centre changed to Mr Lee Malyan.

6.20 Before the temporary adjustments came to their natural end, as a result of changes to eth postcode routes or the loss of diesel vans, on 27 January 2019 the claimant commenced a period of sickness absence. This was due to a fracture to his wrist. He was absent until early March. I find during this period, those further changes did occur to the workload and Case number: 2603188/2020 1 1 routes available and the temporary arrangements Mr Bingham had put in place were no longer available. In addition, around this time the small diesel vans would continue to be phased out, leaving only one van.

6.21 Mr Ennis attended a return-to-work meeting on 10th March 2019. I find: - a) Mr Ennis said he was fit to come back to work as his wrist had healed. However, he said he could not return to any aspects of his duties that required him to do heavier lifting. b) Mr Ennis wanted a permanent light route and wanted to permanently drive a smaller van. By this time, I find the respondent had already made clear that the new postcodes and routes being serviced meant this could not be accommodated. Mr Ennis was again told it was not a feasible option. In addition, he was told about the changes to the fleet which meant it was no longer possible to allocate a smaller vehicle. c) Against that background, Mr Ennis said he could not return to work.

6.22 During that meeting Mr Ennis stated he felt his condition amounted to a disability. As a result of that contention, a second occupational health report was commissioned, specifically exploring the possibility of a disability. The respondent’s occupational health providers are Maitland Medical Services. It provides a national service and in order to provide the services conveniently to employees across the country they sub-contract the assessments. This particular assessment was subcontracted to a Dr Telling, a Consultant Occupational Health Physician who reported back to Maitland Medical in a letter dated 21 March 2019. She concluded that based on his self-reporting and her clinical assessment, Mr Ennis was fit for work.

6.23 She also reported on his views of his limitations. She said that he believed he could resume work if he had a small van and lighter packages and considered an early return to work would be likely if that were a possibility. She also gave an alternative recommendation on the possibility that his preference could not be accommodated, meaning he would return to his normal role driving a 3.5t van. She recommended a manual handling risk assessment to assess the loads he had difficulty performing and why, i.e., their weight and shape. She suggested that the outcome of the risk assessment could then be used to address how the risks of manual handling could be reduced including restrictions on handling certain items, temporary assistance, adaptations and manual handling training.

6.24 That report was not directly sent to the employer but to its occupational health provider, Maitland Medical. They in turn considered the assessment of the employee against their own knowledge of the employer’s workplace and working environment in order to respond to the employer’s referral in a practical way. That response was dated 11 April 2019 and is the opinion of another Occupational Health Physician, Dr Brennan. After a further discussion with Mr Ennis, he reported: - Case number: 2603188/2020 1 2 a) that Mr Ennis did not appear to have engaged with his GP after an ultrasound scan around 3 years earlier had diagnosed a small hernia and urged him to engage with his GP. b) That Mr Ennis’s concern was why he could not simply stay on the lighter duties Mr Bingham had put in place. c) That Mr Ennis did have some simple manual handling restrictions due to the hernia. d) That Mr Ennis was able to continue as a collection and delivery driver but, for the time being, proposed the employer worked within Mr Ennis’s ‘self-declared restrictions’ on his ability to do his job until he had seen his GP and, potentially, been referred for a consultant opinion.

6.25 I find the essence of the Occupational Health position was that the hernia did not prevent him working in his role but the self-reported limitations with the hernia needed exploring further, particularly against any potential risk of complications. Against that, there was a question as to why Mr Ennis had not gone back to his GP in the 3 years since the diagnosis as the condition may have been capable of being resolved.

6.26 Back in the workplace, I find those reports were discussed with Mr Ennis on 2 May 2019 in a meeting with Miss Clifford and Mr Malyan. Mr Ennis was accompanied by Sean Redgate, his GMB trade union representative. I find: - a) By this meeting, Mr Ennis had again broken his wrist for a second time and was not fit for work regardless of the medical reports on his hernia or the availability or otherwise of adjustments. b) Mr Ennis confirmed he had not engaged with his GP despite being asked to do so by the occupational health doctor. c) The respondent again urged him to do this so that they could consider any recommendations and he agreed he would make an appointment. d) There was a further discussion about the work that was available at the depot. e) Mr Ennis was also offered bespoke manual handling training as recommended by occupational health.

6.27 I also find Mr Malyan explored with Mr Ennis the measures that he could put in place in terms of checking routes, checking parcels and providing handling training, but at that stage the claimant did not agree with any of it. I find Mr Malyan also expressed his desire to put something in place for the time being and to revisit the situation after the claimant had reviewed progress with his GP. I find the purpose was to review adjustments. I find the nature of the work was such that Mr Malyan could not realistically control the type or number of parcels. I find he was hoping that input from the claimant’s General practitioner would prove helpful towards a solution. Case number: 2603188/2020 1 3

6.28 I do find Mr Ennis displayed what was regarded as a surprising attitude towards the business when the limitations to adjustments were explained. His stance on adjustments was somewhat absolute, without regard to the reasonableness or feasibility. He described the service levels that the business was required to meet as being something he was not concerned about; that “if the parcels got there, they got there”. Despite that, I find Mr Malyan was keen to properly understand the basis for the claimant’s view that he was unable to perform his role. I find the trade union representative, Mr Redgate accepted that the business could not know which parcels would be coming in each day and, perhaps significantly, there was nothing in the medical reports that prevented the claimant from driving a 3.5t tonne vehicle.

6.29 Mr Ennis returned to work in or around May 2019. He drove a 3.5t vehicle and his work was subject to a package of supportive measures drawn from the existing occupational health advice. Over the next 3 weeks a number of issues were raised by Mr Ennis about his ability to perform the duties of his role. I find Mr Ennis was looking for complaints to make and displayed a disingenuous and contrary approach to his work and managers. On 11th June 2019 Miss Clifford and Mr Malyan met with Mr Ennis. I find: - a) Mr Ennis said he was struggling with the steering wheel and the gears of his vehicle. b) Mr Ennis asked why he could not use a smaller vehicle, he referred to the last of the smaller vehicles that was still at the depot. I have previously found this vehicle to have been the last of the diesel vans and being used as a reserve in its final stages of useful life. The employer reasonably took the view that was necessary for that purpose and it was not available for allocation to delivery routes. Again, he was told that it was not possible within their operations. Significantly, I find that the point was put back to Mr Ennis who was asked whether, if the respondent could find a way to look into getting a smaller vehicle, would it resolve the issues? His answer was no. c) Mr Ennis confirmed he had, by then, received the bespoke training on manual handling.

6.30 I find in order to get Mr Ennis back to work, although the only vehicle available for him was a 3.5t van, the supportive measures the respondent had put in place included an exceptional adjustment to the computerised load and route planner. I find the only way to override this was through a labour-intensive process whereby a shift supervisor physically sorted the allocated deliveries to remove those parcels Mr Ennis said would be too heavy or too large. That meant reallocating them to other drivers and sometimes also having to find additional parcels from other rounds for Mr Ennis to deliver on his. That was an extremely costly and inefficient measure and I find was unsustainable. It went further than adjusting the load itself, as the effect was to alter the rounds that Mr Ennis drove. There was also a knock-on effect for other drivers. Any driver who acquired loads originally allocated to Mr Ennis, and any driver who lost parcels to give to Mr Ennis, all had to have their rounds adjusted accordingly. Not only was this unsustainable in respect of the amount of management time spent at the time of loading, but I find it undermined the efficiency of the original computer Case number: 2603188/2020 1 4 modelled routes allocated to the drivers and on which the businesses’ cost, and no doubt pricing, model is based. I find manual handling training and specific risk assessments were also undertaken a health and safety specialist to ensure the work could be performed safely. I find although the only van available was a 3.5t van, that was itself considered as part of the risk assessment and, indeed, was considered to be part of the solution, not the problem. The assessor had reached a conclusion that the larger vehicle would actually assist the claimant to reduce the bending and stooping when handling parcels that he had said formed the main issue with his hernia. It was consciously considered to be a better option than a smaller van, even if one had been available. In addition, tote boxes were used to organise the parcels in the van as a means of reducing the potential movement of goods and the need to enter and, if one did have to enter the hold, to stoop and sort multiple parcels.

6.31 Even against that significant input by the employer, I find that in itself became a new source of complaint for Mr Ennis who was now unhappy that the consequence of this adjustment was that he faced a variation to his daily routes and he instead sought a change to a fixed route.

6.32 A third occupational health referral was made on 13 June 2019. The issue now was whether it was safe for Mr Ennis to perform his role without treatment. The reason for the referral was closely connected to the earlier advice that the underlying condition might be capable of fixing but that Mr Ennis had not sought any advice from his own GP on the potential for treatment despite indicating he would. The central purpose was to obtain, with Mr Ennis’s consent, the answers directly from his GP. The employer sought advice about treatment and about the risk of strangulation of the hernia. It asked about the available treatment and what adaptations would be needed indefinitely if there is no treatment. The referral notes that Mr Ennis has been resistant to any change or support the employer had sought to make unless it was his preferred option.

6.33 The outcome of that report was delayed and substantially so. The referral to the claimant’s GP was sent on 23 July. The substantial delay that then followed was entirely down to the fact that the claimant’s GP failed to send out any correspondence until around 6 months later. I find the employer’s occupational health provider had repeatedly chased for the information on something like eight occasions. I find it was not until 20 January 2020 that Maitland Medical eventually received a letter from the GP, apparently dated 20 September 2019, which responded to the enquiry in these terms:- …I have not really seen Mr Ennis myself and cannot really comment on any limitations. He has not been seen at the surgery for some time. The last sick note was issued some time ago. He seems to have been seen in January for a fracture and had another fracture of the same wrist in April. His fracture should have healed. I have a fracture clinic letter after this and include the letter from the casualty. He was last seen in May. There was mention of a tiny umbilical hernia and divarification of recti muscles on a past scan. There have been no referrals. He has not had analgesia from us.

6.34 The Occupational Health Physician, Dr Brennan, followed this up with a written opinion in a letter to the employer dated 30 January 2020. He wrote: -. Case number: 2603188/2020 1 5 I can only say it is clear that the GP does not raise any particular concerns and re-states that he has not seen his patient for a long time. I think that Mr Ennis may be referencing the lack of surgical options to his condition known as divarication of the recti - this is a variation of normal, it is not an illness or an accident and does not require surgical treatment. The GP does reference, however, the possibility of a “small” true hernia (umbilical). These are normally treated although they are treated usually to prevent any risk of strangulation. This is certainly treatable but in itself does not normally cause symptoms on a day-to-day basis as does not the divarication of the recti and therefore at this stage I am still struggling to see why there should be any impact on a day-to-day basis. We are wholly reliant on Mr Anderson's assessment which is from a medical point of view difficult to understand. On the balance probabilities, I must stress, once again a legal decision, but I am struggling to see how this gentleman would be considered disabled but once again I must stress that this is something that will be considered fully potentially by a tribunal.

6.35 Prior to this medical opinion, other matters had moved on in a number of respects. Mr Ennis had been involved in another accident causing damage to his vehicle and faced further minor disciplinary action. He had, by then, commenced Employment Tribunal proceedings alleging disability discrimination. He had discussed matters with Mr Malyan in or around September. I find that discussion included an offer by Mr Ennis that if the employer restored the temporary arrangement previously put in place by Mr Bingham that he would drop the legal claims. I find that in the course of trying to understand exactly what Mr Ennis wanted and did not want on any return to work, Mr Malyan even explored the option of taking on an ODF position, which I find would have given him something close to the working arrangement he wanted albeit not as a direct employee which was not acceptable to him.

6.36 Mr Ennis raised a grievance on 15 November 2019 concerning the employer’s treatment of his absences which, whilst separate and distinct to the issues in this case, touched on matters overlapping with it. This followed Mr Ennis being required to attend a stage 3 attendance hearing concerning absences and his ‘Bradford factor’ score, albeit no sanction was imposed. A hearing took place on 5 December 2019. In an outcome letter dated 19 December 2019, the grievances were dismissed. One aspect of the grievance process was that Mr Ennis demonstrated a particularly confrontational approach to the dispute. Whilst it is not at all unusual for parties in dispute to be direct, Mr Ennis’s approach may not have always been to his own best interests in advancing his concerns. The grievance outcome records how the hearing had to be brought to an end as a result of Mr Ennis’s conduct during it.

6.37 Around this time in the chronology, the covid-19 pandemic began to take hold. For some sectors, the pandemic had a negative effect on business. For this respondent, and others in the parcel courier sector, the pandemic had an enormous effect on increasing business volumes. This led to a new area of conflict between Mr Ennis and his employer and another reason to be absent from work. On 17 April 2020, he notified his employer that his concern for his partner’s health and his own underlying debilitating condition was such that he took the view his role could not be deemed essential. He therefore required to be placed on furlough under the Coronavirus Job Retention Scheme. This was rejected by the respondent after it reviewed the government guidance on shielding, as it applied at that time. Case number: 2603188/2020 1 6

6.38 Mr Ennis then commenced a period of absence for issues related to the pandemic. By June 2020, Ms Clifford and Mr Malyan were seeking to arrange a return to work. The separate Employment Tribunal proceedings had, by then, determined that Mr Ennis was not disabled. I find this only served to further fuel the often confrontational nature of the claimant’s communications with his employer, forcefully continuing the assertions that he met the definition of disabled.

6.39 Ms Clifford contacted Mr Ennis. She set out how they needed to move forward based on the information they currently had. She indicated that she would soon invite Mr Ennis to a meeting to discuss his return to his substantive role. Upon his grievance finally being determined, the claimant was told that the employer expected that he returned to work on 15 June 2020 at 10am.

6.40 That was itself the source of a number of lengthy emails from Mr Ennis dealing largely with the covid security arrangements in the workplace. That appeared to be another obstacle to a return to work and, upon reviewing them over the weekend, at 9:26 am on the Monday morning Ms Clifford emailed Mr Ennis to say: - “it has been made clear to you what has been done to ensure that it is safe for you to return to work. Please only attend the depot today if you are intending to return to work and are prepared to take out your assigned route. If you are not returning to work at 10 am today to undertake your role of C&D driver, then please do not attend the depot.

6.41 She referred to the new issues he had raised and how they would be dealt with in accordance with internal procedures, and not in a discussion on Monday morning.

6.42 Despite the timing of the email, Mr Ennis had in fact seen it by the time he attended the workplace. Whilst in attendance, he was not in uniform and, I find, not intending to work. A brief meeting took place with Mr Malyan and Ms Clifford joining remotely to determine whether Mr Ennis intended to return to work. This was not productive. I find Mr Ennis refused to engage with the discussion about his return to work, and became confrontational, focusing on the recent employment tribunal outcome. Matters deteriorated to the point where he was asked to leave upon it becoming clear he had not attended with any intention to return to work. Mr Ennis refused to leave and impeded Mr Malyan’s own exit from the room until a number of requests for him to leave had been made.

6.43 Mr Ennis ongoing grievance concluded at the third and final stage of the process on 23 June 2020. It appears the tone of that meeting was far more constructive. The grievance was by then focusing on the COVID related safety issues and payments for his previous absences. These were ultimately dismissed but at the conclusion of the meeting, arrangements were made for a future discussion to happen about resolving his return to normal duties.

6.44 That discussion took place as planned the next day, on 24 June 2020 and Ms Clifford wrote to the claimant to confirm what had been discussed. I find: - a) She confirmed the shift patterns that were available to Mr Ennis and acknowledged his preferences. Case number: 2603188/2020 1 7 b) She set out the respondent’s position that, in view of the updated medical evidence, and the decision on his disability status, that he was required to return to his full role as a collection and delivery driver. c) She set out how the adjustments that had been put in place since the previous year concerning the manual sorting had been extremely onerous to the business and caused it significant operational issues. She stated how it was not sustainable to continue with those adjustments. d) She confirmed other aspects, specifically the manual handling training, would continue. e) I accept Ms Clifford's evidenced that the additional work involved in altering the load and route for Mr Clifford was not sustainable long term and that this was particularly so after the pandemic had had such a substantial effect on the respondent’s business. f) Mr Ennis confirmed he was not prepared to return to his substantive role.

6.45 Things having reached the point they had, I find there was no informal route left open to the respondent to resolve the situation. There were no further medical enquiries to make. There were no further adjustments that could be implemented and, consequently, Ms Clifford’s letter went on to invite Mr Ennis to a formal hearing to discuss his continued employment. That meeting would be held by Mr Malyan and take place on 30 June 2020. She set out the purpose to review his inability to return to his role and made clear that there were a number of possible outcomes including the termination of his employment on capability grounds.

6.46 On 30th of June 2020 the capability hearing took place as planned. Ms Clifford attended to support Mr Malyan chairing the meeting. Mr Ennis attended with his trade union representative. I find:- a) Mr Ennis was once again confrontational. b) When the topic of his capability was explored , Mr Ennis confirmed that he was not capable of fulfilling his role as a Collection & delivery driver. Significantly, his position was that he would not be capable at any point in the future. c) A separate issue for discussion at this meeting had been the covid measures but only on the basis that additional measures would have to be put in place upon Mr Ennis returning to work. Understandably, Mr Malyan made clear there was no purpose served in discussing separate matters concerning PPE in the workplace if the claimant was not going to come back to his role all.

6.47 I find there were no realistic or feasible alternatives to the role of collection and delivery driver. The temporary adjustments implemented 2 years earlier by Mr Bingham had long since not been available due to the change in the vehicle fleet and even that would have required some management input to manually check the loads. There was no realistic option Case number: 2603188/2020 1 8 of a small van derived vehicle and, in any event, there were reasons why the 3.5t vehicles were positively addressing aspects of Mr Ennis’s concerns. The arrangements that had been in place for much of the previous year of a shift manager manually checking loads and adjusting both the claimant’s and other driver’s routes and loads was simply not sustainable. The limitations of its fleet meant small vans were not available and, to the extent that it might have been prepared to go to lengths to go outside its fleet, discussions about ODF roles and even smaller vans themselves had in the past drawn negative responses. I find the only options available were a return to the collection and delivery role with the continued manual handling support, or termination of employment.

6.48 Mr Malyan decided to dismiss the claimant. His employment was terminated with pay in lieu of notice. This was confirmed in writing in a letter dated 2 July 2020.

6.49 Mr Ennis appealed the decision. Reasons for appeal were said to follow but I cannot see they did.

6.50 Mr Mark Edwards, the regional manager was appointed to hear the appeal and by letter dated 6 July 2023 Mr Ennis was invited to a remote hearing to take place on 16 July 2020..

6.51 By the meeting on 16 July, the reasons for the appeal had not followed but Mr Ennis sought, and was permitted, to rely on his previous points and expand them in the hearing. He was represented again by his GMB representative, Mr Redgate. The points were: - a) Mr Ennis advanced arguments that the employer had ‘jumped on’ an unfair Employment Tribunal Judgment and that he wanted reinstating whilst the appeal to the EAT was considered. Mr Edwards concluded that Mr Malyan had based his decision on the medical information and the effect the Employment Tribunal decision had on the employer’s duty to make reasonable adjustments. That aside, he noted that even with the remaining adjustments in place Mr Ennis maintained he was not fit to return to his duties. On that basis, he did not consider it appropriate to delay the decision pending an appeal to the EAT. b) Mr Ennis had provided information concerning the general nature of the physical condition he had which he said had not been taken into account. Mr Edwards concluded this was general information and not specific to Mr Ennis and did not undermine the medical evidence about Mr Ennis that the employer actually had. c) Mr Ennis sought the continuation of the temporary adjustments implemented by Mr Malyan in 2019. Mr Edwards rejected this as being sustainable and that it was only ever temporary pending the updated medical reports.

6.52 Mr Ennis challenged the independence of Mr Malyan and Ms Clifford. Mr Edwards rejected this point on the basis that they were both best placed to conduct the process and acted professionally, reaching decisions on the factual evidence. In any event, having looked at the evidence himself he would have reached the same decision, particularly as he had Case number: 2603188/2020 1 9 repeatedly stated the only terms on which he would return to work was if all the temporary adjustments remained in place.

6.53 Finally, Mr Ennis challenged the failure to discuss the suggestions arising from the grievance outcome about covid security upon his return to work. Mr Edwards rejected this point on the basis that it required as a starting point some basis on which he might be returning to the workplace.

6.54 Mr Edwards’ decision was confirmed in a letter dated 22 July 2020.

6.55 Unusually, this employer provides two levels of appeal. Mr Ennis was entitled to, and did, raise a stage 2 appeal in an email dated 23 July 2020. He largely repeated his earlier grounds and also challenged the distinction in roles for ODF and employees and why alternatives could not be put in place for him.

6.56 This appeal came before Mr Andrew Lee, Head of People, one of two senior managers nominated to hear final appeals. The appeal was heard at a meeting on 13 August 2020. Mr Ennis was again represented. The issues put before him were that he was disabled, that they disagreed with the Employment Tribunal decision and his employment decision should await the EAT appeal. I find the wider issues previously aired were also explored, in the course of which Mr Lee also tested whether the claimant was seeking to take on an ODF Lite role which he said he was not.

6.57 I find the conduct of the meeting was such that Mr Lee was unable to give any decisions on the day and had to set out his decision in a later letter, dated 20 August 2020. The final appeal was rejected for these reasons: - a) He took the view it was not reasonable to extend the time pending any appeal against the employment tribunal's decision. b) He did not find the additional medical evidence advanced by the claimant to be helpful in light of the employment tribunals decision; particularly as the employment tribunal had the same medical evidence before it as the employer had when reaching its decision he did not consider referring the claimant back to occupational health would be of assistance given his clear stance that he could not carry out his role but the employer could not operationally sustain the previous adjustments. c) He rejected other adjustments on the basis that the size of van had never been identified as an issue and in any event larger parcels could still be placed in smaller vans. In any event there were no smaller vans as these had been taken out of commission for employed drivers. It was not possible to assign such a vehicle to the claimant. Any route would involve additional work for management creating a bespoke route for the claimant and in resolving the frequent disputes with the claimant about what should or should not go on his round this was unsustainable particularly in light of the unexpected growth in business from the pandemic and the daily operations were extremely busy as it was. Case number: 2603188/2020 2 0 d) Mr. Lee rejected that the procedure was unfair all that the original decision makers were inappropriate but, in any event, two appeals had arrived at the same conclusion.

Conclusion: -

[7]Law7.1 In deciding the issues in this case, I start with section 98 of the Employment Rights Act 1996 (“the 1996 Act”) which states, so far as relevant: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within sub-section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reasons shown by the employer)— (a) 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 (b) shall be determined in accordance with equity and the substantial merits of the case.”

7.2 I had regard to the guidance on the application of this statutory provision as set out in Iceland Frozen Foods Ltd v Jones

[1982] IRLR 439

and Post Office v Foley

[2000] IRLR 827

7.3 The respondent has also taken me to cases dealing with the general propositions arising in ill-health capability dismissals and their application under s.98(4) of the 1996 Act, some of which have greater relevance to this case than others. They were Linux v Cereal Packaging Limited

[1988] IRLR 510

on the matters to review in an absence capability dismissal. To the seminal case on obtaining medical evidence of incapacity of East Lindsey District Council V Daubney

[1977] IRLR 181

. To International Sports Co limited V Thompson

[1980] IRLR 340

on reviewing absences and attendance. To Spencer v Paragon Wallpapers limited

[1976] IRLR 373

, on whether an employer can be expected to wait any longer. To Garricks (Caterers) Limited v Nolan

[1980] IRLR 259

that an employer is not expected to go to unreasonable lengths in seeking to accommodate someone who is not able to carry out their job to the full extent. And finally, to Ali V Tillotsons Containers Limited

[1975] IRLR 272

on the effect of the absence on other employees.

7.4 Mr Ennis referred me to four EAT cases. Donelian v Liberate

UKEAT/0297/14/JOJ

; Seccombe v Reed in Partnership Limited EA-2019-000478-OO and Scott v Ralli limited EA-2019-000772-VP all appeared to me to be addressing very specific elements of disability discrimination under the Equality Act 1996 and I did not find them to be of relevance here. Case number: 2603188/2020 2 1 The fourth was Brightman V TIAA Limited

UKEAT/0318/19/AT

which was relied on in respect of the relevance of post dismissal medical evidence. 8. Analysis and Conclusions

8.1 The first issue is the reason for dismissal. As I noted at the outset, Mr Ennis accepted that his capability to perform his role as a driver was the reason why his employer dismissed him. Despite that issue arguably not being in issue, I have nonetheless looked at the evidence of the employer’s reasoning as if it was in issue to satisfy myself the respondent has shown the true reason for dismissal.

8.2 Two matters arise for consideration in this respect. One is whether elements of Mr Ennis’s conduct in some of the meetings and his attitude to the terms on which he might return to work formed part of the reasoning. I have no doubt that made the process more difficult and on some occasions I have found meetings had to be cut short because it was not possible to make sensible progress. The other aspect is whether the reality is that the reason for dismissal was Mr Ennis’s refusal to return to a role he was capable of performing, even with the reduced level of adjustments remaining in place.

8.3 I am satisfied that these two matters are not within the factual reason for dismissal. Central the employer’s issue throughout has been to understand Mr Ennis’s conditions, to assess his capability to do the role in light of any limitation those conditions placed on him and to explore what adjustments were feasible. I am satisfied that the employer’s decisions throughout the process was focused on the acceptance that Mr Ennis had these two physical conditions. It had appropriate medical evidence before it to form a view of the extent of his limitations, albeit the final position was that that level of restriction was limited. Mr Ennis’s unambiguous position was that this made him incapable of performing his role as a Collections and Delivery driver. The critical point is Mr Malyan’s decision to dismiss was based on this and I am satisfied that is the reason for his decision. That reasoning has not changed through the two appeals that then followed. I am satisfied that the contemporaneous documentation is consistent with this.

8.4 Consequently, even had Mr Ennis not conceded the reason, I would have concluded that his firm position that his physical conditions prevented him from performing his role was the reason that operated on the mind of the employer throughout the dismissal process and that that necessarily satisfies the legal definition of capability as a potentially fair reason for dismissal.

8.5 That takes me to the second issue before me. That is the general test of fairness contained within section 98(4) of the 1996 Act. In other words, whether the employer acted reasonably in relying on that as sufficient to dismiss in the circumstances. I start with the procedure adopted.

8.6 As an overview, there is a clear procedure in place which was followed. It is an unusual procedure in that it allows for two levels of appeals. Every step of the process was organised on notice and Mr Ennis was represented throughout by a local GMB representative. There was challenge to Mr Malyan’s independence as a decision maker but I Case number: 2603188/2020 2 2 am satisfied his role as Distribution Centre Manager with knowledge of both Mr Ennis’s situation and the extent of working arrangements at the particular depot meant he was an obvious person to make the decision. There is nothing I can see that offends natural justice or made him an inappropriate person to make the decision. Of course, the ultimate question is whether it fell within the range of reasonable responses of a reasonable employer for him to be the decision maker and I am satisfied for those reasons that it did. Nothing in the process adopted appears to me to fall outside of the range of reasonable responses a reasonable employer could have adopted.

8.7 I have scrutinised the timing of the final decision because it might be said to have moved quickly to the consideration of continued employment after the Employment Tribunal made its decision on disability status. I am satisfied that is not actually the case. There had actually been a substantial delay in finalising the medical evidence due to the claimant’s GP delay in responding to occupational health which was neither party’s fault. Nevertheless, it follows that save for the time Mr Ennis was absent for covid related matters, the employer had maintained a level of alternative working arrangement for Mr Ennis which I have accepted was particularly onerous and far from a sustainable long-term option. It was also entirely appropriate and understandable for the employer to delay any decision whilst the disability status was determined in respect of the first employment tribunal claim. The two notions of making a reasonable adjustment for a disabled employee and considering alternatives to dismissal for capability reasons may cover very similar ground but the lens through which the two tests are viewed is different as are the legal obligations on the employer. It is also clear that there was a further attempt to engage informally with Mr Ennis in the plans for a return to work before the matter became formalised as it did. The failure of that meant the there was nowhere else to go to progress matters and it follows that I am satisfied that the decision to instigate the formal capability process fell within the range of reasonable responses. Additionally, there is no merit in warning an individual in these circumstances and it is often not appropriate in health-related capability cases where, as was the case here, matters had reached a settled position.

8.8 Turning to the more substantive matters, I am satisfied that the employer did have before it up to date medical evidence on which to base its decision. That has in fact played less of a part in this decision than it might usually be seen to do in a capability decision. First, it demonstrates quite a limited restriction on abilities. Secondly, this is not a case where the employee is asking for more time to return to fitness. I did consider whether the delay between the time between the final advice being received on or around 30 January 2020 and the decision on 30 January 2020 meant the medical evidence might have become stale but against the totality of the medical evidence, and particularly Mr Ennis’s insistence he was incapable of returning, I am satisfied the reasonable employer would have acted reasonably in relying on that evidence. Indeed, part of Mr Ennis’s case now is that his health would have deteriorated meaning the answer to the question whether the employer could reasonably be expected to wait any longer before taking action has to be “no”. The reasonable employer would have acted reasonably in confronting the employment decision when this employer did. Case number: 2603188/2020 2 3

8.9 But Mr Ennis’s case raises quite a novel argument. It is that the employer should have delayed a decision on his continued employment until an appeal to the EAT had been determined. The underlying premise of this point is that it is unfair to dismiss him in June 2020 when had the employer waited, he would have appealed, succeeded, been found to be disabled at which point the employer would have been under a different, and arguably more onerous legal duty to make adjustments. Implicit in that logic is that he would then have been entitled to a fixed route driving a small van with small and light parcels. As a matter of fact, I am told there was an appeal which was not accepted as it was presented out of time so that never came to be. But that is after the event, I am concerned with assessing the reasonableness of the employer’s actions at the time of the decision. I am satisfied that rejecting this point did not fall outside the range of reasonable responses of the reasonable employer. There was no control of the time such an appeal might take and therefore how much longer a decision would have to be deferred. This employer rejected it principally on the basis that it was not bound to wait for an appeal but in any event, it was not reasonable to wait what might have been many months before it was determined. Its time estimate may have been short of reality but I am satisfied that was a decision reasonably open to the reasonable employer.

8.10 The only real issue left is whether there was some alternative to dismissal. There was no alternative work available. Nor was anything sought by Mr Ennis or Mr Redgate of the GMB beyond the previous adjustments to the role. This sits alongside Mr Ennis’s own particular view that the only thing he was prepared to contemplate was a return either to a small van and small parcels although it is notable that the focus of that has, over time, moved away from the temporary adjustment put in place in 2018 by Mr Bingham when small vans were available to the temporary measures put in place by Mr Malyan of deploying a shift supervisor to sort and adjust routes every day.

8.11 So far as Mr Ennis’s was still seeking a small van, I am satisfied they were not realistically or practicably available for employees. That was due to the change to the green fleet and the inability for employees to charge then on site or even to recover the cost of charging them elsewhere. To the extent that it might have been possible to change the basis of the parties’ contractual relationship to something other than that of an employee, that was considered as a means of facilitating a small vehicle through the ODF lite contract. I do not criticise Mr Ennis for rejecting that for obvious reasons, but nor can it be said that the employer acted outside the range of reasonable responses for not simply independently procuring a small diesel van for him as an employee. The reasonable employer is not required to abandon its particular business model and, in this case, its environmental aims albeit they might have to be stretched when viewed against the test of the range of reasonable responses, particularly having regard to the size and administrative resources of this particular employer. That in itself may well have been enough to keep the decision within the range of reasonable responses but it goes further because I have found that even with a small van, and even on an ODF Lite route, there is no practical means to exclude large parcels and heavy parcels and it would still require the additional layer of human supervision of the daily cargo and route that was unsustainable for the employer. In a disability discrimination case, if the adjustment contended for does not achieve its aims of removing or Case number: 2603188/2020 2 4 mitigating the disadvantage, the cost and disruption of making it is likely to render it a reasonable step to take. This is not a claim for disability discrimination but the point applies with even greater force to the reasonableness of alternatives in a claim of capability unfair dismissal.

8.12 Even that was not a decision taken in isolation. The reasonableness of it has to be seen in the context of the other measures that were put in place. The employer was not doing nothing. There had been professional health and safety risk assessments conducted of the work with Mr Ennis’s specific condition and clinical input in mind. This employer’s conclusion that the 3.5t vehicle actually provided less risk than a small van to the bending and stooping movements that might contribute to discomfort was itself part of what would be expected of the reasonable employer before reaching a decision to dismiss. I am entirely satisfied the cost and disruption to the organisation deploying a shift supervisor to manually re-sort the packages and rounds on each day Mr Ennis worked was not a sustainable option and so far as that forms part of the rationale for the decision to dismiss, not continuing it as an option for his return to work fell within the range of responses of the reasonable employer. There was a continuing basis for additional support in manual handling training which were consistent with the final occupational health advice.

8.13 Looking at things from the other perspective, it was not an unreasonable view for the employer to take that the more limited arrangements to support Mr Ennis would have enabled him to return to his role as a collections and delivery driver. Although Mr Ennis genuinely held a different view, all that does is reinforce that this was a capability dismissal. Though this is a large and well-resourced employer, there was no feasible alternative and I come to the conclusion this was a fair dismissal viewed both as falling within the range of responses of the reasonable employer and having regard to the equity and substantial merits of the case.