Mr J SikanderClaimantNine Food Group LtdRespondent
Before
Employment Judge Massarella
Members
Miss S. HarwoodMr P. LushIn person for claimantMr P. Howarth (instructed by solicitor) for respondentDate 2 July 2024
JUDGMENT
[1]the Tribunal does not have jurisdiction in respect of the Claimant’s claims of disability discrimination grouped together under Allegations 2-15 because they were presented outside the statutory time limits and they did not amount to conduct extending over a period, linked to the claims in respect of which the Tribunal had previously extended time;[2]the claims of disability discrimination grouped together under Allegations 1, 16 and 17 are not well-founded and are dismissed.
REASONS
JUDGMENT having been sent to the parties on 12 July 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided. Procedural history[1]The claim form was presented on 27 January 2022, after an early conciliation period between 23 November 2021 and 3 January 2022.[2]The disability relied on is anxiety and depression with hyperacusis (a reduced tolerance to sound).[3]The original Respondent was Yum III UK Ltd (‘Yum’). The Claimant was employed by the company, a food delivery and takeaway business, from 31 May 2008.[4]A preliminary hearing (PH) took place on 19 August 2022 before EJ Reid. She observed that the Claimant’s claims had not been set out in any detail, nor had he identified what types of discrimination he was alleging. She ordered him to provide further information. In her summary of the hearing, the Judge recorded Case Number: 3200226/2022 2 that the Claimant’s employment with Yum transferred under TUPE to Nine Food Group Limited on 1 October 2021 and he remained employed by them. She ordered that the latter company be joined as Second Respondent because it appeared that liability for any pre-transfer acts of disability discrimination (i.e. all the matters complained of in the case) transferred with the Claimant’s contract of employment to the Second Respondent. She recorded that there was a commercial indemnity for pre-transfer claims between the transferor and transferee. She spelt out the consequence of this in a note at the end of her summary for the Claimant’s benefit. She also set out what compensation the Claimant might expect to receive, if his claim succeeded, bearing in mind that, at that stage, he remained employed by Nine Food Group. It would be limited to compensation flowing from any discrimination found to have occurred by the Tribunal.[5]Because all the claims were, on the face of it, out of time, EJ Reid listed a preliminary hearing to determine the question of time limits. That hearing came before EJ Jones on 15 December 2022. EJ Jones listed the final hearing on these dates. She also observed that the Second Respondent had been served with the claim form but had not presented an ET3; she ordered that it do so by 23 February 2023. She set out a detailed list of issues.[6]EJ Jones decided that it was just and equitable to extend time in relation to the last event complained of, which was on 19 June 2021, to allow the claims to be considered by the Tribunal. However, she expressly left open to the Tribunal which dealt with the final hearing to decide whether it had jurisdiction to hear all the Claimants complaints observing that some of the claims related to events which occurred as far back as 2018 and 2019.[7]A further preliminary hearing took place on 31 August 2023 before EJ Beyzade. At that hearing the Claimant’s complaint of unauthorised deduction from wages was dismissed on withdrawal. All the Claimant’s complaints against Yum were dismissed on withdrawal, and it was removed as a Respondent to the proceedings. The Judge confirmed that the Claimant’s claims of direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments and harassment related to disability would proceed as against the present Respondent only. Without objection from the Claimant, the Judge retrospectively extended time for the presentation of the ET3. The Claimant was ordered to send a disability impact statement to the Respondent and to disclose his medical records. The Respondent was ordered to notify the Tribunal of any concession relating to disability by 12 October 2023. The hearing[8]At the beginning of the hearing, the Respondent confirmed that disability was now conceded at all material times. Knowledge was still partially disputed.[9]Both parties confirmed the Tribunal’s understanding that EJ Jones had extended time on a just and equitable basis only in relation to claims arising out of the last incident in the chronology (on 19 June 2021), but the question of whether there was conduct extending over a period, linking the earlier acts to that last act, was a matter which had been left for this hearing. The Claimant also confirmed that that as the only argument he was advancing; he was not Case Number: 3200226/2022 3 arguing that time should be extended on a just and equitable basis; that is consistent with the fact that he did not lead any evidence, nor make any submissions, in support of an extension.[10]The Claimant confirmed that he did not need any adjustments for the hearing; the Tribunal reassured him that, if he required an additional break at any point, he need only ask. In the event, the Claimant did not ask for any additional breaks and conducted himself throughout the hearing in a calm and organised manner. We are grateful to him and to Mr Howarth, who represented the Respondent, for ensuring that the Tribunal was able to complete the hearing within the allocated listing.[11]We had a bundle of documents of 512 pages. We told the parties that, because of the volume of material before us, we would pre-read only the witness statements and it would be for them to take us to any specific documents they wanted us to look at; they could also ask us to add specific longer documents to an informal reading list; we read those as we went along.[12]We heard evidence from the Claimant and, on behalf of the Respondent, from: 12.1. Ms Jen Newbery (a Restaurant General Manager (RGM) at the time); 12.2. Ms Lesley Hibberd (Operations Manager); 12.3. Mr Nauman Khan (Area Manager); 12.4. Ms Katharine Hankin (Head of Equity for Pizza Hut UK, who is no longer employed by Yum). Conclusions in relation to time limits[13]We begin our judgment by considering whether, having now heard all the evidence, we were satisfied that we have jurisdiction to hear any of the Claimant’s claims, other than those claims in relation to which EJ Jones has already extended time, that is the claims which relate to the events of 19 June 2021: Allegations1, 16 and 17. The law to be applied[14]S.123(1)(a) Equality Act 2020 (‘EqA’) provides that a claim of discrimination must be brought within three months, starting with the date of the act (or omission) to which the complaint relates.[15]The three-month time limit is paused during ACAS early conciliation: the period starting with the day after conciliation is initiated, and ending with the day of the early conciliation certificate, does not count (s.140B(3) EqA). If the time limit would have expired during early conciliation or within a month of its end, then the time limit is extended so that it expires one month after early conciliation ends (s.140B(4) EqA).[16]S.123(3)(a) EqA provides that conduct extending over a period is to be treated as done at the end of the period. The leading authority on this provision is Hendricks v Commissioner of Police of the Metropolis [2003] ICR 530, in which the Court of Appeal held that Tribunals should not take too literal an approach to determining whether there has been conduct extending over a Case Number: 3200226/2022 4 period. Addressing the approach in earlier authorities, Mummery LJ held (at [52]): ‘Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs […] The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.’[17]However, for there to be conduct extending over a period there must have been ongoing discriminatory conduct. It is not enough that incidents are linked and that later events would not have occurred but for the earlier events, there must be something in the conduct that establishes a continuing discriminatory state of affairs (Worcestershire Health and Care NHS Trust v Allen [2024] EAT 40 at [31]).[18]A relevant factor in whether a number of acts is to be regarded as conduct extending over a period is whether the same person is responsible for each of the acts: Aziz v FDA [2010] EWCA Civ 304 at [33].[19]A single act, for example a decision not to appoint a person to a post, does not ‘extend over a period’ merely because it has continuing consequences (Amies v ILEA [1977] ICR 308).[20]The Tribunal may extend the three-month limitation period for discrimination claims under s.123(1)(b) EqA where it considers it just and equitable to do so.[21]Time limits are to be observed strictly in the Employment Tribunal. There is no presumption that time will be extended unless it cannot be justified; quite the reverse (Robertson v Bexley Community Centre [2003] IRLR 434 at [23-24]).[22]There is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. There are statutory time limits, which will shut out an otherwise valid claim unless the Claimant can displace them. Whether a Claimant has succeeded in doing so in any one case is not a question of either policy or law; it is a question of fact and judgment, to be answered case by case by the Tribunal of first instance which is empowered to answer it (Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 per Sedley LJ at [31-32]).[23]In the context of discrimination cases, the importance of recalling not only what is done but the thought processes involved make it more likely that memory fade will have an impact on the cogency of the evidence (Redhead v London Borough of Hounslow UKEAT/0086/13/LA per Simler J at [70]). Analysis and conclusions[24]We have had the advantage (which EJ Jones did not have) of hearing full evidence on all the issues and so we have a clear view of the chronology of the allegations, of the individuals against whom they were pursued and the potential for there to be links between one act/group of acts and another act/group of acts. Case Number: 3200226/2022 5[25]The starting point is that the Claimant had three months, plus any extension gained by the ACAS early conciliation period, from any alleged discriminatory act, to present his claim to the Tribunal.[26]We agree with Mr Howarth that the allegations fall into three periods.[27]Period 1 relates to the allegations about the events between July 2018 and December 2019, most of which are brought against Mr Khan, some against Ms Hankin.[28]Period 2 consists of a single incident on 23 February 2020, which is an allegation made against Ms Fraylich.[29]Period 3 is the incident on 19 June 2021; allegations 16 and 17 are allegations against Ms Newbery relating to her conduct on that date; allegation 1 is the reasonable adjustments claim relating to the same subject matter as allegations 16 and 17, i.e. the alleged requirement that the Claimant work evening shifts.[30]Even if we were to accept, as the Claimant invites us to do, that there was a strong link between periods 1 and 2, that does not remove the principal difficulty he faces, which is that there are no allegations of discrimination at all between 23 February 2020 and 19 June 2021, i.e. between periods 2 and 3.[31]The Claimant confirmed in his closing submissions that this period of some 16 months was a relatively happy one and that he was not suggesting that there was any unlawful discrimination by the Respondent during it.[32]The very substantial gap in time is, in our judgment, enough in itself to lead to the conclusion that there was nothing between periods 2 and 3 which could amount to a continuing discriminatory state of affairs, assuming that the Tribunal were to find that there was disability discrimination in period 3.[33]There are then a further four factors which point away from there being conduct extending over a period between periods 2 and 3: firstly, the fact that the allegations in relation to period 3 are made against different managers altogether from the alleged discriminators in periods 1 and 2; secondly, there was no evidence of any connection between the different alleged discriminators in periods 2 and 3; thirdly, the conduct occurred in a different store, to which the Claimant moved between periods 2 and 3; and fourthly, the conduct related to a completely different issue, to which none of the allegations in periods 1 and 2 relate, i.e. the question of shift allocation.[34]We have concluded that these factors, taken together, defeat the argument that there was discriminatory conduct extending over the period February 2020 to June 2021. In our judgment, the acts complained of in period 3 are isolated acts, completely unconnected with the earlier alleged acts of discrimination. Consequently, the Tribunal lacks jurisdiction to determine them and they must be dismissed.[35]As we have already recorded, the Claimant confirmed at the beginning of the hearing that he was not pursuing a just and equitable argument in relation to periods 1 and 2. Nonetheless, and for the avoidance of doubt, we have Case Number: 3200226/2022 6 considered whether there would have been any basis for extending time on a just and equitable basis. We have concluded that there would not.[36]The delay in bringing proceedings is very long indeed: the single claim in period 2 (the email from Ms Fraylich) is out of time by some 20 months. The claims relating to period 1 are out of time by between just over two years and over three and a half years.[37]There is no explanation for the delay. There can be no suggestion that the Claimant was not able to cope with the practicalities of issuing Tribunal proceedings during that period. He was able to raise a grievance, attend a grievance hearing, lodge a grievance appeal and attend the appeal hearing in 2021. Those grievances contained many of the same complaints which later appeared in the pleaded case in these proceedings.[38]Nor is there any evidence that during the period February 2020 to June 2021 there was any other impediment to his bringing a claim. As we have already recorded, this was a settled period, during which no work issues arose for the Claimant.[39]Even if these factors did not point away from making an extension, we consider that the prejudice to the Respondent of extending time for the allegations in periods 2 and 3 would be very great and would outweigh any prejudice to the Claimant in not extending time. Firstly, there is the very fact that the Respondent would be exposed to liability in relation to claims which are long out of time in a jurisdiction where Parliament has decided that time limits should be short and should require prompt action from employees. Secondly, and of even greater significance, is the fact that each of the Respondent’s witnesses of fact giving evidence about periods 1 and 2 at some point had difficulty recalling the events in question. We have no doubt that the cogency of the evidence had been affected by the passage of time.[40]Time limits in Tribunal proceedings are strictly enforced and the Tribunal has concluded that, even if the Claimant had made the argument that time should be extended, it would have failed in these circumstances.[41]For all these reasons, the Tribunal declines jurisdiction in relation to all the claims relating to allegations 2 to 15 (see Appendix below) and they must be dismissed. We do not consider it a proportionate use of Tribunal time and resources to make findings of fact in relation to them. Findings of fact in relation to Allegations 1, 16 and 17[42]The following findings of fact are unanimous and were reached on the balance of probabilities.[43]The Claimant commenced employment with Yum III UK Ltd (‘Yum’) on 31 May 2008. Yum owned and operated Pizza Hut stores in the UK. His employment transferred to the Respondent, along with all liability for any discrimination which occurred during his employment with Yum.[44]The hierarchy of staff, from senior to junior, within Yum was as follows: area manager/coach; restaurant general manager (RGM); shift manager; bench shift manager (BSM); in-store staff and drivers. Case Number: 3200226/2022 7[45]Before January 2019, the Claimant worked in the Dagenham store as an RGM. In March 2020, he stepped down from the RGM role to a BSM role and moved to the Respondent’s Colliers Row store, where he worked for a different RGM, Mr Masood Bhutta.[46]The Claimant told the Tribunal that for more than a year from that point everything was going well: he did three or four day shifts during the week and only one Saturday morning shift. He was still on medication but he felt less stressed. The Claimant’s work at Colliers Row[47]At the Colliers Row store, in addition to the RGM, Mr Bhutta, there were two (or perhaps three) shift managers; and one bench shift manager, who was the Claimant.[48]The Claimant’s evidence, which we accept, was that, at his request, he worked day shifts only from his arrival at the Colliers Row store until April/May 2021. The reason he asked for this, and it was granted, was because of his sensitivity to loud noises, which was an aspect of his disability; he found working evening shifts (which were busier and noisier) difficult; day shifts were relatively quiet. In April/May 2021 Mr Bhutta asked him if he would agree to try some evening shift earlier in the week, which were quieter than weekend evening shifts. The Claimant agreed, did a number of shifts, found that they were difficult for him because of his hearing sensitivity and asked Mr Bhutta if he could stop doing them. Mr Bhutta agreed and the Claimant went back to working day shifts only.[49]For the period up to May 2021 the area coach for the Colliers Row shop was Mr James Clark. He was replaced in May 2021 by Ms Lesley Hibberd. She worked remotely from home in Sheffield, in part because she was classed as vulnerable during the Covid-19 pandemic; there was no question of her visiting the store herself.[50]Ms Hibberd learned from Mr Bhutta that he needed help with two issues which were described as HR issues: the first was that two of the shift managers had interpersonal problems with each other; the second was that the managers in the shop felt that the allocation of shifts, in particular busy evening shifts, was unfair.[51]The Claimant’s evidence was that none of his colleagues thought it unfair that he was not doing night shifts. We find that is not correct. Ms Hibberd acknowledged in cross-examination that everyone was doing night shifts except the Claimant; and that other managers wanted to do a mixture of shifts and thought it unfair that the Claimant did not have to do his share. We think that is consistent with the fact that Mr Bhutta had asked the Claimant to do a trial of night shifts a few weeks earlier; he would not have done so, had there not been a need for it which, we find, was the discontent of the Claimant’s colleagues.[52]Ms Hibberd asked Ms Newbery, who was more experienced than Mr Bhutta as an RGM, to visit the Colliers Row store to support him in resolving these issues. Ms Newbery made several visits to the store from early June 2021 onwards. Case Number: 3200226/2022 8[53]Shift rotas were drawn up on a Monday for a seven-day period by Mr Bhutta. The Claimant accepted that, if he were scheduled to work the following Sunday evening (which he did not want to be) he would normally know about it at the beginning of the week.[54]The Claimant’s case is that Ms Newbery instructed him to do the evening shift on Sunday 20 June 2021. The Respondent’s case is that Ms Newbery never instructed him to work on the Sunday evening.[55]We observe that the Claimant’s evidence as to when this instruction was said to have been given by Ms Newbery was unclear. On 1 July 2021, he sent an email to Mr Bhutta, in which he said:1 ‘As you know that I am suffering from mental health issues from last few years and at the same time I’m also suffering from Tinnitus and Hyperacusis. I was comfortable working during daytime when the store is a quiet place. A few weeks before you schedule me on evening shifts due to staff issues which I worked but I requested you not to please schedule me on evenings as it wasn’t good for my mental health and which you acknowledge and understood. However, Jen, representing new AM, again scheduled me to work on evening shift which caused me extreme stress and I collapsed while at work, keeping in view that I was already struggling to manage the aftermaths of the Managers Meeting, conducted unprofessionally.’[56]We note that in this near-contemporaneous account, the Claimant makes no mention of a direct conversation with Ms Newbery, either on 19 June or any other day; he merely refers to her ‘scheduling’ him to work ‘on evening shift’; he does not specifically refer to the evening shift on Sunday 20 June.[57]In his witness statement the Claimant said that Ms Newbery: ‘visited the store. She changed the working pattern of managers and scheduled me on Sunday evening shift. Masood [Bhutta] informed her that I am not fit for the evening shift because of health issues but she said that she doesn’t care about anything and being the bench shift manager I have to work on Sunday evening as per her instructions. Finally, I arrived on my usual Saturday shift [and] informed her that I am not fit for evening shifts but she argued stubbornly that she doesn’t care about that.’[58]We note that in this account, Ms Newbery is said to have scheduled the Claimant on the Sunday evening shift and told Mr Bhutta, who raised concerns about the Claimant’s health issues. It is quite clear from the language of the paragraph that the Claimant is saying that this occurred at some point before Saturday 19 June (‘Finally, I arrived…’). That was essentially the same position he adopted in his oral closing submissions.[59]The rota for the relevant week was not in the bundle. We asked the Respondent to do another search for it and a rota for that week was located and produced. That document showed the Claimant rostered to work day times only, including on Sunday. We find that Mr Bhutta prepared that rota.[60]For the first time in oral evidence the Claimant said that Ms Newbery had amended Mr Bhutta’s rota, by writing on it in manuscript, to move him from the 1 Original format retained without amendment Case Number: 3200226/2022 9 day shift to the night shift on Sunday 20 June; he also alleged that she wrote on the rota that it was not to be altered without her permission. That document was not produced; the Respondent says because it never existed.[61]The Claimant did not mention this in his contemporaneous email quoted above, nor in his witness statement. We think the certainly would have done, had it occurred, because it would have been such a striking and memorable thing for Ms Newbery to do. Ms Newbery denied that she did it.[62]We have carefully balanced the competing accounts and concluded, on the balance of probabilities, that we do not accept that is what happened.[63]Ms Newbery accepts that at some point she told Mr Bhutta that she thought that ‘all manager shifts should be shared out equally, some day shifts and night shifts’ and that she thought that this should include the Claimant. We accept her evidence was that she did not speak to the Claimant directly about this.[64]We find that Mr Bhutta told Ms Newbery that working evening shifts was a problem for the Claimant because of his sensitivity to noise. Her response was that, in that case, he should perhaps work some weekday evening shifts. We think it likely that Mr Bhutta told her that he had tried that but it had not worked. Thus, we are satisfied that Ms Newbery not only knew about an aspect of the Claimant’s disability (his sensitivity to noise), but also knew that requiring him to work evening shifts would put him at a more than minor or trivial disadvantage, in that it would cause him discomfort and make him anxious.[65]Although we think that Ms Newbery was not convinced by Mr Bhutta’s position, we are nonetheless satisfied that there is no cogent evidence that she had overridden Mr Bhutta’s rota (the one we saw) and had already scheduled the Claimant to work on Sunday 20 June by the time the Claimant attended work on Saturday 19 June.[66]We think it probable that the Claimant found out that Ms Newbery had proposed that he should work evening shifts, probably from Mr Bhutta. We think it likely that Mr Bhutta told the Claimant that this issue had come up again and that he had tried to dissuade Ms Newbery from this approach and mentioned the Claimant’s health difficulties and why evenings were difficult for him. The Claimant was unhappy that this issue was being raised again.[67]We then come to what happened on 19 June 2021. We note that the Claimant’s account in his witness statement (quoted above) gives the impression that, when he arrived to start his shift at 10 a.m., Ms Newbery was already there and that they then had a disagreement about the schedule. He then said he had what he describes as ‘a provoked seizure’. He gave almost no detail about this. The Claimant accepted in oral evidence that, in fact, Ms Newbery arrived over an hour into his shift and that he had been feeling unwell all morning.[68]There is also an account which the Claimant gave to a neurologist on 17 August 2021, in which he said that he went to work and had a ‘heated conversation’ with Ms Newbery about doing night shifts. He recalled shouting and feeling very anxious and pleading with her not to make him do night shifts. Case Number: 3200226/2022 10 Mr Bhutta also spoke to the neurologist and says that he had seen the CCTV (which by then had been deleted): he observed the Claimant in the kitchen apparently pleading with his manager from a seated position and then leaning over on the chair to open the fridge to get some water whereupon he fell to the floor. Mr Bhutta described the Claimant ‘making motions as if trying to open a bottle of water’. Ms Newbery got some water from the fridge and gave it to him.[69]In his oral evidence, the Claimant alleged that Ms Newbery said she did not care about his health and that, if she put him on the evening shift, he had to the work the evening shift.[70]Ms Newbery gave a clear and detailed account of the events of that morning, which we prefer to the Claimant’s account. We have concluded it is accurate in all material respects, in part because it is broadly consistent with an incident report which she completed shortly after the events.[71]When Ms Newbery arrived at around 11.30 a.m., she found the Claimant asleep in a chair in the office; he did not look well. She spoke to one of the drivers and asked if the Claimant was all right; the driver said he did not know. The Claimant then woke up. Ms Newbery asked him if he was OK and he told her to leave him alone. She then said that he did not look all right and if he was not well enough to work, he should be at home. The Claimant then started to shout at her, telling her not to talk to him and to leave him alone. He was agitated and angry. He walked out of the office, out through the back door; he came back in, stumbled about, went into and out of the restaurant over a period of about 15 minutes.[72]Ms Newbery had already called Mr Bhutta and another colleague, Ms Amilla Sutton, and asked them to come in and help. Ms Sutton was shopping in the area and arrived fairly swiftly. Shortly after she arrived, the Claimant staggered towards the kitchen and collapsed on the floor. Ms Newbery and Ms Sutton attended to him. Mr Bhutta did not arrive until some time later, by which time Ms Newbery had also telephoned Ms Hibberd, who had advised her to call an ambulance, which she had done.[73]We accept Ms Newbery’s evidence that when the paramedics arrived, the Claimant became aggressive with them to a point where they told him that, if he was not going to allow them to help him, they would not take him to hospital.[74]Mr Bhutta accompanied the Claimant to the hospital and stayed with him.[75]We think it likely that the Claimant’s anger was because he had found out that Ms Newbery thought that he should have to work evening shifts, which explains why he directed it at her. We accept Ms Newbery’s evidence that for some of this exchange, he spoke in Urdu, which she did not understand.[76]Given the state he was in, and the very unusual behaviour he was displaying we think it implausible that Ms Newbery would have engaged in a conversation with him about the rota. He was obviously in no state to have such a conversation and Ms Newbery would have realised that. We note that, when the Claimant was cross-examining Ms Newbery, the Tribunal reminded him that if he disagreed with Ms Newbery’s account of the events of that Case Number: 3200226/2022 11 morning, he should put to her his alternative narrative. He then put to her, somewhat half-heartedly in our view, that they had ‘a little argument about the rota’. He then moved on. We note that that is different from the ‘heated exchange’ which he told the neurologist he had with Ms Newbery. He did not put to her that they discussed his health, nor that she said to him that she did not care about his health, nor that she insisted that he had to work the evening shift on the following day. We find it implausible that she would have said any of these things to someone who was so obviously unwell; on the contrary, she told him that he should go home because he seemed too unwell to work.[77]The Claimant returned to work in the second week of July. He did not raise a grievance about the incident, but he did send the email which we have quoted above, reasserting that, for health reasons, he could not work evening shifts.[78]The Claimant maintained that he had a seizure on 19 June. Asked what kind of seizure, he described it variously as a ‘collapse caused by the sudden shock of stress’, ‘a provoked seizure’ and ‘a functional seizure’. He agreed that these were labels that he was applying himself; he was not saying that it was an epileptic seizure. Ms Newbery, who was present and whose brother is epileptic, was certain that it was not an epileptic seizure.[79]Some of the very limited medical evidence we saw referred to a collapse, some to a fall, some to his hitting his head; epilepsy was subsequently definitively ruled out; the neurologist referred to a ‘non-epileptic seizure’, without explaining what was meant by that or what might have caused it.[80]We do not think we need to – or indeed are qualified to - identify what precisely the medical position was. The Claimant accepted that he was unwell before Ms Newbery arrived. We find that after around 15 minutes of very considerable agitation he collapsed to the floor; he probably hit his head. Whether or not he was unconscious for a while, he was certainly conscious when the paramedics arrived because he again became extremely agitated.[81]The Claimant’s case is that the conduct he alleges against Ms Newbery and Ms Hibberd was because they knew that he could not cope with the evening shifts. Asked whether he was saying that Ms Newbery did something in order to cause him harm, the Claimant replied: ‘it could be possible’. To be clear: we do not think either of them had any such intention towards the Claimant. Conclusions: allegations 16 and 17 Alleg 16 - Direct discrimination (2.1.12); harassment related to disability (5.1.8); disability-arising discrimination (3.1) - On 19 June 2021, did Jennifer Newbery, the temporary Area Manager, instruct the Claimant that he had to do an evening shift that Sunday even though he told her that he had an arrangement with his line manager that he would not do evening shifts because of his disability and how doing those shifts affected his mental health? The legitimate aim relied on by the Respondent is: ‘to ensure that evening shifts were shared out fairly among managers’[82]We have found as a fact that Ms Newbery did not schedule the Claimant to work an evening shift on Sunday 20 June 2021, nor did she instruct him to work that shift, whether on 19 June or on any other date. Therefore, the claims Case Number: 3200226/2022 12 of direct disability discrimination, harassment related to disability and disability arising discrimination, grouped together under this allegation fail on their facts and are dismissed. Alleg 17 - Direct discrimination (2.1.13); Did the Claimant have a seizure when Ms Newbery insisted that the Claimant had to work the evening shift on the following day so that an ambulance had to be called and he was taken to hospital? The Claimant was not back to work until 11 July 2021.[83]Again, because we have already found that Ms Newbery did not insist that the Claimant had to work the evening shift on Sunday, 20 June 2021, the claim of direct discrimination fails on its facts and is dismissed.[84]We then turn to the claim of a failure to make reasonable adjustments (Allegation 1). We reminded ourselves of the relevant law to be applied. The law to be applied: failure to make reasonable adjustments[85]S.20 EqA provides as relevant:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. […][86]S.21 EqA provides as relevant:(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. …[87]The Equality and Human Rights Commission Code of Practice on Employment (2011) (‘the Code of Practice’) at para 6.16 emphasises that the purpose of the comparison with persons who are not disabled is to determine whether the disadvantage arises because of the disability and that, unlike direct or indirect discrimination, there is no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person’s.[88]In relation to the employer’s actual or constructive knowledge of the employee’s disability, and of the disadvantage, sch.8, Part 3, para 20(1)(b) EqA provides that: (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— … Case Number: 3200226/2022 13 (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.[89]If the employer knew, or could reasonably be expected to have known, that the Claimant had an impairment, it does not matter that it had no precise diagnosis. It is, however, a requirement that the employer should know (actually or constructively) that the Claimant had an impairment the adverse effects of which were both substantial and long-term (Wilcox v Birmingham CAB Services Ltd [2011] EqLR 810.[90]As for knowledge of disadvantage, what is necessary is not that the employer know that the claimant was generally disadvantaged by their disability, but that it knows that they are likely to be placed at ‘the disadvantage referred to in the first … requirement’, which is as specified in s.20(3) ‘a substantial disadvantage in relation to a relevant matter’ (Aecom Ltd v Malloon [2023] EAT 104 at [25]).[91]The correct approach for the Tribunal in determining a reasonable adjustments claim is set out in Environment Agency v Rowan [2008] ICR 218 at [27].[92]The burden is on the Claimant to show the PCP, to demonstrate substantial disadvantage, and to make out a prima facie case that there is some apparently reasonable adjustment which could have been made (and that, on the face of it, there has been a breach of the duty): Project Management Institute v Latif [2007] IRLR 579 at [45] and [54].[93]If the PCP contended for was not actually applied, the claim falls at the first fence: Brangwyn v South Warwickshire NHS Foundation Trust [2018] EWCA Civ 2235 at [40].[94]In Rider v Leeds City Council EAT 0243/11, the EAT held that the act of informing an employee that he or she must do something, which she considers will put her at a substantial disadvantage compared to people without her disability (in that case, return to a particular job role) may be sufficient to amount to the application of a PCP, even if the return to the role is never effected because of the employee’s objections. HHJ Peter Clark held at [79]: ‘Although the Respondent submitted the Claimant was not forced to go back, no alternative post was ever offered and in our opinion the requirement repeated on a number of occasions that she should return to her substantive post amounted to the application of a PCP. No alternative post was ever offered so the question of further reasonable adjustments does not need to be considered. The Employment Tribunal took a most restrictive view of the meaning of the term “applied” in the sense (and this is by no means clear from the decision) that the return to Armley Moor had not been implemented. In our opinion, informing an employee that she was bound to return to a particular post in due course is sufficient to amount to applying a PCP. In such circumstances, if it causes substantial disadvantage to an employee as compared to a person who was not disabled then the duty to make reasonable adjustments applied.’[95]The reasonableness of an adjustment falls to be assessed objectively by the Tribunal: Morse v Wiltshire County Council [1998] IRLR 352. The focus is on practical outcomes: per Langstaff P in Royal Bank of Scotland v Ashton [2011] ICR 632 at para 24: Case Number: 3200226/2022 14 ‘The focus is upon the practical result of the measures which can be taken. It is not – and it is an error – for the focus to be upon the process of reasoning by which a possible adjustment was considered. As the cases indicate, and as a careful reading of the statute would show, it is irrelevant to consider the employer’s thought processes or other processes leading to the making or failure to make a reasonable adjustment. It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reason.’ Conclusions: failure to make reasonable adjustments Alleg 1 - Reasonable adjustments / PCP1 (4.2.1) - was there a requirement that all employees or Bench Shift Managers had to work the evening shift?[96]The Respondent accepts that there was a requirement/practice for employees including BSMs to work an evening shift. The Respondent also accepts that this would put the Claimant at a disadvantage because of his sensitivity to noise. Its position is that the requirement was not applied to the Claimant.[97]This claim is relevant to two periods only. The first is in April/May 2021, when we have already found that Mr Bhutta asked the Claimant to do some evening shifts on Monday to Thursdays. The Claimant agreed to trial a few shifts, but he then told Mr Bhutta that this was not good for his health. Mr Bhutta then allowed the Claimant to resume working day-shifts only.[98]Thus, the PCP was applied to the Claimant in April/May 2021; it put him at a more than minor or trivial disadvantage by comparison with people without his disability because it caused him discomfort and aggravated his anxiety; but the Respondent made the reasonable adjustment of removing the requirement to work evening shifts and did so within a reasonable period (i.e. when the Claimant asked them to). Therefore, there was no breach of the duty to make reasonable adjustments on that occasion and any claim in relation to that period must fail.[99]We then turn to the position on or around 19 June 2021.[100]We have already found that Ms Newbery knew about the Claimant’s disability of heightened sensitivity to noise and also knew that requiring him to work evening shifts would put him at a disadvantage by comparison with people without that disability.[101]We have already found that her own view that the Claimant should work evenings was a proposal only; it had not yet been put into effect, by her or by anyone else.[102]The Claimant was entitled to challenge that proposal, which he did in his email to Mr Bhutta which we have quoted above. He explained that he had tried working evenings and that it had not worked because of his health; he asked not to be required to work evenings. It is not disputed that the Claimant was never thereafter required to work evening shifts.[103]We have concluded that this is quite different from the situation in the Rider case where a requirement to do a certain thing (returning the Claimant to her original place of work) which the employee in that case found objectionable for health reasons was ‘repeated on a number of occasions’ (para 79) by the employer and not withdrawn despite the objections of the employee. In this Case Number: 3200226/2022 15 case, we have found that there was a proposal which, when the Claimant objected to it in his email to Mr Bhutto, was not then acted upon.[104]In the circumstances of this case, we accept Mr Howarth’s submission that the PCP was never actually applied to the Claimant on or around 19 June 2021.[105]For that reason alone, this claim must fail.[106]If we are wrong about that, and Ms Newbery’s proposal that the Claimant should be required to work evening shifts on some weekdays amounted to a PCP which was applied, then the disadvantage to the Claimant would have been that working on busy, noisy evening shifts would cause him discomfort and anxiety. It is beyond dispute that the Respondent removed that disadvantage (which was, in any event, only potential at that stage) by not taking any further action in support of Ms Newbery’s proposal; the Claimant was never required after that point to work evening shifts. That was the very reasonable adjustment which the Claimant asked for in his email to Mr Bhutta and the Respondent made it.[107]In circumstances where the employer has made the necessary reasonable adjustment, the claim fails for that reason as well. By analogy with the Rider case, it is clear from the EAT’s judgment at paragraph 76, that if the employer had agreed that, in the light of C’s strong objections, she would not be required to return to her original place of work, there would be no breach because the adjustment sought would have been made (see para 76).[108]For all these reasons, we have concluded that the Claimant’s claim of failure to make reasonable adjustments is not well-founded and should be dismissed.[109]These proceedings are now concluded. Employment Judge Massarella Date: 19 August 2024 Case Number: 3200226/2022 16 APPENDIX: CONSOLIDATED LIST OF ALLEGATIONS WITH CAUSES OF ACTION Alleg 1 - Reasonable adjustments / PCP1 (4.2.1) - was there a requirement that all employees or Bench Shift Managers had to work the evening shift? Alleg 2 - Reasonable adjustments / PCP2 (4.2.2) - was there a provision that all managers had to be part of a WhatsApp Group? Alleg 3 - Reasonable adjustments / PCP3 (4.2.3) - was there a practice of expecting employees to be ready to accept calls from their managers at anytime, whether at 7am, 7pm, on days off, in the evening and while at home or asleep and be able to address business matters in those calls? Alleg 4 - Direct discrimination (2.1.1) - Between 3 July and 13 July 2018, Mr Nauman Khan texting the Claimant directly and in a WhatsApp Group at unsociable hours, on off days, late at night and in the early hours of the morning about work when it was not necessary to do so? Alleg 5 - Direct discrimination (2.1.2); Harassment related to disability (5.1.1) - Did Mr Nauman Khan use inappropriate language in the text messages that was intimidating, humiliating and which created a hostile working environment for the Claimant? Alleg 6 - Direct discrimination (2.1.3) - Did Mr Nauman Khan use language in speaking to the Claimant on the telephone that was stronger and more intimidating, and which also created a hostile working environment for him such as when he called him on 28 February 2019? Alleg 7 - Direct discrimination (2.1.4); harassment related to disability (5.1.2) - Between April and September 2018 and in February 2019 did Mr Nauman Khan or anyone else at the 1st Respondent unlawfully deduct money deliberately from the Claimant’s wages? Alleg 8 - Direct discrimination (2.1.5) - Did the 1st Respondent deduct or fail to pay the Claimant’s salary for May 2019 at the end of the month at the same time as all the other employee? Alleg 9 - Direct discrimination (2.1.6) - Did Mr Nauman Khan submit a false sick certificate for the Claimant on or around 22 January 2019, which caused the Claimant to suffer a reduction in his pay? Alleg 10 - Direct discrimination (2.1.7); harassment related to disability (5.1.3) - On or around 15 November 2018 and 24 January 2019 the Claimant applied for jobs with the 1st Respondent, which Mr Nauman and Ms Hankin were aware of. Did the 1st Respondent fail to respond to the Claimant applications? The Claimant’s case is that despite having the relevant qualifications and having worked in the store using the systems since 2008, he was not shortlisted and not offered an interview. Alleg 11 - Direct discrimination (2.1.8) - On 30 March 2019, the Claimant raised a grievance about his treatment by Mr Nauman Khan. Did Ms Hankin of the 1st Respondent fail to investigate this grievance properly? Did she fail to interview the Case Number: 3200226/2022 17 witnesses and to consider all the allegations and the evidence that the Claimant presented? The matters raised in the grievance are set out in the Claimant’s letter dated 30 March 2019 addressed to Ms Hankin. Alleg 12 - Harassment related to disability (5.1.4) - Mr Nauman Khan harassing the Claimant in the ways alleged in the Claimant’s grievance which was submitted in March 2019. Alleg 13 - Direct discrimination (2.1.9); harassment related to disability (5.1.5) - The Claimant was never given an outcome to his appeal against the outcome of the grievance. Alleg 14 - Direct discrimination (2.1.10); harassment related to disability (5.1.6) - Did the Claimant’s managers, Lucy Bourne and Katy Hankin put pressure on the Claimant to resign at a meeting on 16 December 2019? Did they do so because of his long-term mental impairment and their belief that this would be in the best interests of the job? Did they tell him to think about this over the Christmas holidays and let them know when he would be willing to resign as restaurant general manager? Alleg 15 - Direct discrimination (2.1.11); harassment related to disability (5.1.7) - Did the Claimant new manager at the Colliers Row restaurant, Dani Fraylich write to the Claimant on 23 February 2020, before they had met, and set out her expectations and team goals in a way which caused him increased stress and anxiety and fear that he was going to be managed in the same way as he previously had been by Mr Nauman Khan? Alleg 16 - Direct discrimination (2.1.12); harassment related to disability (5.1.8); disability-arising discrimination (3.1) - On 19 June 2021, did Jennifer Newbury, the temporary Area Manager, instruct the Claimant that he had to do an evening shift that Sunday even though he told her that he had an arrangement with his line manager that he would not do evening shifts because of his disability and how doing those shifts affected his mental health? Alleg 17 - Direct discrimination (2.1.13); Did the Claimant have a seizure when Ms Newbury insisted that the Claimant had to work the evening shift on the following day so that an ambulance had to be called and he was taken to hospital? The Claimant was not back to work until 11 July 2021.