Mr A Hannan v Mercedes-Benz Retail Group Ltd: 3200240/2019
EMPLOYMENT TRIBUNALS
Case No 3200240/2019
Between
Mr A HannanClaimantMercedes-Benz Retail Group LtdRespondent
Before
Employment Judge JonesMs S Chan (instructed by Counsel) for claimantMr P Wilson (instructed by Counsel) for respondentDate 28 July 2021
JUDGMENT
[1]The complaints of disability and race discrimination were not presented within the relevant time limit (the date of the last act complained of being 14 September 2018 and the claims being issued on 29 January 2019). These complaints were not part of a continuing act.[2]It is just and equitable to extend time. The Tribunal can consider the complaints of disability and race discrimination.[3]The Claimant has leave to amend his claim to include a complaint that his dismissal was contrary to section 103A Employment Rights Act 1996 because the reason or the principal reason was that he had made protected disclosures.[4]The Claimant’s application to amend his claim to add a complaint Tribunal that his dismissal was for something arising in consequence of his disability, specifically not keeping up with his excessive workload; is refused.[5]Case Management Orders are set out below for the further conduct of this matter to a final hearing.
REASONS
[1]The Tribunal apologises to the parties for the late promulgation of this judgment and reasons. This is due to pressure of work on the Judge and her ill-health.[2]This hearing was to consider whether the Tribunal had jurisdiction to hear his complaints given the time limit issues involved and also to consider the Claimant’s application to amend his claim.[3]At the preliminary hearing in May EJ Ross decided that the Claimant’s existing complaints were of direct disability discrimination, disability discrimination by failure to make a reasonable adjustment, disability discrimination by harassment, race discrimination by harassment and direct race discrimination. The Claimant had ticked unfair dismissal in his claim form but EJ Ross determined that the allegation of discriminatory dismissal under section 15 Equality Act 2010 and of automatic unfair dismissal under section 103A of the Employment Rights Act 1996 (ERA); which the Claimant included in his List of Issues had not been pleaded in the ET1 or in the Grounds of Claim and would therefore need to be subject to an application to amend before they could be considered as part of his claim. The Claimant had not worked for the Respondent for the minimum period (2 years) set out in section 108 ERA, which meant that he could not exercise the right not to be unfairly dismissed, which is set out in section 94 of the same Act.[4]This Tribunal therefore had to consider whether the Claimant can proceed with his discrimination complaints as they were issued out of time and whether he can amend his claim form to add the following: -a. A complaint of automatic unfair dismissal under section 103A Employment Rights Act 1996; andb. A complaint under section 15 Equality Act 2010 that the Respondent treated the Claimant unfavourably by dismissing him for not being able to cope with a workload alleged to be excessive.[5]The Claimant gave evidence and the Tribunal had a bundle of documents as well as cases submitted by the parties.[6]The Claimant agreed at the start of the hearing that both his unfair dismissal complaint and his complaints of race and disability discrimination had been presented out of time.[7]The discrimination complaints had been filed approximately 21 days late as they ought to have been filed by 8 January 2019.[8]The dismissal complaints were submitted on 15 May and were therefore 177 days out of time as they should have been brought by 12 November. Law on time limits – discrimination complaints[9]In relation to the discrimination complaints, the time limits are set out in section 123 of the Equality Act 2010. Subsection (1) states that proceedings on a complaint may not be brought after the end of (a) the period of 3 months starting with the date of the act to which the complaint relates, or subsection (b) some other period as the employment tribunal thinks just and equitable.[10]The starting point for the tribunal is that the presumption is against an extension of time as time limits are to be strictly applied in the employment tribunal. (Auld LJ in the case of Robertson v Bexley Community Centre [2003] IRLR 434). He stated that it was for the Claimant to show good reasons why exceptionally, time should be extended in their favour. Mr Wilson for the Respondent reminded the Tribunal that the exercise of the discretion by the court is the exception rather than the rule and that in the main, time limits should be enforced and maintained.[11]The Claimant relied on the case of The Department of Constitutional Affairs v Jones [2007] EWCA CIV 894 in which there was a discussion on the guidance in the case of British Coal v Keeble [1997] IRLR 336 EAT. The tribunal considered the following five factors:(a) the length of and reasons for the delay;(b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the extent to which the party sued had cooperated with any requests for information;(d) the promptness with which the claimant had acted once he or she had known of the facts giving rise to the cause of action; and(e) the steps taken by the claimant to obtain appropriate professional advice once he or she had known of the possibility of taking action. The Court of Appeal stated that the guidelines expressed in Keeble were a valuable reminder of factors which may be taken into account. Their individual relevance depends on the facts of the particular case.[12]The Claimant referred the Tribunal to the case of Accurist Watches v Wadher UKEAT/0102/09/MAA. In that judgment, the Employment Appeal Tribunal stated that it would be good practice for a tribunal, having gone through the checklist of factors such as that provided in Keeble to stand back and identify what in the end had been the decisive factors in the conclusion which the tribunal has reached.[13]As Mr Wilson submitted during the hearing, it is only if the Tribunal extends time on a just and equitable basis in relation to the discrimination complaints that it can then proceed to consider whether to allow the Claimant to amend his claim and include the complaints of automatically unfair and discriminatory dismissal contrary to sections 103A Employment Rights Act 1996 and 15 of the Equality Act 2010. Law on amendments[14]The balance of injustice and hardship test is set out in the case of Selkent Bus Co v Moore [1996] ICR 836 which was an EAT case in which the tribunal had to decide on a proposed amendment seeking to add a new cause of action and new facts to an existing claim. The EAT set out general practice and procedure governing the approach a tribunal should take when considering amendments to existing claims. Mummery J stated that the relevant circumstances to be taken into account by the tribunal in balancing the injustice and hardship of allowing the amendment as against refusing it includes; the nature of the amendment, the applicability of time limits whether there should be any extensions and the timing and manner of the application.[15]The “nature of the amendment” requires the tribunal to consider whether the claimant seeks to add new facts to existing allegations or to put new labels on facts already pleaded i.e. whether it is simply a re-labelling exercise; or whether the claimant is making entirely new factual allegations which change the nature of the existing claim. The tribunal needs to consider whether the amendment sought is minor or represents a substantial alteration, pleading a new cause of action.[16]The Respondent submitted that it would also be pertinent in relation to the complaint of automatic unfair dismissal to look at the issue of whether it was reasonably practicable for the Claimant to have issued his claim in time. The Law on time limits – Unfair Dismissal[17]Section 111 (1) of the Employment Rights Act 1996 (ERA) gives a former employee the right to bring a complaint of unfair dismissal against his former employer. Subsection (2) states that an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal – (a) Before the end of the period of three months beginning with the effective date of termination, or (b) Within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to have been presented before the end of that period of three months.[18]Section 207B (3) of the ERA deals with the effect of the ACAS conciliation process on the statutory time limits for bringing claims. It states that in working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted. Subsection (4) states that if a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.[19]Subsection (5) states that where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.[20]In relation to its assessment of whether it was ‘reasonably practicable’ for an unfair dismissal claim to have been brought it time, the Tribunal was referred to the case of Palmer v Southend-On-Sea Borough Council [1984] IRLR 119. In that case, Lord Justice May referred to the Court of Appeal decision of Walls Meat Co Ltd v Khan [1979] ICR 53 in which this concept was discussed. Lord Justice Brandon stated “The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable”. It was the Claimant’s submission that his mental illness, depression and anxiety was sufficient impediment to prevent him and did prevent him from issuing his complaint on time.[21]The Claimant also referred to the case of Marks & Spencer v Williams-Ryan [2005] EWCA CIV 470 which was also a Court of Appeal case related to a complaint of unfair dismissal. In that case the claimant had been given incorrect advice by her former employer and because of that and an omission from the advice she received from the Citizens Advice Bureau (CAB), she was of a mistaken belief as to when the time limit would expire for submitting her complaint. In that judgment, the Court of Appeal stated that section 111(2) of the Employment Rights Act 1996 (ERA) should be given a liberal interpretation in favour of the employee. The judgment also referred to Lord Denning’s statement in Wall’s Meat Co v Khan that the question could be simply put this way: “Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights – or ignorance of the time limit – is not just caused or excuse, unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault and he must take the consequences”.[22]The Court of Appeal in Palmer concluded that the liberal construction of the relevant clause was easier to state than to apply in practice and proposed a test of ‘reasonable feasibility’.[23]Some possible factors that the tribunal may wish to consider when dealing with a question of whether it had been reasonably feasible/reasonably practicable to have issued in time were listed by May LJ in that case such as the manner of, and reason for the dismissal; whether the employer’s conciliatory appeals machinery had been used; the substantial cause of the claimant’s failure to comply with the time limits; whether there was any physical impediment preventing compliance, such as illness, or postal strike; whether, and if so when, the claimant knew of his rights; whether the employer had misrepresented any relevant matter to the employee; whether the claimant had been advised by anyone, and the nature of any advice given; and whether there was any substantial fault on the part of the claimant or his advisor which led to the failure to present the complaint in time.[24]In the case of Shultz v Esso Petroleum Ltd [1999] IRLR 488 the claimant had been dismissed for long term absence due to his depression and the question was whether it had been reasonably practicable for him to have presented his claim in time in circumstances where although he was physically capable of giving instructions to his solicitor for the first 7 weeks of the three-month period, he was too ill to do so for the last six weeks. The matter reached the Court of Appeal in which it was stated that the tribunal failed to consider the surrounding circumstances and the end to be achieved in the particular context of the case. It was not correct to give a period of disabling illness at the end of the period similar weight as the delay at the beginning of the three-month process while the claimant tried to appeal in order to avoid litigation. The overall period is to be considered although attention will in the ordinary way, focus upon the closing rather than the early stages of that period of time.[25]If the tribunal considers that it was not reasonably practicable for the claimant to have issued in time, the claimant is expected to make the application as quickly as possible once the obstacle that has prevented him from making the claim in time, has been removed. The length of time that will be permitted will depend on the circumstances. In Walls Meat Co Ltd v Khan, the claimant took a further four weeks after he discovered the error in his understanding as to how the Industrial Tribunal process worked before he presented his complaint. This was held to be a reasonable time, considering the fact that the period straddled the two-week Christmas break which meant that the claimant found it difficult to find a solicitor to deal with the matter.[26]In Biggs v Somerset County Council [1996] IRLR the Court of Appeal stated that it was not just the claimant’s difficulties that had to be considered but also the prejudice to the respondent as an extended period of time may be unreasonable if the employer were to face difficulties of substance in answering the claim.[27]Generally, the question of what is or is not reasonably practicable is essentially a question of fact for the tribunal to decide. The tribunal must address its mind to the question of reasonableness and practicability and not simply state that it had a discretion to extend time. It must make a precise finding of the nature of the complaint in question and the relevant starting date of the limitation period governing it before proceeding to consider whether an extension of time is appropriate.[28]After hearing evidence from the Claimant, the Tribunal drew the following conclusions. Findings of fact The Claimant’s mental health
Findings of fact
[29]The Claimant has suffered from depression and anxiety since 2010 following an accident at a different place of work. He was described in Dr Ravi Shah’s letter dated 19 July 2017 as having a diagnosis of Post-Traumatic Stress disorder, anxiety and persistent depressive disorder. The Claimant was referred to the local psychological therapies service for counselling in 2017 as he was having several panic attacks per day.[30]In March 2018 at a depression review at the GP, it was recorded that the Claimant had a history of anxiety and depression and that he had been unable to sleep over the past few weeks. He was having a lot of stress with a manager at work and could not face going in to work. He was worried about conflict at work and reported hearing voices. He was not experiencing thoughts of self-harm or harm to others and was eating okay.[31]His GP notes also contain a few entries noting that he had a habit of failing to attend the surgery for appointments. His evidence was that one of the symptoms of his condition was that he sometimes failed to attend appointments which resulted in him missing out on the services or assessments that would have assisted him in addressing his mental ill-health. There are failed appointments noted on his GP notes in January, March, April and May 2018.[32]There are also three appointment letters showing that appointments had been made for him to see a psychiatrist in April/May 2018, all of which he failed to attend. It is likely that this was a symptom of his mental ill-health.[33]He received 17 sessions of cognitive behavioural therapy (CBT) which started sometime in the beginning of 2018 and ended around 31 May 2018 as he had just started working for the Respondent and found it difficult to arrange appointments outside of work time. He also did not want to start a new job by asking for time off to attend therapy sessions during office hours. The discharge letter from the clinical psychologists confirmed that the Claimant had been experiencing moderately-severe levels of depression at the start of their work together and that his scores remained relatively high throughout the sessions. It was noted that the sessions ended prematurely as the Claimant had secured new employment and wanted to focus on that. They worked on some strategies that he could use in the future if he found himself faced with triggering situations again. He was not discharged from the CBT sessions because he was no longer suffering from depression.[34]The Respondent has conceded the issue of disability and agrees that the Claimant was a disabled person for the purposes of the Equality Act 2010 at the time of his employment.[35]In the letter to the Claimant’s GP the treating psychologist confirmed that the Claimant should be re-referred to a psychiatrist as it was likely that he would benefit from that support and that an appointment should be made to review his medication with him.[36]The treating psychologist confirmed that the Claimant had a habit of missing appointments and that what she had found that worked was that if he was sent a reminder by message to his phone rather than by letter, then he was more likely to attend an appointment.[37]At the time that the Claimant was discharged from the psychological services the Claimant was still suffering moderate to severe levels of depression and anxiety.[38]In December 2018, the Claimant spoke to his GP surgery and asked for a telephone call or text messages to be sent to him to remind him about appointments. The Claimant preferred this to receiving an alert message. There was a note in his records that he had made a complaint about the service he had received from the surgery.[39]The Claimant did have an appointment with a psychologist in June 2018. It was his evidence that the psychologist advised him that he may benefit from seeing a psychiatrist. At the time of this hearing, the Claimant had yet to see a psychiatrist.[40]The Claimant confirmed that some of the entries in his medical notes were made by locum doctors who were not his usual GP and who would not necessarily have known the background to his health and the previous services that he accessed or other facts about his life. That meant that the notes did not always make sense or recorded obviously inaccurate information.[41]An example of that is the entry on 14 February 2019 which referred to the Claimant having started new employment. It was the Claimant’s evidence that he did not do so until April 2019. It is likely that the GP was talking a history of the Claimant’s condition as the note went on to refer to the employment being for a short period, the Claimant having been dismissed from that employment and that the matter had gone to tribunal. This was a likely reference to the employment with the Respondent, rather than more recent employment.[42]In February 2019, the Claimant was re-referred for CBT. He indicated to the GP that symptoms of anxiety had returned. He referred to his employment with the Respondent and his belief that he had been dismissed unreasonably. The Claimant confirmed in the hearing that he had attended his GP surgery a few times asking to be referred to the psychology team.[43]A GP at the Claimant’s surgery, Dr Okun, wrote a letter confirming his condition dated 17 April 2019. The letter confirmed that the Claimant suffers from persistent depressive order, anxiety and PTSD for which he is taking anti-depressants. Dr Okun confirmed that the Claimant is on Mirtazepine at night, Venlafaxine in the morning and Tramadol during the day. It is likely that these are anti-depressants. He confirmed that the Claimant has been on several anti-depressants between January 2018 and when the letter was written. Although there may have been gaps, the Claimant confirmed in the hearing that he had been consistently on anti-depressants since August 2018. Dr Okun referred to the Claimant hearing voices and the constant impact of his anxiety and PTSD. He stated that the Claimant’s condition has affected his ability to attend clinic and hospital appointments and that “given his condition, the Claimant will also default even court deadlines”. What happened[44]The Claimant’s summary dismissal was on 18 July 2018 with immediate effect. The Claimant has made various allegations of discrimination relating to his short employment with the Respondent between 29 May and 18 July 2018.[45]Around 16 July, the Claimant wrote a long letter to the Respondent. The letter is coherent, organised and logical. His letter of appeal against dismissal dated 24 July 2018 was similarly long, spread over 12 pages, went through in detail the allegations of misconduct that had been made against him and set out why he felt his dismissal was unfair. It was also coherent and organised. The Claimant gave a list of the customers to whom he considered he had provided good quality service and who could vouch for him. He referred to examples of the behaviour that he considered to be bullying and/or unacceptable from colleagues that were tolerated by the Respondent and provided a list of the systems that he had learnt or gained experience on while with the Respondent.[46]This accords with his evidence that at the time of his dismissal he was clear that he was unhappy with it and wanted to challenge it as he felt that it was unfair.[47]The Tribunal finds that in the early days following his dismissal, the Claimant was told by his union representative that he had three months less one day in which to issue his complaint. He was clear that he wanted to take up a case, if his appeal against dismissal was not successful. He also read up online about the fact that entering into the ACAS conciliation process stops the clock in terms of time for issuing proceedings. He referred to this in correspondence with the Respondent.[48]In an email dated 13 September, the Claimant confirmed that he had been advised by the union to be very careful about the Tribunal/ACAS deadline as they are very strict and his case could be struck out if he failed to follow it. He was clearly aware of the time limit and wanted to keep within it.[49]It is his allegation that on 14 September, due to his mental ill-health, he asked the Respondent whether it was prepared to allow him to have assistance from a mental health advocate (from the NHS Trust/Mind) with his appeal which the Respondent refused. He alleges that that this was the Respondent’s failure to make reasonable adjustment for him. It is also his allegation that on 14 September, the Respondent confirmed that it would not appoint a more senior officer to conduct the appeal but would go ahead with someone on the same level as the previous manager who dismissed him. These are his latest allegations of discrimination against the Respondent.[50]The Claimant was invited to an appeal hearing on 27 September 2018. In contrast to the earlier letters, there was an email written by the Claimant to the Respondent dated 24 September (page 114) in which he referred to the Respondent’s recent refusal to give him a copy of its whistleblowing policy. The email was referred to in today’s hearing and was a little incoherent in the text and demonstrated that the Claimant’s thinking was beginning to be affected by his circumstances and depression and anxiety. It stated as follows: “In order for us to continue with this case, the policy is required as well as your other policies when a complaint is to be heard by ET for point of reference. I believe when my whistleblower’s rights was exercised without a policy to hand, unfair treatment was taken place at MB Startford (sic) I now need this policy to comply going forward in my efforts with this statutory right.”[51]It also demonstrates that as early as September the Claimant had begun to see this as related to him making protected disclosures.[52]On 25 September, the Claimant wrote to the Respondent by email (121) which again demonstrated that he was not thinking/writing as clearly as before. He stated as follows: “I do not believe HR has played a supporting role for me but for the Appeal Officers/Companies defence only as confirmed above by HR statements. I do not therefore have reasonable amount of confidence you will be able to conduct this in fair & just manner. It is now this shift of responsibility from the company to ACAS to support in this area presently. Please also note it is ACAS guidelines “that internal company processes does not give right to delay engaging/complying and prolonging acas process.” For these said reasons, I do not see a direct positive outcome from near future internal company processes. I would therefore recommend you stop any internal process immediately on this matter, which is resourceful time and dedicate this time for the interest of ACAS conciliation. To date, I have not received confirmation, if MBRG is engaging or made reasonable effort to receive contact from ACAS for conciliation. It has now almost 5 days out of 1 month, where this delay is taking place due to HR committing time to internal process of this matter rather than dedicating to conciliation. I want to use early conciliation & remain optimistic about this, but cant see this from the company yet? If you do not want to engage in early conciliation? can you please let me know, so we can inform ACAS and move this along as its been 5 days out of 1 month now?”[53]These communications from the Claimant show the deterioration in the clarity of his thinking and expression and possibly his mental health around the time of the appeal and immediately thereafter.[54]The Claimant attended the appeal hearing and the minutes of the appeal hearing were in the bundle. He was accompanied by his trade union representative.[55]He stopped using the trade union representative shortly after the appeal hearing as he concluded that the individual representative was known to the Respondent’s managers and the HR director. He lost trust in the union representative. He was not in touch with the union when he submitted his claim to the Employment Tribunal.[56]The Claimant contacted ACAS on 20 September 2018 to begin conciliation, which ended on 16 October 2018. His evidence was that the Respondent did not communicate with ACAS and that he found the process to be disappointing.[57]It was his case that around the time that he received the conciliation certificate his mental health deteriorated and he was suffering from anxiety and depression at a level that was worse than ever. He found this difficult to cope with without the support of CBT and he was also dealing with the added consequences of his dismissal in terms of its effect on his finances and his confidence. He submitted that he had been hopeful that the appeal would be successful and he would be reinstated but during the appeal process it became apparent that the appeal was not working and he felt that he had reached a brick wall. It was around that time that he experienced sleep disturbance and stopped socialising, doing individual household tasks and began avoiding people like family friends and going out in public. He also stopped looking after himself as regards personal hygiene.[58]The Claimant remembered receiving the conciliation certificate from ACAS on 16 October by email and he knew that the next step was to issue the claim in the Employment Tribunal. He started to draft the claim about 4 - 5 weeks later. He agreed today that writing out the claim would have required some concentration and focus. It is likely that he found it difficult to maintain that concentration and focus as it took him a while to complete the grounds of claim which he created as a separate Word document which he then uploaded onto the form.[59]He created an ET1 form online. He remembered saving it a few times before he actually completed it. He remembered having issues with the online form and having trouble to find it again after he had saved it. This included losing the reference number. It is likely that he struggled to complete the ET1 form.[60]His evidence was that after he received the ACAS certificate he did not know when the new deadline was, taking into account that the clock had stopped for a period of time. He was unable to calculate the new deadline, without any assistance and did not have anyone to give him that assistance as he was no longer in touch with the union representative. That created a mental block that he found difficult to get around.[61]As he could not work out what the new deadline was he focussed instead on completing the form and submitting it to the tribunal as soon as he could. He concentrated on completing the form to the best of his ability given the condition of his mental health. He found that to be a difficult process. He did not submit the form until 29 January.[62]His mental health difficulties and the way in which it affected his cognitive abilities can be seen in the ET1 form. He ticked the box to indicate that he was still employed and did not insert a termination date. This was despite the clear decision from the Respondent months earlier that the appeal had failed and that he had been dismissed. The Claimant referred to ‘Modern Slavery’ in his ET1 and referred to ‘Justice - To prevail injustice, Truth – To prevail Falsehood’ in the section that asked him for details of the remedy he was seeking by bringing the claim.[63]It was his evidence that he completed the form on the day he submitted it, on 29 January.[64]Around the end of December, the Claimant’s GP notes show that they called him to remind him of an appointment but were unable to get him. He emailed the surgery to cancel the appointment. The Claimant’s evidence in the hearing was that his GP surgery were thinking of discharge him from the surgery because of the number of missed appointments so he sent an email to stop them from doing that and to keep his place. He did not attend the surgery until 14 February, as already stated above, to ask to be re-referred for psychological therapies. Once the claim was submitted at the end of January he was able to focus on his health again and requested to be rereferred for CBT as he found that to have been the most helpful protocol for him.[65]As far as the whistleblowing complaints were concerned, it was the Claimant’s evidence that the substance of his whistleblowing allegations was in the narrative in the Grounds of Claim although he accepted that he had not referred to them in the document as disclosures or as ‘blowing the whistle’. He considered that the document was already quite lengthy and thought that he would have an opportunity later on to provide more details. He believed that he had included whistleblowing in his claim form.[66]Once an ET1 claim form is submitted a form is generated on the system which is sent to the person who completed it. It is called ‘Check your claim’ and sets out the details that were inserted into the claim form. The system does not allow a claimant to keep a copy of the form he just completed and submitted.[67]In the ET1 form he completed, the Claimant ticked the box that stated ‘If your claim consists of, or includes a claim that you are making a protected disclosure under the Employment Rights Act 1996 (otherwise known as a ‘whistleblowing’ claim), please tick the box if you want a copy of this form, or information from it, to be forwarded on your behalf to a relevant regulator…..’. Because of that, the ‘Check your claim’ form that was sent to him afterwards, stated that his claim included a whistleblowing claim. The Claimant also ticked the ‘unfair dismissal’ box but did not provide details of his unfair dismissal complaint in the narrative box.[68]The Claimant submitted on 15 May 2019, in his particulars of protected disclosures that there were 5 alleged disclosures and that they were to be found in paragraphs 2, 3, 5, 6, 16, 46, 57 and 82 of the Grounds of claim.[69]Looking at those paragraphs in detail, the Tribunal finds that: - Paragraph 2 referred to fraud and the alleged practice of signing, by a non-claims administrator, “on warranty work claiming financial ultimate from a third-party insurance company”. Paragraph 3 referred to “management instructing/advising team to issue end of month invoices to incorrect accounts for unauthorised transactions; to achieve labour sales target for the previous month thereby creating fabricated labour sales figures and achieving a bonus for branch staff”. Paragraph 5 referred to management indirectly encouraging the team to change customer email addresses so that the positive and negative customer service scores would be misdirected. This it stated would create a false or fabricated customer satisfaction result which could result in staff getting ‘unethical’ bonuses.[70]Paragraph 6 contained the Claimant’s allegation that staff were encouraged to lie to customers to get good scores over the telephone on feedback calls.[71]In Paragraph 16 he referred to concerns about Health & Safety at work being totally ignored, where there has been breach of H&S, PPE, and a possibility of a COSHH. He stated that this remained an outstanding health concern at the branch.[72]The Tribunal did not have possession of a document with paragraphs 46, 57 or 82 but from the further details provided by the Claimant in his particulars of protected disclosure document, it is likely that those paragraphs referred back to the allegation of fraud in relation to the signing of warranties, which was already pleaded in Paragraph 2.[73]The Claimant relies on a conversation he had on 12 July as the protected disclosure which triggered his suspension and subsequent dismissal. It is on this potential disclosure that his complaint of automatic unfair dismissal would therefore rely. This was apparently a conversation around the issue raised in paragraph 2. The Tribunal did not hear any evidence on whether the parties agreed that there had been a conversation on that day or what had been said during it. Analysis in relation to the discrimination complaints[74]The Claimant made complaints of disability discrimination by failure to make a reasonable adjustment, Direct disability discrimination, disability discrimination by harassment, race discrimination by harassment, and direct race discrimination by his claim form submitted on 29 January 2019.[75]The last alleged act of discrimination is the Respondent’s alleged refusal to allow the Claimant to be accompanied by someone from Mind/NHS Trust at the appeal hearing which the Claimant referred to as having happened on 14 September 2018.[76]Time starts to run in relation to his discrimination complaints from 14 September 2018. He began early conciliation on 20 September; Day A was therefore 21 September. The conciliation certificate was issued on 16 October 2018 which was therefore Day B. There were 26 days between Day A and Day B which added to the primary time limit would make the end of that time limit, 8 January 2019. The Claimant does not get the benefit of the section 207B(4) extension as the revised limitation date is already more than one month after Day B. The Claimant’s ET1 complaint form was accepted by the Tribunal on 29 January 2019 making the discrimination complaints 21 days out of time.[77]The Claimant suffered from significant mental impairment during the time following his dismissal and during the time when these claims should have been filed. His condition deteriorated in stages. It was submitted that he should have referred himself to his GP and that as he had less recorded visits to his GP around this time that was proof that he was simply careless about his application. That presupposes that a deterioration in mental health is a linear experience that can be tracked and that a person would be aware of and could catch before it became debilitating. It would appear from the Claimant’s experience that it is not so. The Claimant clearly considered that he could manage the claim form on his own but then found it difficult to get his head around completing the Grounds of Claim, navigating the ET1 form and the website and working out the revised time limit for submitting the form.[78]At all times the Claimant wanted either his job back or to bring a complaint at the Employment Tribunal. He was clear about that from the date of his dismissal and asked the trade union representative about it at that time. He remembered that the time limit was for three months, less one day and that is noted in his correspondence with the Respondent.[79]In considering whether it is just and equitable to extend time in this matter, the Tribunal considered the prejudice to the Claimant of not extending time.[80]The Claimant would have nowhere else to take the discrimination complaints if time were not extended. His failure to get the claims in on time relate to significant deterioration in his mental health at the time of the failure of his appeal and the ending of the ACAS conciliation process.[81]The Tribunal also considered that the prejudice to the Claimant outweighs that to the Respondent in allowing the claims to go ahead as since the Respondent has known about these since the grievance was issued, although there would be prejudice as it would have to defend claims it otherwise would not have, that is outweighed by the prejudice to the Claimant. The Tribunal is not able to assess the strength of the complaints because we did not go into the allegations themselves at the hearing.[82]It was not that the Claimant did not know that he had a cause of action because he knew and was acutely aware of the comments that he says were made in the office and the Respondent’s treatment of him which he considers to be discriminatory. The difficulty was the mental impairment which he suffered from and which is likely to have worsened at the time of his dismissal and upon receipt of the notification of the appeal outcome and the failure of the ACAS conciliation process. It is likely that this why the claims were issued late rather than any deliberate failure on his part to pursue his complaints or of him being reckless in completing forms on time. The Claimant did take action. He began to complete the ET1 form a few weeks after receipt of the conciliation certificate in October. He was not laid back about it. It was not simply a case of him failing to take action. It was that, given his difficulties with thinking clearly, understanding, cognition and his lack of knowledge in terms of the time limits, his low mood, lack of sleep, anxiety and medication - he found it extremely difficult to take action in a timely manner.[83]Therefore, in this Tribunal’s judgment, considering all the relevant factors and in particular, the Claimant’s mental ill-health at the end of 2018; it is just and equitable to extend time to allow the disability and race claims to be considered. Amendment application[84]The Tribunal then proceeded to consider whether the claim should be amended to allow the Claimant to add complaints that his dismissal was automatically unfair contrary to section 103A of the Employment Rights Act because it was on the ground or principally on the ground that he made protected disclosures and/or for something arising in consequence of his disability, specifically, not keeping up with his excessive workload.[85]Firstly, was it reasonably practicable that he could have brought the section 103A claim in time? Analysis – Dealing firstly with the complaint of unfair dismissal[86]It is clear to this Tribunal that the Claimant has been unwell and suffering from mental health impairment since 2010. The Claimant was finally diagnosed with PTSD, persistent depressive disorder and anxiety and was in receipt of CBT which was helping him in late 2017/early 2018. That came to a premature end when he secured employment with the Respondent in May 2018.[87]Unfortunately, symptoms of his condition re-emerged or became more pronounced during this employment and it is likely that those increased on his dismissal. The Claimant was able to advocate for himself as part of his appeal – with the assistance of his union representative - and also while at work and during his dismissal. That suggests that his mental health was better at that time. He had what turned out to be false hope that his appeal would be successful and/or that the ACAS process would result in his returning to work. When neither of those were successful, his mental health deteriorated and contributed to his confusion about the revised deadline for issuing his claim and even thinking through the process of getting assistance with working that out. He did not have any assistance and felt unable to access help, which resulted in him struggling to complete his ET1 form for around three months. At the end of that period, on 29 January 2019, his claim was submitted to the tribunal service.[88]The delay in the claim being submitted stems from the Claimant’s mental illhealth. In relation to the automatic unfair dismissal complaint – the issue is that having ticked the box to indicate that he wanted to complain about unfair dismissal and that he wanted his claim form sent to the authorities dealing with whistleblowing claims and having raised the issue of whistleblowing with the Respondent in correspondence, he failed to refer to ‘whistleblowing’ in the narrative of the Grounds of claim.[89]However, the Grounds of complaint do refer to the substance of the disclosures he now relies on although they are not labelled as such. It was submitted on his behalf that he was likely under the impression that he had made a whistleblowing claim. It is likely that he considered that the reference to fraud in paragraph 2 of the Grounds of Claim and ticking the box to indicate that the form should be sent to the authorities were sufficient to raise the claim.[90]However, in the claim form he does not refer to speaking to anyone. He makes no allegation that he made a disclosure on 12 July. That is a detail provided in the particulars provided on 15 May 2019.[91]Looking at the factors identified in Keeble it is this Tribunal’s judgment that the Claimant had not been misled by the Respondent and had been in no doubt of the date of his dismissal or that his appeal and the ACAS conciliation process had failed. He knew that he wanted to bring a complaint alleging that his dismissal was related to him blowing the whistle as he had already asked the Respondent for the policy and considered that the Respondent had taken against him for raising the issue while at work. In his correspondence with the Respondent he referred to the close proximity of his suspension after the last alleged disclosure of 12 July.[92]The Claimant was always aware of the three-month deadline and had been so aware from the date of his dismissal. He initially sought advice from the union but did not seek advice thereafter.[93]Allowing this amendment would not be simply a relabelling exercise. Further details would be required to paragraph 2, 3, 5, 6 and 16. The complaints the Claimant wants to bring are very different to his existing claims as there is a different statutory basis for them. As the Claimant had not been employed for 2 years with the Respondent, the Tribunal would not have considered his dismissal with the claim as presently drafted. Allowing this amendment would require the Tribunal to have to determine whether there had been protected disclosures and if so, whether the dismissal was on the grounds of any of those disclosures.[94]As already stated, the Claimant initially delayed issuing the claim as he was pursuing his appeal with the assistance of the union and hoped that it would be successful and he would regain his employment with the Respondent. He was keen to get his job back. At the time that he pursued his appeal against dismissal and entered into the ACAS conciliation process, he was hopeful that he would be able to return to his employment. When it became clear that he would not be allowed to return to the Respondent he found this difficult to accept. He had devoted all his time and effort to resolving the situation with the Respondent. Once he was realised that that was never going to happen, his evidence was that his state mind at the time became really negative and that he did not have a lot of positive in him or around him at the time. I conclude that his mental ill-health deteriorated further once his appeal against dismissal failed and the ACAS process failed to reach a compromise which would have seen him returning to work.[95]Dr Okun commented on the effect of the Claimant’s deteriorating mental health on his ability to meet deadlines and to keep appointments. This effect can be seen in his inability to get his head around the revised deadline for issuing his claim form.[96]It is likely that at the beginning of the three-month period following the date of his dismissal he was keen on returning to work and possibly optimistic about that. He would have been less so towards the end of the period. The appeal outcome was given to him by letter dated 27 September 2018. He then pinned his hopes of returning to work on the ACAS process. Once that failed in October, the Claimant would have been clear that there were no further processes that could see him return to work for the Respondent and that adversely affected his mental health further. It is likely that his depression worsened and he was unable to complete the remaining tasks of completing his ET1 and submitting it within the time limit.[97]Even when he did submit his ET1, he did not indicate clearly that he wanted to bring a complaint of whistleblowing and that his dismissal was automatically unfair because of his making protected disclosures.[98]As already stated, the Claimant’s ET1 complaint form was accepted by the Tribunal on 29 January 2019 but although the unfair dismissal box was ticked an identifiable unfair dismissal complaint was not made out until the Claimant submitted the application to amend to allege automatic unfair dismissal in breach of section 103A Employment Rights Act on 15 May, 178 days out of time.[99]Since it is more likely than not that the Claimant was suffering from significant mental impaired during the period of October to January, it is this Tribunal’s judgment that it was significant enough to make it difficult for him to have issued his automatic unfair dismissal claim within the revised time limit which ended on 8 January. It would not have been reasonably practicable for him to have done so.[100]The Tribunal had less information from the Claimant on the period January to May 2019.[101]The question for the Tribunal was whether the Claimant should be allowed to amend his claim to include the automatic unfair dismissal complaint.[102]The balance of prejudice would weigh heavily against the Claimant if he were not allowed to bring this complaint as there would otherwise be no consideration of the termination of his employment and how it related to these issues he raised with the Respondent’s managers, if indeed he did raise them. The Tribunal makes no judgment on whether they are protected disclosures and we did not discuss in the hearing whether the Respondent accepts that these issues were raised at the time. The Claimant did ask for the Respondent’s whistleblowing policy in correspondence so the Respondent would have been aware that he was thinking about whistleblowing sometime before he issued the claim.[103]The prejudice to the Respondent is that it would have to respond to a claim that it had not faced before this amendment. The Respondent will be given time to respond in detail to the complaint as set out in the Claimant’s further particulars filed on 15 May 2019.[104]On consideration that the Claimant always intended to bring a complaint of automatic unfair dismissal on the grounds that he had made protected disclosures; that he had been suffering from increased mental impairment at the time that that the time limit expired in January and that he thought he had brought a whistleblowing claim because he had ticked the box and referred to the substance of the disclosures in the narrative of the claim form; this Tribunal grants the Claimant permission to amend the claim to add the claim to add the automatic unfair dismissal complaint.[105]The Tribunal has not considered whether all the alleged disclosures that the Claimant seeks to rely on could or would be disclosures. The main disclosure relied on seems to be that made in the conversation on 12 July. The Respondent will have some time to respond to them. The Tribunal has already stated that it did not have any potential disclosures in paragraphs 46, 57 or 82 of the ET1 Grounds of Complaint but the Respondent will need time to respond to those potential disclosures discussed above and referred to at paragraphs 2, 3, 5, 6 and 16. Analysis - the section 15 Equality Act 2010 - discriminatory dismissal complaint[106]Unlike the complaint regarding protected disclosures which the Claimant attempted to put in the claim form, there was no hint of the section 15 discriminatory dismissal complaint in the existing claim form.[107]In the claim form the Claimant discussed his concerns about discriminatory comments and practices at the Respondent as well as the practices he saw at work which gave him cause for concern and which he said that he tried to raise with his managers. It is his case that he was dismissed because of raising those concerns.[108]At the hearing before EJ Ross the Claimant submitted that the complaint was contained within paragraph 18 of the Grounds of Complaint attached to the ET1 claim form. That paragraph referred to the Claimant being given around 18 jobs to do, without warning on the day after the Croatia v England football match. He complained that this was done without adequate system training, or adjustment to his display screen and that he had not been allowed a reasonable period of time to get used to a new role. He then went on in paragraph 20 to discuss racism.[109]EJ Ross stated that he found nothing in paragraph 18 that suggested that section 15 Equality Act was being relied on. This Tribunal agrees.[110]I considered the balance of prejudice in allowing or not allowing this complaint to proceed. I considered that if it was not allowed to proceed the Claimant would still have opportunity to have his complaints of discrimination on the grounds of his disability considered by the Tribunal. I considered that the allegation that his dismissal was on the grounds of his disability seemed to be an afterthought as it is not hinted at or referred to even obliquely in his grounds of complaint or in his correspondence with the Respondent after his dismissal. I considered that his complaint that his dismissal was unfair because it was connected or on the grounds that he had made protected disclosures was stronger and although not set out clearly in the ET1 was in his mind at the time he drafted the documents. The section 15 claim does not appear to have been.[111]On this occasion, in this Tribunal’s judgment the prejudice to the Claimant is outweighed by that to the Respondent of allowing this complaint to proceed when it is entirely new and not something the Claimant considered until much later.[112]In those circumstances, the application to amend the claim to include it is refused.[113]The Claimant’s following complaints will proceed to a final hearing. Complaints of:a. Disability discrimination by failure to make reasonable adjustment (section 20 – 21 Equality Act 2010 (EqA))b. Direct disability discrimination (section 13 EqA)c. Disability discrimination by harassment (section 26 EqA)d. Race discrimination by harassmente. Direct race discriminationf. Automatic unfair dismissal in breach of section 103A ERA ORDERS Employment Tribunal Rules of Procedure 2013
Findings of fact
[1]The parties are to agree a list of issues and send those in to the Tribunal with a list of dates to avoid for the period to 1 September 2020. They are to do this by 15 January 2020.[2]The Tribunal will list this matter for a 5-day hearing once it has received dates to avoid from the parties. Parties can comment on whether they consider that this is an appropriate listing for this matter.[3]The Tribunal will also list a telephone case management hearing to consider what further case management orders are required to manage this case to the hearing and to make necessary orders.
Findings of fact
[1]The claim of harassment related to disability succeeds in respect of a comment by Mr D Jones as set out in paragraph 2.1 of the list of issues.[2]The claims of harassment related to disability in allegations 2.2 and 2.3 fail and are dismissed.[3]The claim of failure to make reasonable adjustments contrary to Section 20 and Section 21 of the Equality Act 2010 fails and is dismissed.[4]The claims of direct disability discrimination and direct race discrimination fail and are dismissed.[5]The claim of harassment related to race fails and is dismissed. The Claimant did not make a protected disclosure.[7]The sole or principal reason for dismissal on 18 July 2018 was not a protected disclosure. The unfair dismissal claim fails and is dismissed.[8]The Claimant is awarded the sum of £4,000 as compensation for injury to feelings in respect of the single act of harassment which has succeeded.[9]The Claimant is awarded £676.92 by way of interest on the injury to feelings award (110 weeks @ 8%).
Findings of fact
[1]Did R fail to make reasonable adjustments under section 21 of the Equality Act 2010 for C's disabilities of depression and anxiety in the following respects: i) by failing to ensure that he was not subject to stress in the workplace through its staff adopting the deceitful practices as set out at 2-6 of ET1? The Provision, Criterion or Practice (PCP) was allowing these practices to continue when R knew or should have known that it would cause C more stress than a non-disabled person, because of the need for those with anxiety and depression to keep interactions with customers simple, truthful and straightforward? ii) on 12.7.18 (day after Croatia v England World Cup match) giving C 18 jobs to do instead of the average 10-13 jobs. The PCP was expecting and requiring C to do an excessive number of jobs when it knew or should have known that overworking C, especially when he had not been adequately trained on the computer system, would leave C to suffer undue stress, with the effect of exacerbating his mental health conditions (para 18 ET1) iii) failing to give C another display screen to use, when C had expressed his difficulty with reading, concentrating and understanding the display screen (para 19 ET1). The PCP was requiring C to use the particular display screen when due to cognitive impairment arising from his mental health conditions, C was having difficulty using the screen. iv) failing to accede to C's request for a mental health advocate from the NHS Trust or Mind, to help him at hearings considering his dismissal (para 73 ET1). The PCP was expecting C to be able to present his case at his capability hearing without a mental health specialist to assist him, when his disabilities of depression and anxiety meant that he could not organise or present his case as effectively as a non-disabled person. The mental health advocate would have understood how this impacted on C and assisted him. Harassment on the grounds of his disabilities[2]Did R engage in wanted conduct which had the purpose or effect of violating C's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him on the ground of his disabilities contrary to s. 6 and 26 Equality Act 2010 and taking into account C's perception, the other circumstances of the case, and whether it would be reasonable to make that finding, in the following respects: i) David Jones mocking and laughing at C in front of the Advising Team when C made a request to adjust his display screen, then replying that this was a request for R's 'Disabled Employee Adviser' (para 13 ET1)? ii) On 10 July 2018 Lauren Murray saying to C "The way you were looking at Dave, seemed like you were about to go at him" (implying that C was going to physically attack Dave) (para 33 ET1)? iii) Management saying to C on two occasions: "you look like you 're on drugs" (para 34 ET1)? Direct disability discrimination[3]Did R treat C less favourably on the grounds of one or more of his disabilities contrary to sections 6 and 13 Equality Act 2010 by: i) on 24.8.18 Tanya Rampling of HR at the appeal hearing, pointed her finger at C in an abrupt manner saying "You need to calm down, I can end this meeting if I want to" and unjustifiably accusing C of being aggressive (paras 49-50 ET1); ii) Mike Sandle at the adjourned appeal hearing stating that if C was challenging the accuracy of the Respondent's minutes, the entirety of the document would be inadmissible. When C indicated that it was only certain paragraphs which were questioned, Mike Sandle said in a frustrated way "What are you saying, are they correct or not?" (para 54 ET1); iii) when C looked at his union representative (Norman) in surprise at Mike Sandle's manner, Mr Sandle shouted "You can't look at Norman, why you looking at Norman?" Racial harassment[4]Did R engage in wanted conduct which had the purpose or effect of violating C's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him on the ground of his Asian ethnicity contrary to section 9 and 26 Equality Act 2010 and taking into account C's perception, the other circumstances of the case, and whether it would be reasonable to make that finding by: i) Scott making a threatening comment about C in C's earshot on 12.6.18 (should be 12.7.18) "People like that should be taken outside and be punched up" (para 17 ET1)? ii) Lauren Murray expressing her disgust towards an Asian customer in front of the whole team including C saying "Who does that customer think he is?" following her recounting a conversation when they had exchanged pleasantries about how each of them were and whether she could help him. C believes this derogatory comment was on the grounds of the customer's Asian ethnicity, who was of the same ethnic background as C (para 22 ET1)? iii) Jhonny P saying that he couldn't or wouldn't deal with a customer because it raised his blood pressure, when this customer was of Asian ethnicity (para 23 ET1)? iv) When C approached Scott for assistance, he responded "what does he fucking want? What's his problem?" (para 27 ET1)? v) On 10 July 2018 Lauren Murray saying to C "The way you were looking at Dave, seemed like you were about to go at him" (implying that C was going to physically attack Dave) (para 33 ET1)? vi) Management saying to C "you look like you' re on drugs" (para 34 ET1)? vii) By David Jones performing a Nazi salute whilst saying "Heil Hitler" in the office in front of C and his colleagues (para 78 ETl)? Direct race discrimination[5]Did R treat C less favourably on the grounds of race contrary to sections 9 and 13 in the following respects? i) On 24.8.18 Tanya Rampling of HR at the appeal hearing, pointed her finger at C in an abrupt manner saying "You need to calm down, I can end this meeting if I want to" and unjustifiably accusing C of being aggressive (paras 49-50 ET1); ii) Mike Sandle at the adjourned appeal hearing stating that if C was challenging the accuracy of the Respondent's minutes, the entirety of the document would be inadmissible. When C indicated that it was only certain paragraphs which were questioned, Mike Sandle said in a frustrated way "What are you saying, are they correct or not?" (para 54 ET1); iii) When C looked at his union representative (Norman) in surprise at Mike Sandle's manner, Mr Sandie shouted "You can't look at Norman, why you looking at Norman?" Automatically unfair dismissal by reason of making a protected disclosure[6]Did C make qualifying protected public interest disclosures during his employment? The Claimant relies upon the five disclosures identified at pages 37-41 of the bundle, in summary: i) On or about 29 June 2018, orally to Mr David Jones; the practice of closing down items was wrong; breach of legal obligation and/or criminal offence; ii) On 27 June 2018; orally to Ms Lauren Murray; the instruction to be creative with the truth about repair to a delay was wrong; breach of legal obligation. iii) On 25 June 2018; orally to Mr David Jones, the instruction to change customer email addresses in order to avoid negative feedback was wrong; breach of legal obligation; iv) On 30 June 2018; orally to Scott and Mr David Jones; staff in the repair workshop were not complying with health and safety requirements in various respects; v) 12 July 2018; orally to Mr David Jones and Ms Lauren Murray; the practice for signing warranty folders was wrong; breach of legal obligation.[7]Was the sole or principal reason for C's dismissal on 18 July 2018 that he had made the disclosure at paragraph 6(v) (s.103A ERA 1996)? Time limits[8]Does the Tribunal have jurisdiction to consider any or all of C's Equality Act claims taking into account of s.123 Eq Act 2010?[9]Do any of R's acts amount to an act extending over time?[10]If the Tribunal finds that any of C's claims were not submitted within the appropriate time limit, would it be just and equitable to extend time? 3 In closing submissions, the Claimant conceded that only the fifth alleged protected disclosure was relied on as the sole or principal reason for dismissal. Although the other alleged disclosures were not withdrawn the Tribunal did not consider it necessary to make findings of fact on them in order to decide the issues before us. The Claimant withdrew the reasonable adjustments claim in respect of paragraphs1.1 and1.2 of the list of issues; the claims at paragraphs1.3 and1.4 were maintained. On behalf of the Respondent, Mr Willey confirmed the earlier Judgment of Employment Judge Jones had decided the time limit issues. These issues are accordingly struck through in the list set out above. 4 The Tribunal heard evidence from the Claimant on his own behalf. For the Respondent, we heard evidence from Ms L Murray (After Sales Manager), Mr D Jones (Former Senior Service Team Manager), Mr W Ahmed (Senior Service Team Manager), Mr A Kapetanou (Service Advisor), Ms F Davidson (HR Business Partner), Ms D Burchfield (Warranty Administrator), Mr J Piccou (Service Controller), Mr P Cartmell (Group Warranty Manager) and Mr M Sandle (Group Used Car Sales Manager). 5 We were provided with an agreed bundle of documents and further supplementary documents which became relevant during the course of the evidence. The Tribunal decided to admit some correspondence relating to a safety recall audit in 2016, as it appeared to us to be relevant to the issues in dispute and proportionate to do so. We read those documents to which we were referred during the course of the evidence. Findings of Fact 6 The Respondent is a member of a group of companies providing sales and servicing for Mercedes-Benz vehicles within the United Kingdom. It includes a MercedesBenz dealership in Stratford, East London which deals exclusively with after sales servicing of passenger cars and light commercial vehicles, including routine servicing, repairs and MOT testing. There were approximately 45 – 50 employees with a further 8 – 10 contractors working at Stratford, managed by Ms Lauren Murray. None had a disability. Mr David Jones, the Senior Service Team Manager, reported to Ms Murray at the material time. 7 In or about April 2018, the Claimant applied for the role of Service Adviser at Stratford. Ms Murray and Mr Jones interviewed him on 17 April 2018. The Claimant provided proof of identity which was signed by the Dealership Administrator, Ms Ainger. An offer of employment was made to the Claimant on 24 April 2018. His starting salary was £30,396 and, as for all employees at Stratford other than the receptionist, he was entitled to a significant percentage of his base salary by way of bonus if certain performance targets were achieved. The bonus was payable monthly in arrears with a quarterly element for the achievement of departmental target. The bonus strongly incentivised employees to maximise profit at Stratford. 8 In preparation for commencement of employment, on 24 April 2018, the Respondent’s central HR Department sent the Claimant a number of important documents. These included the contract of employment, a form for bank account details and an equal opportunity monitoring and reasonable adjustment sheet. The Claimant’s evidence is that he completed the forms, signed them and returned them by post. When chased by HR who said that they had not received the documents, the Claimant says that he scanned them and handed a copy to the Stratford reception. The documents included the equal opportunity and reasonable adjustment sheet in which he stated that he considered that he had a disability, namely cognitive mental health, chronic spinal condition, PTSD and anxiety, was receiving ongoing psychological treatment. He identified reasonable adjustments of a phased return to work, time off for psychology appointments, special care in social/work relationships, phased training and an adapted display screen. The Respondent’s evidence is that whilst the contract and employment documents such as bank details were received, it has no record of the equal opportunities monitoring form or reasonable adjustments form on its system. It maintains that these documents were not returned by the Claimant. 9 In order to resolve the dispute of evidence, the Tribunal had regard to the limited contemporaneous documents. The emails show that HR chased the Claimant for return of the documents on 26 April 2018. The Claimant responded by email the same day: “I have accepted the offer and will sign and send copy back ASAP”. The Claimant was chased again by HR on 3 May 2018. He replied the following day, copied to Ms Murray and Ms Ainger, stating that the contract had been signed, would be with them shortly and he would send a scanned copy. The Claimant did not refer to documents other than the contract nor has he provided a copy of the email showing which documents were in fact attached. Ms Murray responded thanking him for returning the documents. The Tribunal does not accept that this is indictive of Ms Murray having read the documents, she was simply acknowledging their return to HR. Moreover, on balance, the Tribunal finds that Ms Ainger would have forwarded any documents received from the Claimant to central HR, just as she did with the proof of identity obtained at the interview. We find that the equal opportunities and reasonable adjustment documents were not handed to Ms Ainger. 10 The Respondent’s screen print of the Claimant’s employment record is included in the bundle; it contains no record of disability. The Tribunal accepted the Respondent’s evidence of its procedure for processing employee information. The content of paper records is uploaded onto the digital file by a member of the central HR team and is double-checked by another HR administrator. It is a robust system. The purpose of the information about disability is to enable a referral to Occupational Health if appropriate. The Claimant accepted in evidence that there was no reason why the central HR team would deliberately fail to record information which it had requested. On balance, we find that the documents were not received by the Respondent – if they had been, they would have been uploaded on to the system.
Findings of Fact
[11]The Claimant’s employment started on 29 May 2018. Although the reasonable adjustments form stated that the Claimant required time off for psychologist appointments, the Claimant stopped his CBT treatment early (and by no later than 31 May 2018) as his work pattern did not fit with the session times. The Claimant did not ask Ms Murray or anybody at Stratford for time off to attend the appointments, nor did he contact central HR to pursue the adjustment contained in the form which he says he submitted. At paragraph 33 of her Judgment dealing with time issues, Employment Judge Jones found that the CBT sessions ended prematurely because the Claimant wanted to focus on his new job.[12]In cross-examination, the Claimant accepted that he did not tell the Respondent that he had mental health issues or that his conversation skills were affected by his mental health. He accepted that if he had told Mr Jones, it would have helped but that he was just trying to get on with things at a time when his mental health was deteriorating. On balance, the Tribunal finds that the Claimant was not proactive in disclosing his mental health to the Respondent and did not inform them of any mental health condition or ongoing treatment nor did he provide any information to Ms Murray or Mr Jones from which they might have thought he had problems with his mental health.[13]As shown on his CV, the Claimant had considerable experience working in the motor industry, most recently as a Service Adviser and Administrator for BMW. The Claimant’s evidence is that he was “thrown in at the deep end” with too much work and insufficient time or support to settle into his new job. In fact, Mr Jones spent time with the Claimant in the first couple of weeks explaining the Respondent’s processes and, on or around 5 or 6 June 2018, allocated two other Service Advisers as mentors to him. The Tribunal finds that the Claimant’s mental health was deteriorating, and he was suffering increased confusion, which impacted on his ability to deal with all of the work allocated to him. This in turn led to some frustration on the part of Mr Jones, the supervisors and some Service Adviser colleagues who believed that they had recruited an experienced Service Adviser who would quickly be able to discharge the full range of duties of the role.[14]The working environment at Stratford was robust rather than nurturing. In the probationary review meeting on 17 July 2018, Ms Murray referred to telling the Claimant at interview that Stratford was “an extremely busy and extremely challenging site and customers, we get a lot of shouting customers and the way we are spoken to SA-SSTM are quite astonishing and I cannot stress enough that I didn’t explain this to you and make it clear to all our employers (sic)”. We find that the Service Advisers dealt with this through a mixture of swearing and a sense of “us and them” with regard to customers they perceived as demanding. The Service Advisers were a close knit and established group of employees, some with assertive and strong personalities, strongly motivated to achieve bonuses through performance. The Claimant struggled in this new environment. The Tribunal found him to be a quiet, reflective person who did not fit comfortably into the team dynamic and perceived himself as an outsider. This developed during his short period of employment to the point where he perceived that his colleagues were excluding him (for example from the WhatsApp group) and ganging up against him. This is consistent with the wideranging complaints initially made in the claim, many of which are no longer pursued in these proceedings and were not raised by him contemporaneously.[15]In this context, the Tribunal finds on balance that:(i) Ms Murray said “who does that customer think he is” in front of the team;(ii) Jhonny said that he could not or would not deal with a customer because it raised his blood pressure; and(iii) when the Claimant asked for assistance, Scott replied “what does he fucking want. What’s his problem?”. Such comments are consistent with the robust working environment, antipathy to customers perceived as demanding, irrespective of race, and frustration that the Claimant had not “hit the ground running”.[16]The Tribunal accepted as credible and reliable the Claimant’s evidence that he asked Mr Jones for adjustments to his display screen on two occasions in mid-June. However, the Claimant did not refer to it in his appeal letter on 24 July 2018 and in the ET1, the Claimant does not suggest that he told Mr Jones that he required an adjusted display screen because of his mental health disability. On balance, we find that the Claimant did not explain why he needed the adjustment nor would a request for an adjusted display screen logically suggest a mental health disability. Mr Jones’ response to the Claimant’s request was to laugh and tell him to write down a telephone number, saying that it was for the Respondent’s “disabled employee adviser”. We find that the comment was not malicious and was intended as a joke, consistent with the nature of the workplace. However, it was ill-judged and the Claimant felt humiliated at being mocked in front of colleagues. The display screen was not adjusted.[17]On 11 July 2018, the Claimant was due to start work at 8am but did not arrive until 8:40am. As recorded in an email the same day, Mr Jones was concerned about his appearance, describing him as looking very confused, lost, blank, “spaced out” and dejected. The Claimant was invited to a meeting with Mr Jones and Ms Murray, in her office. The Tribunal accepted as credible and reliable Ms Murray’s evidence that the Claimant’s behaviour in the meeting caused her concern. She described him as having blood-shot eyes, staring fixedly at Mr Jones but not responding to any questions from him. On balance the Tribunal finds that neither Mr Jones nor Ms Murray suggested that the Claimant was on drugs. However, the situation was so tense that Ms Murray asked Mr Jones to leave the office. Once Mr Jones left, Ms Murray asked the Claimant if he was ok and said: “you looked as if you were going to go at him”. We accept that this was said lightly and as a way to break the ice; it was not implying a physical attack by the Claimant as it more plausibly suggested a verbal disagreement. The attempt to defuse the situation worked as the Claimant explained that an issue which had arisen at home had caused him to be late and appear dishevelled. The Claimant was emotional but did not indicate that the comment was unwanted, indeed he thanked Ms Murray for her understanding.[18]Immediately following the meeting on 11 July 2018, Mr Jones sent an email to Ms Murray detailing his concerns about the Claimant’s performance during his brief period of employment to date. The Tribunal finds the contents of the email to be contemporaneous and reliable. The concerns raised were timekeeping, process, customer communication, inability to do more than a very reduced workload, complaints and a failure to engage with mentoring. The process concern arose from the Claimant’s refusal to sign the Warranty Folder checklist as he did not understand why his signature was required despite Mr Jones’ explanation. Mr Jones concluded the email by stating: “I have real concerns over Abdul’s ability as an Adviser and feel that his lack of communication, skill and experience dealing with customers is putting undue stress and pressure on the team. I will forward the notes to Abdul in regard to his one to one chat with me and cc you into them for reference. I will continue to mentor Abdul and try and bring him to the standard the business and customers desire”.[19]Although the notes of the one to one chat were not included in the bundle, the Tribunal accepts on balance that it did occur and that both Mr Jones and Ms Murray had sought informally to address the concerns about the Claimant’s performance which were arising during his probationary period. This is consistent with Ms Murray’s email to HR on 11 July 2018 asking for a probationary review meeting to be convened. Whilst Ms Murray believed that termination of the Claimant’s employment was the likely outcome, it was not at this stage a definite decision and depended on what Claimant said in the probationary review meeting.[20]The process for signing warranty folders was discussed at a team meeting on 12 July 2018. Mr Jones and Ms Murray explained that at the Respondent, it was the job of the Service Adviser to sign the warranty folder to confirm that documents were present. On balance, and for reasons set out below, the Tribunal does not accept that the Claimant said that he was being required to sign to certify that absent documents were in fact present. Instead, the Claimant repeated his belief that the Warranty Administrator should sign – in other words, the information disclosed was about who signed, not what they were signing to confirm or when they were signing.[21]On 12 July 2018, as the Claimant walked into the office, he heard Scott laughingly comment to another Service Adviser that “people like that should be taken outside and punched up”. The comment was not about the Claimant but about a customer. However, the Claimant believed that this was a threatening comment directed at him, he asked “what is the joke” and, when Scott did not respond, said words to the effect of “if anyone has a problem with me, if it needs to be resolved with punching my face in, take it outside the business”.[22]The Claimant’s evidence was that he was not suggesting that he and Scott should fight, rather that Scott should keep any personal dislike of the Claimant out of the workplace. The Respondent’s case is that the Claimant’s comment was an invitation to Scott to engage in a fight, that the Claimant had thrown a job pack containing customer car keys to the floor and walked out, whereupon Scott attended Ms Murray’s office “literally shaking”, as she put it.[23]Ms Murray took no contemporaneous note of the comments said to have been made by the Claimant. She did not interview anybody who was present, no notes were taken of any discussions which took place. Mr Kapetanou witnessed the incident. In his evidence to the Tribunal, he said that he was more concerned that the Claimant seemed so upset and did not refer to any threatening or aggressive behaviour by the Claimant, whom he described as generally a quiet person. This is consistent with our finding that the Claimant is by nature quiet and reflective. The Tribunal finds that the Claimant was upset and emotional, but not aggressive, when he made the comment to Scott.[24]The Claimant was suspended. The letter inviting him to a probationary review on 18 July 2018, listed the following as topics to be discussed: alleged aggressive behaviour to a colleague on 12 July 2018, being late without following proper procedure, refusal to follow the correct process in regard to completing and signing the Warranty Check List Folder, failing to follow proper process regarding customer complaints, concerns about the volume of work being undertaken, leaving a customer unattended, refusing to engage in mentoring training and repeated customer complaints.[25]The probationary meeting took place on 18 July 2018; notes are included in the bundle. The meeting discussed the Claimant’s suspension and some of the issues that had arisen during his period of employment using his prior letter as a template for discussion. The Claimant did not challenge Ms Murray’s assertion that they had previously spoken about these issues, consistent with our finding that there had been earlier informal discussions. Ms Murray set out the account of the office incident as relayed to her and the Claimant explained that he had reacted as he did because he did not feel included. There was no significant exploration of what was said or why it was said. In his letter, the Claimant had complained that other employees were aggressive to keyboards, smashing them or throwing them around with aggression. Ms Murray rejected this without apparent investigation.[26]In his letter the Claimant had alleged fraud under the previous manager, Frank. At the meeting, Ms Murray acknowledged that there had been fraud but said: “if we took everyone’s bonus back off of them for what we paid for our warranty audit last year, people would not have earned money”. In cross-examination, Ms Murray gave a spontaneous and credible explanation of the financial impropriety. Namely, Frank allowed significant amounts of work in progress which should have been at the expense of the branch to remain unbilled. If such work, for example accidental damage at the fault of the branch, had been billed it would have reduced the profitability and consequently the staff bonus. £30,000 was subsequently written off but there was no attempt to recover the inflated bonus from Stratford staff. This was the fraud and comment about people earning more when managed by Frank to which Ms Murray was referring. Her reference to a warranty audit was a mistake because, as confirmed by the evidence of Mr Cartmell, there was no warranty audit other than the safety recall in either 2016 or 2017. The safety recall audit did not have any financial cost to the Respondent as, despite an intention to debit the branch, Mercedes Benz ultimately did not do so. Overall, we find the parties were at cross purposes on this point and we do not draw any negative inference from Ms Murray’s choice of words.[27]Ms Murray sought to confirm that the Claimant’s reason for not wanting to sign the back of the Warranty Folder was because he felt that a Warranty Administrator should do it. The Claimant replied that he had not understood the process, confirmed that it had now been explained and said: “I think I was just being over critical on that procedure but understand not [sic] and will follow it”. The Claimant did not say in this meeting that he had protested to Ms Murray or to Mr Jones about being asked to sign blank warranty folders. The Tribunal considers that if he had raised this issue on 12 July 2018, as he asserted in evidence, then the Claimant would have expressly mentioned it at the probationary review meeting.[28]The meeting discussed the Claimant’s time keeping and Ms Murray referred to the earlier meeting on 11 July 2018, suggesting that the Claimant had stared at Mr Jones as if he were struggling to hold back from saying something and had refused to answer his questions. The Claimant explained that he had not answered because Mr Jones had asked in front of everyone in the office and he did not feel comfortable giving the reason for his lateness on that occasion. This is consistent with our finding that Ms Murray’s comment on 11 July 2018 referred to a verbal rather than physical disagreement. Having discussed the issues set out in the invitation letter, at the end of the meeting, Ms Murray told the Claimant that his employment was terminated because of his conduct.[29]The subsequent letter confirming dismissal stated that the reasons for dismissal were aggressive behaviour to a colleague, failure to follow company processes or management instruction, customer service skills and work levels not being at an acceptable standard. The Claimant was paid two weeks in lieu of notice and advised of his right of appeal.[30]Copies of the meeting notes were enclosed. The Claimant made some comments and amendments to the notes. On the section of the notes dealing with the warranty folder check list, the Claimant wrote that he fully understood what it was by reason of his previous experience when working in a warranty role but he did not make any amendment tending to suggest that he had been instructed to sign a blank folder. The Tribunal find that this allegation was first made by the Claimant during his subsequent appeal and that the Claimant had not protested to Ms Murray in June or July 2018 about being asked to sign empty warranty folders.[31]The Claimant’s letter of appeal dated 24 July 2018 is 12 pages long and takes issue with the reasons for dismissal. The Claimant alleged offensive and aggressive behaviour by Scott to himself and other colleagues. He gave examples of poor customer service by various colleagues. This was the first time that the Claimant suggested that customers of different ethnic origins were perceived as aggressive, indeed in his 19 July 2018 email to Mr Sandle, the Claimant made a general allegation that his former colleagues slandered customers. The Tribunal consider it significant that even in this appeal letter, the Claimant does not suggest that Ms Murray’s comment about a customer was because of race.[32]In his appeal letter, the Claimant referred to the “spaced out” and “on drugs” comments relied upon in these proceedings as being highly offensive, degrading and discriminatory. He stated that “my mental health disability, its influence on my personality traits should have been acknowledged and considered a bit in the workplace” and that Ms Murray had not accommodated his condition as requested in forms submitted when his employment started. Later in the letter, the Claimant stated: “The fact that she judged this as an attitude issue is … a confirmation that she failed to understand my personality, mental health condition and characters traits, which is neither abusive, aggressive or violence but perhaps personality condition, which are protected under the disability discrimination and equality act 2010.”[33]Under the heading “management instruction and company process”, the Claimant first made the allegation about signing blank warranty folders. He did so in the following terms: “I raised awareness in the business that it was not correct company process for the Advisers to pre-sign a blank Warranty Folder. I was demonstrated this and instructed to do so by Management before passing the job over to Warranty Department, I was advised that Mercedes Benz Warranty as it was retail group (not franchise) was more relaxed than BMW and not to worry about this (they have blank cheques).” The Claimant set out his belief that it was for warranty administrators to close the job, seal the folder, sign that the warranty folder to confirm that all documents are present and correct. He relied upon an amendment to the folder to include a signature box for the warranty team as an acknowledgment that it was incorrect for Service Advisers to sign-off warranty folders. The Respondent denies that there was any amendment to the folder; the process was that the Warranty Administrator would initial the folder when the warranty claim was processed.[34]The appeal hearing took place on 24 August 2018 at 10.30am. It was heard by Mr Mike Sandle with Ms Rampling attending on behalf of HR. The Claimant did not request a mental health advocate but was accompanied by a Trade Union Representative.[35]The hearing did not start well. Mr Sandle told the Claimant that he had not read all of his 12-page letter of appeal sent just after 6am that morning and maintained that by including customer names, the Claimant had breached GDPR rules. In evidence, Mr Sandle accepted that he had not read the appeal letter properly as it had been provided late and as a result had not noted the Claimant’s references to his mental health.[36]From the notes, it is evident that the nature and tone of the appeal hearing became increasingly confrontational and the Claimant was frustrated as he felt that his issues were not being properly considered. When discussing the incident with Scott, the Claimant said that he felt that Mr Sandle and Ms Rampling were not seeing his side of the events, that they had not read the whole appeal and suggested that they might need to adjourn to do so. Ms Rampling replied: “you will need to calm down and listen or otherwise I will have no other option other than to end this meeting due to your behaviour now. (Interruption – aggressive stance).” Mr Sandle intervened to ask everyone to stop talking over each other and described the Claimant as being clearly emotional. The Tribunal accepts that the words in brackets were included to record the demeanour of the Claimant at that stage in the meeting. This is not unusual as the words alone may be insufficient to convey the way in which they are spoken. On balance, the Tribunal finds that the Claimant was emotional and frustrated which was perceived as an aggressive stance although we accept that he was not being physically aggressive in the hearing.[37]The tone of the hearing became more hostile when the Claimant challenged the accuracy of the notes of the probationary meeting in respect of the warranty folder. Mr Sandle and Ms Rampling’s response was that this was not in the letter of appeal and the Claimant could not challenge only part of the notes - essentially, he either accepted the entirety of the notes or they should be entirely disregarded. The Tribunal accepts that Mr Sandle spoke to the Claimant in a frustrated manner when he asked the Claimant whether he was saying that the notes were correct or not. This is consistent with the sense of irritation shown in cross-examination about the late provision of the comments and his belief that the Claimant was selectively challenging only those points which showed him in a bad light. When the Claimant turned to his Trade Union representative for advice on whether to maintain his accuracy challenge, Mr Sandle told him that Norman, his representative, could not make the decision for him. The Claimant did not understand what they were asking him and, it is this context, that Ms Rampling again told him to calm down. On balance, we find that both Mr Sandle and the Claimant were speaking with raised voices by this point.[38]The Tribunal finds that the approach of Mr Sandle and Ms Rampling was unnecessarily confrontational and was not constructive. It is not unusual for the accuracy of notes of a hearing, whether it be disciplinary, grievance or otherwise, to be challenged in part and there is no logical reason why there should be such an “all or nothing” approach. The Claimant was not being aggressive but was aggrieved by what the Tribunal finds to be the hostile manner of Mr Sandle and Ms Rampling. The Claimant did not return after the short break taken at 12.30pm and the hearing was adjourned.[39]Attempts were made to reconvene the appeal hearing. In his correspondence, the Claimant expressed his profound unhappiness and belief that he had not had a fair appeal hearing. In his email sent on 10 September 2018, the Claimant said that the unfair and biased procedure had aggravated his mental health condition and that he now needed “advocacy intervention with the matter at hand”. This was the first time that the Claimant had informed the Respondent that he required assistance from a mental health advocate.[40]In a letter dated 11 September 2018, the Claimant set out his concerns with the accuracy of the notes of the previous hearing. The Claimant also made further allegations about the conduct of his former colleagues and, for the first time, alleged that Mr Jones had performed a Nazi salute whilst saying “Heil Hitler” in the office in front of the Claimant and his colleagues. In evidence the Claimant maintained that the comment and gesture were made; the allegation was not put to Mr Jones in cross-examination, but the Respondent’s case is that no such conduct occurred. The Tribunal considers it material that the allegation was first made at such a late stage in the process. The alleged conduct is so offensive that we find that, if it had happened, it would have been raised in the 24 July 2018 when the Claimant clearly felt comfortable alleging inappropriate behaviour by former colleagues. On balance, we find that Mr Jones did not act in the manner alleged.[41]In that letter, sent to the Directors of Mercedes Benz Retail Group and copied to Ms Davidson, the Claimant said that it had been unreasonable and practically impossible to require his comments on the appeal hearing notes within two working days due to his current mental health, capacity and dyslexia. The Claimant wrote that: “I have clarified I am due to request any further help with advocacy support by Mind/NHS Working Well Trust. I [sic] caseworker will be present in future to assist in dealing with this matter”. The Tribunal finds that despite the obvious typographical error, this was a clear statement that the Claimant required a mental health advocate to be present at the reconvened appeal hearing.[42]Ms Davidson replied to the Claimant on 12 September 2018, addressing many of the points raised in his letter but not the request for a mental health advocate at any reconvened hearing. The Tribunal finds that there was no refusal, rather the request was overlooked due to the very many issues raised in a letter which was at times confusing. On 17 September 2018, Ms Davidson confirmed that the Sandle appeal hearing would be set aside and a fresh appeal hearing would be conducted by a different manager and HR representative.[43]The same day, Mr Watson in his capacity as newly appointed appeal manager wrote to the Claimant inviting him to a hearing on 27 September 2018. He advised the Claimant that he could be accompanied by a former colleague or trade union representative, he did not mention a mental health advocate. Mr Watson invited the Claimant to contact him directly if he had any queries.[44]The Claimant commenced ACAS early conciliation on 20 September 2018 and informed the Respondent that he would not attend the appeal hearing. On 27 September 2018, the Claimant made his views very clear that he did not want there to be any further correspondence with the Respondent whether by way of appeal outcome or otherwise. Process for Warranty Claims[45]The Tribunal heard a large amount of evidence about the process for making a claim for repair work done under warranty. When a customer brings a car into Stratford, they provide a brief description of the complaint which is recorded on a job card and signed by the customer. A workshop technician looks at the vehicle and decides whether the repair is covered by warranty due to manufacturers defect (for example the bumper has come loose because a fixing has failed) or is to be paid by the customer (for example, the bumper has come loose due to a parking error). If the repair is not covered by warranty, the Service Adviser calls the customer to seek their authority to proceed on a privately paying basis. If the workshop technician has any doubt as to whether or not the work falls within warranty, they can seek assistance from the Warranty Managers or Administrators or provide photographs of the questionable part to the Warranty Operators.[46]When the work is complete, the technician completes the job pack. The Service Adviser then puts the job pack and other relevant repair documentation into the warranty folder. At Stratford, the Service Advisor was expected to sign the checklist on the warranty folder. The Tribunal accepts as reliable the evidence of Mr Cartmell that the signature was to confirm only that the required documents were included; it was not an authorisation of a valid warranty claim. The warranty folder was then passed to the Warranty Administrator who would double check that the required documents were present, initial the warranty folder and submit the claim. The warranty folder was securely stored separately from customer paid jobs in the event of any future audit or need to obtain information about previous work done.[47]The Claimant’s case as to the alleged impropriety with the warranty folder was confusing and changed in material respects. In his claim form, he alleged that the fraud was signature by a non-claims administrator and at paragraph 46 that it was the Warranty Administrator who had the authority to make the claim and should therefore sign. This is consistent with his position during employment and in the probationary review meeting that he was unhappy at being required to sign the warranty folder at all as he considered that it was the job of the Warranty Administrator, based upon his experience in that role at BMW. His refusal to sign the warranty folder caused confusion and irritation to his colleagues and, despite numerous explanations that at the Respondent it was the job of the Service Adviser, the Claimant continued to refuse to sign. This is consistent with the 11 July 2018 memo, the inclusion of refusal to follow the correct process for completing and signing the warranty checklist folder in the list of topics to be discussed in the probationary review meeting and the Claimant’s position in the meeting where his stated concern was who should sign, not what he was signing for.[48]In the further particulars of the protected disclosures submitted as part of these proceedings, disclosure 5 related to the warranty folders. The particulars stated that a repair should not be carried out if the requisite paperwork has not been completed, that on 1 June 2018 Anthony (Kapetanou) was required to sign a blank warranty folder to falsify the required paper work, that on 10 July 2018 the Claimant was told by Mr Jones to sign the folder even if documents were missing as Mercedes had an open cheque book and that on 12 July 2018 the issue of signing warranty folders after the repair had been done arose again. Paragraph 15 states that the Claimant made a protected disclosure indicating that the practice of signing warranty folders after the event was wrong but does not include a reference to signing blank warranty folders.[49]The Claimant first alleged that he was required to sign the checklist to confirm documents in what was actually an empty warranty folder or to sign before the work was completed in his letter of appeal, dated 24 July 2018. The Tribunal consider it significant that the Claimant’s corrections to the probationary review meeting notes during the appeal process made no mention of a requirement to sign empty folders. In evidence, the Claimant said that Mr Jones had told him that if a document was not in the folder, he should not tick it on the checklist but to sign the folder and pass it to the Warranty Administrator. This is plausible and we accept Mr Jones’ evidence that not all documents on the checklist were always required and the Service Adviser is signing only to show what is present. It is entirely inconsistent with the Claimant’s case that he was required to sign an empty folder. Moreover, a requirement to sign as complete a warranty folder which was in fact empty would not make any sense as it would not authorise a warranty claim and the Warranty Administrator would have to chase to obtain the necessary documents anyway.[50]The Claimant’s case as it developed after his dismissal was that the signing of incomplete or empty folders was part of a fraud upon the warranty provider. He relied upon the safety recall audit in support of this allegation. The Tribunal considered the evidence of Mr Cartmell to be impressive and reliable. The recall audit raised entirely different issues about the job pack and qualification of technicians being used on certain types of work; if an incorrectly qualified technician was used, all of the vehicles worked on would fail the audit which explains the apparently high level of failures on the recall audit. The job pack is not the same as the warranty folder and there was nothing in the recall audit which concerned the adequacy of documents submitted for a warranty claim.[51]The Tribunal accepts Ms Murray’s evidence, consistent with the contemporaneous documents to which we have referred, that the Claimant never told her that his concern was about signing an incomplete folder. She understood, as we have found, that his concern was that it should be the job of the Warranty Administrator and not the Service Adviser. The Tribunal found Mr Ahmed to be an impressive, reliable witness who also confirmed that there was no contemporaneous concern expressed by the Claimant about signing an incomplete folder, the folder was only signed after the work had been done and he had never been asked to sign an incomplete folder. Mr Kapetanou’s evidence was measured and supportive of the Claimant about the Scott incident, yet he denied being asked to sign blank folders and made clear that the folder was only signed after the work was done and ready to be passed to the Warranty Administrator.[52]The Respondent’s Warranty Manual requires that a warranty repair be recorded on the job card and validated before the repairs commence. The Tribunal accepts the consistent evidence of the Respondent’s witnesses that this means confirmation that there is a valid warranty in force and the customer has signed the job card to authorise a warranty claim. Under the heading “Warranty Envelope”, the Manual states that: “all warranty job packs must contain an accurately completed Warranty Check List”, with the confirmation box signed, dated and timed by an authorised signatory to confirm the repair documentation is complete and correct. All supporting documents required to substantiate a warranty claim must be retained in the job pack. In the section dealing with warranty administration, the manual states that: “the confirmation box on the Warranty Envelope must be signed, dated and timed by an authorised signatory to confirm the repair documentation is complete and correct. This is an EWMR requirement for all claims”. After specifying some of the documents which must be included it deals with claims not complying with warranty guidelines and states: “If the issue cannot be resolved to the Administrator’s satisfaction, then the claim must be referred to the Market Area Warranty Manager”.[53]The Tribunal does not accept the Claimant’s case that read holistically, the manual requires the Warranty Administrator rather than the Service Adviser to sign the warranty folder (envelope). The warranty envelope section does not specify who the authorised signatory should be. The only reference to an Administrator is in connection with issues arising when a claim is submitted and there is no dispute that it is the Warranty Administrator who submits the claim, not the Service Adviser. Read sensibly and objectively, the manual does not require that the Warranty Administrator be the person who signs the checklist. This is consistent with the evidence of Ms Burchfield, that if there were a query on a warranty claim it would be for the Warranty Administrator to clarify or approach the Warranty Manager if necessary. Finally, the Tribunal accepted as reliable the evidence of Mr Cartmell who was adamant that this part of the manual did not refer to the warranty folder but to issues arising once a warranty claim had been submitted. Law Discrimination[54]Section 13 of the Equality Act 2010 provides that a person discriminates against another if, because of a protected characteristic, he treats that other less favourably than he treats or would treat others. Disability and race are each a protected characteristic. Conscious motivation is not a requirement for direct discrimination, it being enough that the protected characteristic had a significant influence on the outcome. The crucial question is why the complainant was treated in the way in which they were, particularly in cases where there are no actual comparators identified, Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285.[55]Section 20 of the Equality Act 2010 provides that: “20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”[56]Part 3 of Schedule 8 provides that the employer is not subject to the duty to make reasonable adjustments if he does not know, and could not reasonably be expected to know, that the employee has a disability and is likely to be placed at substantial disadvantage.[57]Where, as here, the employer is alleged to be in breach of the duty to make reasonable adjustments imposed by section 20(3) of the 2010 Act, the Tribunal should identify(1) the PCP(s) applied,(2) the identity of the persons who are not disabled in comparison with whom comparison is made, and(3) the nature and extent of the substantial disadvantage suffered by the employee, Environment Agency v Rowan [2008] IRLR 20 at paragraphs 26-27 (Judge Serota QC).[58]Having done so, the Tribunal must consider and identify what (if any) step it is objectively reasonable for the employer to have to take to avoid the disadvantage. The aim of the duty is to remove or at least ameliorate the substantial disadvantage so that the disabled person may remain in the workplace. The potential adjustment need only have a prospect of alleviating disadvantage; there is no need to show that it would have been completely effective or even that there was a good or real prospect of it being so.[59]The Equality and Human Rights Commission’s Employment Statutory Code of Practice, at paragraph 6.28, suggests that the following factors might be taken into account when deciding what is a reasonable step for the employer to have to take: whether taking any particular steps would be effective in preventing the substantial disadvantage; the practicability of the step; the financial and other costs of making the adjustment and the extent of any disruption caused; the extent of the employer's financial or other resources; the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and the type and size of the employer.[60]Harassment is defined in section 26 of the Equality Act 2010 as follows: “(1) A person(a) (A) harasses another(b) (B) if - (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of - (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account - (a) the perception of B; (b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.”[61]In Richmond Pharmacology v Dhaliwal UKEAT/0458/08/CEA, the EAT provided guidance to the effect that an Employment Tribunal deciding harassment claims should consider in turn:(i) the alleged conduct,(ii) whether it was unwanted,(iii) its purpose or effect and(iv) whether it related to a protected characteristic. As to effect in particular, at paragraph 15, the EAT made clear the importance of the element of reasonableness, having regard to all of the relevant circumstances, including context and in appropriate cases whether the conduct was intended to have that effect.[62]In Pemberton v Inwood [2018] EWCA Civ 564, Underhill LJ revisited Dhaliwal in light of the introduction of s.26 and the difference in language to the predecessor harassment legislative provisions. Underhill LJ made clear that in considering whether conduct had the proscribed effect, the Tribunal must consider both the subjective perception of the complainant and whether it was objectively reasonable for that conduct to be regarded as having that effect taking into account all other circumstances.[63]In considering the burden of proof, we referred to s.136 Equality Act 2010 and the guidance set out in the case of Igen Ltd v Wong [2005] IRLR 258, CA as approved in Madarassy v Nomura International Plc [2007] IRLR 246, CA. This guidance reminds us that it is for the Claimant to prove facts from which the Tribunal could conclude, in the absence of adequate explanation, that the employer has committed an act of unlawful discrimination. The outcome at this stage of the analysis will usually depend upon what inferences it is proper to draw from the primary facts found by the Tribunal. Where the Claimant has proved such facts, the burden of proof moves and it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the prohibited ground.[64]Unfair or unreasonable treatment of itself is not sufficient, but where there is a comparator who is treated more favourably the absence of an explanation for the unreasonable treatment may amount to the ‘something more’, Anya v University of Oxford [2001] ICR 847, CA.[65]In considering whether the burden of proof has shifted, the Tribunal should not adopt an overly mechanistic approach but rather consider whether discrimination can properly and fairly be inferred from the evidence, Laing v Manchester City Council [2006] IRLR 748. A Tribunal will be setting an impermissibly high hurdle, however, if it asks if discrimination is the only inference which could be drawn from the facts, Pnaiser v NHS England and Coventry City Council [2016] IRLR 170, EAT. Protected Disclosure[66]A qualifying disclosure requires a ‘disclosure of information’ which in the reasonable belief of the worker tends to show, amongst other things, a criminal offence has been, is being or is likely to be committed or that a person has failed, is failing or is likely to fail to comply with a legal obligation, sections 43B(1)(a) and 43B(1)(b) Employment Rights Act 1996.[67]There is no rigid dichotomy between “information” and “allegation”, the issue is whether there is sufficient factual content and specificity such as is capable of tending to show a relevant failure, Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436. This is an issue to be decided having regard to all the facts of the case and is likely to be closely aligned with the issue of whether there is a reasonable belief that the information tends to show a relevant failure.[68]For disclosures made after 25 June 2013, there is no good faith requirement when considering liability but the employee must have had a reasonable belief that the disclosure was made in the public interest.[69]As made clear in Babula v Waltham Forest College [2007] EWCA Civ 174, the worker must subjectively believe that the information tends to show a relevant failure and objectively that belief must be reasonable. A belief may be reasonable even if it is wrong.[70]The same subjective and objective tests apply to whether or not the worker reasonably believed the disclosure to be in the public interest, Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979. There may be more than one reasonable view of what is in the public interest and the Tribunal must not substitute its view for that of the worker. The particular reasons why the worker believes a disclosure is in the public interest are not of the essence nor is public interest required to be the predominant motive for the disclosure. There is no definition of “in the public interest” and it is a matter of fact for the Tribunal in all of the circumstances, indeed there may still be public interest where the disclosure is self-serving, however the following factors will normally be relevant:(a) The numbers in the group whose interests the disclosure served.(b) The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed.(c) The nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than disclosure of inadvertent wrongdoing affecting the same number of people.(d) The identity of the alleged wrongdoer, including the size and prominence of the relevant community.[71]In Blackbay Ventures Ltd v Gahir [2014] IRLR 416, the EAT gave helpful guidance as to the approach to be adopted by a Tribunal considering a protected disclosure claim. This emphasised the need not to adopt a rolled up approach but to consider each disclosure by date and content, identify the relevant breach or criminal offence in each case and the detriment (if any) which is caused thereby. Conclusions Reasonable Adjustments
Conclusions
[72]The focus of the submissions of both representatives was whether or not the Respondent had knowledge, actual or constructive, that the Claimant was disabled and was likely to be placed at a substantial disadvantage in respect of both the display screen and the mental health advocate.[73]Dealing first with the display screen, the Tribunal has found as a fact that the equal opportunities and reasonable adjustment documents were not handed to Ms Ainger or received by central HR. Nor, we have found, did the Claimant provide any information to Ms Murray or Mr Jones from which they might have thought that he had problems with his mental health. He was not proactive in disclosing his mental health difficulties. The Claimant did not explain why he needed the adjustment nor would a request for an adjusted display screen logically suggest a mental health disability. We conclude that Mr Jones neither knew nor could reasonably be expected to know that the Claimant was disabled and that his mental health caused cognitive impairment with problems reading, concentrating and understanding the display screen.[74]The Claimant did not request a mental health advocate at the probationary review meeting and, as set out above, Ms Murray had no knowledge of the Claimant’s mental health disability. Whilst the PCP as set out in the list of issues refers to the probationary review meeting at which his employment was terminated, the Respondent neither knew nor could reasonably be expected to know that the Claimant would be put at a substantial disadvantage by reason of his disability in attending without a mental health advocate.[75]The Claimant’s appeal letter dated 24 July 2018 made an express reference to his mental health disability, protected under the Equality Act 2010, and its effect upon his personality. The Tribunal were unimpressed by Mr Sandle’s evidence that he had not realised that the Claimant was disabled because he had not fully read the appeal letter as it had been submitted on the morning of the appeal hearing. The letter is 12 pages long but would not require significant time to read properly. The appeal hearing was important, the Claimant had lost his job and raised material reasons why that may have been unfair. It was unreasonable for a manager to proceed to hear an appeal without reading the letter in full to understand the Claimant’s case. At most, it would have taken only a short delay to the start time of the appeal. Even if Mr Sandle did not expressly know that the Claimant was disabled, he could reasonably be expected to know from the content of the letter. The Tribunal rejects Ms Davidson’s evidence that the content of the letter and the emails which she subsequently received were insufficient to put them on notice of disability. The Claimant was not simply referring to a fluctuating state of health but clearly to a mental health impairment which he regarded as a disability.[76]The Claimant did not request the support of a mental health advocate at the appeal hearing with Mr Sandle. He was accompanied at that hearing by his trade union representative who could, and did, assist him to organise and present his case. Even though the Respondent knew that the Claimant was disabled, it could not reasonably be expected to know that he would be put at a disadvantage without a mental health advocate at the appeal hearing in the circumstances.[77]The request for a mental health advocate was first made on 10 September 2018 in the context of attempts to arrange a reconvened appeal hearing. The Tribunal heard no evidence or submissions to suggest that there was a PCP generally applied of failing to accede to requests for such a companion at an internal meeting. Even if it were a PCP, there was no refusal to make the adjustment and the Tribunal has found that it was simply overlooked. The Claimant did not raise the matter again in response to Mr Watson’s letter only one week later as, we conclude, by that date he had decided not to attend the hearing in any event. For all of these reasons, we find that the Claimant was not put at a substantial disadvantage and there was no failure to make a reasonable adjustment.[78]The reasonable adjustment claim fails and is dismissed. Harassment - Disability[79]The Tribunal has found that the comment alleged at paragraph 2(i) of the issues was made by Mr Jones in respect of the display screen. The Respondent’s case was that the incident simply did not happen but made no submissions as to whether it would have been unwanted, had the proscribed effect or related to disability. The Tribunal accepts the Claimant’s case that the comment was unwanted and that he felt that he was being mocked in front of his colleagues. Subjectively and objectively it was reasonable for the comment to create a humiliating environment. The Respondent did not know that the Claimant was disabled and had problems with mental health or that this was the reason why an adjusted display screen was required. However, the Equality Act does not require the unwanted conduct to relate to the Claimant’s particular disability but to disability generally. The comment by Mr Jones was overtly related to disability.[80]The Tribunal has not found that either Ms Murray or Mr Jones suggested that the Claimant was “on drugs” as alleged or at all. On 11 July 2018, Ms Murray did say that it looked as if the Claimant was going to go at Mr Jones. The Tribunal has found that this was said to defuse a difficult situation in what was evidently a tense meeting. It did not imply a physical attack by the Claimant rather a possible verbal disagreement. We reject Ms Chan’s submissions that the comment implied that the Claimant was going to criminally assault Mr Jones. The Claimant did not give any indication at the time that the comment was unwelcome, indeed at the end of the meeting, he thanked Ms Murray for her understanding. Applying Dhaliwal, even if the comment were unwanted, the Tribunal does not consider that it is objectively reasonable for such a transitory comment to have the proscribed effect when looked at in context.[81]In any event, the Claimant has not established the link to disability. Ms Chan submits that the comment was obviously detrimental as it was rude and humiliating to imply a criminal assault and that the burden then shifts to the Respondent to show that it had nothing to do with his Asian ethnicity or disability. Even if we had found that the comment was rude and humiliating in context, which we have not, the Tribunal does not accept that that alone is sufficient to shift the burden of proof. It is for the Claimant to prove primary facts from which the Tribunal could find discrimination. The mere fact of an inappropriate comment alone would be insufficient.[82]In any event, the Tribunal concludes that Ms Murray’s comment was entirely caused by the Claimant’s behaviour and demeanour in the meeting. The Claimant’s case is that his demeanour was caused by the cessation of CBT and his deteriorating mental health which caused Ms Murray to perceive him as aggressive. However, the comment was made at a time when Ms Murray did not know and could not reasonably be expected to know that the Claimant was disabled. The Claimant’s employment was short and there was no obvious change in his behaviour which she might have remarked upon had Ms Murray worked with him longer. The Tribunal does not agree that Ms Murray perceived the Claimant as aggressive whether because of his disability or his race. She was concerned that he was going to engage in a verbal disagreement with Mr Jones in the context of the Claimant arriving late for work, dishevelled, with blood shot eyes, not speaking to Mr Jones but staring at him instead. The comment was neither consciously nor subconsciously related to disability.[83]With the exception of the issue about the display screen, the claim of harassment related to disability fails and is dismissed. Harassment - Race[84]As set out in our findings of fact, we have accepted that Scott made the threating comment on 12 July 2018 but that it was about a customer and not the Claimant. The Tribunal has also found that the other comments about customers set out in the list of issues were made. They are consistent with the robust working environment at Stratford and disparaging comments made about all customers perceived as demanding. The Claimant now alleges that the disparaging comments were specific to Asian customers. He did not suggest this in his letter prior to the probationary review meeting, during the meeting itself, or in his amendments to the notes of that meeting or his initial email to Mr Sandle. The Tribunal does not doubt that similar things was said about all customers believed to be demanding irrespective of race. The Claimant has not shifted the burden of proof as this was not an act of harassment related to race.[85]As for the “go at him” comment made by Ms Murray on 10 July 2018, we rely on our earlier findings of fact and conclusions as set out in connection with the disability related harassment claim. Ms Chan submits that it is based upon an assumption displayed by Ms Murray of the Claimant being an “aggressive Asian”. The Tribunal disagrees. The Claimant’s behaviour and demeanour was unusual and this alone prompted the comment, it would have been said to any employee acting in the same way irrespective of their race. The Tribunal rejects the submission that Ms Murray made any stereotypical assumption as alleged or at all.[86]The Tribunal has found that the “on drugs” comment and the alleged conduct of Mr Jones in the office (paragraph 78 of the ET1) did not happen.[87]The claim of harassment related to race fails and is dismissed. Direct Discrimination – Disability and/or Race[88]The same three detriments are relied upon as acts of both direct race discrimination and direct disability discrimination. All three arise from the appeal hearing before Mr Sandle and Ms Rampling. For the reasons set out in our findings of fact, the Tribunal accepts that comments in the same gist as those quoted in the list of issues were said by Ms Rampling and Mr Sandle at the appeal hearing on 24 August 2018. Ms Rampling did tell the Claimant to calm down and referred to ending the meeting, Mr Sandle did question the Claimant in a frustrated manner about whether the notes were accurate and did tell the Claimant that he could not look to his trade union representative to tell him what to do about the notes.[89]As set out above, the appeal hearing was conducted by Mr Sandle and Ms Rampling in a manner which was unnecessarily confrontational and was not constructive. The tone was set from the outset when the Claimant was accused of a GDPR breach and Mr Sandle made clear he had not fully read the appeal letter. It deteriorated further over relatively common place issues such as challenges to the accuracy of the notes of a previous meeting. Mr Sandle and Ms Rampling were hostile and irritated by the Claimant. The Claimant felt frustrated and aggrieved that his appeal was not being properly considered. Both the Claimant and Mr Sandle raised their voices at times.[90]The claim is one of direct discrimination and not of harassment. The Tribunal must therefore consider whether or not the Claimant has proved primary facts from which we could conclude that the comments were because of his race or his disability. Direct discrimination requires us to consider how a comparator, actual or hypothetical, would have been treated in the same or not materially different circumstances. In the absence of an actual comparator, as here, it is often more helpful for the Tribunal to consider the reason why certain conduct occurred rather than construct an arid hypothetical comparator, see Shamoon.[91]The Claimant struggled to articulate the facts from which the Tribunal could and should infer that his race or disability was a material cause for the comments. Essentially, his case was that because the behaviour of Mr Sandle and Ms Rampling was unreasonable, we should infer that it was because of his race or disability. We disagree. Unfair or unreasonable treatment alone is not sufficient without something more, see Anya. The comments which are relied upon as direct discrimination must be seen in context. They were made because of the Claimant’s behaviour, although not aggressive he did become emotional and demonstrated his frustration in the appeal hearing. Although there was good reason for the Claimant to be emotional and frustrated and the comments of Mr Sandle and Ms Rampling were not reasonable, a view apparently shared by HR who decided that a new appeal panel should be convened, we conclude that any employee behaving in the same way would have been subjected to the same comments, irrespective of their race or disability. The Tribunal declines to draw the adverse inference urged upon us by Ms Chan for these reasons.[92]The claim of direct discrimination fails and is dismissed. Unfair Dismissal[93]In deciding whether the Claimant made a protected disclosure, the Tribunal relies upon our findings of fact as to the information disclosed by the Claimant prior to his dismissal. His complaint prior to dismissal was about being required to sign the warranty folder at all, stating that it was the job of the warranty administrator. This is consistent with Ms Murray’s understanding in the probationary review meeting and the Claimant’s initial position that he had not understood the process before. We accepted Ms Murray’s evidence that the Claimant never told her that his concern was about signing an incomplete folder, consistent with the evidence of Mr Ahmed and Mr Kapetanou.[94]It was only in the grounds of appeal submitted after dismissal that the Claimant first disclosed information which purported to show that he was required to sign blank warranty folders. Whilst the Claimant genuinely believes that he raised the issue during employment, the Tribunal disagrees and concludes that he has conflated the information disclosed as his complaint and dissatisfaction developed over the course of a difficult appeal process. Prior to dismissal, there was no disclosure of information in the way the Claimant asserts in the particulars of protected disclosure (signing after the repair had been done/after the event, see paragraphs 12 and 15 of the particulars) or in his evidence (signing blank folders).[95]Even if there had been a protected disclosure prior to dismissal, there were significant concerns about the Claimant’s conduct and performance generally which had caused Ms Murray to call the probationary review meeting. The final incident with Scott was a further example of tension in the working relationship between a newly employed member of staff and his colleagues in which the Claimant made an inappropriate comment and threw a job pack including customer car keys to the ground, potentially causing damage for which the Respondent would be financially responsible. The Tribunal concludes that this last incident made up Ms Murray’s mind that the Claimant’s employment would be terminated and removed any lingering chance of the Claimant retaining his employment.[96]If the Claimant had had over two years’ service, this would have been an unfair dismissal as no disciplinary process was followed and he was given no prior warnings. However, the Claimant was employed for just over 7 weeks, was still in his probationary period and was not performing to the anticipated standard. The Tribunal accepts that the concerns expressed by Mr Jones in his email on 11 July 2018 and by Ms Murray in her letter inviting the Claimant to the probationary review meeting were the reason for dismissal. Whilst the issue of signing warranty folders was included, this was the Claimant’s total refusal to sign at all and insistence that it should be the warranty administrator who did so. It had nothing to do with blank or incomplete warranty folders or the timing of the signature.[97]The unfair dismissal claim fails and is dismissed.
Remedy
[98]For the reasons set out above, only the disability related harassment due to the comment made in connection with the request for a display screen adjustment has succeeded. The Tribunal took into account the Claimant’s evidence in his witness statement about the remedy claimed. The termination of the Claimant’s employment is entirely unconnected with this act of harassment and therefore the Claimant is not entitled to compensation for past or future loss of earnings.[99]The Tribunal accepts that the Claimant has experienced an exacerbation of his existing mental health impairment and injury to feelings in the manner described in his witness statement. He attributes this to “all of the issues and discrimination” he encountered. However, only one of the very many acts of discrimination and harassment alleged has succeeded. On the basis of our findings and conclusions, we have treated this as a single act of harassment falling within the lower band of Vento, which at the time provided a range of £900 - £8,600. Taking into account the Claimant’s already vulnerable mental state, distress at being mocked and the overtly insensitive and discriminatory nature of the comment, the Tribunal is satisfied that the appropriate award is £4,000.[100]The Claimant is entitled to interest at 8% from the date of the harassment, which the Claimant puts at roughly mid-June 2018. This is a period of two years and six weeks (110 weeks), giving a sum of £676.92.