Mr Z Sundhu v East London Bus and Coach Co Ltd: 3201285/2023
EMPLOYMENT TRIBUNALS
Case No 3201285/2023
Between
Mr Z SundhuClaimantEast London Bus and Coach Co LimitedRespondent
Before
Employment Judge Crosfill
Members
Mrs M LeggMr S WoodhouseMr C McDevitt (instructed by Counsel) for respondentDate 2 September 2024
JUDGMENT
[1]The Claimant’s claim of unfair dismissal is not well founded and is dismissed[2]The Claimant’s claim that the Respondent treated him unlawfully by dismissing him contrary to Section 15 of the Equality Act 2010 is dismissed.[3]The Claimant’s claim for unlawful deduction from wages is dismissed.
REASONS
[1]By a judgment dated 2 September 2024 sent to the parties on 10 September 2024 the Employment Tribunal dismissed the claims brought by the Claimant. By an email sent to the Tribunal on 23 September 2024 the Claimant asked for written reasons for our decisions. These are our reasons.[2]The Respondent is a company that operates bus routes in London under contractual arrangements it holds with Transport for London. It has several bus garages in East London including a depot at West Ham.[3]The Claimant started his employment with the Respondent on 11 November 2002. From that date to his dismissal on 23 March 2023 the Claimant worked for the Respondent as a bus driver.[4]The Claimant’s dismissal occurred after a driving incident that took place on 10 March 2023. The Respondent says that that incident amounted to gross misconduct and that the Claimant was justifiably dismissed for that reason. The Claimant does not agree. He says that the Respondent seized upon what happened on 10 March 2023 as a pretext for his dismissal. He says that the true reason for his dismissal was a history of accidents at work which had resulted in him suffering injuries including chronic back pain. He points to a history of being subjected to the Respondent’s absence management policy and that he requested a number of adjustments to his working conditions. He says he was dismissed and reinstated on two occasions. It is his case that this history was behind the decision to dismiss him.[5]The Claimant contacted ACAS for the purposes of early conciliation on 4 May 2023 and received an Early Conciliation Certificate on 15 June 2023. He presented his ET1 to the Employment Tribunal on 14 July 2023. He claimed unfair dismissal and discrimination relying on the protected characteristic of disability and that the Respondent owed him some monies. Relevant Procedural History and the Hearing[6]A Preliminary Hearing for the purposes of Case Management took place before EJ Illing on 31 October 2023. She sought to identify the issues. She identified the Claimant’s case under the Equality Act 2010 as being a claim of direct discrimination contrary to Sections 13 and 39 of the Equality Act. The act complained of being the dismissal. She recorded that the Claimant sought to introduce claims that the absence management process and/or requirement for adjustments were further acts of discrimination. She advised the Claimant that if the Claimant wanted to bring claims in relation to acts in addition to his dismissal he would have to make an application to amend his claim.[7]On 23 November 2023 the Claimant sent an e-mail to the Tribunal which was treated as being an application to amend his claim. The application was heard by EJ Lewis. Her record of the hearing discloses that the Claimant stated that he did not want to make a complaint under the Equality Act 2010 about anything other than his dismissal but wanted to rely on earlier events as evidence to support that claim.[8]The Claimant made a further application to amend his claim on 17 June 2024. He sought to introduce claims relating to conduct predating his dismissal. The exact nature of those claims was not readily apparent from the application. The matter was listed before EJ Smyth on 12 July 2024. She decided that the Claimant was repeating an application already heard and dismissed by EJ Lewis. She refused the application on the basis that there had been no material change in circumstances since that decision.[9]When the matter came before us we raised some concern that the original classification by EJ Illing of the Claimant’s claim under the Equality Act 2010 might not reflect the manner in which the Claimant had put his case in his ET1. We asked the Claimant whether he was saying that his treatment was because he had back pain or whether he was saying that the Respondent had acted as he did was because of the history of absence management and the fact that adjustments had been made for the Claimant because of his bad back. The Claimant indicated that it was the history of absence management and adjustments that had been the, or an operative, reason for his dismissal.[10]We asked the parties to make representations as to whether the Claimant’s claim set out in his ET1 was not in fact a claim brought under Section 15 of the Equality Act 2010 as opposed to one brought under Section 13. We referred the parties to the recent decision of Moustache v Chelsea and Westminster NHS Foundation Trust [2022] EAT 204. The Respondent opposed any variation in the list of issues set out by EJ Illing. It was said that the ET1 did not include a Section 15 claim and that the Claimant needed permission to amend which, given the procedural history and the fact that the matter was raised at the final hearing ought to be refused.[11]We decided that it was in the interests of justice to permit the Claimant to rely on Section 15 of the Equality Act 2010. We were of the view that that claim was already included in the ET1 either expressly or by implication. We did not consider that there was any need for an amendment. Our full reasons were given to the parties during the hearing and shall not be repeated here unless a request for written reasons is made orally or a request is received within 14 days of the date of any written judgment.[12]After we had given our reasons the Claimant indicated that he did not wish to pursue any claim for direct discrimination as the Section 15 claim was the basis upon which he complained about his dismissal.[13]The issues we had to decide in respect of the unfair dismissal claim were those identified by EJ Illing. In respect of the Section 15 Claim we needed to decide: 13.1. Whether the Claimant’s back pain amounted to a disability (following the issues identified by EJ Illing); and 13.2. Whether the Claimant’s absences from work and his requests for changes to his working conditions were something arising in consequences of his disability; and 13.3. Whether the decision of the Respondent to dismiss him was because of that ‘something’ and if it was; 13.4. Whether the Respondent could show that the decision to dismiss the Claimant was a proportionate means of achieving a legitimate aim.[14]In order to mitigate any prejudice to the Respondent we suggested that the Respondent could deal with any unanticipated issues (and in particular the last of the issues above) by either asking its witnesses some supplemental questions or by providing a short addendum witness statements. Mr McDevitt accepted that any prejudice to the Respondent could be dealt with in that way and he did not seek a postponement.[15]At the outset of the second day of the hearing we watched video evidence that both parties sought to rely on. For the Respondent that was a video compiled from the onboard CCTV on the bus driven by the Claimant on 10 March 2010. That took the form of images from 4 cameras and also displayed data such as the speed of the bus and whether it was indicating or had the brakes applied. For the Claimant there we watched 14 videos that showed buses moving around the West Ham bus depot. We return to the content of those videos below.[16]We then heard from the following witnesses: 16.1. From the Claimant who gave evidence on his own behalf; 16.2. From Mr Farooqi a colleague of the Claimant who described driving practices at West Ham and said that he had been dismissed when off sick and reinstated by ‘the court’ (we assume a tribunal); and 16.3. Mr Usman Ali a trade union representative who also described driving practices at West Ham. He has a particular interest in Health and Safety and was able to tell us about his work in that area; and 16.4. We then heard from Mr David Clark; he is the Assistant Garage Operations Manager at West Ham having taken up that position in November 2021 having previously held the same position at other bus garages. He had started his career with the Respondent as a bus driver. He was the person who had decided that the Claimant should be 16.5. Finally we heard from Mr Simon Davis. He has been the Head of Operations for Stagecoach London since 2015. He described that role as being, in effect, the Area Manager. He had contact with the Claimant at various times from 2012 onwards and played a part in the absence management processes at various points. In 2019 Simon Davis allowed an appeal against the decision of Mr White that he should be dismissed. Simon Davis was the person who considered the Claimant’s appeal against his dismissal by David Clark. He concluded that the appeal should be dismissed.[17]The evidence concluded on the afternoon of 23 August 2024. Mr McDervitt indicated that he could make his submissions in 15 minutes. He was able to keep to that promise. We wanted to give the Claimant sufficient time to make his submissions. Written submissions were read to us by Usman Ali and then we heard briefly from the Claimant’s brother Arfksad Sundhu with the Claimant getting the final word. We were able to give the Claimant sufficient time to say all that he wished to without imposing a time limit. Our Findings of Fact[18]We shall not deal with every part of the evidence but have restricted our findings of fact to the matters that we considered the most important. In doing so we have had regard to the entirety of the written witness statements and the oral evidence and have read all the documents that we were asked to read or the parties referred to during the hearing. The history of absences and absence management[19]We need to summarise the history of absence management that took place.[20]From June 2014 until his dismissal the Claimant had 402.5 working days of absence through a combination of reasons. In the records provided by the Respondent these were divided into Sickness Absence and Sickness on Duty. The Claimant was recorded as sick for 212 days and had 101.5 days of sickness on Duty. He was marked as absent for a variety of other reasons adding up to the total above.[21]From the MED 3 forms provided by the Claimant some around 70 days of absence over four periods are described as attributable to back pain. 21.1. A period of absence from 22 March 2018 to 4 April 2018 which was attributable to back pain is not included in those total figures. 21.2. The Claimant had 41 days between 27 August 2019 and 29 December 2019 where his fit note indicates back pain as a reason for absence; and 21.3. 23 March 2022 to 28 March 2022 the Claimant self-certified as being absent due to back pain; and 21.4. he had a period of absence 20 May 2022 to 7 October 2022, 55 days in total, the sick notes started as recording back pain (some 23 days) but from July gave the cause of his absence as Plantar Fasciitis.[22]The records we have seen show the Claimant complaining of an incident that took place on 11 November 2012 when he said that he had hit a pothole on Stephenson Road causing an injury to his back. He had a period of absence due to back pain. He was seen by the Respondent’s Occupational Health provider on 12 December 2012. That report records that: ‘Mr Sundhu states that he has been suffering intermittent lower back pain for the past 10 years since the start of his job. He tells me that the lower back pain has been getting progressively worse and on several occasions he has taken time off work. He confirmed to me that the present episode of lower back pain started on the 12 November 2012 when he drove his vehicle over a pothole. Since then he states he has been having constant and nonradiating lower back pain. He advised that he is able to sleep at night and mobilise around the house, but not able to drive or go shopping.’[23]The Claimant was referred again to an OH advisor in February 2014. The report provided is dated 14 February 2013. Following an examination the Claimant was said to be unfit for work. It appears that the Claimant returned to work after 97 days of absence. He then had a further period of absence in 2013 again with back pain being the cause.[24]The Claimant had an MRI scan in December 2013. That scan records that there were no significant disc Herniations. There was only a minimal degree of disc desiccation at L3/4 and very mild facet joint osteoarthritis at L5/S1. There was no evidence of nerve compression.[25]Throughout the absence management process the records show that the Claimant failed to attend a very large number of absence management meetings. This is the subject of quite a lot of adverse comment by the managers who had organised those meetings.[26]On 26 January 2014 Ray White rejected an appeal by the Claimant against a written warning for unsatisfactory attendance at work.[27]Around 21 April 2017 the Claimant says that the bonnet of a bus fell onto his leg. Following that he was absent from 21 April to 25 August 2017. The Claimant was referred to Occupational Health and it was observed that he had swelling above his knee. In total the Claimant had 45 working days off due to this injury.[28]On 24 April 2018 the Claimant reported that a cab door had fallen off its hinges and hit his arm. The records we were provided with show that Ray White was sceptical about the nature of the Claimant’s injury. He met with him as a part of the absence management process on 29 June 2018. Ray White decided that company sick pay should be withheld. When the Claimant is seen by the Respondent’s OH provider on 9 July 2018 he was observed to have a limp and a painful knee. It is recorded that he had been prescribed co-codamol.[29]The Claimant is seen again by the Respondent’s OH advisor on 3 October 2018. That report says that there had been some improvement in the Claimant’s condition but says that he still had a reduced range of movement and power in his left knee. He described prolonged pain when sitting. The report describes ongoing back pain and knee pain. A recommendation is made for a phased return to work and an adjustment to the shift pattern. The report includes advice that the Claimant is likely to meet the statutory definition of disability contained in Section 6 of the Equality Act 2010.[30]After a period of absence following this incident the Claimant was invited to an absence management meeting Sarah Cooney. The Claimant failed to attend this meeting and Sarah Cooney took the decision that he should be dismissed. The Claimant appealed against that dismissal and that appeal was heard by Dianne Hannan the Operations Director. She allowed the Claimant’s appeal on 1 November 2018. The Claimant returned to work the following day.[31]The Claimant was subjected to further absence management following further absences. Sarah Clooney gave him a verbal warning which the Claimant appealed. The Claimant’s appeal was heard by Simon Davis. He upheld the decision.[32]On 1 August 2019 the Claimant was again referred to the Respondent’s OH advisor. The report discloses that the purpose of the meeting was to discuss the ‘ongoing knee and back pain’. The Claimant reported difficulties with walking and prolonged sitting. The Claimant described the difficulties encountered with weekend work where there were no driver shuttles and he had to walk a considerable distance to work. He reported difficulties with early starts due to his medication. Recommendations were made to avoid weekend work and starts before 10am. Advice is given that the Claimant was likely to meet the definition of disability under the Equality Act 2010.[33]On 24 August 2019 the Claimant had a road traffic accident. He was not at fault. He then had a period of absence with him reporting whiplash and injuries to his knee and back. After a period of absence the Claimant was again invited to meetings to discuss his absences. Again there were a number of occasions where the Claimant failed to attend meetings organised by his managers. On 20 September 2019 the Claimant was dismissed by Ray White when he failed to attend the third meeting organised by his managers.[34]On 24 October 2019 Simon Davis chaired an appeal meeting where the Claimant appealed against his dismissal. He allowed the appeal and reinstated the Claimant.[35]The Claimant was referred to the Respondent’s OH advisor and a report prepared dated 15 November 2019. The Doctor advised that the Claimant was unfit for work at that time. An examination revealed restricted lumbar spine movements in all vectors. The report recommended adjustments to facilitate a return to work. These repeated the previous recommendations of late starts and no weekend work unless a taxi was provided. After a further OH report the Claimant returned to work on 11 March 2020.[36]The adjustments that are put in place by Simon Davis are set out in a letter dated 18 May 2020. We find that this letter is thoughtful and sets out several recommendations to put the working relationship on a more stable footing. Simon Davis, without accepting any inappropriate behaviour, put measures in place to separate the Claimant from management by Ray White. He says that steps are in train to select a specific duty for the Claimant rather than variable shift. This goes beyond the recommendations made by the OH advisors. It is not immediately implemented. We find that it was not straightforward to give the Claimant fixed hours when all other bus drivers had variable shifts. Correspondence and notes throughout the remainder of 2020 show that the matter was under discussion.[37]In 2021 there are further absences by the Claimant. Many of these do not relate to his back pain but to family matters.[38]On 22 May 2022 the Claimant had a further driving accident. Again there is no suggestion that he is at fault. After the incident the Claimant reported having lower back pain and knee strain. The Claimant was absent on this occasion until 7 October 2022.[39]On the Claimant’s return to work he was offered fixed duties that implemented all the recommendations that had been suggested by OH and provided fixed hours of work.[40]In October 2022 the Claimant had two half days absence from work for reasons not arising from his bad back. A further absence in December 2022 was the result of the way that holidays having been booked. The Claimant was invited to attend a disciplinary hearing under the Respondent’s absence management policy on 16 February 2023 by Guy Tickner an Assistant Garage Operations Manager. By a letter sent on 10 March 2023 the Claimant was given a ‘verbal’ warning on the basis that his absences were unsatisfactory. The events of 10 March 2023[41]We find that the Respondent takes its responsibilities towards its employees and the general public to prevent road traffic accidents very seriously. It has in place a scheme to monitor the driving standards of its drivers by measuring their speed and how smoothly they drive. The depot is particularly dangerous with a very large number of vehicles sharing a small space. The safety of pedestrians is a particular concern. The Respondent has, at all of its depots, a traffic management plan. The plan in place for the West Ham Garage implements a one way system around the depot. In addition the Respondent has a specific policy for reversing. A series of precautions are mandated by that policy. In certain circumstances reversing is only permitted with a banksman. In other circumstances the Drivers are required to turn on their hazard lights, sound the reversing alarm or blow their horn and then to wait for five seconds before moving backwards. Before they reverse they are required to carefully check their mirrors.[42]The Respondent publicises both the traffic management policy and reversing policy by displaying them prominently in the driver waiting area. In addition drivers are reminded of these policies by displaying them on a TV screen in the same area and by sending them out by use of an app ‘Blink’.[43]The one way system regulates the direction of traffic in and out of the depot. There are some exceptions that are permitted to the policy. One exception was for the drivers training school. The one way system is marked both with signs and with painted road markings. The road markings are repainted periodically. At the date of the incident, we are dealing with they were in need of a refresh.[44]The effect of the one way system is that departing drivers were required to go around the back of the depot in what could be almost a full circle. Turning anti clockwise against the direction of flow would mean that a driver could leave the depot marginally quicker.[45]If a driver clocked on exactly on time they were given 5 minutes to get their bus ready and leave the depot if the bus had already been checked and driven by a driver earlier. If the bus was ‘cold’ they were given 15 minutes.[46]On 10 March 2023 the Claimant reported for work and made his way to his bus. He was running slightly behind time. Supervising the yard was a Garage Supervisor called Mr Sedani. He had previously spoken to the Claimant about his timekeeping.[47]The CCTV viewed during the disciplinary process shows that the Claimant pulled out of the bus stand and turned left against the direction of flow in the one way system. Mr Sedani ran to the passenger side of the bus and had banged on it to draw attention to himself. Mr Sedani then told the Claimant that he had gone the wrong way around the one way system and said that he was going to report the Claimant. The Claimant responded by saying that if that was the case he would go the other way. Mr Sedani said that it was too late to do so. As we understand it he was pointing out that the Claimant was already committed to the manoeuvre.[48]The Claimant then started to reverse. Mr Sedani can clearly be heard to tell the Claimant not to reverse. He repeated this more than once. He is standing very close to the bus at the point the Claimant starts to move. The CCTV captures the fact that the Claimant did not put on his hazard lights nor did he wait for 5 seconds or sound his horn before moving backwards. The extent to which the Claimant used his mirrors can be assessed by looking at the CCTV.[49]A colleague of the Claimant had been in the bus as a passenger. As the Claimant drives away he starts a conversation. He is recorded as saying that he had taken ‘the quick way’. He is very critical of Mr Sedani in suggesting that he is going to report him for his driving.[50]Mr Sedani prepared a written report of what he had observed. It is brief but sets out that he observed the Claimant not following the one way system. He said that he tried to get the Claimant’s attention but that the Claimant did not hear him. He says that he ran towards the bus and managed to stop the Claimant at the departure gates. He said that he informed the Claimant that he should follow the one way system. He said that the Claimant said, ‘If you are going to book me, I am going to do that’. He then says that despite requesting the Claimant not to reverse he did so anyway.[51]The Claimant completed an incident report as well. He described feeling under pressure to leave the garage. He described Mr Sedani as running towards him like a ‘possessed person’. He suggested that Mr Sedani’s instruction that he should not reverse was ‘said very rudely and with the ego of his position’. He went on to criticise Mr Sedani for not assisting him to reverse. He concludes by suggesting that the incident is ‘another attempt to sack me from my job’ which he attributes to his ‘medical issues because of faulty buses’[52]The Claimant was invited to an investigatory meeting which was conducted by Mr Tickner. The Claimant was given an opportunity to see and comment on the CCTV footage. It was the Claimant’s case in that meeting that he was unaware of the one way system. Mr Tickner also interviewed Mr Shamin who was the driver who had been sat in the bus when the Claimant had driven out of the depot. He told Mr Tickner that the Claimant had turned left across the one way system when ‘we usually turn right’. He said that Mr Sedani had been trying to tell the Claimant he could not turn left but ‘he did not want to listen’. Mr Tickner obtained and listened to the audio recording of the events.[53]Mr Tickner decided that the matter needed to be dealt with at a disciplinary hearing. The letter of invitation to the disciplinary hearing set out four charges these were;(1) a breach of the traffic movement policy,(2) contravening an official instruction,(3) unassisted reversing and a distinct matter which was(4) a late departure on a different day. The Claimant was given an ‘evidence pack’ which included all the evidence that had been gathered in the investigation.[54]The disciplinary hearing took place on 23 March 2023 and was chaired by David Clark. The Claimant was accompanied by Mr Usman Ali his trade union representative. The Claimant’s response to the suggestion that he had not followed the one way system was that he was unaware of it. He was very critical of Mr Sedani for intervening in the way that he did and suggested that he had been put under pressure to leave. Before reaching any decision Mr Clark looked at the Claimant’s personnel file and established that he had signed a document saying that he had been given and read the company’s health and safety booklet in 2013.[55]David Clark heard representations from the Claimant’s trade union representative. Mr Usman suggested that the Claimant had a perfect record as a driver. In his outcome letter David Clark records that exchange and says that he had disagreed. He records that the Claimant had excessive service reports and that he had been given a verbal warning for unsatisfactory attendance. Finally he noted a driving assessment undertaken by the AA on a ‘mystery shopper’ basis that had recorded the Claimant as scoring 3DQM which suggests a persistent minor errors or a serious error whilst driving.[56]David Clark did not believe the Claimant’s account of not being familiar with the one way system. He took into account that the Claimant had worked in the depot for many years and the one way system had been in place for all of that time. He decided that the Claimant’s use of his mirrors before reversing was perfunctory at best. He decided that the Claimant had wilfully disregarded the instructions of Mr Sedani.[57]David Clark found that the three aspects of the Claimant’s driving all amounted to gross misconduct. He decided that the appropriate outcome was summary dismissal. He gave a written warning for the late departure.[58]The Claimant appealed. The appeal meeting was chaired by Simon Davis on 5 April 2023. The Claimant was represented by Mr Plummer a trade union representative. At the appeal meeting the Claimant’s suggestion that Mr Sedani had behaved improperly is explored. Mr Sedani was asked to attend the meeting and was asked questions by Mr Plummer. He denied any animosity towards the Claimant and no specific allegations were made or explored.[59]The Claimant at this stage modified his suggestion that he did not know about the one way system. He suggested that this was a mistake that he could learn from.[60]Simon Davis decided to dismiss the appeal. He found that the Claimant was aware of the one way system. In reaching that , he had regard to the signage which he had personally inspected, but also the fact that the Claimant told his colleague that he had taken the quick way. He decided that there had been a significant breach of the Respondent’s policies and a serious risk of danger caused by the Claimant’s actions. He reduced the penalty for the service breach to guidance but upheld the sanction of dismissing the Claimant. The law we applied Unfair dismissal[61]The right not to be unfairly dismissed is conferred by Section 94 of the Employment Rights Act 1996. Where, as here, there is no dispute that an employee was dismissed the question of whether any such dismissal was unfair turns upon the application of the test in Section 98 of the Employment Rights Act 1996. The material parts of that section are as follows: 98 General.(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.(3) …..(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[62]For the purposes of Section 98(2) ERA 1996 'conduct' means actions 'of such a nature whether done in the course of employment or outwith it that reflect in some way upon the employer/employee relationship': Thomson v Alloa Motor Co Ltd [1983] IRLR 403, EAT. It is not necessary that the conduct is culpable JP Morgan Securities plc v Ktorza UKEAT/0311/16.[63]Where the reason, or principal reason, for the dismissal is established as conduct then it will usually, but not invariably, be necessary to have regard for the guidance set out in British Home Stores Ltd v Burchell [1978] IRLR 379, which lays down a three-stage test:(i) the employer must establish that he genuinely did believe that the employee was guilty of the misconduct;(ii) that belief must have been formed on reasonable grounds; and(iii) the employer must have investigated the matter reasonably. Following amendments to the statutory scheme the burden of proof is on the employer on point (i) (which goes to the reason for the dismissal) but it is neutral on the other two points Boys and Girls Welfare Society v McDonald [1996] IRLR 129.[64]The correct test is whether the employer acted reasonably, not whether the tribunal would have come to the same decision itself. In many cases there will be a 'range of reasonable responses', so that, provided that the employer acted as a reasonable employer could have acted, the dismissal will be fair: Iceland Frozen Foods Ltd v Jones [1982] IRLR 439. That test recognises that two employers faced with the same circumstances may arrive at different decisions but both of those decisions might be reasonable.[65]The range of reasonable responses test applies as much to any investigation and the procedure followed as it does to the substantive decision to impose dismissal as a penalty Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23. When assessing whether the process taken in taking a decision to dismiss is fair or unfair it is necessary to have regard to the entirety of the process including any appeal Taylor v OCS Group Ltd [2006] IRLR 613, CA[66]In terms of the reasonableness of the investigation and the procedure that was followed, the “relevant circumstances” referred to in Section 98(4) include the gravity of the charge and their potential effect upon the employee A v B [2003] IRLR 405. A v B also provides authority for the proposition that a fair investigation requires that the investigator examines not only the evidence that leads to a conclusion that the employee is guilty of misconduct but also that which tends to show that they are not. However, where during any disciplinary process an employee makes admissions a reasonable employer might normally be expected to proceed on the basis of those admissions CRO Ports London Ltd v Mr P Wiltshire UKEAT/0344/14/DM.[67]Section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that: “any Code of Practice issued under this Chapter by ACAS shall be admissible in evidence, and any provision of the Code which appears to the tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question.” The relevant code for present purposes is the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015.[68]The ACAS code suggests that the proper approach to investigating disciplinary matters is as follows: 5. It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing. 6. In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing. 7. If there is an investigatory meeting this should not by itself result in any disciplinary action. Although there is no statutory right for an employee to be accompanied at a formal investigatory meeting, such a right may be allowed under an employer’s own procedure. 8. In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action. Warnings[69]The passages of the ACAS code that deal with sanctions for misconduct or performance issues say as follows:19. Where misconduct is confirmed or the employee is found to be performing unsatisfactorily it is usual to give the employee a written warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final written warning.20. If an employee’s first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning. This might occur where the employee’s actions have had, or are liable to have, a serious or harmful impact on the organisation.21. A first or final written warning should set out the nature of the misconduct or poor performance and the change in behaviour or improvement in performance required (with timescale). The employee should be told how long the warning will remain current. The employee should be informed of the consequences of further misconduct, or failure to improve performance, within the set period following a final warning. For instance that it may result in dismissal or some other contractual penalty such as demotion or loss of seniority.22. A decision to dismiss should only be taken by a manager who has the authority to do so. The employee should be informed as soon as possible of the reasons for the dismissal, the date on which the employment contract will end, the appropriate period of notice and their right of appeal.23. Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing for gross misconduct.[70]Even where the Tribunal find that the employer has a reasonable belief that the employee had committed gross misconduct it does not necessarily follow that dismissal is the only reasonable sanction. An employer should treat every case on its own facts and take into account any relevant mitigation - Brito- Babapulle v Ealing Hospital NHS Trust UKEAT/0358/12/BA Inconsistent treatment[71]Where an employer imposes inconsistent disciplinary sanctions on employees that may be a matter that renders the dismissal unfair – see Post Office v Fennell 1981 IRLR 221, CA. The Tribunal is not entitled to substitute its own view as to the reasons for any different treatment it finds established. It must look at the employer’s explanation and ask whether it was reasonable Securicor Ltd v Smith 1989 IRLR 356, CA. More recently in Paul v East Surrey District Health Authority [1995] IRLR 309 Bedlam LJ said: 34. I consider that all industrial tribunals would be wise to heed the warning of Waterhouse J, giving the judgment of the Employment Appeal Tribunal in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 where, in paragraph 25, he said: 'We accept that analysis by counsel for the respondents of the potential relevance of arguments based on disparity. We should add, however, as counsel has urged upon us, that industrial tribunals would be wise to scrutinise arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant, and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument. The danger of the argument is that a tribunal may be led away from a proper consideration of the issues raised by s.57(3) of the Act of 1978. The emphasis in that section is upon the particular circumstances of the individual employee's case. It would be most regrettable if tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation.' 35 I would endorse the guidance that ultimately the question for the employer is whether in the particular case dismissal is a reasonable response to the misconduct proved. If the employer has an established policy applied for similar misconduct, it would not be fair to change the policy without warning. If the employer has no established policy but has on other occasions dealt differently with misconduct properly regarded as similar, fairness demands that he should consider whether in all the circumstances, including the degree of misconduct proved, more serious disciplinary action is justified. 36 An employer is entitled to take into account not only the nature of the conduct and the surrounding facts but also any mitigating personal circumstances affecting the employee concerned. The attitude of the employee to his conduct may be a relevant factor in deciding whether a repetition is likely. Thus an employee who admits that conduct proved is unacceptable and accepts advice and help to avoid a repetition may be regarded differently from one who refuses to accept responsibility for his actions, argues with management or makes unfounded suggestions that his fellow employees have conspired to accuse him falsely. I mention this because I consider that if the industrial tribunal in this case had had regard to these factors they would not have regarded the actions of the employers in Mrs Rice's case as disparate or have said that Mr Verling's misconduct should have been treated just as seriously, if not more seriously, than Mr Paul's. Discrimination because of something arising in consequence of disability[72]The Statutory definition of disability is set out in Section 6 of the Equality Act 2010 the material parts of which are as follows: 6 Disability(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.(2) – (4) omitted (5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1). (6) Schedule 1 (disability: supplementary provision) has effect.[73]Section 212 of the Equality Act 2010 provides that the meaning of the word ‘substantial’ in Section 6 means that the effect is more than minor or trivial.[74]Schedule 1 of the Equality Act 2010 includes at paragraph 2 a definition of when an impairment will be treated as ‘long term’. The material parts read as follows: 2(1) The effect of an impairment is long-term if—(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.[75]The statutory guidance produced under Section 6(5) of the Equality Act 2010 was published in 2011 and is entitled ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’. That guidance does not have the force of law, but a tribunal should have regard to the guidance when assessing whether a person meets the statutory definition of disability.[76]In Goodwin v Patent Office 1999 ICR 302, EAT the Employment Appeal Tribunal held that the starting point in determining whether a claimant had a disability would be to have regard to the way the parties put their respective cases in their ET1 and ET3. The Employment Appeal Tribunal identified for conditions that need to be met to establish that a person has a disability these are(1) the impairment condition(2) the adverse effect condition(3) the substantial condition and(4) the long-term effect condition.[77]Whilst a necessary element of the definition of disability is the existence of an impairment the Claimant need not provide a cause of diagnosis. Paragraph A6 of the statutory code says: ‘It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa.’[78]Section 15 of the Equality Act 2010 says: 15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. Disability - Knowledge[79]Section 15(2) provides a defence where the employer did not know or could not reasonably be expected to know that the employee had a disability. In Gallop v Newport City Council 2014 IRLR 211, CA the Court of Appeal held that it will be sufficient to establish knowledge of disability if the employer knew or ought to have known the facts which when analysed satisfy the statutory definition of disability. That requires knowledge of an impairment but not necessarily a diagnosis. Knowledge that that impairment has a substantial effect on ordinary day to day activities and knowledge of the facts that establish the long-term condition.[80]Paragraph 6.19 of the Statutory Code of Practice to the Equality Act 2010 (‘the statutory code’) gives the following guidance about the steps it would be reasonable for an employer to take to ascertain whether an employee had a disability: ‘For disabled workers already in employment, an employer only has a duty to make an adjustment if they know, or could reasonably be expected to know, that a worker has a disability and is, or is likely to be, placed at a substantial disadvantage. The employer must, however, do all they can reasonably be expected to do to find out whether this is the case. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.’[81]Secretary of State for Justice and anor v Dunn EAT 0234/16 the EAT confirmed the position in the statutory code of practice para 5.2, that the four elements that must be made out in order for the claimant to succeed in a S.15 claim are: 1.1. there must be unfavourable treatment 1.2. there must be something that arises in consequence of the claimant’s disability 1.3. the unfavourable treatment must be because of (i.e. caused by) the something that arises in consequence of the disability, and 1.4. the alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.[82]The describes what might amount to a detriment in paragraph 5.7. It says: statutory code For discrimination arising from disability to occur, a disabled person must have been treated ‘unfavourably’. This means that he or she must have been put at a disadvantage. Often, the disadvantage will be obvious and it will be clear that the treatment has been unfavourable; for example, a person may have been refused a job, denied a work opportunity or dismissed from their employment. But sometimes unfavourable treatment may be less obvious. Even if an employer thinks that they are acting in the best interests of a disabled person, they may still treat that person unfavourably.[83]In Williams v Trustees of Swansea University Pension and Assurance Scheme and anor 2019 ICR 230, SC the Supreme Court approved the guidance in the Statutory Code with Lord Carnwath, giving the Judgment of the Court saying: ……little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the passages in the Code of Practice to which [Counsel] draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.[84]In asking whether treatment is unfavourable there is no need to seek a comparison with the treatment of others. The statutory code says, at paragraph 5.6: ‘Both direct and indirect discrimination require a comparative exercise. But in considering discrimination arising from disability, there is no need to compare a disabled person’s treatment with that of another person. It is only necessary to demonstrate that the unfavourable treatment is because of something arising in consequence of the disability.’[85]At paragraphs 5.8 and 5.9 the statutory code says this about the requirement to show that there is ‘something’ that arises as a consequence of disability: 5.8 The unfavourable treatment must be because of something that arises in consequence of the disability. This means that there must be a connection between whatever led to the unfavourable treatment and the disability. 5.9The consequences of a disability include anything which is the result, effect or outcome of a disabled person’s disability. The consequences will be varied, and will depend on the individual effect upon a disabled person of their disability. Some consequences may be obvious, such as an inability to walk unaided or inability to use certain work equipment. Others may not be obvious, for example, having to follow a restricted diet.[86]The approach to the question of whether unfavourable treatment is ‘because of’ ‘something arising in consequence’ of disability is that set out in Pnaiser v NHS England and anor 2016 IRLR 170, EAT where Simler P (as she was) said:(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.(b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section15 case. The 'something' that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport [1999] IRLR 572. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises, contrary to Miss Jeram's submission (for example at paragraph 17 of her Skeleton).(d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is "something arising in consequence of B's disability". That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of section 15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of section 15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.(e) For example, in Land Registry v Houghton UKEAT/0149/14 a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The Tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.(g) Miss Jeram argued that "a subjective approach infects the whole of section 15" by virtue of the requirement of knowledge in section 15(2) so that there must be, as she put it, 'discriminatory motivation' and the alleged discriminator must know that the 'something' that causes the treatment arises in consequence of disability. She relied on paragraphs 26 to 34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages - the 'because of' stage involving A's explanation for the treatment (and conscious or unconscious reasons for it) and the 'something arising in consequence' stage involving consideration of whether (as a matter of fact rather than belief) the 'something' was a consequence of the disability.(h) Moreover, the statutory language of section 15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the 'something' leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of section 15 would be substantially restricted on Miss Jeram's construction, and there would be little or no difference between a direct disability discrimination claim under section 13 and a discrimination arising from disability claim under section 15.(i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of "something arising in consequence of the claimant's disability". Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to 'something' that caused the unfavourable treatment.[87]To demonstrate that unfavourable treatment was ‘because of’ something arising in consequence of disability it is sufficient to show that the ‘something’ was an effective cause and, if it was, it is immaterial that there were other effective causes of the treatment see Hall v Chief Constable of West Yorkshire Police 2015 IRLR 893, EAT and Charlesworth v Dransfields Engineering Services Ltd EAT 0197/16[88]An employer cannot be liable under this section for any unfavourable treatment unless they knew or ought to have known that the Claimant was disabled – see sub-section 15(2) above. However, once they know of disability it is irrelevant whether they recognised that the ‘something’ that caused their act or omission was because of disability, see City of York Council v Grosset 2018 ICR 1492, CA.[89]The statutory code sets out the requirements of the justification defence – that the treatment is a proportionate means of achieving a legitimate aim. The material paragraphs are 4.26 to 4.32 and will not be reproduced here. The test is the same as in justifying treatment that would otherwise be unlawful direct discrimination. A convenient summary the relevant principles is set out in Chief Constable of West Yorkshire & another v Homer [2012] ICR 708 in the opinion of Lady Hale where she said: “19. The approach to the justification of what would otherwise be indirect discrimination is well settled. A provision, criterion or practice is justified if the employer can show that it is a proportionate means of achieving a legitimate aim. The range of aims which can justify indirect discrimination on any ground is wider than the aims which can, in the case of age discrimination, justify direct discrimination. It is not limited to the social policy or other objectives derived from article 6(1), 4(1) and 2(5) of the Directive, but can encompass a real need on the part of the employer’s business: Bilka-Kaufhaus GmbH v Weber von Hartz, Case 170/84, [1987] ICR 110. 20. As Mummery LJ explained in R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213, at [151]: “. . . the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.” He went on, at [165], to commend the three-stage test for determining proportionality derived from de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80: “First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?” As the Court of Appeal held in Hardy & Hansons plc v Lax [2005] EWCA Civ 846, [2005] ICR 1565 [31, 32], it is not enough that a reasonable employer might think the criterion justified. The tribunal itself has to weigh the real needs of the undertaking, against the discriminatory effects of the requirement.”[90]Where the unfavourable treatment arises because the employer has failed to make reasonable adjustments, the employer is unlikely to be able to make out the defence of justification. See paragraphs 5.20 – 5.22 of the statutory code and see also Griffiths v Secretary of State for Work and Pensions 2017 ICR 160, CA Discussions and conclusions The unfair dismissal claim[91]As we have set out above the first issue for the tribunal is to make a finding about what the reason or reasons were for the dismissal. The reasons for any treatment are the facts known to and the opinions held by the person who took the decision to dismiss. In this case we are satisfied that the decision to dismiss the Claimant was initially that of David Clark.[92]The Claimant had adopted the position Mr Sedani was responsible for him being disciplined. We would accept that Mr Sedani was responsible for reporting the incident that led to the disciplinary proceedings. We do not accept that Mr Sedani in any way manipulated the evidence or presented a false report about what had happened. His account was entirely consistent with the CCTV footage that we have watched of the incident on 10 March 2023. We find that David Clark made his own assessment of what had occurred on 10 March 2023 and acted upon that assessment.[93]The Claimant’s case was that his pattern of absences and his need for adjustments were a reason why he was dismissed. Drawing on our findings of fact above we have concluded that David Clark had very little involvement with previous absence management procedure. It did appear to us from the Claimant’s evidence and from our review of the papers that the Claimant’s relationship with Ray White had deteriorated over a lengthy period. However, A sensible decision had been taken to remove Ray White from the Claimant’s line management some time before the events of 10 March 2023.[94]It was Mr Tickner who had conducted the investigation into the report about the Claimant’s driving on 10 March 2023. Whilst it was not a point that the Claimant laid any great emphasis on we have considered the extent to which Mr Tickner might have been influenced by his recent dealings with the Claimant under the absence management policy when finding that he had a case to answer in respect of the driving incident. The record of the investigatory interview that took place on 15 March 2023 does show Mr Tickner challenging the Claimant on a number of occasions. One example is where the Claimant claimed that he was unaware of the one way system. We are not surprised that Mr Tickner would have responded bluntly to that suggestion. We note that Mr Tickner had given the Claimant a verbal warning for his absences only 5 days earlier. We have considered whether that would allow us to draw an inference that he took this into account in his later decision. We do not draw any such inference. We note that the verbal warning was a minor penalty. Some of the absences were properly questionable and yet a lenient view was taken. The decision that there was a case to answer is one that in our view was unsurprising. Indeed we would have been astonished if the matter had not proceeded to a disciplinary hearing. There is nothing in Mr Tickner’s decision that calls for any explanation. Whilst we did not hear from Mr Tickner we are satisfied on the basis of the evidence that we have seen that he was not influenced by any pattern of absences/adjustments when he decided that the matter should proceed to a disciplinary hearing.[95]We find that David Clark approached the disciplinary hearing in a very straightforward way. He was looking at the way the disciplinary allegations had been framed and that he asked himself firstly whether the allegations had been made out and then what he should do about it.[96]We need to reach a conclusion about whether David Clark took into account the history of absence management and need for adjustments when he came to his decision. We have recorded that in his response to a suggestion that the Claimant had a ‘perfect record’ David Clark disputed that and referred to a number of matters including the Claimant’s absence record. In his witness statement David Clark dealt with the Claimant’s suggestion that he had taken into account the Claimant’s disability (for the purposes of what was understood then as a direct discrimination claim). He denied that he had any regard at all to the Claimant’s disabilities. In his oral evidence he was just as adamant that he had not taken into account the Claimant’s absences or adjustments. We consider that there might be two ways in which absences/adjustments might be said to have influenced the decision taken by David Clark. The first is that the absences/adjustments were what informed the decision rather than the driving/refusal to follow instructions. The second is that whilst the driving/refusal to follow instructions was the main reason for the decision the absences/adjustments played a part in that they were a reason for not showing leniency.[97]We note that in his letter dismissing the Claimant David Clark does not return to the issue of the Claimant’s disciplinary record when he sets out the reasons for his decision. His focus is solely on his view of the gravity of the conduct. His oral evidence was that he did not take the Claimant’s absences/adjustments into account at all when he decided to dismiss. In essence he said that he only raised the absence management records to rebut the suggestion that the Claimant had a perfect record.[98]We remind ourselves that in this claim our focus is on the principal reason for the dismissal. We are satisfied that the reason that he decided that the Claimant should be dismissed is that he came to the conclusion that the Claimant’s driving, and his response to Mr Sedani was far below what he would tolerate from a bus driver. That was, at least, the principal reason for the dismissal (below we find that it was the only reason). There was simply no sufficient evidential basis for a conclusion that the Claimant’s absences and needs for adjustments played a part in David Clark’s decision making process.[99]We are satisfied that poor driving standards and/or refusing to follow Mr Sedani’s instructions falls within the definition of ‘conduct’ that impinges on the working relationship. We are therefore satisfied that the dismissal was potentially fair.[100]We then turn to the quality of the investigation and the process that was followed. We need not deal with the fourth allegation against the claimant (a delayed start) as the Claimant was not dismissed because of this and we are satisfied it was not taken into account when the decision to dismiss was taken.[101]The Respondent had a report from Mr Sedani. That summarised his evidence and referred to the CCTV. The CCTV was clearly a key part of the evidence in this case. It was necessary to view the CCTV to establish whether each element of the disciplinary charges had been established. Fairness demanded that the Claimant was given an opportunity to view and comment on the CCTV. He was given a full opportunity to do so. We find that in making an assessment of the Claimant’s driving other than looking at what Mr Sedani said, looking at the CCTV and asking the Claimant to respond there were no further steps that a reasonable employer could have been expected to take before the disciplinary meeting.[102]At the disciplinary meeting the Claimant raised the suggestion that he had been unaware of the one way system. We find that when this was raised a reasonable employer would have recognised that this required to be explored through further investigation. David Clark did exactly that. The first step he took was to listen to the Claimant’s explanation. We do not think that he can properly be criticised for robustly challenging the Claimant’s account. The one way system had been in place for many years. Busses usually followed the one way system. That involved leaving the depot by circling behind the main building taking a long way around to the gate. David Clark could quite properly be sceptical of the Claimant’s account that he was unaware of the system. He then carried out some further investigation into whether the Claimant had been shown the health and safety documents that included reference to the traffic plan. We find that this was an entirely proper step to take.[103]The Claimant suggests that it was unfair that David Clark did not invite Mr Sedani to the disciplinary meeting. We are not persuaded that this was a step a reasonable employer ought to have taken. It was not at all obvious from what he said during the investigatory meeting what parts of Mr Sedani’s report the Claimant was disputing. What he appeared to dispute was Mr Sedani’s right to challenge him about his driving. In any event this was a matter fully explored during the appeal process.[104]We are satisfied that given the very narrow issues raised by the disciplinary allegations the steps taken by the Respondent up to the conclusion of the disciplinary hearing amounted to a reasonable investigation. What was essential was that David Clark viewed the objective evidence provided by the CCTV which showed the entire incident and then asked the Claimant for his explanation. When the Claimant raised his knowledge of the system further investigation on that point was undertaken.[105]We must then ask whether the conclusions reached by David Clark about what had actually occurred were formed on reasonable grounds. We remind ourselves that we are not deciding for ourselves what conclusions should have been drawn from the evidence but asking whether the conclusions drawn by David Clark were reasonable. That said, in assessing whether David Clark’s interpretation of the CCTV footage was reasonable we may have regard to the footage itself.[106]It is clear from the CCTV footage that the Claimant drove against the one way system. There was no dispute about the Claimant’s direction of travel. The Claimant’s account (at this stage) was that he was unaware of the one way system. The evidence before David Clark provided robust reasons for rejecting that account (which was later abandoned on appeal). David Clark was entitled to take account of the length of time that the Claimant had worked at the depot and that the one way system had been in place for years. He was entitled to have regard to the fact that the traffic managing policies were displayed and circulated to drivers. He checked that the Claimant had been given and signed for a copy of a document that highlighted the depot traffic safety plan and the reversing policy. The conclusion that the Claimant knew of the one way policy is strongly supported by his reference to taking the short way to leave the depot when he was talking to his colleague after the incident.[107]The CCTV footage and audio provided a reasonable basis for the conclusion that the Claimant had reversed without waiting for 5 seconds, without blowing his horn and without hazard lights on. We also find that the CCTV footage provides a reasonable basis for a conclusion that the Claimant does not do a full and sufficient rear view mirror check. That assessment is a matter of judgment for the viewer but is not one where the tribunal should substitute its own view. We should say that for ourselves we would have agreed with Mr Clark had it been necessary.[108]We find that it was entirely reasonable to regard the Claimant’s driving as a flagrant breach of the driving standards. Had it just been a left turn against the one way system we would not have though that by itself to provide a basis for a conclusion that there had been a serious lapse in standards. We find that it was reasonable for David Clark to conclude that the Claimant’s response compounded that error. His refusal to obey an instruction coupled with a dangerous reversing movement in a crowded yard was a matter to which David Clark could quite properly have regard.[109]We find that there was no aspect of the Claimant’s driving that was not properly investigated. As such we are satisfied that the Respondent conducted a reasonable investigation. By the point of the appeal hearing the Claimant had the opportunity to ask any questions he wanted of Mr Sedani.[110]We turn then to the decision to impose dismissal as the appropriate sanction. This was the decision reached by David Clark and then upheld on appeal by Simon Davis. We find that the Respondent was entitled to regard the Claimant’s conduct as a serious breach of health and safety. The Respondent was entitled to have regard to the level of insight shown by the Claimant. Mr Clark catagorised the Claimant’s explanation as putting forward unacceptable excuses. We find he was entitled to reach that conclusion.[111]We find that the reasons for imposing the sanction of dismissal were the same for both David Clark and Simon Davis. They are those expressed by Simon Davis in his letter dismissing the appeal he spends some time acknowledging the Claimant’s long service and accepts the impact that dismissal will have him. He accepts that the Claimant had shown some belated remorse on appeal. He then says: ‘However, the first offence of turning left against the one way system was serious on its own, but you had compounded this issue by making the situation far worse by choosing to reverse, in an unsafe manner, while being told (in my view politely), to stop. I could not accept your actions and as I said in our meeting, reviewing the CCTV took my breath away. I cannot recall seeing such an action like this and this was genuinely a dangerous act. As I said in our meeting, sadly our industry sees fatalities and serious injuries and bus garages by their nature are higher risk areas. To knowingly and wilfully disregard a clear safety instruction such as this is not acceptable. I explained while one serious conduct matter did not always need to lead to Summary Dismissal, this was a very serious incident and I do not feel a Final Written Warning or stepping back from dismissal is appropriate. A driver was dismissed from West Ham last year for a near miss incident involving going against the traffic plan and I feel dismissal is also appropriate in your case.’[112]We deal with the extent to which mitigating matters were dealt with by David Clark below when considering the Section 15 claim. David Clark did not accept that the Claimant had a ‘perfect’ record. We find that that was a view he was entitled to take. Furthermore, below we set out our conclusion that this formed a very small part of his reasons for dismissing the Claimant. Simon Davis also considered the Claimant’s employment records. His conclusions, which we record below, were more favourable to the Claimant. We find that by the time of the appeal the issue of whether the Claimant’s disciplinary record provided sufficient mitigation had been considered thoroughly.[113]The Claimant had asked us to view videos that he had entire taken or obtained that showed busses moving around the West Ham depot. There were instances of buses reversing without assistance. There were some which showed an apparent disregard of the one way system. The Respondent has relied upon documents that show that another driver was dismissed for driving against the one way system. It appears that he was in his probationary period and that there were other matters taken into account when he was dismissed. We have set out above the approach the tribunal needs to take when assessing whether a dismissal is fair or unfair because others in comparable situations were not[114]The Claimant has not been able to identify any individual who had driven in the same way as he did and was treated more leniently. We find that that would necessarily include turning the wrong way down the one way system, ignoring a direct instruction not to reverse and then reversing in a dangerous manner placing the supervisor and potentially others in danger. Furthermore to have a truly comparable situation that conduct would need to have been reported and investigated. The Claimant relied on evidence where Mr Sedani was reported to have seen a driver breaching the one way system and saying, ‘what can I do’. We do not think that assists the Claimant. It appears to us that, if that was said, it was no more than an expression of frustration by Mr Sedani. It does not amount to condoning the behaviour. In any event a mere breach of the one way system is far less serious than the Claimant’s actions as a whole.[115]We turn then to the question of whether the sanction of dismissal was reasonable. We remind ourselves that we should not substitute our view of the seriousness of the incident for that of the Respondent’s decision makers. In this case even if we were to do so our own views would align precisely with the way in which Simon Davis expressed himself in the passages quoted above. The Claimant’s driving and his flagrant insubordination was a clear breach of a carefully formulated health and safety plan and was potentially very dangerous.[116]We find that it was within the range of reasonable responses to treat this incident as amounting to gross misconduct and to dismiss the Claimant without any further warnings. The Respondent’s policies make it sufficiently clear that in a case like this dismissal for a first offence may be the outcome. We find that the dismissal was fair. It is not necessary for us to express any view on issues of remedy.[117]Having regard to the procedure followed and the decisions reached we are satisfied that the reason for the dismissal was the Claimant’s conduct on 10 March 2023 and not any past difficulties. We find that the decision to dismiss the Claimant fell into a band of reasonable responses and that the dismissal was fair.[118]For these reasons the unfair dismissal claim is not well founded and is The Equality Act 2010 Claim Disability[119]The Respondent has not conceded that the Claimant’s back problems amounted to a disability. It is said that there was no medical evidence to support the conclusion that there was any injury to the Claimant’s spine. In particular, it was suggested that the only MRI scan that the Claimant has provided shows that there was no significant abnormalities.[120]We have no hesitation whatsoever in concluding that the Claimant has met the statutory test for disability for a number of years prior to his dismissal. We find the Respondent’s approach to be surprising and consider that where, as here, the evidence shows that the Claimant has struggled with some aspects of his work for some years and that accommodations such as a particular bespoke shift pattern have been put in place to address those issues it should have been obvious to the Respondent that the Claimant met the statutory definition of disability. That was something that their own Occupational Health advisors had been saying since 2018.[121]We shall deal with each element of the statutory test in turn. We shall do so briefly in the light of our ultimate conclusions. 121.1. Has the Claimant established that he had an impairment? The answer is clearly yes. He has had pain in his back for around 20 years. The pain has been referenced in a number of medical examinations. No medical professional has suggested that there is not a long history of issues with the Claimant’s back. The fact that only minor disc desiccation and mild facet joint osteoarthritis is observed in an MRI scan in 2013 does not contradict the Claimant’s evidence of back pain. It is notable that the Claimant was referred for physiotherapy at this time. We accept the Claimant’s evidence contained in his disability impact statement where he describes the outset of his difficulties. We further accept that the Claimant has long standing issues with his right knee. The medical evidence is that he suffers from crepitus indicative of arthritis. 121.2. We are satisfied that the impairment to the Claimant’s back has a substantial effect on his mobility. The Claimant has described a number of day to day activities such as walking, dressing and washing where he can only carry out these activities with difficulty. He has also said, and we accept, that he has had been advised to, and does rely on medication including Co-codamol to cope with the pain associated with these and similar activities. We infer that the pain would be worse and the difficulties enhanced were he without this treatment. We accept the Claimant’s evidence that where he had other injuries at work it was the combined effect of his pre-existing conditions and those injuries that led to his significant absences. 121.3. The effect on the Claimant’s ability to carry out ordinary day to day activities satisfies the requirement that it is long term because at the time of the discriminatory act complained of it had already lasted very far in excess of 12 months. The Respondent’s Knowledge[122]We find that the Respondent had actual knowledge that the Claimant met the statutory definition of disability. It was told that was the case in an occupational health report following an assessment on 3 October 2018. That report sets out in terms that the Claimant has ‘ongoing back pain and knee pain. They have improved but have not resolved completely. It is said that the Claimant is likely to fall ‘under the Equality Act’. The later report of 15 November 2019 makes this even clearer. The Respondent is told that the Claimant is taking medication and despite this the examination ‘reveals restricted lumbar spine movements in all vectors. There is also discomfort and some crepitus right knee’. We find that that report along with the numerous certificates that had been provided by the Claimant that refer to back pain or knee pain are sufficient that the Respondent either knew of all the facts that are sufficient to meet the statutory definition of disability or were sufficient to put the Respondent on notice such that they ought to have known. We find that the Claimant would, if asked, have given the Respondent all the information that he has since included in his statements for these proceedings. The Section 15 Claim[123]The action complained of by the Claimant is his dismissal. We accept that being dismissed could be regarded as unfavourable treatment.[124]We are equally satisfied that, in part at least, the Claimant’s absence record was something that arose in consequence of his disabilities. He had long periods of work both for back pain and for pain in his knee. We are further satisfied that the fact that the Respondent has been asked to and agreed to special working arrangements for the Claimant are something that arises in consequence of the Claimant’s disabilities. The Claimant has latterly been afforded the opportunity to work for particular fixed shifts. The reasons for this are set out in the history of managing the Claimant’s health. The Claimant has difficulties travelling to work and this was mitigated by the arrangements put into place by the Respondent.[125]The issue is then whether the dismissal was because of either the Claimant’s absence record or because of the adjustments that were made. They are not the same thing and we need to take care to evaluate each in turn.[126]We remind ourselves that unfavourable treatment can be ‘because of’ something where the something is only one of any number of material reasons for the treatment.[127]We also need to remind ourselves of how the burden of proof is applied. Put shortly Section 136 of the Equality Act 2010 requires us to ask whether the Claimant has proved facts where, without taking into account any explanation from the Respondent, we could properly decide that there has been unlawful discrimination. If we get that far we would be obliged to conclude that there was discrimination unless the Respondent satisfies us that the treatment was not discriminatory.[128]We shall look first at the Claimant’s suggestion that his dismissal was because of the adjustments that he had asked for and in some cases was given. When the case is put this was we ask ourselves whether the Claimant has shown facts from which we could infer that these adjustments did play a part in David Clark or Simon Davis’s reasons for dismissing hi or upholding the appeal. The Claimant has established that he was disabled. The Claimant has established that because of this he has asked for and was given some adjustments at work. It is clear to us that the requests were made at various times over a number of years. It is also clear to us that there were some delays in implementing the requests. The Claimant has established that he was dismissed and re-instated on no less than two occasions. The Claimant has established that when it was suggested at the disciplinary meeting before David Clark that the Claimant had a perfect record David Clark said that he disagreed. He went on to refer to the Verbal warning for unsatisfactory attendance that had been given on 10 March 2023 (amongst other matters not concerning disability). Even at this stage we are entitled to have regard to the dismissal took place after the Claimant had driven the wrong way around the one way system, disobeyed an instruction not to reverse and then reversed in a dangerous manner. The question for us is whether those facts are sufficient to support an inference that the requests for adjustments played a part in the decision to dismiss him. We do not think that those facts would support that inference. They are sufficient to establish that it is a possibility but that is not enough. The question is whether before hearing the Respondent’s explanation we could properly conclude that there had ben discrimination. We find that we could not.[129]If we are wrong about that then we would need to be satisfied that the Respondent’s explanation for the dismissal is sufficient that we could say that the Claimant’s requests for adjustments and the fact that some were made were nothing whatsoever to do with the dismissal. David Clark says that he dismissed the Claimant only because of his driving and behaviour on 10 March 2023. Simon Davis says the same. We are entirely satisfied that the adjustments that had been requested and partially given to the Claimant played no part whatsoever in the thinking of either induvial. As we have alluded to in our discussion of the unfair dismissal claim David Clark had virtually no involvement with the Claimant’s absence management and adjustments. There was no evidence of any culture of resentment about the adjustments that might have infected his thinking. Simon Davis had been the individual who had endeavoured to assist the Claimant putting the recommendation that he work particular shifts into place. Both David Clark and Simon Davis gave a clear and credible explanation for their decisions. Both concluded that the Claimant’s behaviour merited dismissal. We are unsurprised by this. Whilst the existence of a perfectly reasonable ostensible explanation for a dismissal is not determinative it does provide strong evidence that the ostensible reason is the entirety of the reasons.[130]We find that both David Clark and Simon Davis have satisfied us that the fact that the Claimant had requested and/or had been afforded adjustments requested to accommodate his dismissal played no part whatsoever in the decision to dismiss him (or in the case of Simon Davis to uphold the decision).[131]We turn then to the question of whether the Claimant’s absence record played any part in the reasons for the dismissal. We shall not repeat our analysis above but draw upon it.[132]We repeat the matters we need to consider at the first stage of assessing whether the Claimant has proved facts from which we could conclude that in the absence of an explanation from the Respondent we could properly conclude that the Claimant’s absence record played a part in the decision to dismiss him. In respect of David Clark we are satisfied that in the absence of an explanation from him we could properly conclude that when he decided that the Claimant should be dismissed he took into account his review of the Claimant’s disciplinary record which included the most recent verbal warning under the absence management policy and which in his view meant that the record was not ‘perfect’. In respect of Simon Davis we do not consider that any comment made by David Clark would assist in supporting an inference that Simon Davis had taken into account the absence management record. In his outcome letter he said ‘We reviewed your overall record and although there were negative issues present, I noted a 100% BCES score and a generally good Green Road score. There was nothing of this nature present on your file’. Whilst there is reference to ‘negative issues’ the record would indicate that they were expressly disregarded. We have concluded that we could not properly infer that the absence management records played a part in Simon Davis’s decision to dismiss the Claimant’s appeal.[133]We then turn to the explanation given by David Clark for the dismissal. He says that the fact that the Claimant had been given a verbal warning under the absence management process played no part whatsoever in his thinking. In his witness statement and oral evidence his focus was entirely on the Claimant’s conduct. We accept that he honestly viewed that conduct as very poor indeed. However, we have regard to the fact that, entirely reasonably, David Clark had reviewed the Claimant’s disciplinary record. Because he had done that he was able to contradict the Claimant’s trade union representative when it was suggested that the Claimant had a perfect record. Having regard to the fact that David Clark thought that it was necessary to acquaint himself with the Claimant’s record we are not satisfied that he then put this entirely out of his mind when deciding what sanction to impose. We would accept that he did not give the disciplinary record a moment’s thought when assessing the gravity of the Claimant’s conduct. In reaching this conclusion we have reminded ourselves that the test is ‘in no sense whatsoever’. We find that the fact that the Claimant’s disciplinary record was ‘not perfect’ played at least some part in David Clark’s thinking even if it was very minor.[134]That conclusion means we must deal with the question of whether any potential discrimination was justified. The treatment that needs to be justified is the dismissal of the Claimant. The Respondent’s case was that if contrary to its primary case that the absence management record had played no part in the decision to dismiss the Claimant then dismissal was a proportionate means of enforcing disciplinary rules aimed at protecting the health and safety of its employees and members of the public.[135]There is plainly a rational connection between the decision to dismiss the Claimant and the legitimate aim identified by the Respondent. Putting rules in place that protect health and safety would be rendered impotent if employers did not take steps to address transgressions.[136]The real issue for the tribunal is whether in this case the decision to dismiss the Claimant was a proportionate means of achieving the legitimate aim. The tribunal needs to make its own findings in relation to this and is not bound by what the Respondent considered reasonable.[137]For ourselves we were able to judge the Claimant’s actions on 10 March 2023. We agree with the assessment of Mr Tickner, David Clark and ultimately Simon Davis. We find that the Claimant took a shortcut because he was running late. We do not consider that to be a very serious transgression but it did create a risk. What was in our view far more serious was the Claimant’s response to Mr Sedani when his wrongdoing was pointed out. The Claimant was unjustifiably defiant. He disobeyed a direct instruction and then reversed without any proper checks being made as to anybody what might have been behind him and very close to Mr Sedani. We find that his driving, and his attitude to Mr Sedani fell far short of what could reasonably be expected from a driver and displayed a wilful disobedience to the health and safety rules that were quite properly in place.[138]We have found that David Clark had regard to the fact that the Claimant did not have a ‘perfect record’. We bear in mind that in deciding that the Claimant did not have a perfect record David Clark referred to Service performance reports and a Box 3 DQM assessment that was pending review. Neither of these matters arose in consequence of any disability.[139]The verbal warning was given because the Claimant had reached a trigger point in the Respondent’s absence management policy. The terms of that policy are evident from Mr Tickner’s letter to the Claimant of 10 March 2023. There was a target of less than three ‘spells’ (blocks of absence) or 13 days of absence in a rolling 12 month period. The letter sets out that the Claimant had had 5 spells and 155 days of absence. Of these at least 2 spells were not connected with disability.[140]Had we been considering the question of whether giving the Claimant a verbal warning in respect of this absence record was justified we would have readily accepted that it was. It is clearly a legitimate aim for an employer to have in place a policy aimed at securing reasonable levels of attendance. Running through the absence management documents within the bundle was the theme that irregular attendance was difficult to manage for the Respondent who is dependent on drivers coming to work to meet the standards imposed on it by TFL. What needed to be justified was not a dismissal but a verbal warning putting the Claimant on notice that if his attendance did not improve then the process would be escalated. We consider that with 5 spells of absence and 155 days of absence in a 12 month period the Respondent acted entirely proportionately in giving the Claimant a verbal warning.[141]We have accepted that to a limited extent that verbal warning was taken into account when David Clark decided to dismiss the Claimant – he refused to regard the Claimant as having a ‘perfect record’. It was not taken into account for the purposes of assessing whether the Claimant was guilty of any misconduct but on the issue of whether there were sufficient mitigating factors to suggest a sanction short of dismissal.[142]It seems to us that there is nothing inherently improper in an employer taking into account a warning for poor attendance when considering the appropriate penalty for misconduct. Whilst poor attendance through ill health is not a matter of blame an employee who is unreliable through ill health does not have a ‘perfect record’. If the poor attendance was in part the consequence of disability the question would be whether the decision to dismiss was proportionate having regard to the extent to which that poor attendance record fed into the decision making process. Here we find that the verbal warning was only one of a number of reasons leading David Clark to reject the suggestion that the Claimant had a perfect record. He then went on to decide on an appropriate response to what he, and we, regarded as very poor behaviour indeed.[143]The extent to which issues arising as a consequence of disability fed into that decision were a tiny part that decision making process. Ignoring them would have made no difference to the outcome. That conclusion feeds into the issue of proportionality. We are satisfied that the decision to dismiss the Claimant was a proportionate means of achieving a legitimate aim.[144]It follows that the Claimant’s claim brought under Sections 15 and 39 of the Equality Act 2010 must fail. The claim for ‘other payments’[145]When he presented his ET1 the claimant ticked the box in section 8 indicating that he was claiming for ‘other payments’. The narrative that the Claimant included in Section 8.2 makes no reference to the Claimant not being paid what was due to him. In the case management order of EJ Illing the list of issues is prepared it generic terms with a suggestion that there may be some unidentified claim for money brought either as a claim under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 as a reach of contract claim or under Part II of the Employment Rights Act 1996 as a claim for unlawful deduction from wages. The Claimant had been asked to provide further information about these claims. He did so by way of an e-mail sent on 21 November 2023. In that e-mail he have the following particulars of his claims. He said that he was contracted to work for 38 hours per week for the period between 8 October 2022 to 23 March 2023 a proof of 16 weeks, He said that he was ‘forced’ to work for 40 hours per week but received no additional pay. He assessed the amount he says was due as being £300.16.[146]We checked at the outset of the hearing that those claims were still live and asked for them to be clarified. The Claimant’s witness statement is entirely silent on any claim for monies due. Whilst Simon Davis gave an explanation as to how the Claimant was paid the sums he was that was not the subject of any challenge by the Claimant. The Respondent had included a spreadsheet showing the hours actually worked by the Claimant in each week of this period.[147]When we heard submissions from the Respondent we asked about these claims. The Respondent’s submission was that as we had not been taken to any evidence the Claimant had failed to discharge the burden of proof on any aspect of his claims. The Claimant said nothing about these claims.[148]The period giving rise to the dispute corresponds with a period which in accordance with recommendations made by the Respondent’s Occupational Health advisor the Claimant had been allocated fixed duties as opposed to variable shifts. He was working 5 days each two weeks.[149]The Claimant has returned to work after a long period of sickness absence on 7 October 2022. He had a half day off on 12 October 2022 and on 14 October 2022. He was then absent from 19 November 2022 to 6 January 2022 in part due to a holiday and in part due to an apparent misunderstanding about leave.[150]We have looked at the Claimant’s pay slips and the Respondent’s record of hours worked. It is quite clear from the record of hours worked that on the days the Claimant worked he generally worked for almost exactly 8 hours. Where there were no absences or holidays there was a pattern of the Claimant working two days in one week followed by 3 days in the next. That is as the Claimant says 40 hours per 2 weeks. We should say that due to holidays and absences there are only short periods where that pattern was actually worked. Where the Claimant works in excess of 8 hours it is recorded that overtime was claimed.[151]Looking at the Claimant’s pay slips we can see that he was paid in a similar pattern. He is paid for 15.2 hours in weeks where he worked for 2 days but 22.8 hours where he works for 3. Adding those together shows that the Claimant was paid during those regular periods for 38 hours. It would seem that if the Claimant was contracted to do only 38 hours per two weeks there was the potential for underpayment.[152]It is clear that the discrepancy between the hours worked by the Claimant arose when, as an adjustment, he was given fixed shifts. He was paid for each shift as if he was working a variable shift pattern with a 7.6 hour average. We have a real difficulty in that the Claimant has not told us what he says was agreed when this variation of contract took place. He has proceeded on the basis that his hours would be adjusted to match the shifts he was actually working whereas the Respondent has maintained the pay at the level agreed with all other drivers which is a per shift average on an assumed working time of 7.6 hours.[153]A further difficulty is that it is clear from the payslips that the Claimant was sometimes paid when he had not been working. There are at least 5 ‘lieu days’ where the Claimant is paid but does no driving.[154]We gave the Claimant the opportunity to present and explain his case. He did not present any evidence dealing with the point when he was offered fixed shifts to accommodate his disability. Simon Davis in his witness statement says that, like other drivers, the Claimant would have been offered other shift patterns that had an average of less than 7.6 hours per shift had he continued to work.[155]The position we were left in is that the best we can do on the evidence is to accept what Simon Davis has said which is that all the Respondent’s drivers are paid for 7.6 hours per shift worked and over a period that will amount to an average of 38 hours per week. He says that for a long period the Claimant worked shifts which were less than 7.6 hours but nevertheless was paid as if he had worked for that average. He says that it was only when the Claimant was allocated particular shifts upon his return from sick leave in October 2022 did he more regularly do shifts of 8 hours. He says that if the Claimant had worked more then had he remained employed he would have been given shorter shifts to balance out his hours. If the agreed payment was 7.6 hours per shift then we cannot see that the Claimant has been paid less than what was agreed (even if he did work longer than that on some occasions). It would appear to us that given that the Claimant was paid for 5 lieu days it is very possible that there was an overpayment in any event.[156]We conclude that the Claimant has simply failed to put forward any sufficient evidence to make good his case that he was entitled to be paid in a way inconsistent with that of other drivers which was on an assumed rather than actual length of shift.[157]These claims therefore stand to be dismissed whether they are brought as breach of contract claims or unlawful deductions from wages. PostScript[158]I apologise for the delay in providing these written reasons. I have some delays at the moment caused in part by workload and in part by the loss of a relative which has occupied a lot of my time over the last year. I know that parties are always anxious to move their cases forward and I apologise for any inconvenience.