[1]The Claimant was unfairly dismissed.[2]The Claimant’s basic award will be reduced by 30% to reflect his conduct prior to dismissal.[3]The Claimant’s compensatory award will be reduced by:a. 25% to reflect the chance that the Claimant would have been dismissed in any event had the Respondent acted fairly; andb. 30% in respect of contributory fault.[4]The Claimant was wrongfully dismissed in breach of his contractual entitlement to notice.[5]The Claimant’s suspension, disciplinary allegations and proceedings, and dismissal amounted to discrimination arising from disability contrary to s.15 Equality Act 2010.[6]The Respondent’s request on 19 October 2022 for the Claimant to take on additional parcels amounted to a failure to make reasonable adjustments.[7]The Claimant’s other complaints of failure to make reasonable adjustments are not well-founded and are dismissed.[8]The Claimant’s victimisation claim is not well-founded and is dismissed.[9]The Claimant’s indirect discrimination claim is not well-founded and is dismissed.[10]A hearing to determine remedy will be listed. Case management directions concerning the remedy hearing will be sent in a separate case management order.
REASONS
[1]Following early conciliation between 9 June and 21 July 2023, on 21 August 2023 the Claimant presented complaints of unfair and wrongful dismissal, victimisation, discrimination arising from disability, failure to make reasonable adjustments and indirect age and disability discrimination. The Respondent filed a response on 2 November 2023 disputing the complaints.[2]At a preliminary hearing on 31 January 2024, the issues in the claim were discussed and a list of issues for determination set down by Employment Judge Anderson. This judgment sets out the Tribunal’s conclusions on each of those issues.[3]The final hearing was listed before a full panel, but in the event only one lay member was available to sit on the listed dates. At the start of the hearing, the parties consented to have the claim heard by a panel comprising an Employment Judge sitting with one lay member.[4]Also at the start of the hearing, the parties confirmed that the Claimant’s employer, and therefore the correct Respondent to the claim, was Royal Mail Group Limited. Two other parties, International Distribution Services Plc and Parcelforce Limited (which had been jointly represented with Royal Mail Group Limited), were removed from the proceedings.[5]The Tribunal was provided with a bundle of evidential documents numbering 350 pages, and an agreed cast list and chronology.[6]The Claimant gave evidence on his own behalf. The following witnesses gave evidence for the Respondent: 6.1. Mr Scott Eaton, Delivery and Collections Manager and the Claimant’s line manager. 6.2. Miss Jennifer Paine, Operations Manager and the Claimant’s senior line manager from July to October 2022. Miss Paine is now the Respondent’s Regional Operations Leader for the South East. 6.3. Mr Abdullah Ishaq, Operations Manager. Mr Ishaq was the disciplinary manager who took the decision to dismiss the Claimant. 6.4. Mr Steven Potter, Independent Case Manager, who heard the Claimant’s appeal against dismissal.[7]Mr Sheehan and Mr Peacock provided helpful written and oral submissions on behalf of the Claimant and Respondent respectively.[8]The list of issues set down by Employment Judge Anderson contains liability issues only. Mr Peacock on behalf of the Respondent invited the Tribunal to additionally determine two remedy issues, Polkey and contributory fault, at the liability stage. Mr Sheehan considered this was an approach open to the Tribunal to take, but also said the Claimant may wish to make further submissions at the remedy stage. I gave a preliminary indication that it would be helpful for the Tribunal to provide conclusions on Polkey and contributory fault (if relevant) at the liability stage in order to inform the parties’ preparations for the remedy stage (should it arise). During deliberations, the Tribunal decided to adopt this approach and therefore our conclusions on these two issues are included in the judgment above and reasons below. Findings of fact The Claimant’s role
Findings of fact
[9]The Claimant was employed by the Respondent as a Customer Service Provider/Courier from 10 November 2008 to 13 March 2023. The Claimant worked at the Respondent’s London East Depot. His job role involved driving a van and delivering parcels. By the time of the events giving rise to this claim he was a ‘reserve’ driver which meant he did not have an allocated regular route. The Claimant’s health[10]The Claimant has the following health conditions: 10.1. The Claimant was diagnosed with ischaemic heart disease in 2010 after suffering a heart attack. In 2018, the Claimant suffered a further heart attack and underwent heart surgery. He was assessed by Occupational Health (OH) on 23 November 2018 as fit to return to work, with a restriction on lifting weights above 15kg until at least the end of December 2018 and 6-8 week phased return to full duties. He was assessed again on 17 January 2019, at which point he was recovering well and was working full-time with light duties. It was recommended that if he remained in the same role he should avoid lots of heavy lifting and too much stress. 10.2. The Claimant was first diagnosed with lower back pain and sciatica in or around 1990. He underwent a discectomy in 2008. Since then his back condition has fluctuated, causing more or less pain at different times. 10.3. The Claimant was diagnosed with diabetes in 2016. This causes symptoms including disturbed sleep, increased frequency of urination, fatigue and poor circulation in his feet. 10.4. The Claimant has suffered from depression and anxiety from April 2021 for which he has received CBT treatment and antidepressant medication. These conditions began to improve towards the end of 2023. They caused the Claimant to have difficulty with sleeping, focussing on tasks and seeing friends and family. The Claimant’s 2021 warning[11]On 11 June 2021, the Claimant was issued with a written disciplinary warning for “failure to follow a reasonable instruction”, to remain live for two years. The instruction in question had been a request that the Claimant take additional parcels out for delivery in his van. The Claimant said that he believed taking the additional parcels would cause a risk to health and safety in relation to the way his van was loaded, and in the circumstances the instruction to take extra parcels for delivery was not a reasonable management instruction and he was entitled to refuse it.[12]It is not necessary for the Tribunal to make a full investigation of the rights and wrongs of the situation giving rise to the 2021 warning, and we make no finding as to whether the Claimant’s belief about the health and safety issue was wellfounded. We find that the warning was issued following an incident where the Claimant had refused a management instruction and disputed whether or not the instruction was reasonable. The warning was not issued in the absence of any apparent grounds at all, and nor was it manifestly inappropriate on its face. There is no basis for making any finding that it was issued in bad faith. The Respondent’s delivery planning systems[13]On 17 March 2021, the Respondent launched a pilot of a new Parcelforce Route Balancer (PRB) system as part of a Technology Roadmap for use of technology in planning deliveries. The PRB was a computer system introduced to calculate the route a courier should take on any given shift to deliver parcels to the maximum number of stops.[14]The Respondent recognises the Communication Workers Union (CWU). On 27 September 2021, the CWU wrote to all colleagues regarding the Technology Roadmap. The letter stated that “the PRB tool and the way it is being used currently has had an adverse impact on drivers and customers”. It went on to say that following a consultation process, the Respondent had agreed with the CWU that the PRB would be replaced by a new, improved tool, Dynamic Live Report (DLR). Further, it was agreed that DLR would be used in conjunction with “meaningful, adult conversations on workload involving the driver, the manager and the local representative to determine the workload on any given day.”[15]From then on, the DLR system was used in conjunction with another routeplanning tool already utilised by the Respondent called Route Excellence (REX). REX was used to predict a time slot which was communicated to the customer by text message.[16]The Respondent’s witnesses Mr Eaton and Mr Ishaq gave evidence, which we accept, that the normal practice, where any concern was raised about the workload allocation (i.e. in relation to the planned route, number of parcels to be carried or number of stops to visit), was to have a conversation between the driver and the manager.[17]By the time of the events in October 2022 giving rise to this claim, the Claimant was in the practice of having daily conversations about his workload with his managers Mr Eaton and Mr Marc Whitlock. He was happy with this arrangement and it meant we was able to manage his workload well.[18]Previously and until mid-2022, the Claimant has been managed by different managers, with whom he had a less positive working relationship. The impact of the Claimant’s health at work in the first half of 2022[19]In early 2022, the Claimant was allocated to a particular route which by the nature of the industrial addresses along the route required him to handle a high volume of heavy parcels.[20]On 8 March 2022, the Claimant went absent from work due to back pain. This related to a flare up of the back condition mentioned above. He was unhappy with his allocated route and felt he was not being listened to when he raised concerns about the limitations of his back condition.[21]In May 2022, it was agreed locally with the Claimant’s then managers that he could change his route and restrict his lifting activities to items no heavier than 15kgs. The Claimant implemented this restriction in practice by loading his own vehicle to ensure that he was not delivering any parcels weighing over 15kg.[22]On 1 June 2022, the Claimant was reviewed by OH again, following a referral in respect of his continuing back pain and his mental health. The resulting report dated read in relevant part: ‘As you are aware, Mr Reed has long term intermittent back pain. He previously had back surgery. He is currently experiencing lower back pain radiating to both legs. He tells me he injured his back in February in work while doing heavy lifting. He tells me he was off work for 4-5 days and this was reported to management. He returned to work on 14th March, and he went off sick again on 12th April due to ongoing back pain. He then returned to work on 6th May and his GP gave him a 4-week sick note advising light duties which expires today. He is currently driving 8 hours per day and restricted from lifting anything above 15kgs, but he continues to have back pain. He feels his symptoms are worsened by getting in and out of the van, bending and heavy lifting. He tells me he has not been on adjusted indoor duties for 4 weeks at all as stated in your referral. He tells me he is feeling stressed in workplace as he does not feel supported with his longterm health conditions. He tells me he is struggling to do his current duties. He reported that he has been having regular palpitations and chest pains due to stress. He tells me he is unable to do much when he gets home. I completed a recognised mental health test today and he presented with moderately severe depression and moderate anxiety symptoms. He has pre-existing anxiety which was diagnosed in December 2021… … In my opinion, he if fit for work with adjustments. He is not fit for driving duties due to his ongoing symptoms. I recommend indoor light duties only. He is fit to do his normal working hours…’[23]On 14 June 2022, the Claimant attended his GP surgery for low back pain and was issued with a certificate stating he may be fit for work taking into account the GP’s advice that he be provided with amended duties. The Claimant being sent home and his subsequent grievance[24]On 16 June 2022, the Claimant attended work expecting to undertake light duties in accordance with his GP fit note. However, he was asked by Delivery and Collection Manager, Mr Martin Ross, whether he could go back to working his route. The Claimant replied that he could not. Mr Ross sent him home from work.[25]The Claimant’s position was that he was well enough to work, albeit he should be provided with alternative duties in line with the medical advice. Despite this, his absence from work was marked as sickness absence with the result that he was put on half pay. It was later found as part of a grievance appeal process that there were available light duties which the Claimant could have done at that time. He was to remain off work until 1 August 2022.[26]On 21 June 2022, the Claimant submitted a grievance against Mr Ross and two other managers involved in managing his back condition in the workplace, Mr Peter Kilroe and Mr Ashleigh Wakeling. In the grievance document, the Claimant referred to the relevant history relating to his back condition. He stated that he was fit for work with a weight limit of 15kgs, contending that there were numerous jobs he could do when he knew the depot was short staffed. He alleged that the decision to send him home amounted to victimisation and harassment. OH review in June 2022[27]On 23 June 2022, the Claimant was reviewed by a Consultant Occupational Physician in relation to his low back pain. The report noted the Claimant’s history of ischaemic heart disease and anxiety while focusing on his capacity to undertake manual handling. The following advice was given: ‘Mr Reed is currently fit for work with a mixture of indoor work and limited deliveries… … I recommend that he stays within his personal limits for manual handling. Just to add complexity, these will vary for any individual day to day. He has some chest pain and palpitations which are likely to be either anxiety or angina. If he can avoid stress he is likely to avoid these symptoms.’[28]The Consultant recommended that the Claimant commenced driving duties for an hour per shift and then increased this by one hour per shift per week until he resumed his full normal duties, while meeting with management on a weekly basis to ensure he was coping. Miss Paine’s grievance investigation[29]Miss Paine was allocated to investigate the Claimant’s grievance and he was notified of her involvement on 11 July 2022. It was at around this time that Miss Paine became the Claimant’s second line manager.[30]Miss Paine met with the Claimant to discuss his grievance on 15 July 2022. The Claimant was accompanied by his colleague Mr Gurdeep Sanger. This was the second time that that the Claimant and Miss Paine had met. The first time had been in connection with a different grievance brought by Mr Sanger.[31]During the Claimant’s grievance meeting, there was a full discussion about the concerns giving rise to his grievance. However, the relationship between the Claimant and Miss Paine was difficult from the outset. The Claimant perceived her as being part of a management clique which he disapproved of. The meeting minutes show he said to her: ‘FR stated that he was not sure if he can trust JP as he believed that anyone who worked for Tony Flint [a former Regional Operations Manager for London East] has facilitated his appalling behaviour and would have contributed to the failing of London East and the Region.’[32]This comment was added to the minutes by way of amendment by the Claimant and accepted by Miss Paine. We find that it was reflective of the Claimant’s sceptical approach towards Miss Paine.[33]Following this meeting, the Claimant chased Miss Paine to provide him with the meeting minutes for review and for a grievance outcome. He emailed her on 21 July, 26 July, 13 August and 15 August 2022. The tone of the correspondence was challenging. For example, in his email of 21 July 2022, the Claimant acknowledged that Miss Paine was at that time on holiday but nonetheless pressed for an urgent response. She replied on the same day saying that she had been unwell with Covid. On 26 July 2022 the Claimant wrote: ‘I have sought legal advice and have been informed that this reduced pay is an “unlawful deduction” and if necessary, I will have grounds to pursue my claim through the Employment Tribunal. I obviously would prefer not to go down this route.’[34]Although Miss Paine said in evidence that she was not annoyed by this correspondence, we find that she must have found it personally challenging to some extent. The Claimant’s frustration at his earlier treatment and at being at home on half pay was transferred to Miss Paine. Miss Paine’s grievance outcome[35]The grievance outcome is dated 10 August 2022, but Miss Paine’s evidence was that this date was automatically generated by the computer system when the document was created and that it was actually completed on a later date.[36]In her grievance outcome, Miss Paine stated she had interviewed three managers involved. She concluded, “I can confirm that the correct process has been followed”. The Tribunal finds that Miss Paine accepted the managers’ views without properly engaging with the Claimant’s arguments. In particular: 36.1. In the outcome letter, Miss Paine queried why the Claimant had not participated in a return-to-work meeting with the implication that he had not done all he should have done to facilitate his return. She did not acknowledge that the Claimant’s position throughout had been that he was fit for work at all times during his absence, and that there was available work he could do that would meet the lifting restrictions in his GP fit note and OH report. 36.2. The outcome letter suggested that the Claimant had failed to give any examples of alleged bullying, without engaging with the central allegation that Mr Ross sending the Claimant home had been an act of bullying / harassment. 36.3. Miss Paine did not explain the basis for her conclusion that the correct processes had been followed. 36.4. There was no evidence in the outcome letter that Miss Paine had conducted any investigation into whether there had been suitable light duties available as the Claimant had alleged.[37]The Respondent has not produced any notes of Miss Paine’s interviews with the three managers. The Claimant asks the Tribunal to infer that the Respondent has withheld the minutes because they show Miss Paine in a bad light. However, we find it more likely that there was an accidental failure to retain these notes rather than a deliberate decision to withhold them. The Claimant’s grievance appeal[38]The Claimant was concerned that the grievance outcome decision had been taken before he had had the opportunity to send his amendments to the meeting minutes. He appealed the grievance outcome on 16 August 2022 by emailing Miss Paine, copying in Mr Eaton and Regional Operations Manager, Mr Nicholas Day. The Claimant wrote: ‘Obviously due to your lack of understanding and poor quality of your investigation, I wish to exercise my right to appeal. Please can you confirm via email that my appeal has been registered.’[39]We find that Miss Paine found the tone of the Claimant’s appeal email, and the fact it was copied to her senior manager Mr Day, challenging.[40]On 21 August 2022, the Claimant wrote to Mr Day, copying in Miss Paine. Amongst other points, he stated the following: ‘Ms Paine has conducted two grievance cases at London East and both have been conducted to a very poor standard. Ms Paine stated in my grievance meeting on the 15 July that she was “a bit rusty”. She also stated the importance of the need to follow processes and procedures and suggested that is exactly how she works. However, taking notes, agreeing the notes of the meeting, sending out the notes and confirming that the notes have been received and signed for - before you make your conclusion - are a very basic requirement. Managers need to understand the importance of an audit trail to ensure proof of postage and timeframes are being adhered to; had Ms Paine sent an email, she would have had a date and time stamp and if she was required to send hard copies for compliance purposes, she should most definitely have sent it via a service that provides proof of posting (especially as we work in the industry). How can Management submit case conclusions without agreed amendments to the notes or any further discussions? Again, we work for a postal company, proof of posting by either email or post is basic. One of the complaints regarding Tony Flint was the arrogance in which he and his managers conducted themselves and felt that the rules and procedures did not apply or could be bent to suit themselves, and in many cases just swept away. They felt this because they were protected – staff felt there was no point in whistleblowing or having a formal/informal grievance as nothing was done and no one was listening. Unfortunately, this behaviour is still prevalent as Ms Paine has conducted these grievance cases to a poor standard, which I hope, after proper training and guidance, Ms Paine will attain these skills needed to conduct her next grievance investigation.’[41]We find that Miss Paine experienced these personal criticisms as challenging and disrespectful. Mr Day’s appeal outcome[42]On 10 October 2022, Mr Day provided an outcome to the Claimant’s grievance appeal which upheld the appeal. He found that: ‘There were clear and documented failings in relation to the management process in addressing Mr Reeds [sic] concerns regarding his back pain from April 2022 onwards. Several requests were made by Mr Reed for support through OH referral, a distinct lack of ownership ensued whereby it took 6 weeks for a referral to be made which may have exacerbated the issue further. There was a clear lack of duty of care towards Mr Reeds [sic] condition, regardless of the relationship between management, this should have been prioritised.’[43]Mr Day concluded that there was no rationale for sending the Claimant home instead of providing him with modified duties. He also criticised Miss Paine’s suggestion that the Claimant had failed to engage with the management team to effect a return to work. Mr Day noted that in fact that Claimant that he had emailed several times saying he was fit to work and management had not engaged with him.[44]There is a dispute between the parties as to when and how Miss Paine was informed of Mr Day’s appeal outcome decision. We accept that Miss Paine’s recollection of being told about it by the Claimant in the depot is likely to be correct. The Claimant could not remember whether this had happened or not whereas Miss Paine had a specific memory that she recounted. We find that she knew about the appeal outcome before the events of 19 October 2025 which are described below. Mr Ross’s complaint about the Claimant[45]Meanwhile, on 30 September 2022, Mr Ross submitted by email a complaint about the Claimant to Miss Paine, alleging that the Claimant had “fail[ed] to follow simple instructions” and had been rude and aggressive towards him. The complaint was investigated by Mr Stephen Rosi, another Delivery and Collection Manager.[46]On 17 October 2022, Mr Rosi sent his outcome letter regarding Mr Ross’s complaint which concluded that the matter could be managed informally.[47]Mr Rosi then met with the Claimant on 19 October 2022. He stated that both parties had been at fault and advised the Claimant that “he should then stay out of the way of Mr Ross and if he had to have any communication with him regarding work, he must maintain a standard of behaviour that is acceptable and not behave in an inappropriate manner”.[48]Mr Ross was given equivalent advice. The Claimant’s performance in October 2022[49]As noted above, the Claimant had returned to work on 1 August 2022. He initially undertook alternative duties with a successful phased return leading up to resuming full-time delivery driving. He did not resume any overtime duties. Not working overtime, together with the flexible approach from his managers Mr Eaton and Mr Whitlock, meant that he was able to manage his workload well despite his health conditions. In practice, this meant that the Claimant tended to take on routes with around 50 stops per day, although there was no formal agreement in place to this effect. As the Claimant stated in evidence: “[After I] came back to delivering (had been doing other duties) if work was given to me there was always a reasonable discussion about capability. If I said a parcel was too heavy, they would be reasonable and give it to someone else.”[50]The Respondent provided a table showing the Claimant’s delivery data between 3 and 19 October 2022. It shows that the Claimant usually undertook up to 50 stops. At that level, he was able to deliver all his parcels and achieve good compliance with the Respondent’s performance metrics. He was not returning to the depot earlier than planned, so this workload represented a full shift’s work for him. On one day the Claimant undertook 54 stops, but on that date he had 6 failed stops (i.e., was unable to make deliveries to 6 stops he had taken parcels for). A failed stop is problematic for the Respondent because the customer will have been informed of the delivery slot and may have arranged to wait in for it, so this gives rise to customer dissatisfaction.[51]On another day, the Claimant undertook 58 stops with nil ‘fails’, but we accept the Claimant’s evidence that this required him to work through his lunchbreak on that day. Being unable to stop for food and rest was problematic given his diabetes and it was not something he was prepared to do regularly.[52]Overall, the Respondent’s delivery data table supports the Claimant’s case that he understood his own personal capacity and predicted it effectively. He was supported to manage his workload to match his own understanding of his capacity by his managers Mr Whitlock and Mr Eaton. This was in accordance with the recommendations in his most recent OH report. The available evidence demonstrates that this approach to managing the Claimant’s health conditions at work was successful and effective. Incident on 19 October 2022[53]On 19 October 2022, the Claimant attended the depot to pick up his load for the day before heading out for his deliveries shift. He took on a route with 47 stops.[54]Miss Paine was also present in the depot that morning and involved in discussing the route allocations with Mr Whitlock. She checked the Claimant’s route against the DLR and REX systems in order to assess his route capacity and told Mr Whitlock to tell the Claimant to add 28 more stops to his route.[55]Mr Whitlock duly communicated this to the Claimant. The Claimant said he could take on an additional 4 stops but would not be able to do more than that. He then went to load the parcels for those additional stops. Mr Whitlock conveyed the Claimant’s response to Miss Paine. Miss Paine told Mr Whitlock to tell the Claimant that he must take 10 extra stops. Mr Whitlock went back to the Claimant, who was at this point sitting in his van preparing to depart, and told him so. The Claimant got out of his van to speak directly to Miss Paine about the matter.[56]The Claimant’s evidence, which we accept, was that he was not consciously thinking about his back condition at this time, but that his health was always a factor in the back of his mind when he was looking at his parcel load. He said this included his bad back, his heart issues, and the need to factor in sufficient breaks because his diabetes caused him to need the toilet more frequently. We find on the balance of probabilities that the Claimant’s health conditions were an underlying factor causing him to refuse to undertake the 10 additional stops.[57]After the Claimant got out of his van, he approached Miss Paine and they had a conversation. The parties disagree as to what was said and the manner in which it was said. We have placed significant weight on the internal statement and interview given by Mr Whitlock, who was positioned close by the Claimant and Miss Paine and was not himself involved in the discussion.[58]We find that neither the Claimant nor Miss Paine were shouting. The Claimant accepts that he did speak in a raised voice, in order to make himself heard over the background noise in the depot.[59]The Claimant told Miss Paine that he had enough work for the day, and she replied that was not what the route systems were showing. They both made the same points again repeatedly. The Claimant accepts that he asked Miss Paine if she was leaving in two weeks. His evidence was that he asked this question because he was considering bringing a grievance against Miss Paine but knew she might be leaving soon in which case there would be no need to. This query appeared to Miss Paine to be disrespectful. The Claimant also made a comment to the effect, “What are you going to do about it?” (i.e., about the fact that he would not take more parcels out).[60]During this exchange, the Claimant made an exasperated shrugging gesture. Mr Ishaq gave evidence that during the disciplinary investigation, he spoke to Mr Rosi, who was also present in the depot at the time, and Mr Rosi demonstrated a shrugging gesture to show what he had seen the Claimant doing. We find that the Claimant did not gesture aggressively towards Miss Paine. Miss Paine’s evidence was that the Claimant pointed in her face. However, this was not mentioned in her internal statement made on the day of the incident, which we consider to have been the more reliable account made when the event was fresh in her mind.[61]The interaction ended with the Claimant walking away, saying to Mr Whitlock a comment to the effect, “see, I didn’t swear”. This was noted in Miss Paine's internal statement, and in his evidence the Claimant accepted that he may have said something to draw attention to the fact that he had refrained from swearing, albeit he could not remember saying this.[62]We find that there was a degree of animosity between the Claimant, who was frustrated, and Miss Paine, who thought the Claimant was being deliberately challenging. The interaction had an emotional impact on Miss Paine at the time, and she felt shaken by it. The Claimant had not meant to cause Miss Paine distress but that was the unintentional effect of his conduct. We find that the Claimant’s manner was forthright, robust, challenging and confrontational. However, we find that the Claimant was not intimidating, threatening or physically aggressive towards Miss Paine. There were at least three other people in the depot close enough to see the interaction, including managers Mr Whitlock and Mr Rosi. The exchange went on for long enough that both the Claimant and Miss Paine repeated their positions several times. We consider that had the Claimant appeared threatening, intimidating or aggressive, it is likely that another manager would have stepped in to support Miss Paine.[63]After the Claimant left, Miss Paine telephoned Mr Day to tell him what had happened. She also went to speak to Mr Ronald Green, Delivery and Collections Manager, who was present in the depot. Mr Ishaq, who had recently moved to the East London Depot and was taking over the managerial role that Miss Paine held, was informed of the incident by Mr Day.[64]When the Claimant returned from his route later on the same day, he was suspended from work by Mr Green. Mr Green asked the Claimant to complete a written explanation of the incident by completing a template called a ‘please explain’ form. Mr Green told the Claimant that he faced a disciplinary allegation of “inappropriate behaviour”. Investigation into the incident[65]Mr Green conducted a disciplinary investigation into the Claimant’s conduct on 19 October 2022. He gathered the following statements. 65.1. Miss Paine provided a statement dated 19 October 2022 which said: ‘At approximately 08:30am this morning, Floyd Reed was asked by Marc Whitlock to top up with 10 extra stops as DLR said he didn't have enough work for the day. Floyd got out of his vehicle and walked towards me saying he doesn't care about DLR, he's not taking anymore work and that he feels he had enough for the day. I stated that then DLR is the agreed tool to use & 47 stops for the day isn't enough work and that he needs to take 10 more stops. He refused raising his voice to me in an aggressive tone, repeating himself, 'I don't care what the DLR says, I'm not topping up. What are you going to do about it?' At this point, l told him to take 5 minutes to cool down because I wasn't going to allow him to talk to me the way he was. I reminded him that I'm his second line manager and I won't be spoken to by anyone in that tone. He laughed at me in my face, getting closer towards me trying to intimidate me & said 'I don't care who you are, and I'll be glad when you are gone from this depot in 2 weeks' time'. I stated I wasn't sure where he had got 2 weeks from at that I'll be here for at least another 4 weeks. I then repeated my request & said that he needs to take a further 10 stops and he refused again. I asked, 'are you refusing to do a reasonable request & he said, 'yes I am, what are you going to do about it', getting more aggressive. Floyd then said I'll just deal with the consequences like I have been since you arrived. Floyd then walked off shouting 'see, I didn't swear' to Marc Whitlock. Floyd then got in his van & then drove off.’ 65.2. Mr Whitlock gave an undated but signed written statement which said (all spelling per the original): ‘On Wednesday the 19th October I was in charge of team 1 as manager as scott eaton was off sick. jennie paine arrived early and said she will assist me with the mornings work. We stood at the normal post at the front of the debrief office, jennie said to me that she was going to load up the DLR programme whilst I was walking round sorting work out for drivers. At approx. 8.15 floyd walked past going to the rex room and jennie checked and informed me that Floyd didn't have enough work! She then asked me to speak to Floyd and ask him to take some more work. I went to to Floyd who said I have enough! I replied its what jennie asked he then replied I have enough. Following that I went back to the post where jennie was and told her that what floyds response was. Around 10 minutes later Floyd was driving out of the depot past us and jennie asked me to ask Floyd again to take some more work, I asked Floyd to stop which he did and got out to speak to jennie this time. During the conversation Floyd was saying he had enough work for hes day and jennie was replying he hasn't, it, went back and forth a few times till jennie said it's what DLR says on the computer. Floyd disagreed this was fair and said he has enough work. Jennie then asked again and he said he has enough and is going to to do hes work and got in the van and left the depot.’ Mr Whitlock’s statement made no mention of shouting or aggression. Apart from the Claimant and Miss Paine, he was the witness who was located closest to the conversation. 65.3. Mr Rosi made a short, signed statement dated 20 October 2022. In it, he said that he heard a “slightly raised voice” and saw the Claimant approaching Miss Paine near the pillar where Mr Whitlock was standing. Mr Rosi could not hear what was being said but saw the Claimant moving towards Miss Paine “gesturing and smirking”. Mr Rosi’s statement concluded, “Jenni remained calm and I could tell she was not happy with what was being said”. 65.4. Another colleague, Mr Anmol Manota gave a short, signed but undated statement addressed to Mr Green saying: ‘I was there working on my desk, I felt Floyd was a bit rude to Jennifer also he raised his voice. I think it was inappropriate and unacceptable behaving from collegue [sic] at work place.’ Mr Manota did not give any more detail about what he saw or heard that he considered to be inappropriate and unacceptable. 65.5. The Claimant gave a detailed two-page signed statement. In it, he said that he got out of his van in order to hear what Miss Paine was “shouting” and then, ‘Ms Paine then told me that I needed to take out more work, to which I declined. She then went onto inform me that DLR says so and this has been agreed with the CWU. As I know very little of the workings of DLR and I am not a CWU member, I informed her again I would not be taking extra work out. Ms Paine did not engage in a conversation or ask me why, but she felt the need to remind me of her position and her demands. She also went on to inform me that my line manager had given me a reasonable request. I did not comment any further. As my relationship has been very difficult with Ms Paine and I have stated on numerous occasions that I have no faith or trust in her, I am very forthright in my dealings with her. I asked will she be leaving in 2 weeks to which she replied in a childish manner, that she will be staying on at London East. I then asked Ms Paine if I can go, to which she said yes.’ The Claimant provided his delivery metrics for the day on 19 October 2022 and commented that if he had taken the additional 28 stops, he would have failed them. He also asked for more detail about what his alleged “inappropriate behaviour” was. He said that Miss Paine had not treated him fairly and referred to the history of his grievance.[66]On 21 November 2022, the Claimant attended a fact-finding meeting with Mr Green. He was given the opportunity to bring a companion and elected not to. Mr Green explained that he was tasked with investigating a conduct issue, namely “Alleged inappropriate behaviour in the workplace and failing to do a reasonable request when asked by your line manager.” The Claimant signed and dated the ‘please explain’ statement which he had provided. He was given the opportunity to read the other witness statements described above. He told Mr Green that his relationship with Miss Paine was difficult. He described their interaction on 19 October 2022 as “trivial” and alleged that Miss Paine had “twisted” it.[67]Mr Green decided to escalate the matter to a conduct hearing. He also provided one further statement himself, which reads: ‘Anmol Manota (Neal) said to me that since he has done a statement, he has had an employee text him saying why did he do a statement against Floyd, also a driver as said the same thing to him, I asked Neal who the driver was he said he knows him by face but not name. but the employee who texted him was G. Sanger. I called Floyd asking about the notes and also asking about what Neil told me (I did not say to Floyd what witness it was). Floyd said he had no idea That G. Sanger would say anything. Floyd said I know this is all in confidence,, but G. Sanger is a good friend and also been with me and gone through the grievance procedure against Jenny Pain.’ Disciplinary meeting[68]Mr Ishaq was appointed as the disciplinary manager and the Claimant was informed of his appointment by letter dated 12 December 2022.[69]On 30 December 2022, the Claimant was sent a letter inviting him to a disciplinary meeting on 6 January 2023. That meeting was postponed because the date clashed with an appointment of the Claimant’s. On 23 January 2023, the Claimant was sent a further disciplinary invitation letter inviting him to a rescheduled meeting on 2 February 2023.[70]The allegations set out in the disciplinary invitation letters were: ‘Gross Misconduct in that on 19/10/2022 you acted in an inappropriate and intimidating way with Jennifer Paine (Ops Manager) when you raised your voice, spoke in an aggressive tone, came close to her face, shown gesture and smirks. Gross misconduct in that on 19/10/2022 you acted in an inappropriate and disrespectful way with Jennifer Paine (Ops Manager) when you asked her when she will be leaving the depot. Gross misconduct in that on 19/10/2022 you failed to follow a reasonable request to take 10 additional stops to top up your day workload.’[71]The letters also informed the Claimant he should be aware that: ‘I will take into consideration your conduct record which is currently Penalty, Two Years Serious Warning for failing to follow a reasonable instruction.’[72]The Claimant provided a further written statement in response to the disciplinary allegations. In it, he said that Miss Paine’s statement was “false and misleading” and alleged that she had a history of victimising him. He concluded, “I believe JP has not treated me fairly or respectfully” and reiterated that the allegations were false.[73]The Claimant did not focus on his health conditions in his written response document but did raise their relevance to the disciplinary proceedings. His first point of response to the allegation that he had failed to follow a reasonable request was: ‘Why do you believe it was a reasonable request? Had JP taken into account my occ Health report, Heart attack, back issues, diabetes, my capabilities etc’.[74]Mr Ishaq stated in evidence that around this time he also spoke to Miss Paine, Mr Manota and Mr Rosi to confirm the content of their witness statements. He said he asked Mr Rosi to confirm what “gesture” he referred to in his statement and Mr Rosi demonstrated a shrugging gesture. Mr Manota additionally told Mr Ishaq that the Claimant had been “dismissive” towards Miss Paine. Mr Ishaq’s evidence was that otherwise, these three witnesses merely confirmed their original statements without addition. He did not take any notes of these conversations. He chose not to speak to Mr Whitlock about his statement.[75]Mr Ishaq told us in cross-examination that part of the reason he preferred Miss Paine’s account to the Claimant’s was that in his view it was corroborated by Mr Manota and Mr Rosi, including by the gesture demonstrated by Mr Rosi and Mr Manota’s comment that the Claimant was “dismissive”. Mr Ishaq did not tell the Claimant in advance of, or at, the disciplinary meeting that he had had these conversations. They were not referred to in his witness statement and were mentioned for the first time at this hearing.[76]The disciplinary meeting took place on 2 February 2023. The Claimant was accompanied by a companion, Mr Jai Lal, and Mr Ishaq had a note-taker with him.[77]During the meeting, the Claimant agreed that being derogatory or making insulting remarks would amount to gross misconduct and said “I don’t think there are any reasons to be rude and aggressive to anyone”.[78]Mr Ishaq asked the Claimant how he knew in advance of trying that he was not able to take the extra stops. The Claimant said, “because I’ve been doing this job to 14 years’ experience so I know what I can achieve”.[79]The Claimant confirmed again that he asked Miss Paine if she would be leaving in 2 weeks but contended that it was an appropriate remark “due to my tone and voice”. He reiterated his difficult history with Miss Paine. He accepted he may have said something to Mr Whitlock at the end of the encounter but could not remember whether it was “see I didn’t swear”.[80]Mr Ishaq asked the Claimant “What kind of relationship do you have with Marc?” to which the Claimant replied “does it matter?”.[81]The Claimant denied raising his voice, coming close to Miss Paine’s face, speaking in an aggressive tone or being dismissive.[82]Mr Ishaq also asked the Claimant “what is your view on diversity” to which the Claimant replied, “I am big advocate in every person having the opportunity regardless of race, gender, faith, nationality etc.”[83]The Claimant provided a diagram of the depot with the location of all the witnesses present at the 19 October 2022 incident. The diagram showed that Mr Whitlock was in close proximity to the Claimant and Miss Paine. The meeting attendees went to the depot and looked at the location of the incident.[84]The Claimant asked for a copy of the CCTV footage covering the incident. Mr Ishaq replied that this would not be helpful to show the contain and tone of the conversation. The Tribunal has been told that the CCTV footage would have been deleted in 28 days so by this point it would not have been available in any event.[85]Towards the end of the meeting, the Claimant summarised his response to the allegations. His summary was captured by the note-taker as a series of bullet points: ‘• I did not have an aggressive tone towards Ms Paine.• This whole thing is a false allegation.• I have made many complaints regarding Ms Paine.• Handed over documents relating to why I feel Ms Paine has victimised me• Jenny hasn't been compliant with the RMG business standards.• Marc Whitlock at no stage has said I was aggressive/shouting• Lack of evidence• Business Standards applies to all of us.’[86]The Claimant later added to the notes at the penultimate bullet point, “poor quality of statements”.[87]Mr Ishaq questioned the Claimant about Mr Green’s statement regarding the interaction between Mr Sangha and Mr Manota. The Claimant explained that he had spoken to Mr Sangha about the matters in the context of asking him to act as his companion for the disciplinary meeting, but that he had neither asked nor wanted him to speak to the witnesses.[88]Following the disciplinary meeting, the Claimant wrote to Mr Ishaq on 19 February 2023 expressing his frustration with the process. There had been some delays in getting the meeting minutes to him in a form he could amend. He alleged that Mr Ishaq had spoken to him in a disrespectful manner, not conducted himself professionally, and been arrogant and rude to him. He said he had no faith in Mr Ishaq.[89]On the same day the Claimant wrote to Mr Day complaining about Mr Ishaq’s conduct of the meeting and other issues. Dismissal[90]Mr Ishaq communicated his decision to the Claimant by letter dated 13 March 2023. He upheld two of the disciplinary allegations, finding that the Claimant was guilty of gross misconduct in that he had on 19 October 2022,(1) acted in an inappropriate and intimidating manner toward Miss Paine, and(2) failed to follow a reasonable request to take 10 additional stops to top up his workload for the day.[91]The letter set out Mr Ishaq’s reasoning for upholding the two allegations. Mr Ishaq stated that he considered Miss Paine’s request that the Claimant take on additional stops was a reasonable one. He found that the Claimant had shown wilful insubordination and acted beyond his authority in refusing the instruction.[92]In relation to the Claimant’s conduct towards Miss Paine, Mr Ishaq wrote that he had discounted Mr Whitlock’s witness statement on the basis that Mr Whitlock was the Claimant’s friend. He gave weight to Mr Rosi and Mr Manota’s statements, which in his view supported a finding of “rudeness, smirking and gesturing” toward Miss Paine. He found that the Claimant asking Miss Paine when she would be leaving was made with the purpose of humiliating and intimidating her and demonstrated a lack of respect. He stated, ‘On a balance of probability, you behaved inappropriately by raising voice, showing total disrespect and smirking and gesturing i.e. rude and inappropriate behaviour to your Ops Manager.’[93]When deciding on the appropriate sanction in respect of the upheld allegations, Mr Ishaq took the Claimant’s previous disciplinary warning into account. Mr Ishaq explained in cross-examination that he found the upheld allegations pertaining to the 19 October 2022 incident sufficient in and of themselves to amount to gross misconduct meriting dismissal. This was not a situation where two instances of conduct meriting a warning were ‘stacked up’ to justify dismissal. However, he considered the Claimant’s disciplinary history to be relevant when deciding whether it would be appropriate to show leniency and apply a sanction other than dismissal in respect of the conduct he had found to have been proven.[94]In deciding against showing leniency, Mr Ishaq wrote: ‘You have been issued a serious warning for two years on 11/06/2021 is still live, for a similar incident where you failed to follow a reasonable instruction and insubordination. Also, on 07/09/2016 you had a two year serious warning for similar inappropriate behaviour to your Ops Manager Ms Sally Ede and acting beyond your authority. You had previous warnings/ penalties for inappropriate behaviour before 2017 also. Prior to this most recent incident of 19th Oct with Ms Paine, you attended a fact-finding meeting for inappropriate behaviour shown to Martin Ross on 30/09/2022. Stephen Rosi, the investigation manager decided to resolve informally and a meeting was arranged on 19/10/2022, which you did not attend. All these warnings and conduct meetings clearly demonstrated that you chose not to learn from mistakes and correct your behaviour, rather you chose to be more arrogant as the consequences were not severe. There was no remorse shown by you, instead you made all arguments to deflect the charges brought against you. You broke confidentiality which led to one of the witnesses, Anmol Manota, to be approached by your friend. Most disturbing pattern of all these incidences are: inappropriate and rude behaviour shown to minorities - e.g. both Sally Ede and Jennifer Paine are female Ops Managers, Martin is a trainee manager of colour, Davion Simms, manager of colour and Darius from Romania. Royal Mail has responsibility to protect all its staff from systematic abuse, discrimination and any sort of bullying or harassment. Royal Mail promotes and committed to diversity and inclusion. This is imperative that these values are upheld at all times.’[95]Mr Ishaq concluded that the Claimant should be dismissed without notice.[96]The Tribunal makes the following findings about Mr Ishaq’s reasons for deciding that dismissal was the appropriate outcome: 96.1. Other than the 2021 warning, the other disciplinary sanctions Mr Ishaq referred to in his outcome letter were spent and no longer live on the Claimant’s file. The Claimant had not been told in advance that they might be considered. 96.2. Mr Ishaq took into account the matter of Mr Sangha approaching Mr Manota, but not the Claimant’s explanation as to why he had informed Mr Sangha of disciplinary allegations against him. Mr Ishaq accepted in crossexamination that there was nothing wrong with the Claimant having spoken to a prospective companion. 96.3. Other than the broad question “what is your view on diversity”, Mr Ishaq had not put to the Claimant any suggestion that he might be considered to have displayed a pattern of inappropriate and rude behaviour towards women and people from ethnic minority groups. 96.4. Mr Ishaq said in evidence he did not consider the Claimant’s health conditions were relevant to the conduct for which he was dismissed. He said that he did take note of the Claimant’s health in relation to sanction but did not consider it to be sufficient mitigation to alter the outcome. The Claimant’s health was not mentioned in the outcome letter. Appeal stage[97]The Claimant submitted his appeal against dismissal the following day 14 March 2023. He provided an appeal statement on 26 March 2023 in which he relied on the following matters in support of his appeal: 97.1. Mr Ishaq having based his decision on “incidents/reports perhaps from either my Personnel file or other people’s opinion of me, none of which were raised at this Conduct Meeting, therefore not giving me the opportunity of redress”. 97.2. Mr Ishaq having discounted Mr Whitlock’s statement. The Claimant denied that he and Mr Whitlock were friends rather than work colleagues. 97.3. Failure to provide CCTV footage. 97.4. Alleged inaccuracies in the description of the other disciplinary matters referred to. 97.5. Mr Ishaq having made unfounded allegations “that I have issues with minorities and I am a racist and misogynist”. The Claimant vehemently denied discriminatory motivation or conduct.[98]While the Claimant’s appeal did not focus on his health conditions, he raised in his statement that “My Personnel record will show that over the past two years, I have spent some months on suspension and at least six months off work due to mental and physical ill health caused by management.”[99]The Claimant enclosed with his appeal statement ten individual character testimonials confirming in glowing terms his inclusive approach in the workplace. These include a testimonial from Ms Sally Ede, who was one of the people whom Mr Ishaq believed the Claimant had treated in a discriminatory manner. Ms Ede said, in relation to having seen this allegation contained the Claimant’s dismissal letter, that “I find this reference both remarkable and completely untrue”.[100]Mr Potter was allocated to hear the Claimant’s appeal. He invited the Claimant to an appeal meeting by letter of 3 April 2023. However, by email of 4 April 2023 the Claimant elected to proceed with the appeal in writing.[101]Mr Potter sent the Claimant written questions on 17 April 2023 which the Claimant responded to. These written questions focussed on the process for calculating routes and workloads.[102]Mr Potter’s evidence was that he treated the appeal as a rehearing rather than a review so he decided himself whether the disciplinary allegations should be upheld rather than addressing any potential flaws in Mr Ishaq’s decision-making.[103]Mr Potter also elected to interview Mr Whitlock. That interview took place by telephone on 19 May 2023. Mr Potter took notes of the call, which record that Mr Whitlock said: ‘That morning JP was in early for some reason. She said to use the DLR. I knew what it was about but hadn’t used it before. JP asked what FR had and I said I would check. I said FR normally takes 50 a day and JP said he would need to take more. I said this to FR and he said he had enough. I didn’t want a confrontation as I am also a driver as well as an acting manager. I advised JP who said DLR says he can take more and I said FR said he was not doing it. I then went to do some other jobs and FR also came in to do something. I didn’t hear all the conversation as I was whizzing around. JP told FR he had to take extra. FR then went to get his van and JP asked me to stop him. I did so. FR got out of the van. I was at one part of a square pole and they were at another. FR asked JP what was the problem. It then went backwards and forwards between the two. I was talking to someone else and whilst I could hear noise, there was nothing out of the ordinary. I turned around and JP instructed FR to take more work. He said he had enough. JP told him not to walk off and he said the conversation was not going anywhere. I know others have made statements about what they heard or saw as have I. During this time I was talking to other people.’[104]When asked if he recalled the Claimant raising his voice and being rude, Mr Whitlock replied that both the Claimant and Miss Paine had been talking loudly. He added, “I don’t see [the Claimant] as someone to threaten someone”. Mr Potter then asked about the allegation that the Claimant had moved towards Miss Paine, “gesturing, smirking and trying to intimidate her”. Mr Whitlock answered that he did not see that happen and that the Claimant may have come closer to Miss Paine to talk to her. He said he had heard the Claimant say to Miss Paine, “what can you do about it” and “you are going in three weeks”. He said in his view it was “quite a pathetic argument between two people who don’t get on”.[105]The Claimant was given the opportunity to comment on Mr Whitclock’s interview notes and did so.[106]Mr Potter concluded his appeal decision in a letter dated 15 June 2023, holding that: ‘In the light of all the evidence, my decision is that you have been treated fairly and reasonably and therefore I believe that the original decision of dismissal is appropriate in this case’[107]Although Mr Potter considered the appeal stage to be a redetermination rather than a review, he did address the Claimant’s criticisms of Mr Ishaq’s decisionmaking in a ‘Conduct Appeal Decision Document’ enclosed with the appeal outcome letter. He also set out his own views on the disciplinary allegations. His reasoning can be summarised as follows: 107.1. In his view, Miss Paine’s instruction that the Claimant should take 10 additional stops was “perfectly reasonable”. 107.2. He highlighted from his interview with Mr Whitlock that, ‘Marc did witness Floyd say what can you do about it and that you will be gone in 3 weeks time. This indicates Floyd was being confrontational in his approach to Jennifer. Marc did not see Floyd approach Jennifer and is reliant on what Floyd told him’. 107.3. Insofar as his reasoning was set out in the written report, Mr Potter referred only to the parts of Mr Whitlock’s interview that might support the disciplinary case against the Claimant. He did not acknowledge the parts of Mr Whitlock's interview that were supportive of the Claimant’s account. 107.4. He concluded that it was open to Mr Ishaq to take into account the Claimant’s disciplinary history as showing, ‘a pattern of behaviour that Floyd does not appear to have learned from’. 107.5. Overall, he disagreed with the Claimant's criticisms of the disciplinary decision, save that he did not support the imputation of racism and sexism. In relation to this aspect, he concluded that, ‘My view is that Floyd would have acted the same irrespective of the sex, sexual orientation or colour of the person’. 107.6. He held that the first disciplinary allegation regarding the Claimant’s conduct towards Miss Paine would have merited a two-year warning rather than dismissal had that been the sole allegation. He found, ‘I do not believe Floyd physically threatened Jennifer but his behaviour towards her was intimidatory and outside the standards of a Royal Mail Group employee’. 107.7. He considered in relation to the second allegation concerning failure to follow a reasonable management request that dismissal was the appropriate penalty. He wrote, ‘In respect of conduct notification two, I believe dismissal to be the appropriate penalty. The request to take additional work was completely appropriate. Floyd seems to have an issue taking instruction from managers and I do not believe he would learn from this moving forward if I were to award a lesser penalty.’ The applicable legal principles Unfair dismissal[108]Section 94 Employment Rights Act 1996 (‘ERA’) provides that an employee with sufficient qualifying service has the right not to be unfairly dismissed by her employer.[109]Section 98 ERA provides so far as relevant: 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. A reason falls within this subsection if it— … (b) relates to the conduct of the employee ... ... (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.[110]The starting point in misconduct cases is the well-known guidance in Burchell v British Home Stores [1980] ICR 303 at 304: ‘What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case’.[111]In Turner v East Midlands Trains Ltd [2013] ICR 525, Elias LJ (at §16–17) held: ‘… the band of reasonable responses test does not simply apply to the question whether the sanction of dismissal was permissible; it bears upon all aspects of the dismissal process. This includes whether the procedures adopted by the employer were adequate: see Whitbread plc (trading as Whitbread Medway Inns) v Hall [2001] ICR 699; and whether the pre-dismissal investigation was fair and appropriate: see J Sainsbury plc v Hitt [2003] ICR 111.’[112]In order for an investigation to be fair, “the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him”: Crawford v Suffolk Mental Health Partnership NHS Trust [2012] IRLR 402 per Elias LJ at §71.[113]In cases where the employee advances a medical explanation for alleged misconduct, fairness requires that the employer engage seriously with and investigate that defence. In Asda Stores Ltd v Raymond UKEAT/0268/17/DA, a delivery driver was dismissed after being recorded on CCTV urinating in a loading yard. His explanation was that he had suffered an urgent need to urinate as a result of his diabetes. His claim for unfair dismissal succeeded in part because the investigating officer had failed to obtain medical evidence regarding the relevance of diabetes to his conduct. The EAT held at §38: ‘Neither [the investigating manager] nor [the disciplinary manager] investigated the precise circumstances in which the Claimant found himself in the situation of having to urinate in the yard and the relationship between those circumstances and his medical condition. It is clear… that the lack of any reasonable investigation was a critical issue in the ultimate decision that the dismissal was unfair, because no reasonable care at all had been taken by the Respondent during the disciplinary process.’[114]It is not for the Tribunal to make its own assessment of the credibility of witnesses on the basis of evidence given before it (Linfood Cash and Carry Ltd v Thomson [1989] ICR 518). The relevant question is whether an employer, acting reasonably and fairly in the circumstances, could properly have accepted the facts and opinions which he did. The Tribunal must have logical and substantial grounds for concluding that no reasonable employer could have assessed the credibility of the witnesses in the way in which the employer did.[115]In looking at whether dismissal was an appropriate sanction, the question is not whether some lesser sanction would, in the Tribunal’s view, have been appropriate, but rather whether dismissal was within the band of reasonable responses. The fact that other employers might reasonably have been more lenient is irrelevant (British Leyland (UK) Ltd v Swift [1981] IRLR 91).[116]Where the employer relies, in part, on a prior written warning when reaching a decision to dismiss, the question is whether it was reasonable for the employer to treat the more recent conduct, taken together with the warning, as sufficient to dismiss the claimant. There would need to be exceptional circumstances for a tribunal to reopen an earlier disciplinary process; i.e. if the earlier warning was issued in bad faith, or without any prima facie grounds or was ‘manifestly inappropriate’: Davies v Sandwell MBC [2013] IRLR 374, CA, §20-24. Otherwise, an employer is entitled to proceed on the basis of what has already been decided.[117]In cases where there is a procedural defect, the question that remains to be answered is whether the employer’s procedure constituted a fair process. A dismissal will be held unfair either where there was a defect of such seriousness that the procedure itself was unfair or where the results of the defect taken overall were unfair (Fuller v Lloyds Bank plc [1991] IRLR 336; see also Slater v Leicestershire Health Authority [1989] IRLR 16).[118]Procedural defects in the initial disciplinary hearing may be remedied on appeal provided that in all the circumstances the later stages of a procedure are sufficient to cure any earlier unfairness, according to the decision of the Court of Appeal in Taylor v OCS Group Ltd [2006] IRLR 613. Polkey and contributory conduct in an unfair dismissal[119]Where a Tribunal finds that a dismissal was unfair, it must go on to consider the chance that the employment would have terminated in any event, had there been no unfairness (the Polkey issue).[120]In Hill v Governing Body of Great Tey Primary School [2013] IRLR 274 the EAT (Langstaff P presiding) noted that a Polkey reduction has the following features: ‘First, the assessment of it is predictive: could the employer fairly have dismissed and, if so, what were the chances that the employer would have done so? The chances may be at the extreme (certainty that it would have dismissed, or certainty it would not) though more usually will fall somewhere on a spectrum between the two extremes. This is to recognise the uncertainties. A Tribunal is not called upon to decide the question on balance. It is not answering the question what it would have done if it were the employer: it is assessing the chances of what another person (the actual employer would have done) … The Tribunal has to consider not a hypothetical fair employer, but has to assess the actions of the employer who is before the Tribunal, on the assumption that the employer would this time have acted fairly though it did not do so beforehand.'[121]Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it may reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding (s.123(6) ERA). In order for a deduction to be made, the conduct in question must be culpable or blameworthy. The relevant test is set out in Nelson v BBC (No.2) [1980] ICR 110, as follows: ‘before an order for contribution could be made…the industrial tribunal had to be satisfied that the conduct of the employee was culpable or blameworthy in the sense that, whether or not it amounted to a breach of contract or tort, it was foolish or perverse or unreasonable in the circumstances, secondly that the conduct caused or contributed to the dismissal and, thirdly, that it was just and equitable to reduce the assessment of the employee’s loss.’[122]The Tribunal may also adjust a basic award for unfair dismissal “Where the tribunal considers that any conduct of the complainant before the dismissal… was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent” (s.122(2) ERA). Wrongful dismissal[123]For an employer to be entitled to summarily dismiss an employee, that is dismiss him without notice, the employee’s conduct must amount to gross misconduct. A definition of gross misconduct is found in §22 of Neary v Dean of Westminster [1999] IRLR 288: ‘…conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment.’[124]Unlike in a claim for unfair dismissal, where the Tribunal will not substitute its own view for the employer’s, the question for the Tribunal here is whether the Claimant is guilty on the facts of the gross misconduct alleged. Victimisation[125]Section 27 Equality Act 2010 (‘EqA’) provides:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.[126]A “detriment” exists if a reasonable employee would or might take the view that the treatment was in all the circumstances to his or her disadvantage: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 §34.[127]In relation to causation, it is sufficient for the protected act to be a “significant influence” on the outcome: Nagarajan v London Regional Transport [2000] 1 AC 501, 513 HL. If the burden of proof shifts, a respondent must show that the impugned treatment was not influenced (other than minimally or trivially) by the protected act(s).[128]The burden of proof provisions (which apply in respect of all the Claimant’s EqA claims) are contained in s.136(1)-(3) EqA:(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision. Disability status[129]Section 6 EqA defines ‘disability’ for EqA purposes as “a physical or mental impairment” with “a substantial and long-term adverse effect” on the individual’s ability to carry out “normal day-to-day activities”.[130]It is not necessary to prove a medically diagnosed cause for the impairment; what is important to consider is the “constellation of symptoms” which functionally limits the Claimant’s ability to carry out day-today activities: Ministry of Defence v Hay [2008] ICR 1247.[131]The relevant time for assessment is the time when the alleged discriminatory act(s) occurred: Cruickshank v Vaw Motorcast Ltd [2002] ICR 729 at §22.[132]Tribunals may (but do not have to) approach the issue by determining four sequential questions (Goodwin v Patent Office [1999] ICR 302, 308B-C): 132.1. Does the claimant have an impairment which is either mental or physical? 132.2. Does the impairment adversely affect the claimant's ability to carry out normal day-to-day activities? 132.3. Is the adverse effect (upon the claimant's ability) substantial? 132.4. Is the adverse effect (upon the claimant's ability) long-term?[133]In assessing whether there is an adverse effect on the ability to carry out normal day-to-day activities, the Tribunal will focus on what a claimant cannot do because of the impairment: Aderemi v London and South Eastern Railway Ltd [2013] ICR 591 at §14.[134]Substantial is defined in s.212(1) EqA as meaning “more than minor or trivial”. This means “unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial”: Aderemi at §14. Schedule 1 EqA further provides that impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-today activities if measures are being taken to treat or correct it, and but for that, it would be likely to have that effect.[135]Schedule 1 para.2(1) EqA provides that the effect of an impairment is “long-term” if it has lasted or is likely to last for at least 12 months. The test for whether an effect is “likely” to last for at least 12 months is whether this “could well happen”: SCA Packaging Ltd v Boyle [2009] ICR 1056 at §§70 & 73. Discrimination arising from disability[136]Section 15 EqA provides that:(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.[137]In Pnaiser v NHS England [2016] IRLR 170 at §31, Simler P summarised the proper approach to a s.15 EqA claim as follows: ‘(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... 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... (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... the causal link between the something that causes unfavourable treatment and the disability may include more than one link... (e) ... 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) ...Weerasinghe ... 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. ... (i) ... 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.’[138]If the two-stage test is satisfied by the Claimant, the burden moves to the Respondent to show that the treatment is a proportionate means of achieving a legitimate aim. Determining whether the treatment is a proportionate means of achieving a given aim “requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition”: per Balcombe LJ in Hampson v Department of Education and Science [1989] ICR 179. Failure to make reasonable adjustments[139]Section 20 EqA provides as relevant:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.[140]Section 21 EqA provides as relevant:(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. …[141]The orthodox approach for the Tribunal in determining a reasonable adjustments claim is set out in Environment Agency v Rowan [2008] ICR 218 at §27: ‘In our opinion an employment tribunal considering a claim that an employer has discriminated against an employee… by failing to comply with the [reasonable adjustments] duty must identify:(a) the provision, criterion or practice applied by or on behalf of an employer, or(b) the physical feature of premises occupied by the employer,(c) the identity of non-disabled comparators (where appropriate) and(d) the nature and extent of the substantial disadvantage suffered by the claimant. ... Unless the employment tribunal has identified the four matters we have set out above it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage.'[142]The concept of ‘provision, criterion or practice’ (PCP) will not be narrowly construed. However, the concept “does not apply to every act of unfair treatment of a particular employee”. It must be “capable of being applied to others” and carries the connotation of a state of affairs, “indicating how similar cases are generally treated or how a similar case would be treated if it occurred again”: Ishola v Transport for London [2020] ICR 1024, CA per Simler LJ §35-38.[143]The reasonableness of an adjustment falls to be assessed objectively by the Tribunal: Morse v Wiltshire County Council [1998] IRLR 352. The focus is on practical outcomes: per Langstaff P in Royal Bank of Scotland v Ashton [2011] ICR 632 at §24: ‘The focus is upon the practical result of the measures which can be taken. It is not – and it is an error – for the focus to be upon the process of reasoning by which a possible adjustment was considered. As the cases indicate, and as a careful reading of the statute would show, it is irrelevant to consider the employer’s thought processes or other processes leading to the making or failure to make a reasonable adjustment. It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reason.’ Indirect discrimination[144]Section 19 EqA provides: 19 Indirect discrimination(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.[145]Ascertaining whether there is indirect discrimination involves a comparative exercise; looking across all the people to whom the PCP is applied, sometimes described as the ‘pool for comparison’, to understand whether the PCP creates a group disadvantage (Essop v Home Office [2017] 1 WLR 1343 at §41]).[146]As with justification in a s.15 claim, determining whether a PCP is a proportionate means of achieving a given aim “requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition” (Hampson v Department of Education and Science). Time limitation for discrimination claims[147]Section123(1)(a) Equality Act 2020 (‘EqA’) provides that a claim of discrimination must be brought within three months, starting with the date of the act (or omission) to which the complaint relates. The three-month time limit is paused during ACAS early conciliation (s.140B(4) EqA).[148]Section 123(3)(a) EqA provides that conduct extending over a period is to be treated as done at the end of the period. In Hendricks v Commissioner of Police of the Metropolis [2003] ICR 530, the Court of Appeal held that Tribunals should not take too literal an approach to determining whether there has been conduct extending over a period: the focus should be on the substance of the complaint that the employer was responsible for an ongoing situation, or a continuing state of affairs, in which an employee was treated in a discriminatory manner.[149]The Tribunal may extend the three-month limitation period for discrimination claims under s.123(1)(b) EqA, where it considers it just and equitable to do so. That is a very broad discretion. In exercising that discretion, the Tribunal should have regard to all the relevant circumstances, which will usually include: the reason for the delay; whether the Claimant was aware of his rights to claim and/or of the time limits; whether he acted promptly when he became aware of his rights; the conduct of the employer; the length of the extension sought; the extent to which the cogency of the evidence has been affected by the delay; and the balance of prejudice (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194). Conclusions Unfair dismissal
Conclusions
[150]On the Tribunal’s factual findings, the Respondent’s reason for dismissing the Claimant was the Claimant's conduct. We therefore address the three questions from the Burchell test.[151]The Respondent, and in particular the dismissing manager Mr Ishaq, held a genuine belief that the Claimant was guilty of misconduct, namely that he had(1) acted in an inappropriate and intimidating manner toward Miss Paine, and(2) failed to follow a reasonable request to take 10 additional stops to top up his workload for the day.[152]Did the Respondent have reasonable grounds on which to sustain that belief? There were some grounds to support this belief, including the statements of Miss Paine, Mr Manota and Mr Rosi. The Claimant himself had admitted parts of the conversation with Miss Paine, including that he asked her if she would be leaving in two weeks. However, we consider the grounds were not reasonably sufficient to support the Respondent’s belief in light of the problems with the disciplinary investigation, which we turn to next.[153]Did the Respondent carry out as much investigation into the matter as was reasonable in the circumstances? In the factual circumstances of this case, we consider that this included undertaking such investigation into the medical position as was reasonably indicated (Asda Stores Ltd v Raymond) and looking for potentially exculpatory as well as potentially inculpatory evidence (Crawford v Suffolk Mental Health Partnership NHS Trust). We conclude that the Respondent’s investigation was insufficient, to the extent that it fell outside the reasonable range of investigatory approaches open to the Respondent. Our reasoning is as follows: 153.1. The Claimant criticised the Respondent for failing to provide CCTV footage of the 19 October 2022 incident. While it may have been a helpful step to obtain CCTV evidence before it was deleted, not taking this step was not in itself outside the range of reasonableness. 153.2. The witness statements gathered by Mr Green from the three uninvolved eyewitnesses Mr Whitlock, Mr Manota and Mr Rosi were lacking in relevant detail regarding what the Claimant said to Miss Paine during the incident and the manner in which he said it. 153.3. The investigation continued at the disciplinary stage but Mr Ishaq’s further conversations with Mr Manota and Mr Rosi did not fill in the gaps. Mr Ishaq took no notes of these conversations and so they did not form part of the evidential material available for the Claimant to respond to. 153.4. Mr Whitlock was a crucial witness as he was closest to the Claimant and Miss Paine during the incident. Mr Ishaq did not interview Mr Whitlock. He chose not to because he believed that Mr Whitlock and the Claimant were friends. Mr Ishaq himself had recently moved to the East London depot. He did not investigate whether or not Mr Whitlock and the Claimant were friends. He did not ask Mr Whitlock about this, and although he asked one question of the Claimant he did not pursue an answer when the Claimant queried the relevance of the issue. 153.5. Mr Ishaq’s approach amounted to looking solely for inculpatory evidence and not pursuing potentially exculpatory evidence. Under crossexamination, when asked about further evidence he could have sought, he said repeatedly he felt he “had enough evidence” to come to a conclusion regarding the allegations against the Claimant. We consider that Mr Ishaq’s approach was to look for sufficient evidence to uphold the disciplinary case against the Claimant, and then to look no further. 153.6. Mr Ishaq did not investigate the Claimant's position in respect of matters he considered potentially relevant to sanction, namely the Claimant’s disciplinary history and his attitude toward women and people from ethnic minorities. In relation to the Claimant’s disciplinary history, Mr Ishaq mentioned the 2021 live warning in the disciplinary invitation letter but did not put to the Claimant that he had a pattern of refusing management instructions which could be relied on as a reason to prefer dismissal as a sanction should the disciplinary allegations be upheld. In relation to the Claimant’s attitude toward women and people from ethnic minorities, Mr Ishaq asked the Claimant a single question about his view of diversity and did not put to him any of the matters later held against him in this regard in the disciplinary outcome letter. These were serious allegations which appeared out of nowhere in the dismissal letter. 153.7. The Claimant in his written statement presented at the disciplinary stage queried whether the management instruction he was alleged to have refused was reasonable given “my occ Health report, Heart attack, back issues, diabetes, my capabilities etc”. Further, his recent health history (including the related grievance) and OH reviews were well known to his managers. The Respondent ought reasonably to have investigated whether this medical history was relevant to the Claimant refusing Miss Paine’s instruction to take additional stops, and further whether it was relevant to the reasonableness of her instruction in all the circumstances. This ought to have included exploring with the Claimant his reasons for not wanting to add to his workload for the day. Neither Mr Green nor Mr Ishaq took any investigatory steps in this regard.[154]By the end of the disciplinary stage, in the light of the foregoing there had been insufficient investigation to support reasonable grounds justifying dismissal. We have considered whether this defect was remedied at the appeal stage (Taylor v OCS Group Ltd). Mr Potter did interview Mr Whitlock. However, the mitigating effect of his taking this positive step was undermined because in the appeal outcome letter Mr Potter referred only to the inculpatory and not the exculpatory parts of the interview (whereas in our view the interview was largely exculpatory). Mr Potter took no steps to investigate the medical position and whether it was relevant to the 19 October 2022 incident either.[155]Overall, the Tribunal must decide whether the dismissal was within the range of reasonable responses open to the Respondent in respect of the Claimant’s conduct. We conclude that it was not. 155.1. For the reasons set out above, we consider that there had not been a reasonable or sufficient investigation into the disciplinary allegations. 155.2. Both Mr Ishaq and Mr Potter approached their decision-making task by looking at whether there was sufficient inculpatory evidence to justify dismissal without investigating or weighing in the balance potentially exculpatory evidence. 155.3. Mr Ishaq’s decision to dismiss was based in part on the Claimant's wider disciplinary history, and he had not given the Claimant any opportunity to comment before concluding that it showed a pattern of conduct such that no alternative to dismissal would be appropriate. Further, he took into account his perception that the Claimant was hostile to women and people from ethnic minorities, without investigation and without putting these serious concerns to the Claimant. 155.4. Although the Claimant had not focussed on his health conditions in his defence to the disciplinary allegations, he did raise them at both the disciplinary and appeal stages. In our view, based on the medical information known to the Respondent, the Claimant’s health conditions were obviously relevant to his capacity to undertake additional stops. Therefore, his health conditions ought to have been taken into account when assessing the reasonableness of Miss Paine’s management instruction and the reasonableness of the Claimant’s refusal. There is no acknowledgement of the Claimant’s health conditions in the disciplinary outcome letters at any stage of the process.[156]We have also considered whether the Respondent followed a fair procedure. The process followed an investigation, disciplinary and appeal stage, with a different manager allocated to conduct each stage. The Claimant was given the opportunity to make written and oral submissions at each stage (albeit he declined a hearing at the appeal stage) and afforded the right to be accompanied at each hearing. The Claimant is critical of the time it took to schedule the disciplinary meeting but having considered this aspect we conclude that allowing for the Christmas period, the period was not excessive.[157]However, there were serious procedural defects. Our conclusions on procedural and substantive unfairness overlap, but in relation to the process followed we make the following observations. 157.1. Mr Ishaq conducting follow-up interviews with some of the witnesses without telling the Claimant or providing notes was unfair, especially as Mr Ishaq’s evidence to us was that he took the information gleaned from those interviews into account in his fact-finding. This was a defect which could not be cured at the appeal stage because Mr Potter was also unaware of the additional interviews (as he confirmed when giving evidence). 157.2. Mr Ishaq’s decision to exclude Mr Whitlock’s statement from consideration on the basis of a perceived friendship between him and the Claimant, without giving the Claimant or Mr Whitlock a proper opportunity to comment on the proposed exclusion, was also procedurally unfair. Mr Whitlock was an obviously relevant witness. As noted above, this defect was only partially remedied on appeal because although Mr Potter interviewed Mr Whitlock, he did not take an even-handed approach to the information Mr Whitlock provided. 157.3. Mr Ishaq taking into account the Claimant’s wider disciplinary history and a perception that the Claimant had displayed a discriminatory attitude, without giving the Claimant any forewarning about these matters, was procedurally as well as substantively unfair. The Claimant was able to address these matters at the appeal stage, and Mr Potter did discount the allegations of racism as sexism as a result.[158]Our overarching conclusion is that the Claimant’s dismissal was substantively and procedurally unfair. Polkey and contributory conduct[159]Having concluded that the dismissal was unfair, we go on to consider the chance that the employment would have terminated in any event, had there been no unfairness. There are some cases where it is obvious that a blameless claimant could not have been fairly dismissed, and others where it is obvious that the outcome of a perfect procedure would inevitably still have been dismissal. This case lies somewhere in between, and it is therefore an inherently speculative exercise to assess the percentage chance of a fair dismissal.[160]We take into account that the Claimant had a live final written warning on file which (we have found) was not issued in bad faith or without prima facie grounds and was not manifestly inappropriate on its face (Davies v Sandwell MBC).[161]We also take into account that the Claimant was facing an allegation of acting inappropriately towards a manager and an allegation of failure to follow a reasonable management instruction. As noted above, there were some grounds to support these allegations, based on the witness statements from Miss Paine herself and from Mr Rosi and Mr Manuta.[162]We consider that a fair process ought to have included an investigation into and consideration of the medical position and whether that was relevant to the reasonableness of Miss Paine’s instruction, and of the Claimant’s refusal. Had this been done, we consider it very unlikely that the disciplinary allegation of failure to follow a reasonable management instruction would have been upheld. We further consider it very unlikely that a fair disciplinary process would have resulted in a conclusion that the Claimant had committed gross misconduct justifying summary dismissal. However, we consider it possible that a fair disciplinary process might still have resulted in a conclusion that the Claimant had committed misconduct based on the witness evidence about the manner in which he spoke to Miss Paine.[163]We therefore conclude that there is a 25% chance that the Claimant could have been fairly dismissed for misconduct, as the result of a further finding of misconduct during the currency of a live conduct final written warning.[164]We have also considered the test for contributory fault pursuant to s.123(6) ERA in relation to the compensatory award. 164.1. Was the Claimant’s conduct on 19 October 2022 culpable or blameworthy in the sense that it was “foolish or perverse or unreasonable in the circumstances” (Nelson v BBC)? We have found that the Claimant spoke to Miss Paine in a forthright, robust, challenging and confrontational manner. He was upset because she was insisting on him adding more stops that he felt able to safely manage. We have found his health conditions were an underlying factor in the Claimant’s assessment of what he was able to manage. Miss Paine did not take his health conditions into account when insisting that the Claimant add more stops to his workload. However, by taking a less robust and challenging approach the Claimant might have been able to explain why his health conditions limited his ability to comply with Miss Paine’s request and thereby deescalated rather than aggravated the dispute between them. The Claimant’s approach was culpable and blameworthy in the sense that it was unreasonable (although we would not describe it as foolish or perverse). 164.2. Did that conduct cause or contribute to the dismissal? The dismissal resulted from the 19 October 2022 incident. We consider that the incident was caused in larger part by Miss Paine’s failure to take into account the impact of the Claimant’s health conditions on the number of stops he could reasonably be expected to complete in a day. However, and to a lesser extent, the way the incident unfolded was also caused by the Claimant’s forthright, robust, challenging and confrontational response to her request. 164.3. Would it be just and equitable to reduce the assessment of the Claimant’s loss in light of the extent to which his own culpable conduct contributed to the dismissal? We consider it would be just and equitable to make a 30% reduction to reflect the extent to which his conduct was causative of the way the 19 October 2022 incident unfolded.[165]A conduct-based adjustment to the basic award pursuant to s.122(2) ERA does not automatically follow a reduction in the compensatory award for contributory fault, but in this case and for the same reasons we consider that it would be just and equitable to reduce the basic award by 30% with regard to the Claimant’s conduct prior to dismissal. Wrongful dismissal[166]Did the Claimant commit gross misconduct which entitled the Respondent to terminate his contract without notice? We have considered this question in relation to both allegations of misconduct, namely that the Claimant had(1) acted in an inappropriate and intimidating manner toward Miss Paine, and(2) failed to follow a reasonable request to take 10 additional stops to top up his workload for the day.[167]The test for wrongful dismissal is different from that for unfair dismissal, where we must not substitute our view for that of the employer, and the Polkey test, which involves predicting what the employer might have done had it conducted a fair disciplinary process. For the purposes of the wrongful dismissal claim, our factual findings about what did occur during the incident on 19 October 2022 are relevant.[168]We address the reasonableness of Miss Paine’s management request first as this is relevant to both allegations of misconduct. On the basis of our factual findings, we do not consider that Miss Paine’s instruction to the Claimant on 19 October 2022 to take on 10 extra stops was a reasonable management instruction. We have found that the Claimant was able to effectively predict his own capacity. We conclude that the instruction to exceed his own prediction was unreasonable in the context of: the Claimant’s known health conditions; the established practice for managing them in his driving role; his successful performance under that established approach; the OH advice that the Claimant’s limit for manual handling would vary from day to day; the Respondent’s agreement with CWU to use DLR in conjunction with “meaningful, adult conversations on workload”; and the need to avoid putting customers to the inconvenience of waiting in for failed deliveries (which would have been the consequence of giving the Claimant more stops than he could reasonably manage).[169]Therefore, the Claimant did not refuse to obey a reasonable management instruction. In the circumstances, his refusal of the unreasonable instruction did not “so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment” (Neary) and did not amount to gross misconduct.[170]In relation to the Claimant’s manner towards Miss Paine, we have found that he was forthright, robust, challenging and confrontational. We have found that the incident had an emotional impact on Miss Paine, albeit this was not intended by the Claimant. We have taken the view (for contributory fault purposes) that the Claimant’s approach during the 19 October 2022 incident was unreasonable and was partly to blame for the way the incident unfolded. However, we have also found as a fact that the Claimant was not intimidating, threatening or physically aggressive towards Miss Paine. In all the circumstances, and given the frustration of the situation the Claimant was placed in by Miss Paine’s unreasonable instruction, we conclude that his robust manner towards Miss Paine did not “so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment” and did not amount to gross misconduct either.[171]Therefore, the Claimant was not in breach of his contract of employment. He was contractually entitled to notice should the Respondent decide to terminate the employment contract. He was dismissed summarily without notice. That was in breach of contract and amounted to a wrongful dismissal. Victimisation[172]The Respondent accepts that the Claimant’s complaint dated 21 June 2022 was a ‘protected act’ for the purposes of his victimisation claim.[173]The first detriment which the Claimant says was caused by the protected act was his suspension on 19 October 2022. Was the Claimant suspended on 19 October 2022 because he had submitted a grievance alleging discrimination on 21 June 2022? We conclude that there was no causal link between the two events. The Claimant was suspended on 19 October 2022 because of the incident with Miss Paine that morning when he refused to take on additional stops.[174]The next alleged detriment is the disciplinary allegations regarding the 19 October 2022 incident and subsequent disciplinary proceedings. Was the Claimant subject to disciplinary allegations and proceedings following the incident on 19 October 2022 because he had submitted a grievance alleging discrimination on 21 June 2022? Again, we conclude that there was no such causal link.[175]The third alleged detriment is the Claimant’s dismissal on 13 March 2023. Was the Claimant dismissed on 13 March 2023 because he had submitted a grievance alleging discrimination on 21 June 2022? Again, we conclude that there was no such causal link. The Claimant was dismissed because of the 19 October 2022 incident and not because of the earlier protected act.[176]The Claimant argues that Miss Paine was the decision-maker for the purposes of the alleged victimisation detriments because the disciplinary allegations against him originated with her. He says that she was influenced to give a misleading account of the 19 October 2022 incident by the difficult interactions they had when she investigated his prior grievance. We reject this argument. Even if the Claimant were right that Miss Paine’s account of the 19 October 2022 incident was influenced by her previous interactions with the Claimant, those interactions were not a protected act. It was the grievance itself that was the protected act. Even on the Claimant’s analysis, the protected act (the grievance) was not itself causative of the later disciplinary proceedings.[177]The Claimant’s victimisation complaint does not succeed. Disability status and knowledge of disability[178]The Respondent accepts the Claimant was disabled by reason of his cardiac condition, back pain and diabetes, but disputes that his mental health condition was a disability. Little turns on this difference in relation to factual causation (there being no acts said to be linked to the latter condition but not the former).[179]For completeness, we conclude that the Claimant’s depression and anxiety did amount to a disability for the purposes of s.6 EqA at the time of the events giving rise to this claim. 179.1. Anxiety and depression amount to a mental impairment. It is not necessary to separate the medical diagnoses, what matters is the constellation of symptoms they caused (Ministry of Defence v Hay). 179.2. These symptoms had an adverse effect on the Claimant’s ability to carry out normal day-to-day activities. We accept the evidence in the Claimant’s disability impact statement, which was not seriously disputed, to the effect that his symptoms affected his sleep, concentration and focus, and ability to socialise. 179.3. The adverse effect was substantial, in the sense that it was more than minor or trivial. We also accept that but for the CBT treatment and antidepressant medication the Claimant received, the effect would have been worse. 179.4. By 19 October 2022, the Claimant had been suffering from the substantial adverse effect for over 12 months, so it was ‘long-term’ within the meaning of the statutory test.[180]By 19 October 2022, the Respondent also had knowledge of all the Claimant’s disabilities by reason of the OH reports. Discrimination arising from disability[181]The Claimant says that arising as a consequence from his disabilities was “His inability to meet the Respondent’s targets for deliveries”. We do not accept this was so, because the Tribunal has not heard evidence to the effect that the Claimant was unable to meet delivery targets. To the extent that the Respondent applied a system of performance indicators, the evidence we saw from October 2022 was that the Claimant was able to meet them. The Claimant predicted that he would not have been able to deliver to the number of stops Miss Paine asked him to take on 19 October 2022; that was an instruction but not a target set by the Respondent.[182]The Claimant says next that arising as a consequence arising from his disabilities was “His inability to complete routes set by REX and DLR”. Again, we do not accept that the evidence demonstrated the Claimant was unable to complete the routes he was set. The evidence from October 2022 was that he completed routes successfully.[183]Thirdly, the Claimant says that “His response to being asked to take more parcels on 19 October 2022” arose in consequence of his disabilities. He also says that “The Claimant not being able to / refusing to take additional parcels on 19 October 2022” arose in consequence of his disabilities. We address these issues together because they amount to different ways of expressing the same thing.[184]We have found that the Claimant’s health conditions were an underlying factor in his refusal to take on additional stops. We accepted the Claimant’s evidence that this included his back issues, heart condition and diabetes, which influenced his need for toilet breaks. Nothing turns specifically on whether his anxiety and depression were part of the cause, and while noting the OH advice to avoid stress, we have not addressed them separately.[185]Overall, we conclude that the Claimant’s capacity to take on additional stops was limited by his disabilities. He knew this, and so did his managers. We therefore agree that his response / refusal on 19 October 2022 was ‘something arising’ from his disabilities.[186]The Claimant says he was treated unfavourably by his suspension, disciplinary allegations and proceedings, and his dismissal. There is no question that these things occurred and the Respondent does not dispute that they were unfavourable. The issue between the parties is whether the unfavourable treatment was done because of ‘something arising’ from the Claimant’s disabilities.[187]Was the Claimant suspended, subjected to disciplinary allegations and proceedings and dismissed because of his response to being asked to take more parcels on 19 October 2022? It is evident from the disciplinary and appeal outcome letters that the Claimant was dismissed in part because of his refusal to take additional stops (and therefore, more parcels) on 19 October 2022. One of the two misconduct allegations upheld against him was that he had refused a (“reasonable”) management instruction to take on additional stops.[188]We have not found that the Claimant’s manner towards Miss Paine on 19 October 2022, which gave rise to the other misconduct allegation, was something arising from his disability. However, it is causally sufficient that the ‘something arising’ from disability was part of the reason for the treatment.[189]The Respondent contends that the unfavourable treatment did not amount to unlawful discrimination because it was a proportionate means of achieving a legitimate aim. The Respondent says its aim was “providing a reliable and competitive delivery service which requires effective planning and utilisation”. We agree that this is a legitimate aim for the Respondent to pursue.[190]However, we conclude that suspending the Claimant, subjecting him to disciplinary proceedings and dismissing him were not proportionate means of achieving the aim. Balancing the Respondent’s reasonable business needs against the discriminatory effect of the impugned treatment upon the Claimant, we consider that the Respondent was entitled to ask its drivers to take on stops up to their full capacity in order to maximise the number of deliveries to customers. However, that only extended to requiring drivers to work to their full capacity and not beyond it. Ascertaining what full capacity amounted to in the Claimant’s case required the Respondent to take into account the medical evidence and what that Claimant himself was saying.[191]A better and more proportionate means of achieving the legitimate aim was to manage the Claimant’s health at work in accordance with successful established practice, which had enabled him to achieve good results throughout the earlier part of October 2022. The discriminatory impact on the Claimant of his disciplinary process and dismissal outweighed the restriction that would have been imposed on the Respondent had it continued to limit his workload to around 50 stops per day.[192]We therefore conclude that the Claimant’s suspension, disciplinary allegations and proceedings and dismissal amounted to discrimination arising from disability contrary to s.15 EqA. Failure to make reasonable adjustments[193]The Claimant says that the Respondent applied three PCPs, namely: 193.1. Requiring the Claimant to work his normal hours and fulfil his job description / management requests; 193.2. The use and application of REX and DLR; and 193.3. The request for the Claimant to take on additional parcels.[194]The Respondent agrees that these were PCPs it applied as at 19 October 2022. In relation to the request on 19 October 2022 for the Claimant to take on additional parcels, the Respondent accepts that the one-off request was made in accordance with its general practice and therefore did amount to a PCP in the sense described in Ishola.[195]The Claimant says that he was placed at a comparative substantial disadvantage by the application of these PCPs in that he was: occasioned stress and anxiety, unable to cope with his workload / work pattern and pace of work; unable or pressured not to take any or adequate breaks; unable to take on more parcels; and subjected to a disciplinary process and dismissal. The Respondent disputes that the application of the PCPs put the Claimant to substantial disadvantage.[196]Did requiring the Claimant to work his normal hours and fulfil his job description / management requests put the Claimant at a substantial disadvantage in relation to his disabilities, by comparison with delivery drivers without his disabilities? We conclude that this PCP did not put the Claimant at a substantial disadvantage. To the contrary, as shown by his performance in the earlier part of October 2022, he was generally successful in fulfilling his duties while working his normal hours.[197]Did the Respondent’s use of REX and DLR put the Claimant at a comparative substantial disadvantage in relation to his disabilities? We conclude on the basis of our factual findings that the PCP did not – generally – cause the Claimant a substantial disadvantage because in practice the Respondent used REX and DLR in conjunction with discussions between the Claimant and his managers to predict his workload capacity effectively.[198]However, the Claimant was placed at a substantial disadvantage by Miss Paine’s request on 19 October 2022 that the Claimant take on additional stops. The Claimant’s disabilities were an underlying factor in his refusal to take on the additional stops. Other delivery drivers without the Claimant’s disabilities would not have experienced the same limitation. As a result of the Claimant's refusal he was subjected to a disciplinary process and dismissal.[199]We have already found that the Respondent knew about the Claimant’s disabilities. Did the Respondent have actual or constructive knowledge of the substantial disadvantage? We conclude that the Respondent either knew or ought to have known that the request to take on additional stops put the Claimant at a substantial disadvantage in relation to his disability. On the basis of the OH advice, the Respondent was aware that even after the Claimant had completed his phased return to work, his health conditions would impact on his capacity to undertake deliveries. Further, the Claimant referred to his health conditions at the disciplinary and appeal stages which ought to have alerted Mr Ishaq and Mr Potter to the need to review the available medical evidence.[200]The Claimant argues that it would have been reasonable to expect the Respondent to take the following steps to avoid the substantial disadvantage: providing light / indoor duties, changing or amending his routes, reducing the number of parcels to be delivered, or not relying on REX and DLR to plan routes and set the number of deliveries.[201]We conclude that on 19 October 2022, at the point when the substantial disadvantage arose, the Claimant did not need indoor duties or an amended route. As a general practice, he was already allocated a reduced number of parcels to be delivered, and REX and DLR were not solely relied upon to plan his routes and set the number of his deliveries. Rather, there was an informally agreed approach that he discussed his workload with his line managers and usually took on around 50 stops. On 19 October 2022, the adjustment required was simply to take this same approach, which had been followed during the preceding period. We consider this would have been a reasonable step to expect the Respondent to take because it had previously worked well for both the Claimant and the business.[202]The request that the Claimant take on additional stops (and therefore parcels) on 19 October 2022 therefore amounted to a failure to make reasonable adjustments in breach of ss.20-21 EqA.[203]The Claimant’s complaints in relation to the other two alleged PCPs do not succeed.[204]We note that there is an overlap in the facts found to amount to discrimination in relation to this claim and the Claimant’s s.15 EqA claim. Indirect age and disability discrimination[205]Under the heading of indirect discrimination, the Claimant alleges that the Respondent applied the following PCPs: 205.1. The use and application of REX and DLR. 205.2. Using REX to determine the driver’s route. 205.3. Using DLR to determine the number of parcels to be delivered.[206]The Respondent accepts that it applied the PCPs to the extent that REX and DLR were used to inform, but not finally determine, the driver’s route and number of parcels to be delivered. We agree with that caveat. Subject to that caveat, we conclude that the Respondent applied the PCPs both to the Claimant and to people in different age groups and to people without the Claimant’s disabilities.[207]However, we conclude that the Respondent applied the PCPs flexibly in a way that did not give rise to a particular disadvantage either in relation to age or to disability. The Claimant says that older drivers, and drivers with his disabilities, would obviously be put to disadvantage “by an inflexible system of route planning that did not take into account each driver’s physical capabilities”. We do not consider that our factual findings support a conclusion that the Respondent’s use of REX and DLR produced such a system. To the contrary, the evidence as to the Claimant’s performance in the earlier part of October 2022 shows that his line managers used the route prediction tools flexibly in conjunction with speaking to the Claimant in order to agree a manageable workload. We do not have a proper evidential basis for making a finding of group or individual disadvantage.[208]The Claimant’s indirect discrimination claim fails. Limitation[209]In relation to the Claimant's discrimination claims, any act which occurred prior to 10 March 2023 is potentially out of time.[210]The claims which have been upheld, namely the discrimination arising from disability claim and the failure to make reasonable adjustments complaint in relation to one PCP, relate to events occurring from 19 October 2022 onwards.[211]The unfavourable treatment found to amount to discrimination arising from disability includes the Claimant’s suspension, disciplinary allegations and proceedings, and his dismissal on 13 March 2023.[212]We conclude that there was a continuing act of discrimination between 19 October 2022 and 13 March 2023 in the sense that there was an ongoing situation, or a continuing state of affairs, in which the Claimant was treated in a discriminatory manner (Hendricks). We note that the Respondent expressly did not take any point on time limitation in relation to events from 19 October 2022 onwards.[213]The Tribunal therefore has jurisdiction to hear and determine these claims, and we have done so. Apology[214]I sincerely apologise to the parties for the time it has taken to write up this judgment following the Tribunal’s deliberations, which has been caused by the pressures of other work.