Farhad AnwarClaimantHopewell School LimitedRespondent
Before
Employment Judge PoveyMr Roberts (instructed by Solicitor) for respondentDate 12 January 2026
REASONS
[1]This is a claim by Farhad Anwar (‘the Claimant’) against his former employer, Hopewell School Ltd (‘the Respondent’). The Claimant was employed by the Respondent as Lead Motor Vehicle Tutor, from 3 October 2022 until his dismissal. The actual date on which the Claimant’s employment ended was in dispute.[2]ACAS Early Conciliation took place from 15 August 2023 until 26 September 2023. The ET1 claim form was presented to the Tribunal on 30 October 2023. The Claimant brings complaints of discrimination by reason of disability, unauthorised deductions form wages and breach of contract. The claim is denied in its entirety by the Respondent, save that - 1 - it concedes that the Claimant was disabled by reason of physical impairments to his right shoulder, right arm and left leg.[3]There have been three case management hearings, culminating in a List of Issues (per the case management orders Employment Judge Gardiner of 1 April 2025), which the parties agreed at the outset of the hearing before me were the issues to be determined.[4]I heard oral evidence from the Claimant and, for the Respondent, from Olga Crosse, a HR consultant who has advised the Respondent for a number of years. Both witnesses provided and confirmed written statements as their evidence to the Tribunal. I was also provided with a bundle of documentary evidence (‘the Bundle’).[5]In addition, the Claimant applied at the outset of the hearing to rely upon a supplementary bundle of documents. That application was not objected to by the Respondent and I allowed those documents into evidence (‘the Supplementary Bundle’).[6]On the morning of the final day of the hearing (after I had heard all the oral evidence and after the Respondent had made closing submissions), the Claimant applied to rely upon two text messages which were not in evidence. That application was resisted by the Respondent and, for reasons given orally at the time, I refused it.[7]I received written and oral submissions from Mr Roberts for the Respondent and oral submissions from Mr Anwar, the Claimant’s brother.[8]The Claimant was a litigant in person, assisted throughout by his brother. I explained the process and procedures to them, checked their understanding, encouraged them to ask questions and gave guidance throughout. I was satisfied that the Claimant and Mr Anwar were able to fully engage in the process and present the Claimant’s claim to the best of their abilities. Indeed, I was impressed by the Claimant’s closing submissions which were clear and focussed, the understanding of the importance of the issues in the case and the professional manner in which Mr Anwar questioned the Respondent’s witness.[9]I was grateful to Mr Roberts, the Claimant and Mr Anwar for the assistance they provided and the work they had undoubtedly undertaken both before and during the hearing. I was also grateful to the Claimant and Ms Crosse who attended as witnesses and answered the questions asked of them.
The law
[10]In these oral reasons, I do not set out the law as I was not addressed on it at length and did not understand the applicable legal principles to be in dispute. I do set out the law on time limits towards the end of these reasons and make reference to various elements of the law throughout. - 2 -[11]However, should written reasons be sought, I will include a fuller and more detailed recital of the law I have applied in reaching my decisions. Discrimination: legal provisions[12]Section 39(2) of the Equality Act 2010 (‘EqA 2010’) states: An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by dismissing B;(d) by subjecting B to any other detriment.[13]Disability is a protected characteristic (per section 4 of the EqA 2010). Section 6 of the EqA 2010 defines disability for the purposes of the Act.[14]Discrimination arising from disability is defined by section 15 of the EqA 2010 as follows:(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.[15]There are two distinct steps to the test to be applied in determining whether discrimination arising from disability has occurred (per Basildon & Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14): 15.1. Did the claimant's disability cause, have the consequence of, or result in, "something"? 15.2. Did the employer treat the claimant unfavourably because of that "something"?[16]In Pnaiser v NHS England [2016] IRLR 170, the Employment Appeals Tribunal summarised the proper approach to claims for discrimination arising from disability as follows: 16.1. The Tribunal must identify whether the claimant was treated unfavourably and by whom. - 3 - 16.2. It then has to determine what caused that treatment, focusing on the reason in the mind of the alleged discriminator. The motive of the alleged discriminator in acting as they did is irrelevant. 16.3. The Tribunal must then determine whether the reason was "something arising in consequence of [the claimant's] disability", which could describe a range of causal links. That stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. 16.4. The knowledge required is of the disability, not knowledge that the "something" leading to the unfavourable treatment was a consequence of the disability.[17]Section 19 of the EqA 2010 defines indirect discrimination as follows:(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.[18]Section 20 EqA 2010 sets out the duties to make reasonable adjustments in respect of disabled persons. So far as relevant, section 20 states:(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 … 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 -[19]Schedule 8 to the EqA 2010 provides more details as to the duty to make reasonable adjustments. In addition, section 212 of the EqA 2010 defines “substantial” as “more than minor or trivial.”[20]What constitutes a PCP (under both indirect discrimination and the duty to make reasonable adjustments) should be construed broadly, It includes formal and informal practices, policies and arrangements and may in certain cases include one-off decisions (per Lamb v The Business Academy Bexley UKEAT/0226/15). However, it is not appropriate to interpret the phrase "provision, criterion or practice" so as to encompass all one-off decisions made by employers during the course of dealings with particular employees (per Ishola v Transport for London [2020] EWCA Civ 112).[21]If a person fails to comply with the duty to make reasonable adjustments, that person discriminates against the disabled person (per section 21 of the EqA 2010).[22]Section 26(1) of the EqA 2010 defines harassment as follows: A person(a) (A) harasses another(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.[23]To amount to harassment, A's conduct must have the purpose or effect of violating B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Where B claims that the conduct had this effect (although this was not A's purpose), the Tribunal must consider whether it was reasonable for the conduct to have that effect.[24]If A's unwanted conduct has the purpose of violating B's dignity or of environment for B, the test for harassment will be met. There is no need to consider if it has the proscribed effect, and the reasonableness of B's perception is not relevant.[25]Section 27(1) of the EqA 2010 defines victimisation as subjecting someone to detriment because they have (or it is believed they have) done a protected act. There must be a link between the detrimental treatment and the protected act. It must be the real reason for the treatment, although that can include detriment which is not consciously motivated (see, for example, Chief Constable of Greater Manchester Police v Bailey [2017] EWCA Civ 425; Peninsula Business Service Ltd v - 5 - Baker UKEAT/0241/16).[26]A protected act is defined by section 27(2) of the EqA 2010, as follows: 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.[27]In determining whether an act is a ‘protected act’ for the purposes of section 27(2), the context in which the Claimant relied upon the protected act is relevant, including the way in which the Respondent would have understood the protected act. All that is required, if the alleged protected act is a making an allegation (per section 27(2)(d), above) are that facts as asserted that would be capable in law of amount to an act of discrimination (Kokomane v Boots Management Services Ltd [2025] EAT 38). Discrimination: standard & burden of proof[28]The standard of proof is the balance of probabilities. The burden of proof in discrimination complaints has two stages, as follows (per section 136 of the EqA 2010, Efobi v Royal Mail Group Ltd 2021 ICR 1263, SC; Madarassy v Nomura International plc [2007] IRLR 246 and Igen Ltd (formerly Leeds Careers Guidance) v Wong 2005 ICR 931, CA): 28.1. The Claimant has to prove facts from which the Tribunal could infer that discrimination has taken place; 28.2. If so, the burden ‘shifts’ to the Respondent to prove that the treatment in question was in no way because of a protected characteristic. Breach of contract[29]By virtue of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 SI1623, proceedings may be brought before the Tribunal in respect of a claim of an employee for the recovery of damages or any sum for breach of a contract of employment where the claim arises or is outstanding on the termination of the employee’s employment. - 6 -[30]The standard of proof is the balance of probabilities. The burden of proof is on the Claimant to show that there was a breach of his contract of employment and the extent of that breach. Unauthorised deduction from wages[31]Section 13 of the ERA 1996 states as follows (so far as relevant):(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.[32]The standard of proof is the balance of probabilities. The burden of proof is on the Claimant to show that any deduction from his wages occurred, as defined by section 13, and to show the extent or amount of any such deduction.
Findings of fact
[33]The Respondent is a specialist school, which provides education to children who, for various reasons, cannot be educated in the state sector. It is funded by local authorities (including the London Boroughs of Havering and of Dagenham & Redbridge). The Claimant’s employment started on 3 October 2022. He conducted lessons in person at the Respondent’s Motorvations site.[34]On 19 January 2023, during the course of his employment, the Claimant was involved in a road traffic accident, where the car he was driving was - 7 - hit by a police car. He suffered injuries to his right shoulder, right arm and left leg.[35]The Claimant was unfit to return to work after the accident. The Respondent continued to pay his full salary for January, February and March 2023.[36]On 4 April 2023, the Claimant had a call with Susan Douglas, the Respondent’s headteacher. The Claimant covertly recorded the meeting, without the knowledge or consent of Ms Douglas. A transcript of that recording was in evidence (at [158] – [167] of the Bundle). There was a discussion about the Claimant’s accident and his on-going recovery. There was a discussion about whether the Claimant could return to work on a phased basis, which could involve online working.[37]In my judgment, having read the transcript, I was unable to agree with the Claimant that this constituted a binding agreement by the Respondent to permit the Claimant to return to work initially online. Rather, it was a general discussion where thoughts, ideas and suggestions were being raised, for both the Claimant and the Respondent to consider, against the backdrop of on-going recovery, investigations and treatment. Indeed, the Claimant’s own GP was not suggesting any adjustments at that time which could assist the Claimant’s return to work (per the fit notes at [72] – [75] of the Bundle). That only changed upon receipt of the occupational health (OH) report, which followed a referral made by the Respondent as a result of the meeting on 4 April 2024.[38]The Claimant met with OH on 22 May 2023. The subsequent report was in evidence (at [79] of the Bundle). The Claimant told OH that his recovery was complex, he was awaiting his MRI results and had started physiotherapy. He also told OH that he was keen to return to work, which would initially be from home and that he had sourced a laptop that he could use for that purpose. As a result, OH advised as follows: Following today's consultation, I can advise the following;• [The Claimant] will be returning to work within the next 3 weeks• To initially work from home• To work 2 days online and to gradually increase his days if managerially feasible.• To be reviewed 4 weeks after his initial return to work date. This report reflects advice only. It is understood that it is for the employer to determine what is reasonable in relation to aids and adjustments.[39]As to prognosis, OH advised as follows (under ‘Future Outlook’): [The Claimant] has made slow progress following his accident in January 2023, this is through no fault of his own and is basically the convoluted need for referral and the awaited MRI scan results. - 8 - I would like to speak with [the Claimant] in four weeks following his return to work, it will be at this juncture we can discuss his MRI results and get an update of his treatment plan.[40]On 26 May 2023, the Claimant’s GP issued a fit note which included, as indicated, the following advice, in respect of what may assist the Claimant’s return to work (at [75] of the Bundle): Please consider online teaching/no heavy lifting and take advice as per OH assessment[41]Despite the advice of OH, the Claimant did not return to work within three weeks or at all.[42]On 23 June 2023, Ms Crosse invited the Claimant to a meeting scheduled for 5 July 2023, the purpose of which was to “discuss the OH report further and developments within the school which may impact on your employment” (at [82] of the Bundle).[43]Ms Crosse’s written and oral evidence was that: 43.1. Since the Claimant had been off work, his role had been adequately covered by the other motor vehicle tutor, John Calder; 43.2. The Respondent was facing some financial challenges regarding its funding; 43.3. The children, because of their particular needs, required continuity, consistency and familiarity, in circumstances where Mr Calder had been with the Respondent for five years and the Claimant had only joined in October 2022 and been off work since 19 January 2023, had yet to return to work and would likely do so in a remote, online capacity to start with; and 43.4. In those circumstances, it was decided that the Respondent could not justify the costs of two motor vehicle tutors, that Mr Calder was the preferred choice and that the Claimant’s post would be made redundant.[44]The Claimant criticised the Respondent in these proceedings for not providing evidence of the restructure or the financial issues it was facing. To an extent, I can understand that criticism but I think it is misplaced. This is not an unfair dismissal claim. It cannot be because the Claimant was not employed long enough to have protection against unfair dismissal (the requirement is currently two years continuous employment). As such, unlike in an unfair dismissal claim, it was not for the Respondent to prove the reason for dismissal. Rather, it was for the Claimant to show a prima facie case that he was dismissed because he was disabled, at which point the burden would pass to the Respondent to provide a non-discriminatory explanation for his dismissal. - 9 -[45]Notwithstanding the lack of documentary evidence, I found Ms Crosse’s evidence to be plausible and credible. She was involved in the process and able to give first hand evidence as to the decision-making process. Her evidence was consistent with the Claimant’s invitation to the meeting of 5 July 2023, consistent with what was discussed at that meeting (it too was covertly recorded by the Claimant and the transcript in evidence, at [183] – [194] of the Bundle) and consistent with the letter of dismissal issued thereafter. It was also, to some degree, consistent with what ultimately happened to Mr Calder, who himself was made redundant on 28 March 2024 (per [100]). As explained by Ms Crosse in her written evidence, the financial challenges faced by the Respondent continued, with the Motorvations site itself being closed, which resulted in Mr Calder’s redundancy.[46]As such, I found that I could place weight on Ms Crosse’s explanation for why the Claimant was dismissed. There was no evidence to support the Claimant’s contention that it was sham redundancy or that the reasons given were not genuine. I found that they were and found that the Respondent decided to terminate the Claimant’s employment for the reasons it gave.[47]On that point, I was addressed at length by Mr Anwar on the requirements for a fair redundancy dismissal. With respect, those submissions were misplaced. As explained, the Claimant did not have protection against unfair dismissal and the Respondent was under no legal obligation to undertake a fair redundancy process.[48]Shortly before his meeting with Ms Crosse and his dismissal, the Claimant was provided with a statement of his main terms and conditions of employment (at [68] – [71] of the Bundle).[49]By a letter dated 6 July 2023, Ms Crosse confirmed the Respondent’s decision to terminate the Claimant’s employment. The letter expressly stated that the Claimant’s employment was being terminated with immediate effect from 5 July 2023 (at [83] of the Bundle). However, the Respondent decided to pay the Claimant his full salary to 31 August 2023 in lieu of notice and holiday entitlement.[50]It was clear from that letter that the Respondent terminated the Claimant’s employment on and with effect from 5 July 2023. The Claimant’s employment did not continue until 31 August 2023 (as claimed by the Claimant). He was simply paid a sum on termination equivalent to his salary until 31 August 2023.[51]On 31 July 2023, the Claimant emailed Ms Crosse and requested extensive documentation. He also asked to appeal the decision to dismiss him (at [85] – [87] of the Bundle). On 1 August 2023, Ms Crosse responded that the Respondent was not prepared to provide such information as it was excessive but would provide the Claimant’s personnel file once the school reopened in September. She also - 10 - informed the Claimant that he was not entitled to a right of appeal as he had less than two years service (at [256] of the Supplementary Bundle).[52]On 19 August 2023, the Claimant lodged a grievance (dated 10 August 2023 and at [88] – [90] of the Bundle). On 21 August 2023, Ms Crosse emailed the Claimant to confirm that as he was no longer an employee, he was not entitled to bring a grievance and it would not, as a result, be dealt with (at [88]).[53]On 15 August 2023, the Claimant started ACAS Early Conciliation. On 30 October 2023, he presented his claim to the Tribunal. Analysis & conclusions[54]I undertook my analysis and conclusions in accordance with the List of Issues, save that I addressed time limits at the end. Disability[55]It was not in dispute that at the relevant time the Claimant was disabled by reason of the physical impairments which resulted from the road traffic accident on 19 January 2023. That concession by the Respondent was made in the course of these proceedings.[56]Disability is defined by s.6 EqA 2010, as follows A person (P) has a disability if—(a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.[57]Schedule 1 of the EqA 2010 includes the following, so far as relevant: 2 (1)The effect of an impairment is long-term if—(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected.[58]The Respondent said that it did not have knowledge, nor could it reasonably of had knowledge, at the relevant time (namely when the alleged acts of discrimination took place), that the Claimant was disabled by reason of the injuries he sustained as a result of accident. In particular, the Respondent said that it did not know nor could reasonably have known at that time that the Claimant’s physical injuries would have a long-term effect on his ability to undertake normal day to day activities (i.e. that his injuries would have that effect for 12 months). - 11 -[59]In cross-examination, the Claimant agreed that he did not know nor was aware at the relevant time that his injuries would have those effects for that length of time.[60]Considering the evidence which was available to the Respondent at the relevant time, I agreed that the Respondent could not know nor reasonably have known at that time that the Claimant’s injuries would affect him for at least 12 months, such that they rendered him disabled (as defined by law). The evidence and information was limited to the OH report and the Claimant’s fit notes.[61]The Claimant criticised the Respondent for not making sufficient enquires as to his health, whether directly with him or via OH. I found those criticisms misplaced. There was evidence of the Respondent asking the Claimant how he was and checking on his welfare and wellbeing. However, the Respondent can only reasonably act on what it was being told by the Claimant and those treating the Claimant. The criticism of OH was also misplaced. The Claimant appeared to raise in the course of the hearing that more should have been done to assess his mental health. However, it has never been the Claimant’s case that he was disabled by reason of mental impairment, so such an enquiry was irrelevant.[62]To that end, I did not find that the Respondent’s ignorance of the Claimant’s disability status was unreasonable. It was, in reality, in keeping with the Claimant’s own limited understanding of his prognosis, such limitations being consistent with, and reflected by, the OH report.[63]In that regard, there is no criticism of the Claimant. There were on-going investigations. The duration of his recovery and the prognosis at that time were unclear. He was awaiting a referral to physiotherapy and the results of an MRI scan. His recovery was on-going and it was simply too early to know what, if anything, would be the impact and duration of his injuries.[64]But what is did mean is that, at the time of the acts complained of, the Respondent did not know and could not have reasonably known that the Claimant was disabled. If the Respondent did not know the Claimant was disabled, the Respondent cannot be liable for the following acts of discrimination, since knowledge of disability is a prerequisite (since the Respondent cannot possibly have treated the Claimant less favourably or unfavourably because he was disabled in circumstances where it was not aware and could not reasonably have been aware, that the Claimant was disabled, as defined by law): 64.1. Direct discrimination 64.2. Discrimination arising form disability 64.3. Beach of the duty to make reasonable adjustments - 12 -[65]I went on and considered all the complaints being pursued by the Claimant in turn, as per the List of Issues. Direct discrimination[66]The test of direct discrimination is that the Respondent treated the Claimant less favourably because he was disabled. That cannot be the case in circumstances where the Respondent did not know that the Claimant was disabled. Whatever the reason for the treatment complained of, it self-evidently could not be because the Claimant was disabled. For that reason alone, the whole complaint must fail.[67]In any event and in light of the findings I have made, it was not the case that the Respondent failed to pay the Claimant whilst he was absent from work (it paid him full pay, then SSP until 17 May 2023) or that it refused to permit him to teach online. The Respondent was agreeable to a temporary arrangement as part of a phased return to work but, as clearly explained, events overtook that proposal and a decision was made to make the Claimant’s post redundant. Discrimination arising from disability[68]As set out in section 15(2) of the EqA 2010, there will be no discrimination arising from disability "if [the Respondent] shows that [it] did not know, and could not reasonably have been expected to know, that [the Claimant] had the disability".[69]The Respondent did not known nor could reasonably have known that the Claimant was disabled at the time of the alleged acts complained of. Whatever conduct the Claimant complains of cannot have been because he was disabled, since the Respondent had no knowledge that he was disabled.[70]There could therefore be no discrimination and the complaint must fail. Indirect discrimination[71]Nothing in section 19 of the EqA 2010 requires the Respondent to have knowledge that the Claimant was disabled. For indirect discrimination to arise, the disadvantage experienced by the Claimant (and those sharing his particular disability) simply has to flow from the PCP. That distinction is further underlined by the fact that, under section 19A of the EqA 2010, an employee without a disability can also bring an indirect discrimination claim if they suffer substantially the same disadvantage as those with the particular disability.[72]The Claimant relied upon two alleged PCPs, as follows ([143] – [144] of the Bundle): 72.1. The employee must maintain a certain level of attendance at work in order not to be subject to the risk of dismissal; and - 13 - 72.2. An informal policy that there need not be any redundancy scoring process and no consultation with a single member of staff regarded as having a unique role and on sick leave and at risk of redundancy.[73]The Respondent denied that it had a PCP of employees maintaining a certain level of attendance at work in order not to be subject to dismissal. I was not taken to any evidence by the Claimant that such a PCP, as alleged, existed or was operated by the Respondent. There were extracts from the Respondent’s absence management policy in evidence (at [49] – [54] & [154] – [156] of the Bundle) but they did not include a requirement for employees to maintain a certain level of attendance to avoid being dismissed.[74]As such, I found that this PCP was not operated by the Respondent nor applied to the Claimant, as alleged or at all. As no such PCP was applied to the Claimant or to anyone else, there was no actionable disadvantage to the Claimant and no indirect discrimination.[75]In contrast, the Respondent accepted that it had a PCP of not needing redundancy scoring and consultation where an employee had less than two years service (as, by reason of the ERA 1996, there is no protection against unfair dismissal until an employee has two years continuous service and no requirement on an employer to act fairly in how it decides to dismiss such an employee). What the Respondent did not accept was that it had a PCP of treating single members of staff with a unique role who were on sick leave in that manner.[76]The PCP accepted by the Respondent did not put the Claimant at any disadvantage because he was disabled. It put him at a disadvantage because he had not been employed for two years, which had nothing to do with his disability. In respect of the accepted PCP, there was no indirect discrimination therefore because of the Claimant’s disability.[77]Again, the Claimant did not direct me to any evidence which supported his alleged wider PCP. As such, I found that the PCP that he contends for was not a PCP operated by the Respondent, nor was it ever applied to the Claimant or anyone else. As such, there was so no disadvantage and no indirect discrimination. Breach of the duty to make reasonable adjustments[78]Complaints under this head required the Respondent to have knowledge that the Claimant was disabled or be reasonably expected to have such knowledge. As found, the Respondent did not have nor could reasonably have had knowledge that the Claimant was disabled at relevant time.[79]It therefore follows that the Respondent could not have reasonably known that any alleged PCP applied by it to the Claimant would place the Claimant at a substantial disadvantage because of his disabilities. - 14 -[80]On that basis, the Respondent cannot have been under any duty to make reasonable adjustments, there can be no breach and the complaint must fail. Harassment[81]Knowledge of disability is not a prerequisite for a complaint of harassment under the EqA 2010.[82]Although not reproduced in the List of Issues, I reminded myself of the definition of harassment in the EqA 2010. It is not simply unwanted conduct that relates to disability but also requires, crucially, that the unwanted conduct must have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant.[83]Whether conduct had that effect is to be judge objectively (that is, was it reasonable for the Claimant to assert that the conduct had that effect on him).[84]As detailed in the List of Issues, the Claimant relied upon a number of alleged acts by the Respondent, which I considered in turn (utilising the numbering from the List of Issue). 7.1.1 Did Olga Cross tell the Claimant’s representative there was “nothing wrong with the Claimant” diminishing the Claimant’s injuries?[85]The allegation against Ms Cross was not supported by any corroborative evidence and was denied by Ms Cross. In his witness statement, the Claimant alleged that the comment was made to his union representative (at Paragraph 176). There was no evidence from the representative, no explanation for why there was no evidence from the representative or what steps, if any, had been taken to get evidence from the representative. It was for the Claimant to show, on balance, that the acts complained of occurred.[86]In effect it was his word against Ms Cross’, in circumstances where, at its highest, the Claimant was reporting what he had been told by his representative. In those circumstances, the Claimant failed to prove on balance that Ms Cross made the comments as alleged. It follows that the alleged conduct did not occur. 7.1.2 Direct that the Claimant was not allowed to be in any vehicle belonging to another member of staff or the company[87]This allegation about vehicles was not supported by any corroborative evidence and was denied by the Respondent. For same reasons as above, the Claimant failed to discharge the burden of proof and I found that the allegation did not happen. - 15 - 7.1.3 Agree the Claimant would return to work gradually doing online teaching, then there being no contact about this until [the] 5 July meeting, where [the] Claimant says the Respondent reneged on the meeting[88]Any agreement to allow the Claimant to return to work gradually included the consideration of him working online but, as found and as was reasonable, events overtook the Claimant’s discussions on 4 Apri 2023 with Ms Douglas. In addition and understandably, the options being explored were subject to OH advice.[89]As such, it cannot be said that there was an agreement in place that the Claimant would work online or that, by extension, any such agreement was subsequently reneged upon. In any event, even taken at its highest, there was no evidence that reneging on such a decision had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. As such, it was not an act of harassment. 7.1.4 Refuse the Claimant’s subject access request (made on or around 10 August 2023)[90]As noted above, the actual request for documentation was made by the Claimant on 31 July 2023 (at [85] – [87] of the Bundle). The Respondent refused the request because it was excessive. The Claimant’s physical impairments and corresponding disabilities played no part in that decision and, again, refusing the request did not come close to meeting the threshold of having the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. As such, it was not an act of harassment. 7.1.5 Dismiss the Claimant without consultation[91]The Respondent did dismiss the Claimant without consultation but, as found, that was because he had not attained two years continuous service, which had nothing at all to do with his disabilities. In addition, there was no evidence that not consulting the Claimant prior to his dismissal had the purpose or effect of violating the Claimant’s dignity or environment. As such, it was not an act of harassment, nor when consider objectively, could it reasonable have created such an effect. 7.1.6 On 21st August 2023, respond to the Claimant’s grievance “because [the Claimant] was no longer an employee, he was not entitled to raise a grievance and as a result [the Respondent] will not be dealing with your grievance” or words to that effect. 7.1.7 Ignore the Claimant’s request (emailed on 19th and 21st August 2023) for the Employee/Company handbook and all documents in regard to the decision to restructure and to select the Claimant for redundancy. - 16 - 7.1.8 The Respondent did not hold an appeal after the Claimant request [sic] it.[92]The Respondent did not dispute any of these acts but, again, the reason had nothing to do with the Claimant’s physical impairments and everything to do with the following: 92.1. He was no longer an employee (regarding the refusal to consider his grievance); 92.2. His request was considered excessive (in respect of the documents he sought); and 92.3. He was not employed for a continuous period of two years (in respect of not considering his appeal against dismissal).[93]It also could not be said that the Respondent’s refusal of all of those requests had the purpose or effect of violating the Claimant’s dignity or environment, nor when consider objectively, could they reasonably have created such an effect.[94]As such, they were not acts of harassment. 7.1.9 Around the 24 May 2023, Occupational Health not updating the Claimant in regards to a pre-approval report and medical condition[95]This was an allegation against OH, a private contractor which was independent of the Respondent. As such, there was no conduct undertaken by the Respondent in this allegation and it fails on that basis. 7.1.10 Not receiving the written statement of terms until four days before the Claimant was dismissed[96]It was not in dispute that the Claimant did not receive a written statement of terms until four days before he was dismissed. However, there was no evidence whatsoever that such delay was because the Claimant was disabled and still less that it had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. As such, it was not an act of harassment.[97]For all those reasons, the complaints of harassment because of disability were not made out and are dismissed. Victimisation[98]There was some confusion as to the protected act being relied upon by the Claimant. - 17 -[99]In the List of Issues, which the parties agreed at the outset of hearing were the issues to be determined, the protected act was the Claimant’s grievance of 19 August 2023.[100]However, in his oral submissions, Mr Anwar referred to Paragraph 20 of Claimant’s witness statement and an alleged complaint raised by the Claimant in December 2022 about health and safety. The Claimant’s witness statement went on to allege that he suffered detriment because of health and safety risks which he had raised. These allegations were all pursued in the Claimant’s witness statement under the heading ‘Victimisation – s.27 Equality Act 2010’.[101]The issues raised by the Claimant in his witness statement and referred to in his submissions by Mr Anwar were not the allegations of victimisation as detailed in the agreed List of Issues. However, it matters not, since raising health and safety complaints cannot, in law, be a protected act under section 27 of the EqA 2010, since a protected act requires some link to the provisions the EqA 2010. Allegations of breaches of heath and safety are not part of the EqA 2010. Rather, they are a facet of the ERA 1996.[102]In contrast, the Claimant’s grievance of August 2023 did, in my judgment, make allegations under the EqA 2010, even if not in express terms (which is not required). For example, the Claimant made reference to suffering a disability as a result of the accident and that reasonable adjustments should have been considered (at [89] of the Bundle).[103]It was not in dispute that the Respondent did not consider the Claimant’s grievance. That was the detriment relied upon by the Claimant. Was that because he did a protected act, that is, lodge his grievance? No, it was not. The Respondent did not consider the Claimant’s grievance because, with effect from 5 July 2023, he was no longer employed by the Respondent. The decision not to consider the Claimant’s grievance had nothing to do with his protected act.[104]As such, the victimisation complaint was not made out and is dismissed. Unauthorised deductions[105]There were three distinct elements to this complaint, per the List of Issues: 105.1. Work carried out in May 2023, for which the Claimant said he was not paid; 105.2. Overtime for which the Claimant said he was not paid; and 105.3. Statutory sick pay (‘SSP’), which the Claimant said he was not paid, sufficiently or at all. - 18 -[106]I was not addressed by or on behalf of the Claimant on the allegation regarding unpaid work in May 2023, perhaps with good reason. It was not in dispute that following the accident in January 2023, the Claimant never returned to work. I have therefore dismissed that complaint.[107]The claim in respect of overtime came down to the construction of the Claimant’s contract and in particular Clauses4.1 and 4.2, as follows (at [68] of the Bundle): 4. HOURS AND CONDITIONS OF WORK 4.1 Your paid contractual hours of work are Monday to Friday 9.00am to 5pm or 9.30am to 5,30pm4.2 You may be required to work additional hours when authorised and as necessitated by the needs of the school/The Company. The nature of working in a school is such that additional hours are usually put in without formalisation. This does not affect your conditions of working. You may also be required to work during school holidays or attend staff training/activities/meetings during school holidays, where necessary.[108]The Claimant said that he would regularly and routinely work outside his contractual hours. It was not in dispute that he was never paid for any work undertaken outside of his contractual hours. The Claimant said that he was entitled to be paid overtime and was not.[109]The Respondent said in reply that the Claimant was never entitled to be paid overtime because such overtime was never authorised and there was no contractual entitlement to overtime.[110]In my judgment, the Respondent was correct in its reading of the Claimant’s contract. There was no contractual right to be paid overtime. There was a provision whereby the Respondent could authorise the Claimant to undertake additional hours when necessary. The Respondent said that it never authorised the Claimant to undertaken any additional hours and the Claimant was unable to provide any evidence to the contrary.[111]As such, the Claimant’s complaint that he was entitled to payment for additional hours was not made out and is dismissed.[112]The Respondent agreed that it did not pay the Claimant any SSP from 17 May 2023, because it did not receive any fit notes after that date. It was the Respondent’s practice to only pay SSP upon receipt of fit notes. That was also reflected in the Claimant’s contract, at Clause 9.1, as follows (at [69] of the Bundle): 9. SICKNESS PAY AND CONDITIONS 9.1 All employees are required to produce a doctors medical certificate if away sick for more than seven consecutive days. Failure to do so without good reason will affect entitlement to pay. - 19 -[113]In the evidence which was adduced, the Claimant was unable to show that he had sent in further fit notes. As such, that complaint was also not made out and is dismissed. Breach of contract[114]This complaint had four distinct elements to it, as follows (per the List of Issues): 114.1. Failure to pay the Claimant contractual sick pay 114.2. Failure to return the Claimant’s belongings 114.3. Failure to pay the Claimant’s expenses in respect of a laptop and food purchased for students 114.4. Failure to repair damage to the Claimant’s e-bike.[115]Clause 9.4 of the Claimant’s statement of main terms of employment stated as follows (at [69] of the Bundle): The Company reserves the right to exercise its discretion to pay contractual sick pay in limited circumstances[116]It was not in dispute that the Respondent paid the Claimant his full wages for the first three months of his absence. Thereafter, it paid him SSP. There was no breach of contract, since it was wholly at the discretion of the Respondent whether, and in what circumstances, to pay anything other than SSP. That is what the Respondent did and in so doing, did not breach the contract between itself and the Claimant (given the express provisions of Clause 9.4).[117]There was no evidence that the Respondent ever refused or prevented the Claimant from collecting his personal belongings. In reality, the Claimant never made arrangements to collect his belongings. To that end, there was no breach of contract, since the Respondent was not denying the Claimant the ability to collect his belonging. In addition, there was no contractual obligation on the Respondent to facilitate the return of those belongings to the Claimant, merely to allow him access to collect them (which it has never been asked to facilitate).[118]In respect of the alleged failure to pay expenses for food bought for students and reimburse the Claimant for a laptop he bought, the Claimant accepted that he had never submitted a claim for these alleged expenses. In the absence of a claim for expenses, it was difficult to understand what breach of contract had been occasioned by the Respondent. In any event, I accepted Ms Cross’ evidence that the Respondent would not authorise staff to buy food for students (given the students’ care plans and possible food intolerances and allergies) and the laptop was bought by the Claimant for his personal use. - 20 -[119]In both instances, even if he had claimed expenses, they would not have been authorised. Again, there was no breach of contract on the part of Respondent. It was entitled to mange its expenses in whatever way it saw fit in accordance with its procedures, not least by requiring anyone claiming expenses to submit a formal request for payment, which the Claimant did not do[120]The Claimant said that he took his own e-bikes into the school, as part of his lessons with the students. He said that they were damaged and sought the costs of the damage from the Respondent. He relied upon the Respondent’s Health & Safety Policy, specifically the following extracts from Paragraph 7.1 Electrical Equipment (at [52] of the Supplementary Bundle): … Any student or volunteer who handles electrical appliances does so under the supervision of the member of staff who so directs them … Electrical apparatus and connections will not be touched by wet hands and will only be used in dry conditions Maintenance, repair, installation and disconnection work associated with permanently installed or portable electrical equipment is only carried out by a competent person …[121]In my judgment, the Claimant’s complaint in this regard is misplaced and misconceived. The Health & Safety Policy cannot in any reasonable sense be extended to electrical appliances brought onto the Respondent’s premises. If that were so, every mobile phone would have to used by a student under the supervision of a member of staff. Rather, when read in context, it related to electrical appliances which were already on site and in situ. That was the only sensible interpretation, since Section 7 Equipment (which includes Paragraph 7.1) begins with the following (also at [52] of the Supplementary Bundle): All equipment and machinery is maintained in accordance with the manufacturer’s instructions. In addition, maintenance schedules outline when extra checks should take place When new equipment is purchased, it is checked to ensure that it meets appropriate educational standards All equipment is stored in the appropriate storage containers and areas. All containers are labelled with the correct hazard sign and contents[122]The Claimant did not suggest that he or his e-bikes were subject or adhered to those overarching requirements.[123]In addition, the Claimant brought the bikes onto the premises voluntarily. He was not asked, still less instructed, by the Respondent to do so. He - 21 - did not explain in his written evidence how or by whom the bikes were damaged. His schedule of loss, which sought an award of compensation just shy of £200,000, did not include any compensation for breach of contract regarding his e-bikes.[124]In short, he failed to make out that bringing his e-bikes into work placed any contractual obligations on the Respondent and did not establish on balance that there was any damage to the e-bikes or, more importantly, that such damaged constituted an actionable breach of contract against the Respondent.[125]For all those reasons the complaints of breach of contract were not made out and are dismissed. Time limits:[126]Based upon the dates of ACAS Early Conciliation and the date on which the Claimant presented his claim to the Tribunal, any allegation occurring before 19 June 2023 was potentially out of time.[127]As such, nearly everything save for the Claimant’s dismissal onwards was presented potentially out of time.[128]As indicted above, I set out in some detail the law on time limits. Discrimination complaints[129]The test to be applied regarding time limits and discrimination and victimisation complaints is set out in section 123(1) of the EqA 2010, as follows: Proceedings…may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.[130]In addition, section 123(3) of the EqA 2010 states that “conduct extending over a period is to be treated as done at the end of the period.” In other words, if there is a course of conduct which is discriminatory, and the last act of discrimination occurred within the applicable time limit, the whole course of conduct is treated as being in time.[131]There must be a continuing course of discriminatory conduct, as oppose to a discriminatory act which has continuing consequences. The Tribunal will look at the substance of the complaints and decide whether they can be said to part of one continuing act of discrimination. For the purposes of establishing whether or not complaints are in or out of time, the Claimant must be able to show a reasonably arguable basis for the - 22 - contention that various complaints of discrimination are so linked as to be continuing acts or constitute an ongoing state of affairs.[132]The Tribunal does not have the power to decide any complaint unless it was presented within three months of it occurring or the Tribunal decides that the complaint was presented within “such other period as [it] thinks just and equitable.” For those complaints that are out of time, the Claimant will need to explain to the Tribunal the following: 132.1. Why he failed to present his claim within the prescribed 3 month time limit; 132.2. Why he did not present his claim any earlier than he did; 132.3. Why he thinks that it would be just and equitable to allow his claim to proceed, even though it was presented out of time.[133]In deciding whether to allow the complaint to proceed, the Tribunal will weigh the prejudice to the Claimant of not being permitted to proceed with his claim against the prejudice to the Respondent of allowing it to proceed. The Tribunal will also take into the account how out of time the complaint is, why it was not presented within the applicable time limit, why it was presented at the time that it was and any other factors which may be relevant. Unauthorised deductions from wages & breach of contract complaints[134]The test to be applied regarding time limits and complaints of unauthorised deductions from wages and breach of contract complaints is set out in section 23 of the ERA 1996 as follows: An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[135]In addition, section 23(3) of the ERA 1996 regarding unauthorised deductions states that where there is a serious of deductions, the time limits run for the last deduction in that series.[136]The Tribunal does not have the power to decide any complaint unless it was presented within three months of it occurring or the Tribunal decides that it was not reasonably practicable for the complaint to be presented in time and it was thereafter presented within such other period as was - 23 - reasonable. For those complaints that are out of time, the Claimant will need to explain to the Tribunal the following: 136.1. Why it was not reasonably practicable for him to present his claim within the prescribed 3 month time limit; 136.2. Why he thinks he presented his claim within such other period as was reasonable.[137]If the Tribunal decides that it was reasonably practicable for the Claimant to present his protected disclosure complaints within three months, there is no power to extend the time limit.[138]If the Tribunal decides that it was not reasonably practicable for the Claimant to present the complaints within three months, the judge only has the power to extend time if s/he also concludes that, whilst presented out of time, the Claimant presented his complaints within a time period which, in all the circumstances, was reasonable. Time limits: analysis and conclusions[139]There was nothing from the Claimant on time limits in his evidence, whether in his statement or in the two bundles of documents before me (or if there was, I was not taken to it by the Claimant).[140]I was reminded that this case was extensively case managed. There were three case management hearings with associated orders and directions. It was abundantly clear that time limits were an issue in this case. Despite that, the Claimant provided no evidence and made no submissions on the following: 140.1. As to whether he presented his out of time discrimination complaints within such other period as is just & equitable; or 140.2. As to whether it was not reasonably practicable for him to present his out of time unauthorised deductions and breach of contract complaints within three months.[141]Given the absence of any evidence or any submissions on those points, I had no option but to find that the Claimant failed to show that he presented his out of time discrimination complaints within such period as was just and equitable and failed to show that it was not reasonably practicable for him to present his wages and breach of contract complaints within the required three months time limit.[142]It follows that I had no power to extend time in respect of those complaints which were out of time and the Tribunal had no jurisdiction to consider them. - 24 -[143]Mr Anwar did submit that there was a course of conduct regarding the discrimination complaints because of the alleged role of Ms Douglas, who the Claimant met with on 4 April 2023 and the subsequent decision to dismiss him. Allowing for the fact that the Claimant was a litigant in person and given Ms Cross’ evidence of the involvement of Ms Douglas as head teacher throughout the process, I was prepared to accept that there was a course of conduct between the Claimant’s meeting with Ms Douglas on 4 April 2023 and the decision to dismiss him on 5 July 2023.[144]To that extent the meeting of 4 April 2023 was brought in time, as it was part of a course of conduct which concluded with an event which was in time, namely the Claimant’s dismissal.[145]The course of conduct submission regarding the Claimant’s compliant of victimisation, relying as it did on the alleged health and safety complaint made in December 2022, was premised on a failure to act on those concerns constituting a course of conduct. The law does allow a failure to do something to be a discriminatory act (per section 212(2) of EqA 2010) and time runs from when the decision was taken by the Respondent not to act or, if no decision not to act was taken, from when it would be reasonable to have expected an employer to have done the act it has failed to do.[146]This was a somewhat academic exercise, as the Claimant’s complaint in December 2022 was only raised as being an alleged protected act in the course of submissions. As explained, the actual protected act advanced in the List of Issues was the Claimant’s grievance of August 2023. However, I received submissions on the point so considered and determined it.[147]Based on the Claimant’s own evidence, he was told at a meeting shortly after his December 2022 complaint to “stay in his own lane and teach” by John Coido (at Paragraphs 21 – 22 of his witness statement). In my judgment, that was sufficient evidence that the Respondent had decided not to act on the Claimant’s health and safety complaint and the threemonth time limit ran from then. As such, it too was presented out of time.[148]For those reasons, I had to treat every pre-19 July 2023 allegation of victimisation as out of time and the Tribunal did not have the jurisdiction to consider and determine them.[149]Notwithstanding that and as can be seen, I determined all the complaints before me and dismissed them (including those allegations which predated 19 July 2023 and were not part of an in-time course of conduct). It was important for the parties to know and understand my findings and conclusions on the complaints, including those over which, ultimately, I did not have jurisdiction. Discrimination and victimisation are serious allegations. I did not want the Claimant believing that his discrimination and victimisation complaints in particular had failed on a technicality (that of being presented out of time). I did not want those accused of - 25 - discrimination and victimisation to be left with any residual sense that they had not been fully exonerated of the allegations against them. Approved by: