Mr A Kouzibri v East London Bus and Coach Company Ltd: 3203256/2022

EMPLOYMENT TRIBUNALS

Case No 3203256/2022

Between

Mr A KouzibriClaimant

East London Bus and Coach Company LtdRespondent

Before

Employment Judge S Park

Members

Mr G Forrest

Mr M Wood

Mr J Arnold (instructed by counsel) for claimant

Mr C Ludlow (instructed by counsel) for respondent

Date 1 August 2024

JUDGMENT

[1]The claimant’s claims for discrimination arising from a disability are not well founded and are dismissed.

[2]The claimant’s claims for harassment on the grounds of disability are not well founded and are dismissed.

[3]The claimant’s claims for failure to make reasonable adjustments are not well founded and are dismissed.

[4]The claimant’s claim for unfair dismissal is not well founded and is dismissed.

REASONS

[1]The claimant’s claims were for:1.1 discrimination arising from a disability (section 15 Equality Act 2010);

1.2 failure to make reasonable adjustments (section 20-21 Equality Act 2010);

1.3 harassment on the grounds of disability (section 27 Equality Act 2010); and

1.4 unfair dismissal (section 98 Employment Rights Act 1996)

[2]The claimant’s employment terminated because he resigned and he says he was constructively dismissed.

[3]The parties had previously agreed a list of issues. During the course of the hearing the parties amended this and provided a shortened list of issues before submissions. The final issues are as follows. Disability

[4]The claimant has as visual impairment, vitrious opaculeus. The respondent’s position was that it admitted that the claimant was disabled by 27 May 2021 at the latest. It denied that the before 3 January 2019. It denied that it had knowledge of disability until 22 November 2021.

[5]The Tribunal will need to determine:5.1 the date when due to the claimant’s vitrious opaculeus the claimant met the definition of being disabled for the purposes of the Equality Act 2010; and

5.2 by what date did the respondent know or ought reasonably to have known of this. Discrimination arising from a disability (section 15 Equality Act 2010)

[6]The claimant says the respondent did the following which was unfavourable treatment:6.1 failing to redeploy him since 16 November 2018;

6.2 between 4 November 2019 and 10 June 2021 failing to put the claimant on earlier duties ending no later than 4pm;

6.3 threatening to dismiss the claimant at a meeting on 7 February 2022;

6.4 blaming him for being absent for more than 100 days at a meeting on 7 February 2022; and

6.5 constructively and unfairly dismissing him.

[7]The claimant says that the ‘something’ arising from his disability is his impaired ability to drive a bus. The respondent accepts that this arose in consequence of his disability. Failure to make reasonable adjustments (section 21 Equality Act 2010)

[8]The claimant says that the respondent applied the following provisions, criterion or procedures (“PCPs”):8.1 requirement to drive a bus; and

8.2 requirement on occasion to drive a bus after 4pm. The respondent admits that these PCPs were applied.

[9]The claimant says that he was placed at a substantial disadvantage of not being able to drive as his vision was significantly impaired and/or a substantial disadvantage in comparison with others in the same employment who were not at risk of being dismissed on the ground that they, because of disability, were unable to do the job they were employed to do.

[10]The claimant says the respondent should have taken the following steps, which would be reasonable adjustments:10.1 redeploy him into a non-driving role; and

10.2 adjust his duties so they ended no later than 4pm. Harassment related to disability (section 26 Equality Act 2010)

[11]The claimant says the respondent did the following which was unwanted conduct:11.1 failing to redeploy the claimant since 16 November 2018;

11.2 failing to amend his duties so that he would not be driving after 4pm;

11.3 threatening to dismiss the claimant at a meeting on 7 February 2022 and making enquiries into the claimant’s final monies; and

11.4 blaming him for being absent for more than 100 days at meeting on 7 February 2022. Constructive dismissal

[12]The claimant says the respondent did the following which was conduct that breached the implied term of trust and confidence and/or the implied term to provide appropriate support:12.1 failure to actively seek out and offer the claimant alternative employment;

12.2 failure to make reasonable adjustments such as putting the claimant on earlier shifts; and/or

12.3 threatening to dismiss the claimant at the 7 February 2022 meeting. Time limits

[13]The claimant started Early Conciliation on 15 March 2022 and it concluded on 27 April 2022. The claimant submitted his ET1 on 23 May 2023. Given these dates the complaints about things that happened before 16 December 2021 may not have been brought in time.

[14]For those claims the Tribunal needed to decide:14.1 Was there conduct extending over a period?

14.2 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

14.3 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:14.3.1 Why were the complaints not made to the Tribunal in time?

14.3.2 In any event, is it just and equitable in all the circumstances to extend time?

Procedure

[15]Both parties had been represented throughout the proceedings and both were represented by counsel at the hearing.

[16]An agreed bundle and supplementary bundle had been prepared. We were also provided with an agreed chronology, cast list and chronology.

[17]The claimant gave evidence. He had prepared a written witness statement and was cross examined. He also provided a letter from his trade union representative, Carleton Maflin, addressed “to whom it may concern” which set out his statement. Mr Maflin did not attend to give evidence in person so the weight we attached to this statement was limited.

[18]The respondent called Mr Ray White and Mr Simon Davis. They had both prepared written witness statements and were cross examined.

[19]Once all the evidence had been heard both counsel provided written submissions. They were given the opportunity to add to their submissions orally but neither wished to do so.

Findings of Fact

[20]The findings of fact we have made which are set out below are based on the issues identified above. We have limited our findings to those factual allegations that underlie the claimant’s various claims and other matters that are direct background and context. We carefully considered all the evidence we were taken to, both documentary evidence and from witnesses. We have only referred to the evidence we heard if it is of relevance to the issues we need to determine.

Background

[21]The claimant was employed by the respondent as a bus driver. His employment commenced in 2009.

[22]As a bus driver the claimant’s main duty was to drive buses. He could be required to drive on any route operated by the respondent from the garage he was based. He worked shifts on a rota. These varied each week and the claimant was required to work 38 hours on average per week.

[23]In early 2016 the claimant started to have difficulties with his eyesight. He failed an eye test at work that he was required to take before starting a training course and was sent home that day.

[24]The claimant saw an optician and was then referred to Moorfields Eye Hospital, where he received a diagnosis of vitreous opacities. The claimant was signed off work and referred for surgery. He had cataract surgery on 5 April 2016.

[25]While signed off work the claimant met with Mr Ray White, the Garage Operations Manager. He had an initial meeting on 18 February 2016. On 20 May 2016 the claimant attended a long term sickness interview. At this the claimant said that he had further appointments with the specialist in June 2016 but may be able to return to work after that.

[26]The claimant returned to work at the end of June 2016.

[27]On 24 March 2017 the claimant started to experience blurred vision again. He was signed off work and had cataract surgery on his other eye in May 2017.

[28]The claimant attended further sickness review meetings during this period of absence. He was also reviewed by Occupational Health. Occupational Health advised the claimant was using eye drops which blurred his vision and impacted his ability to drive, but in due course he would be able to return. Occupational Health also advised that there was no need to inform the DVLA and there were also no adjustments that could be made to the claimant’s role. The claimant then returned to work at the end of July 2017. Events of 2018

[29]On 3 September 2018 the claimant experienced further problems with his left eye. He described there being a feeling of something having pulled within his eye and a big flash, following which half his vision had gone. He went to Moorfields Eye Hospital where he was diagnosed with a giant retinal detachment.

[30]The claimant was referred for retinal surgery the following day. He was signed off work again from then. He attended an absence interview on 28 September 2018. This was not with Mr White. It was with Sarah Cooney, the Assistant Garage Manager. The claimant says he asked about alternative jobs and she told him to ask Mr White. The claimant did not say that he did this at the time and there was no documentary evidence to suggest this happened.

[31]The claimant was referred to Occupational Health and was reviewed on 18 October 2018. In the referral Ms Cooney reported that the claimant had said his vision was good but she needed clearance before he could drive. Occupational Health reported that the claimant’s visual acuity had not suffered but there were residual effects from the surgery. Because of that he was not fit to drive at that time but could do other duties, such as in an office. They also said that once the effects of surgery ceased he would be able to drive.

[32]The claimant remained signed off work. He had further treatment at the end of October, whereby silicone oil was inserted into his eye. This needed to remain in place for three months. He remained signed off work and he attended absence review meetings.

[33]The claimant met with Mr White on 16 November 2018. The claimant says that in this meeting he raised the issue of alternative employment but Mr White was not interested because he would not consider other options until the claimant was medically unfit to drive a bus. Mr White could not recall the details of this meeting. However, in evidence he confirmed that he would always want medical evidence that a driver can no longer drive, backed up by the DVLA revoking their licence, before he would consider alternative employment. At that point he would go to HR for advice.

[34]The claimant’s account of this discussion was not reflected by the letter from Mr White summarising what was discussed. However, we accepted that the claimant probably raised the issue or alternative work. We also accepted that Mr White did not think it was time to have such discussions, given that the medical evidence said that the claimant would be able to drive a bus once he had recovered from his surgery.

[35]On 3 January 2019 the claimant had further complications. He attended Moorfields Eye Hospital and was diagnosed with secondary ocular hypertension. From then on he started to take medication. The claimant will need to take this medication for the rest of his life and if he does not to do so he may lose his vision.

[36]On 11 February 2019 the claimant had more surgery. The claimant says that at this point he had a discussion with his consultant who advised that he may not be able to drive a bus.

[37]The claimant was reviewed by Occupational Health on 21 February 2019. At this point Occupational Health reported that the claimant said his consultant had said he may not be able to return to bus driving. Occupational Health also advised that specialist advice was needed about whether the claimant’s vision met the DVLA standard and they had told the clamant to inform the DVLA about his eye issues.

[38]On 25 February 2019 Mr White wrote to the claimant asking him to a long term sickness interview on 7 March 2019. In this letter Mr White warns the claimant that one outcome of the meeting could be the termination of employment on medical grounds.

[39]The claimant was still under the care of Moorfields Eye Hospital and was due to have further surgery in May 2019. Moorfields provided a brief update on 26 February 2019 and said that the claimant met the required standards to drive a bus so he could return to work until his next surgery.

[40]On 6 March 2019 the claimant wrote to Ray White. In his letter he summarised the issues he had faced with his eyesight and the impact on his attendance. He also refers to the upcoming surgery which he says is “to avoid any development of my condition”.

[41]In the letter the claimant expressly raises the possibility of looking for alternative roles. He askes that this is considered as a reasonable adjustment. In part he says this is that he could improve his attendance. He highlighted other qualifications he had to enable him to do non-driving jobs.

[42]Mr White acknowledged in his evidence that the claimant provided this letter. Mr White noted that in the letter the claimant had also said he was fit to drive and was able to return to his role at that time. There appeared to have been some confusion around this time on the position. As we have noted, the claimant had a letter from Moorfields dated 26 February 2019 saying he could return to bus driving until his next operation, but this does not seem to have been clearly communicated to Mr White.

[43]The claimant was signed off work again from 11 March 2019 until 31 March 2019. However, according to Mr White the claimant did return to driving on 15 March 2019. At this time the claimant had also been in contact with the DVLA and reviewed by them. In March 2019 his licence was withdrawn and replaced with a medical review licence. On 8 April 2019 the DVLA wrote to the claimant saying that he met the standards for safe driving and a licence that enabled him to drive a bus was issued.

[44]The claimant was signed off work again from 19 April 2019 because he had his next surgery. He had further surgery on 29 April 2019 and then on 20 May 2019. He was not signed off for the entirety of this period and he returned to work a short while in early May 2019. He was then signed off work from 20 May 2019 until 9 August 2019.

[45]The claimant wrote to Mr White on 23 July 2019 providing an update. In this he notes he was signed off work until 9 August 2019 but he also states that he was fit to drive so could return earlier if required. He explains he will see his consultant in September 2019 and depending on the situation he may have more surgery. He finishes by raising again the possibility of exploring alternative roles with the respondent.

[46]We note that the claimant by this point had raised alternative roles a couple of times with Mr White. We have concluded that the claimant by then was considering the long term situation, given he had been advised by his consultants that the longer term prognosis for his eyesight was uncertain. However, he had first clearly stated to Mr White that he was able to drive and could return before his sick note expired if required.

[47]The claimant was reviewed by occupational health on 6 August 2019. They reported that although the claimant met the minimum DVLA standards he was suffering from inflammation so could not drive at that point. Occupational Health said that he should be able to continue in his role in the future so long as his eyesight met DVLA standards. They also report that the claimant had expressed concern about night-driving when he did return.

[48]A further long term sickness interview was held on 3 September 2019. The claimant says that a part-time non-driving role was discussed and Mr White tried to call the respondent’s recruitment manager during the meeting. Mr White could not recall this meeting. This meeting was over three years ago and the only contemporaneous documents were a couple of emails from a few days before making the arrangements. In this the clamant did note that he had spoken with his trade union representative about “some future work opportunities”. We find it likely that there was some discussion about a role that was available then. There is no evidence it was pursued further, either by the claimant or Mr White.

[49]The claimant was reviewed by his specialist on 3 September 2019. He did not require more surgery at that point. The evidence on exactly what happened next was unclear. The respondent’s records of the claimant’s absences indicate he returned to work on 20 September 2019. Neither the claimant nor Mr White confirmed in their own evidence if this was the case. However, there was a medical certificate dated 31 October 2019 stating the claimant was fit to work with altered hours, duties and workplace adaptations.

[50]In early November 2019 the claimant emailed Mr White asking to change his duties as he did not feel confident doing a late shift. The claimant was then reviewed by Occupational Health on 7 November 2019. They recommended that because the claimant suffered from visual fatigue he should start early and not work shifts ending later than 3-4pm. Occupational Health advised the claimant had no issues with night driving.

[51]In his evidence the claimant described in some detail conversations he had with Mr White on 12 November 2019 when he was returning to work. Mr White could not recall these discussions. We accepted that there were discussions at that time. The claimant referred to it in a later email he sent Mr White on 13 January 2020. In the email the claimant refers to adjustments to his duties, and specifically finishing no later than 4pm on his route of 323.

[52]The claimant has said in his statement there were also discussions about other roles, including one known as Greenroad and also driving smaller vehicles. We accept it is likely there may have been discussions about other roles at the time, given that the claimant had raised this a few of times previously. However, we have concluded that any discussion was likely to be limited. We accepted Mr White’s evidence that any vacancies would be dealt with formally via HR and recruitment, rather than by him. There was also no evidence of any of any vacancies having been advertised at the time.

[53]On 30 November 2019 the DVLA reported the claimant was safe to drive including bus driving.

[54]On 13 January 2020 the claimant wrote to Mr White asking for adjustments to be made. He said his duties had been changed in November but this then stopped. In this email the claimant also said that he was disabled due to retina detachment and other issues and took medication daily. He said he got eye fatigue and towards the end of the day he got headaches and had difficulty focussing. The claimant wanted to finish no later than 4pm.

[55]The claimant emailed Mr White again on 29 January 2020 asking again to change his shifts as he had been doing later shifts. He also provided a fit note stating he was fit to work with altered hours and duties, specifying earlier starts and finish times.

[56]During 2020 the claimant continued to work on a regular basis. We heard how the claimant only worked on a single route, the 323. This was the shortest route within the garage. The claimant explained how this route worked better for him due to it being short, which meant he could rest his eyes more frequently whenever he completed the route. What this meant is the claimant had more frequent breaks than he would if he drove on any of the other routes.

[57]The claimant remained working a rota mostly working earlier shifts, but this did not always happen. We accepted the Mr White’s evidence that the supervisors were informed about the claimant’s needs and that where possible he should be put on earlier shifts. We also accepted that the logistics of arranging this was complex, as there were also other drivers whose needs had to be accommodated. Mr White explained that it was harder to accommodate the claimant on earlier shifts when he would only work on the one route. We accepted this was likely the case. Had the claimant been willing to work on other routes then there would have been more options and it would have been easier to ensure he was always on earlier shifts. We also note that the claimant’s preference for this single route was accommodated although this was not something that was specified by Occupational Health.

[58]During 2020 the claimant raised concerns about the shifts he was allocated from time to time. We were provided with emails from March, May, July and October 2020 and January 2021 where the claimant had complained about the shifts he was allocated. These were not detailed complaints, just flagging up specific occasions where the claimant asked for a different shift. We found these showed that the claimant’s needs were accommodated as far as possible. When the claimant raised any particular problems they were dealt with. We also noted that the claimant worked consistently during this time, though he also submitted fit notes stating he was able to work with some adjustments. Events from May 2021

[59]The claimant remained under the care of Moorfields Eye Hospital and was reviewed regularly. He attended an appointment on 27 May 2021. He was informed his vision in his left eye was worse and it could not be corrected by surgery.

[60]The claimant met with Mr White on 8 June 2021 with his union representative present to discuss the situation. In this meeting the claimant says that he wanted to discuss alternative roles with Mr White again. He said there were two positions available that he thought he could do. One of these was an Acting Regulator role and the other was Green Road Champion.

[61]Similar roles had been advertised a short while earlier. A Regulator role had been advertised but the recruitment process closed on 28 May 2021. We were provided with an application for this by the claimant. However, in evidence it transpired that the claimant had prepared this application but not actually applied for the role. The Green Road Champion role had been advertised earlier and closed on 14 May 2023. The claimant did not apply for this vacancy.

[62]The claimant says that these roles were discussed at the meeting and Mr White told him that he would need a PCV licence for both roles. Mr White could not recall the meeting but agreed it was likely he did tell the claimant that the licence would be required.

[63]In terms of the roles themselves, we accepted the respondent’s evidence that it was a requirement of both roles to hold a PCV licence. The Green Road Champion was a driver role, with some additional duties which meant the amount of driving required was reduced. The Regulator role did not require driving on a day-to-day basis, but on occasion the Regulator would need to drive so a licence was still a requirement. The Regulator role was also a more senior role and would be a promotion. It attracted a higher salary.

[64]Irrespective of what was discussed in the meeting, what we have also noted is as follows:64.1 the claimant had been consistently working as a bus driver since he had returned to work in late 2019 as he had been fit to do so;

64.2 in the time since he had returned in late 2019 the claimant had not expressly raised again with Mr White any desire to seek an alternative role;

64.3 by 8 June 2021 the recruitment process for both those roles had closed;

64.4 the claimant had not applied for either role and neither had he applied for any other non-driving roles within the company during 2020 or 2021; and

64.5 at this point the claimant’s eyesight had only just deteriorated again and there was no up to date medical advice on his prognosis.

[65]The claimant was signed off work from 5 June 2021. His fit note stated he was fit to work so long as he was not driving. The claimant informed the DVLA of the change in his condition.

[66]On 10 August 2021 the claimant wrote to Mr White to update him. The claimant was being reviewed by DVLA but there was a backlog. The claimant thought the outcome would be that he would no longer be able to drive buses. The claimant asked again about starting the process of redeployment and he attached a copy of his CV.

[67]Mr White arranged a meeting with the claimant on 20 August 2021. The claimant says that Mr White would not look at alternative employment until there was a final verdict from the DVLA. Mr White’s recollection was similar. He said that he would seek medical advice before proceeding to consider alternative employment. Mr White referred the claimant to Occupational Health again.

[68]The claimant was reviewed by Occupational Health on 24 August 2021. They reported that the claimant’s vision in his left eye is poor and unlikely to improve. On this basis he was unlikely to meet the DVLA minimum standard for driving a bus.

[69]The claimant did not chase up with Mr White or anyone else his request to discuss alternative roles at that time. We heard in evidence how all the respondent’s vacant roles were advertised on the internal communication system, known as Blink. The claimant confirmed he was aware of this. He did not apply for any other roles. Neither did he ask Mr White for further assistance or anyone else. The claimant did not identify any other roles that were available at that time which he says he could have done.

[70]The claimant met with Mr White again on 12 November 2021. The claimant says he asked Mr White about other jobs and Mr White said there were none available. The claimant did not provide evidence of any other vacancies around this time that he says he could have done, so seems to have accepted this was the case.

[71]On 15 November 2021 the claimant underwent an assessment for the DVLA.

[72]The claimant was reviewed by Occupational Health on 18 November 2021. At this point Occupational Health advised that the claimant was probably disabled under the Equality Act 2010. This was the first time they had advised in such terms. They advised that the claimant would be able to work so long as it was not driving. Occupational Health stated that in terms of the long term prognosis, they needed to wait for the DVLA decision.

[73]On 1 January 2022 the claimant chased up the DVLA as he was still waiting for their decision.

[74]The claimant had remained signed off work the entire time. On 5 January 2022 the claimant’s fit note stated he was not fit to work at all. This differed to the previous ones that stated he could work if not driving.

[75]The claimant was reviewed by Occupational Health again on 24 January 2022. They advised that based on what the claimant said it seemed he did not meet the DVLA minimum standards. Occupational Health again advised that the claimant could return to work if he could be deployed into a nondriving role.

[76]The claimant had remained signed off work time the entire time. The claimant did provide us with any evidence that indicated he had been looking for alternative roles with the respondent during this time. He did not say he had been looking on Blink, which was the internal communication system where jobs were advertised. Neither did he identify other suitable positions that may have been available during this time.

[77]On 1 February 2022 Mr White wrote to the claimant to advise him that he had arranged a long-term sick interview on 7 February 2022. Mr White advised the claimant that one outcome could be termination of his employment on medical grounds. Mr White also wrote to Paul Owens, the respondent’s recruitment manager, to update on the position. In this he states that the claimant may be dismissed “subject to any alternative employment available” which would need to be a non-bus-driving.

[78]On 2 February 2022 the DVLA wrote to the claimant to say that he needed to attend another eye test.

[79]On 4 February 2022 Mr White wrote to the claimant with a list of current vacancies. He asked the claimant to short list any that he was interested in. The roles were in different locations and a variety of positions. We understood those to be all the vacancies in the company at the time.

[80]The claimant attended the meeting on 7 February 2022. The claimant has said that at this meeting Mr White referred to the claimant having been off for over 100 days and this was “too long”. The claimant has said that he felt Mr White was blaming him for the situation. Mr White denied having blamed the claimant and said he would not do so. He could not otherwise recall what was said at the meeting and there were no minutes taken. We accepted that Mr White may have referred to how long the claimant had been off and also said that it was “too long”. It was true that the claimant had been absent that long and at that point it was increasingly apparent that the claimant was unlikely to be able to return to bus-driving. However, we did not find it likely that Mr White would have been blaming the claimant for this. It is at odds with the situation, given that the claimant’s medical condition was clearly outside his control. It is also inconsistent with how the claimant has otherwise described Mr White’s conduct in meetings. We were also provided with a letter from the claimant’s trade union representative who attended the meeting. This provides an account of what was discussed in the meeting and makes no mention of Mr White acting in such a way towards the claimant. It only indicates that the claimant was frustrated that Mr White had not been more proactive in assisting him finding an alternative role. Our conclusion is that Mr White would have referred to the length of the claimant’s absence but this was just neutrally stating the facts, as it provided the context for the meeting.

[81]The claimant has said that at this meeting Mr White threatened to dismiss him. Mr White denies threatening the claimant. He said that he would have advised the claimant the potential outcomes and that this may be termination of his employment. As a matter of fact, the claimant was not dismissed at that meeting or immediately after. We find that Mr White did tell the claimant he was at risk of dismissal. We do not accept this was a threat, though it may have been perceived as that by the claimant. Again, we find that Mr White would have informed the claimant of the potential outcome but this would not be a threat, just the neutral provision of pertinent information.

[82]The list of jobs that Mr White had sent the claimant was discussed at the meeting. The claimant told Mr White that he thought three roles may be suitable. There were two Green Road Champions, referred to in the list of roles as Personal Development Champion. There was also an Acting Garage Supervisor role. All three roles included possession of a bus driving licence as a requirement. Mr White said he would check if the driving element could be removed.

[83]After the meeting Mr White contacted Paul Owens to enquire if the driving could be removed from those roles. Mr Owens responded by email on 9 February 2022 to say that they could not. All three roles were bus driver roles. The individual would remain as a bus driver but the position involved additional duties that would be undertaken from time to time.

[84]At 4.35pm on 13 February 2022 Mr White forwarded Mr Owen’s response to the claimant. He confirmed that the roles involved driving and that element could not be removed. Mr White also suggested to the claimant a part-time engineering role that was available. He suggested it could be a “stop-gap” while he looked for other vacancies.

[85]At 8.35pm on 13 February 2022 the claimant wrote to Sarah Rennie, the respondent’s Head of Human Resources, raising a grievance. This set out the claimant’s dissatisfaction with how he felt that his medical condition had been handled. Again, he asks to be considered for Green Road or Acting Regulator roles. He also asks that if they are not available then he is provided with training “in preparation for when they open once more”.

[86]The DVLA wrote to the claimant on 14 February 2022 advising he did not meet the minimum standards for driving a bus. The claimant’s Group 2 licence was revoked.

[87]On 15 February 2022 Mr White wrote to the claimant again, following up on his email of 13 February. He also informed the claimant that he wanted to arrange a meeting with the claimant and his trade union representative. Mr White noted in his email that the claimant had stated he wanted “to deal with this situation as soon as possible”.

[88]The claimant did not seem to respond to either of Mr White’s emails. He did not give any evidence to suggest he did. Neither did he comment on the part-time role that Mr White had indicated could be a short-term option.

[89]On 22 February 2022 Sarah Rennie responded to the claimant’s grievance. She stated that it would be investigated by Simon Davis. During this case the claimant has said that he was unhappy about this. The reason for this is that he had raised a grievance against a colleague in 2012 and another in 2012 and Mr Davis had been his manager at that time. The claimant did not say this to Ms Rennie or anyone else at the time.

[90]On 24 February 2022 the claimant sent an email to Mr White and the respondent’s HR. In this he tendered his resignation. The email is short but he says this treatment had been “appalling” and refers to his grievance. He said he felt that he was not valued and it was causing him “undue stress and cannot continue”.

[91]Mr Davis contacted the claimant the following day about his resignation and grievance. Mr Davis asked that the claimant provide his availability for a meeting. The claimant did not respond and Mr Davis sent him a letter inviting him to a meeting on 9 March 2023. The claimant did not respond to this.

[92]On 16 March 2022 Mr Davis wrote to the claimant again stating that as he had not heard from the claimant he assumed he did not wish to pursue the grievance and his resignation would be processed.

[93]According to the claimant his representative wrote to Mr Davis on 30 March 2022 to say he wished to pursue his grievance but he did not consider it necessary to attend a meeting. The claimant appointed legal representatives and they sent a letter of claim on 6 April 2022.

[94]Mr Davis wrote to the claimant with the outcome to the grievance on 10 May 2022. Mr Davis explains in his letter that as he had not met with the claimant his findings were based on the grievance and the claimant’s personal file. The letter is lengthy so we do not repeat what Mr Davis concluded in full. The key points, which are relevant to the issues we need to determine are as follows:94.1 The claimant had problems with his eyesight from 2016 and related absences. However, Mr White was hesitant to explore alternative employment earlier “in the absence of definitive medical advice that you were unable to drive a bus”. He noted that the claimant had previously always returned to driving a bus.

94.2 In February 2022 Mr White had sent the claimant a list of absences. There were no Regulator or Green Road Champions vacancies in that list. Both roles also required the individual to have a valid PCV licence.

94.3 They had allowed one Green Road Champion to continue working while he did not have his PCV licence. That individual was already in the role and there was a strong likelihood his licence would be reinstated in the future, so they tried the arrangement on a trial basis. They also found that he could not do all of his role so the trial was unsuccessful.

94.4 With regards to business generally, the majority of the employees were bus drivers. Other roles often still require the individual to hold a PCV licence. This limits the options for redeployment. He also noted that generally they have around 40 employees at a time on long term sick leave.

[95]We heard evidence from Mr Davis. This confirmed the above points. We accepted Mr Davis’s evidence about the operational and practical issues relating to finding an alternative role for the claimant as accurately reflecting the situation within the respondent business. Medical evidence

[96]We have referred above to the claimant’s various absences, surgeries and the formal processes whereby the claimant’s health was reviewed in the employment context, such as Occupational Health reports and fit notes.

[97]In addition to that we were provided with additional medical documents and a disability impact statement from the claimant.

[98]In his statement the claimant has described how his eye conditions have affected him on a day to day basis. He described how he would get blurred vision and headaches if reading, watching television or driving. He also described what eye fatigue, which was referred to in some reports, was like. His eyes would get tired and become red. He said he experienced these symptoms since September 2018.

[99]We accepted the claimant’s evidence on these symptoms, and that he had them from late 2018 or early 2019, though we cannot say with certainty that it was from September 2018 onwards. These symptoms are consistent with the Occupational Health report from November 2019 and also the fit note and claimant’s email from January 2020 where he refers to the eye fatigue.

The Law

[100]The Claims pursued by the Claimant are:100.1 discrimination arising from a disability (section 15 Equality Act 2010);

100.2 failure to make reasonable adjustments (section 20-21 Equality Act 2010);

100.3 harassment on the grounds of disability (section 27 Equality Act 2010); and

100.4 unfair dismissal – ordinary unfair dismissal (section 98 Employment Rights Act 1996). Disability

[101]Section 6 Equality Act 2010 provides: (1) A person (P) has a disability if – (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

[102]The “Guidance on matters to be taken into account in determining questions relating to the definition of disability” states this at A3 in relation to the meaning of an impairment: “The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects.”

[103]A “substantial” adverse effect is one that is “more than minor or trivial”. In determining whether an effect on normal day to day activities is substantial, a Tribunal should have regard to the time taken to carry out the activity (Guidance [B2]) and the way in which the activity is carried out (Guidance [B3]).

[104]Paragraph 5(1) of Schedule 1 to the Equality Act 2010 states:(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect.

(2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.

[105]“Normal day-to-day activities” are things that people do on a regular or daily basis (Guidance [D2]), such as shopping, reading, writing, having a conversation, using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities. They do not include activities which are only normal for a particular person or a small group of people (Guidance [D4]). They do not include highly specialised work activities which are not normal day-to-day activities for most people (Guidance [D8]).

[106]Schedule 1 to the Equality Act 2010 sets out further provisions relating to the determination of disability. The effect of an impairment will be “long term” if:(a) it has lasted for at least 12 months;

(b) it is likely to last for at least 12 months; or

[107]The question of whether an impairment is “likely” (in the sense of “it could well happen”) to last for at least 12 months is decided based only on evidence that was available and on the circumstances at the relevant time. The Tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months; see (McDougall v Richmond Adult Community College

[2008] ICR 431

[108]Paragraph 2(2) of Schedule 1 provides that if an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day to day activities, it is to be treated as continuing to have that effect if it is likely (again in the sense of “it could well happen”) to recur. The likelihood of recurrence is again to be judged based on evidence available and circumstances prevailing at the relevant time. Discrimination arising from a disability (section 15 Equality Act 2010)

[109]Section 15 of the Equality Act 2010 provides:(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.

[110]In Pnaiser v NHS England

[2016] IRLR 170

, the EAT provided guidance as to the correct approach to a 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, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section 15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport

[1999] IRLR 572

. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises…

(d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of section 15 of the Act…the statutory purpose which appears from the wording of section 15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

(e) For example, in Land Registry v Houghton

UKEAT/0149/14

a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The Tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

(g) Miss Jeram argued that “a subjective approach infects the whole of section 15” by virtue of the requirement of knowledge in section 15(2) so that there must be, as she put it, ‘discriminatory motivation’ and the alleged discriminator must know that the ‘something’ that causes the treatment arises in consequence of disability. She relied on paragraphs 26 to 34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her subjection, and indeed paragraph 34 highlights the difference between the two stages – the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability.

(h) Moreover, the statutory language of section 15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of section 15 would be substantially restricted on Miss Jeram’s construction, and there would be little or no difference between a direct disability discrimination claim under section 13 and a discrimination arising from disability claim under section 15.

(i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant’s disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment. “

[111]The correct approach to a claim was summarised by the Court of Appeal in City of York Council v Grosset

[2018] IRLR 746

. “36. On its proper construction, section 15(1)(a) requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) "something"? and

(ii) did that "something" arise in consequence of B's disability. 37.The first issue involves an examination of A's state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A's attitude to the relevant "something" ... 38.The second issue is an objective matter, whether there is a causal link between B's disability and the relevant "something" ….”

[112]The meaning of ‘unfavourable treatment’ was considered by the Supreme Court in Trustees of Swansea University Pension and Assurance Scheme v Williams

[2019] ICR 230

(at para 27): ‘… in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the passages in the Code of Practice to which she draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.’

[113]It is then necessary to look to the employer’s defence of justification. S.15(1)(b) EqA provides that the unfavourable treatment may be justified, if it is a proportionate means of achieving a legitimate aim. To be proportionate, the conduct in question must be both an appropriate means of achieving a legitimate aim and a reasonably necessary means of doing so (Allonby v Accrington & Rossendale College & Others

[2001] ICR 1189

CA).

[114]Justification requires the Tribunal to conduct an objective balancing exercise between the discriminatory effect and the reasonable needs of the employer (Ojutiku v Manpower Services Commission

[1982] ICR 661

and Land Registry v Houghton & Others

UKEAT/0149/14

). It will be relevant for the Tribunal to consider whether any lesser measure might have achieved the employer's legitimate aim (Naeem v Secretary of State for Justice

[2014] ICR 472

[115]The time at which justification needs to be established is the point when the unfavourable treatment occurs (Trustees of University Pension and Assurance Scheme v Williams

[2015] ICR 1197

EAT]). When the putative discriminator has not considered questions of proportionality at that time, it is likely to be more difficult for them to establish justification, although the test remains an objective one (Ministry of Justice v O'Brien [2013] UKSC). Failure to make reasonable adjustments (section 20-21 Equality Act 2010)

[116]Section 20 of the Equality Act 2010 provides:(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 imposes 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… The second and third requirements are not relevant for this case.

[117]Section 21 EqA 2010 provides that a failure to comply with the first requirement is a failure to comply with a duty to make reasonable adjustments, and further that A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

[118]The EAT in Environment Agency v Rowan

[2008] ICR 218

held that an employment tribunal considering a breach of the duty to make reasonable adjustments (under the then-current DDA 1995), must identify:(a) the provision, criterion or practice applied by or on behalf of the employer; or

(b) the physical feature of premises occupied by the employer;

(d) the nature and extent of the substantial disadvantage suffered by the claimant. This guidance continues to apply to claims brought under s. 20 – 21 EqA 2010 (see e.g. Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins

[2014] ICR 341

at [29] – [30], where the EAT also noted that it is necessary for the ET to identify the “step” or “steps” that the employer should have to take to avoid the disadvantage).

[119]The Court of Appeal in Ishola v Transport for London

[2020] ICR 1204

has given detailed guidance as to the meaning of the phrase “provision, criterion or practice”: “35. The words "provision, criterion or practice" are not terms of art, but are ordinary English words. I accept that they are broad and overlapping, and in light of the object of the legislation, not to be narrowly construed or unjustifiably limited in their application. I also bear in mind the statement in the Statutory Code of Practice that the phrase PCP should be construed widely. However, it is significant that Parliament chose to define claims based on reasonable adjustment and indirect discrimination by reference to these particular words, and did not use the words "act" or "decision" in addition or instead. As a matter of ordinary language, I find it difficult to see what the word "practice" adds to the words if all one-off decisions and acts necessarily qualify as PCPs…36. The function of the PCP in a reasonable adjustment context is to identify what it is about the employer's management of the employee or its operation that causes substantial disadvantage to the disabled employee. The PCP serves a similar function in the context of indirect discrimination, where particular disadvantage is suffered by some and not others because of an employer's PCP. In both cases, the act of discrimination that must be justified is not the disadvantage which a claimant suffers (or adopting Mr Jones' approach, the effect or impact) but the practice, process, rule (or other PCP) under, by or in consequence of which the disadvantageous act is done. To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. I accept of course (as Mr Jones submits) that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.

37. In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.

38. In context, and having regard to the function and purpose of the PCP in the Equality Act 2010 , all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that "practice" here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or "practice" to have been applied to anyone else in fact. Something may be a practice or done "in practice" if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one.”

[120]In considering whether the application of a PCP places a disabled person at a substantial disadvantage: “one must simply ask whether the PCP puts the disabled person at a substantial disadvantage compared with a non-disabled person. The fact that they are treated equally and may both be subject to the same disadvantage when absent for the same period of time does not eliminate the disadvantage if the PCP bites harder on the disabled, or a category of them, than it does on the able bodied” Griffiths v Secretary of State for Work and Pensions

[2017] ICR 150

[121]In considering whether an employer has complied with the duty to make reasonable adjustments, the focus must be on the practical steps that can be taken to alleviate the substantial disadvantage suffered, rather than the process by which a decision is reached, or the information obtained in reaching that decision. See on this point Royal Bank of Scotland Plc v Ashton

[2011] ICR 632

, and in particular the quotation from Spence v Intype Libra Ltd at (reference to section 4A is to the predecessor Disability Discrimination Act 1995): “The nature of the reasonable steps envisaged in section 4A is that they will mitigate or prevent the disadvantages which a disabled person would otherwise suffer as a consequence of the application of some provision, criterion or practice … The duty is not an end in itself but is intended to shield the employee from the substantial disadvantage that would otherwise arise. The carrying out of an assessment or the obtaining of a medical report does not of itself mitigate or prevent or shield the employee from anything. It will make the employer better informed as to what steps, if any, will have that effect, but of itself it achieves nothing.”

[122]Paragraph 20 of Part 3 of Schedule 8 to the Equality Act 2010 provides that an employer will not be subject to a duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know, that the relevant disabled person is disabled and is likely to be placed at the disadvantage referred to in the first, second or third requirement as set out in section 20 (see above).

[123]In Secretary of State for Work and Pensions v Alam

[2010] ICR 665

, the EAT confirmed that an employer will not be subject to the duty to make reasonable adjustments unless it either knows or ought reasonably to know(a) that the employee is disabled and

(b) that his/her disability is liable to place him/her at a substantial disadvantage in the way set out in s. 20(3), (4) or (5) (see [17] – [18]; the case was decided under the predecessor provisions of the Disability Discrimination Act 1995).

[124]''the nature and extent of the disadvantage, the employer's knowledge of it and the reasonableness of the proposed adjustment necessarily run together. An employer cannot … make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and extent of the substantial disadvantage imposed upon the employee by the PCP'. Newham Sixth Form College v Sanders

[2014] EWCA Civ 734

[125]While it is not a breach of the duty to make reasonable adjustments to fail to undertake a consultation or assessment with the employee (Tarbuck v Sainsburys Supermarkets Ltd), it is best practice so to do. The provision of managerial support or an enhanced level of supervision may, in accordance with the Code of Practice, amount to reasonable adjustments (Watkins v HSBC Bank Plc

[2018] IRLR 1015

)

[126]The adjustment contended for need not remove entirely the disadvantage; the DDA says that the adjustment should 'prevent' the PCP having the effect of placing the disabled person at a substantial disadvantage. Leeds Teaching Hospital NHS Trust v Foster UK EAT /0552/10, [2011] EqLR 1075: when considering whether an adjustment is reasonable it is sufficient for a tribunal to find that there would be 'a prospect' of the adjustment removing the disadvantage— there does not have to be a 'good' or 'real' prospect of that occurring. Cumbria Probation Board v Collingwood

[2008] All ER (D) 04

(Sep) - 'it is not a requirement in a reasonable adjustment case that the claimant prove that the suggestion made will remove the substantial disadvantage'.

[127]The test of 'reasonableness', imports an objective standard and it is not necessarily met by an employer showing that he personally believed that the making of the adjustment would be too disruptive or costly. Lincolnshire Police v Weaver

[2008] All ER (D) 291

(Mar): it is proper to examine the question not only from the perspective of a claimant, but that a tribunal must also take into account 'wider implications' including 'operational objectives' of the employer.

[128]The EHRC Code includes examples of adjustments which may be reasonable:a. making adjustments to premises

b. allocating some of the disabled person's duties to another worker

c. transferring the worker to fill an existing vacancy

d. altering the worker's hours of working or training

e. assigning the worker to a different place of work or training or arranging home working

f. allowing the worker to be absent during working or training hours for rehabilitation, assessment or treatment

g. acquiring or modifying equipment

h. providing supervision or other support. Harassment – Section 26 Equality Act 2010

[129]Under section 26 Equality Act 2010 (1) a person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[130]With a claim for harassment the claimant must prove on the balance of probabilities that the conduct he has complained of occurred.

[131]The test of whether the conduct amounted to harassment is part objective and part subjective. The Tribunal must take into account the claimant’s subjective perception but it is also required to look at that objectively to see if it was reasonable for the claimant to have considered his dignity to be violated or that it created an intimidating, hostile, degrading, humiliating or offensive environment.

[132]In Grant v HM Land Registry

[2011] EWCA Civ 769

the Court of Appeal said that: “Tribunals must not cheapen the significance of the words “intimidating, hostile, degrading, humiliating or offensive environment”. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”

[133]In Richmond Pharmacology v Dhaliwal

[2009] ICR 724

the EAT stated: “Dignity is not necessarily violated by things said or done which are trivial and transitory, particularly if it should have been clear that any offence was unintended. While it is also important that employers ,and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[134]Whether or not the conduct is related to a protected characteristic is a matter of fact for the Tribunal drawing on all the evidence before it. Unfair dismissal

[135]The law on unfair dismissal is set out in the Employment Rights Act 1996. The relevant provisions are 94—98. A claim for unfair dismissal can only be pursued when the employee is dismissed. Under section 94c an employee is dismissed when they terminate the contract in circumstances in which they are entitled to do so without notice by reason of the employer’s conduct. This is often known as a constructive dismissal.

[136]The circumstances that entitle the employee to terminate the contract without notice are as follows:136.1 there must be a breach of contract by the employer;

136.2 that breach must be sufficiently important to justify the employee resigning;

136.3 the employee must leave in response to the breach not some unconnected reason; and

136.4 the employee must not delay as such as to affirm the contract.

[137]The breach relied on can be a breach of an express or implied term. Every contract of employment contains an implied term that the employer shall not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee Malik & Mahmud v Bank of Credit and Commerce International SA -1997- IRLR 462, HL.

[138]Where there are a number of incidents culminating in a “last straw”, the Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust

[2019] ICR 1

held that tribunals should ask themselves the following questions (see [55]):(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(2) Has he or she affirmed the contract since that act?

(3) If not, was that act (or omission) by itself a repudiatory breach of contract?

(4) If not, was it nevertheless a part (applying the approach explained in Omilaju

[2005] ICR 481

) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) 8 breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation, for the reason given at the end of para 45 above.)

(5) Did the employee resign in response (or partly in response) to that breach

[139]Where the act that leads to the employee resigning is entirely innocuous it will be necessary to consider whether any earlier breach has been affirmed. In Williams v Governing Body of Alderman Davies Church in Wales Primary School EAT, it was held that where there is conduct by an employer that amounts to a fundamental breach of contract, a constructive dismissal claim can succeed even if there has been more recent conduct by the employer which does not in itself contribute to a breach of the implied term of trust and confidence, but which is what tips the employee into resigning. Crucially, however, the employee must not have affirmed the earlier fundamental breach and must have resigned at least partly in response to it.

[140]The test to be applied in assessing the gravity of any conduct is an objective one and neither depends upon the subjective reaction of a particular employee nor the opinion of the employer as to whether its conduct is reasonable or not. Discussion and conclusions Disability and the respondent’s knowledge of disability

Discussion and conclusions

[141]It was accepted by the respondent that the claimant was disabled by 27 May 2021 at the latest but it denied that he was disabled before 3 January 2019. The first act allegation of discrimination by the claimant relates to events in November 2018.

[142]The first question for us is to determine at what point the claimant became disabled, so at what point did his visual impairments have a substantial adverse effect on his ability to carry out normal day to day activities and that was long term.

[143]We accepted the claimant’s evidence about his eye fatigue and the headaches and blurry vision he suffered when reading, driving or watching television. Reading, driving and watching television are all normal day to activities. The claimant’s ability to carry these out was affected.

[144]We also accepted that the effect on the claimant was more than minor or trivial, so it was substantial. The question is by what point did the effect become substantial and also long term.

[145]The claimant said this was from September 2018. This was when he had his retinal detachment. We accept that from then on the claimant experienced those symptoms. However, looking at the situation at the time we do not accept that it was clear in September 2018 the effects were likely to be long term as there was a possibility he would recover.

[146]The claimant then suffered from complications. By early 2019 the claimant had required surgery several times on his eyes. On 3 January 2019 the claimant was diagnosed with a specific condition, secondary ocular hypertension. This is a life-long condition. The claimant started taking daily medication to manage this condition. The claimant will need to take this medication for the rest of his life and if he were to stop taking this medication he is likely to lose his sight. We have concluded that this was the point when the claimant’s condition became long term so he was disabled.

[147]The respondent has said they were only aware the claimant was disabled when Occupational Health said this was the case in November 2022. We do not find this credible. Many of the earlier Occupational Health reports just did not address this question directly and it does not seem to have been asked by the respondent in the referrals.

[148]In terms of knowledge, the respondent knew that the claimant had various problems with his eyes. He had been signed off work due to these issues and had surgery in 2016, 2018 and 2019. Mr White knew from the early 2019 that the claimant had ongoing difficulties. On 6 March 2019 the claimant wrote to Mr White. In this letter the claimant said he needed further surgery to “avoid any development of my condition”. By November 2019 the medical evidence said that the claimant suffered from eye fatigue and therefore should start early. Mr White saw this report. The claimant also reiterated this directly to Mr White in January 2020.

[149]The respondent also knew that the claimant had an eye condition that meant his licence needed to be kept under medical review from 2019. Occupational Health had set out the problems with the claimant’s eye fatigue in November 2019 and the claimant directly told Mr White regularly that later in the day his eyes became tired and this lead to him getting headaches. This was ongoing from when he returned to work in 2019.

[150]Our conclusion is that the respondent had knowledge by November 2019 when it received the Occupational Health report specifying the eye fatigue.

The claims

[151]The claimant brings the following claims:151.1 discrimination arising from a disability;

151.2 failure to make reasonable adjustments;

151.3 harassment related to disability; and

151.4 constructive unfair dismissal.

[152]The claimant’s claims that the respondent failed to make reasonable adjustments are based on two provisions, criterion or procedures (“PCPs”) and he says that the following adjustments should have been made:152.1 redeploy the claimant into a non-driving role; and

152.2 adjust his duties so they ended no later than 4pm. We have set out our conclusions on the reasonable adjustment claims first because the findings of these claims are relevant to our findings on the first two discrimination arising and harassment claims.

[153]The claimant has made the following four factual allegations that he says are unfavourable treatment arising out of disability and harassment related to disability:153.1 failing to redeploy the claimant since 16 November 2018;

153.2 between 4 November 2019 and 10 June 2021 failing to put the claimant on earlier duties ending no later than 4pm;

153.3 threatening to dismiss the claimant at a meeting on 7 February 2022; and

153.4 blaming him for being absent for more than 100 days at a meeting on 7 February 2022.

[154]We have consider the claims based on each of the above factual allegations in turn, deciding both the discrimination arising from disability and then the harassment claims.

[155]The fifth claim for discrimination arising from disability is that the respondent constructively and unfairly dismissed the claimant. We consider this claim alongside the claim for unfair dismissal in the final part of our conclusions. Reasonable adjustments

[156]The claimant identified two PCPs. These were the requirement to drive a bus and a requirement on occasion to drive after 4pm. The respondent accepts these PCPs applied to the claimant.

[157]The extent to which the claimant was placed at a disadvantage by these PCPs varied over time. The claimant had periods of time where he was signed off work because he could not drive. At other times he was able to drive a bus but due to his eye fatigue it was harder for him to drive later in the day.

[158]The claimant was signed off work for the following periods:158.1 February 2016 to June 2017;

158.2 March 2017 to July 2017;

158.3 September 2018 to March 2019;

158.4 May 2019 to September 2019; and

158.5 June 2021 until his employment terminated in February 2022.

[159]No claim is brought in respect of the first two periods and the claimant did not seek redeployment then. The claimant asked about redeployment in November 2018, March 2019, July 2019 and September 2019. The claimant says that that it would have been a reasonable adjustment to redeploy him on those occasions. On those occasions Mr White did not practically engage with these requests. This was because the prognosis at the time was always that the claimant would be able to drive a bus again once he recovered from surgery. Mr White said that he would only look at redeployment once a driver was no longer able to drive a bus, i.e. because the DVLA revoked their licence.

[160]When signed off sick during those periods of time (2018 and 2019) the claimant was at a disadvantage. Due to his eye conditions he was unable to drive a bus for periods of time. This meant that he was unable to return to work as the requirement to drive a bus was fundamental to the role of bus driver. This means that the duty to make adjustments potentially arose (subject to the findings we have already made on when the claimant was disabled and when the respondent had the requisite knowledge)

[161]The question is whether the redeployment was a reasonable adjustment in the circumstances at those times. We do not find that redeploying the claimant in 2018 and 2019 would have been a reasonable adjustment for the following reasons.

[162]The first issue we have considered is how practical it would be to redeploy any bus driver within the respondent’s business. Redeployment is a relatively common adjustment that an employer may make if an employee is unable to undertake their normal work. Whether it will be a reasonable adjustment will depend on what other roles are available within the business that the disabled employee can both be moved into and that they are able to do.

[163]In this case the respondent is a bus company. The majority of the employees are bus drivers. We accepted the respondent’s evidence that there are only a limited number of roles within the business that do not involve bus driving to some extent. This was not a business where nondriving vacancies arose on a regular basis. This was corroborated by the vacancy lists we saw from early 2022, which included only a few non-driving roles. A number of the other roles were also engineering roles, which would require particular qualifications and experience. We accepted Mr Davis’ evidence that holding a licence to drive buses was still a requirement for a number of roles which did not involve day-to-day driving of buses. This included the Green Road Champion and Acting Regulator roles the claimant identified. They were primarily bus driver roles with some additional duties. In addition, Regulators did not drive on a day to day basis but could still be required to drive.

[164]The result of this is there were very few roles that a bus driver who could not drive buses, either temporarily or permanently, could be redeployed into. We also heard that at any one time there are usually a number of bus drivers who are signed off work, so could also be seeking redeployment. We have concluded that as a consequence of these circumstances is that it would not be a reasonable adjustment in the respondent’s business to redeploy a bus driver without full consideration of whether they may be able to continue driving and then following an appropriate process.

[165]Mr White said he would only look into reasonable adjustment when a driver was unable to drive a bus permanently, when the DVLA revoked their licence. Given the limited opportunities for redeployment in the respondent business we accept that it was reasonable for the respondent not to actively consider redeployment until the evidence indicated that the driver was permanently unable to drive a bus, or this was very likely to be the case. This provides the context to the claimant’s claims that the respondent should have redeployed him as a reasonable adjustment.

[166]Looking at the claimant’s own circumstances in 2018 and 2019, we find there was no failure to make reasonable adjustments on the occasions he asked during that time for the following reasons:166.1 During these periods of absence the medical evidence all indicated that the claimant would be able to return to driving a bus when he recovered from his surgery. Each time this did happen.

166.2 This meant that any disadvantage the claimant was subjected to was only temporary.

166.3 We have already concluded that due to the nature of the respondent’s business it was reasonable to only consider redeployment as an adjustment once a driver was unlikely to be able to drive a bus again permanently.

166.4 It would not be a reasonable adjustment to redeploy the claimant to alleviate a temporary disadvantage when there were so few nondriving roles within the respondent business.

[167]We also note that the claimant was seeking redeployment in 2018 and 2019 because he was concerned about his long-term prognosis. It is understandable that the claimant was thinking what may happen to him if his eyesight deteriorated further. However, at the time the evidence indicated the claimant would be able to return to his usual role. It would not be reasonable to expect an employer to pre-emptively redeploy an employee whose ability to carry out their role may change at some unspecified point in the future. This is particularly the case given the limited opportunities for redeployment into non-driving roles within the respondent business. In relation to this we have also noted that all vacancies were advertised internally. The claimant could have applied for alternative roles at any time in order to ensure he had already transferred to a non-driving role before he was completely unable to drive a bus. The claimant did not apply for any alternative roles at any point.

[168]In June 2021 the situation changed and the claimant’s eyesight deteriorated further. At that point the medical evidence started to indicate that the claimant may not be able to return to bus driving at all. This meant the requirement to drive placed the claimant at a substantial disadvantage, as he was unable to return to work and as a consequence he ultimately was at risk of being dismissed. There was a duty on the respondent to make reasonable adjustments.

[169]However, the underlying situation with the respondent’s business remained the same, namely there were still a very limited number of roles that did not require at least the possession of a valid bus driving licence. On this we note the following:169.1 Although the claimant’s prognosis was worse the DVLA had not revoked the claimant’s licence. The claimant was going through the process of being tested, but it was not certain that the claimant’s licence would be revoked.

169.2 The recruitment window for the vacancies the claimant had identified in June 2021 had already closed before the claimant’s eyesight deteriorated again so they were not available.

169.3 Both roles (Green Road Champion and Acting Regulator) required a bus driving licence. We accepted the respondent’s evidence that it was not possible to completely remove this requirement.

169.4 The claimant did not identify any other vacant roles between June 2021 and February 2022 that he said he could have done. He did not apply for any vacancies either, despite all vacancies being advertised internally.

169.5 Due to the limited number of non-driving roles in the business it was reasonable for the respondent to delay actively considering redeployment until there was confirmation that an employee could no longer drive buses, i.e. because their licence had been revoked by the DVLA.

[170]The adjustment the claimant was seeking was redeployment as soon as it became possible that his inability to drive a bus may be permanent, i.e. in June 2021. We do not consider this adjustment was reasonable in the circumstances in June 2021. At that point he had only just been signed off work again and it remained possible he may be able to return to driving, as had happened before.

[171]The claimant raised redeployment again in August 2021 and November 2021. By this point the medical evidence was pointing towards the likelihood that the claimant’s licence would be revoked. However, again the underlying situation did not change. The possibility of alternative roles that the claimant could be redeployed into was limited and the claimant did not identify any vacancies from this time that he says he could have done. All vacancies within the respondent business were internally advertised. There is no evidence that there were any roles available at that time that the claimant could have been redeployed into. If there were no vacant suitable roles at that time then redeploying the claimant at that point would not be a reasonable adjustment as it would not be feasible.

[172]Eventually redeployment was considered properly in February 2022. At this point the claimant’s licence had been revoked so there was no chance of the claimant returning to his usual role. Mr White contacted the recruitment manager and obtained a list of vacancies which he sent to the claimant. He identified one that the claimant could do and he also enquired about the bus driving requirement for others. We have concluded in February 2022, when the claimant was at risk of dismissal, the respondent started the process of redeployment as a reasonable adjustment and identified a role that may be suitable. Therefore at that point the respondent were in the process of making reasonable adjustments as a way of avoiding dismissal. The claimant then resigned instead of exploring any of the options that may have been available.

[173]To summarise, we find that in 2018 and 2019 redeployment was not a reasonable adjustment because the claimant was only temporarily unable to drive a bus.

[174]In 2022 the respondent started the process of redeployment as an adjustment. Given the limited non-driving roles in the respondent business we have concluded it was reasonable for the respondent to wait until there was confirmation that the claimant’s inability to drive a bus was permanent. This was because of the limited non-driving roles within the respondent business. This did not prevent the claimant applying for internal vacancies in order to move to a non-driving role sooner. The claimant did not do this.

[175]On this basis we find the respondent did not fail to make reasonable adjustments in respect of redeployment and this claim does not succeed.

[176]The other PCP was the requirement to drive after 4pm. This requirement came about because bus drivers worked a shift pattern. The normal working arrangements meant drivers could be required to work shifts at any time of day.

[177]The claimant says that this placed him at a disadvantage because he suffered from eye fatigue. This was exacerbated by driving later in the day. We accept that this was the case as it was supported by the Occupational Health report.

[178]We have found that the respondent did make adjustments for the claimant in this respect. The majority of time after the claimant returned to work in September 2019 he was allocated earlier shifts. It was not 100% of the time but the majority of his shifts finished before or shortly after 4pm. From time to time the claimant raised concerns about being allocated later shifts. From the evidence we saw this was infrequent and then always dealt with promptly.

[179]Our conclusion is that the respondent did make adjustments to the claimant’s shifts that were reasonable in the circumstances. In reaching this conclusion we have also taken into account the following:179.1 All bus drivers work shifts and it is necessary to accommodate all drivers within the rota. We accepted Mr White’s evidence that it was complicated to accommodate specific limited shift patterns within the rota.

179.2 The claimant only worked on one particular route. This route was shorter which meant during the day he could rest his eyes more frequently. This was the claimant’s preference but it was not something that had been expressly recommended by Occupational Health. This preference was accommodated as an additional adjustment.

179.3 We accepted that as a consequence of the claimant only driving on one route it was harder to make sure that the claimant only worked earlier shifts. The claimant still was mainly on early shifts but it was not always possible. Had the claimant been willing to work on different routes then it would have been easier to guarantee that he only worked early shifts.

179.4 In conclusion we have found that the respondent did make reasonable adjustments to the claimant’s shifts between November 2019 and June 2021. It was not possible to completely guarantee he only worked shifts that ended before 4pm and also accommodate his preference to only work one route.

[180]Therefore, both the claimant’s claims that the respondent failed to make reasonable adjustments fail. The respondent did make adjustments to his shifts. Redeploying the claimant was not a reasonable adjustment in the circumstances when his inability to drive a bus was either temporary or not permanent. Once it was clear the claimant would not be able to return to bus driving the respondent took steps to redeploy the claimant. Failure to redeploy since 16 November 2018 – discrimination arising from a disability and harassment

[181]The underlying allegations span a lengthy period of time. The claimant is not just relying on a single incident in November 2018. The claimant raised the issue of redeployment a number of times over the years. Our findings of fact on what occurred can be summarised as follows:181.1 The claimant first asked about redeployment on 16 November 2018 in a meeting. Mr White said he would only start this process when a driver’s licence was revoked by the DVLA.

181.2 The claimant raised the issue again informally in his email dated 6 March 2019. Mr White said that the claimant was fit to return to driving at that point. Redeployment was not discussed further.

181.3 The claimant raised it again by email on 23 July 2019. However, he also at that point said he could drive and return early if necessary.

181.4 The claimant raised it again in a meeting on 3 September 2019. The claimant returned to driving work shortly after and continued to drive almost continuously until he was signed off work again at the beginning of June 2021.

181.5 The claimant then asked about redeployment on 8 June 2021 when he asked about 2 specific roles.

181.6 The claimant asked again in meetings on 10 August 2021 and 21 November 2021.

[182]As a matter of fact the respondent not redeploy the claimant on all of those occasions.

[183]First we note that any claims in respect of the times the claimant asked about redeployment in November 2018 cannot succeed. This is because we have found at this point the claimant was not disabled therefore any inability to drive then did not arise out of a disability.

[184]By March 2019 we have found the claimant was disabled. However, we have concluded that the respondent only had knowledge of this by November 2019. Therefore, the respondent did not have the requisite knowledge of disability between March 2019 and September 2019.

[185]Irrespective of these points, we have also considered the claims based on Mr White not redeploying the claimant between November 2018 and September 2019.

[186]For the purposes of a claim under section 15 Equality Act we need to decide the reason why Mr White did not redeploy the claimant on those occasions and whether it was the ‘something’ that the claimant says arises from his disability. The ‘something’ the claimant says arises from his disability was his impaired ability to drive a bus which arose in consequence of his disability, which was accepted by the respondent.

[187]Mr White said that redeployment was only considered once he had evidence that a driver could no longer drive a bus at all. The usual circumstances when a driver was unable to drive at all was when the DVLA had revoked their licence. In 2018 and 2019 the evidence did not show that the claimant could no longer drive at all. On the contrary, the medical evidence all said that the claimant should be able to return to driving once he had recovered from surgery. We accepted Mr White’s evidence that the reason he did not start any redeployment process in 2018 and 2109 was because he understood the claimant would be able to return to driving once he had recovered.

[188]Mr White’s reason for not redeploying the claimant is the opposite of the ‘something arising’ the claimant relied on. The ‘something arising’ was the claimant’s impaired ability to drive a bus. If the evidence at the time did show that the claimant’s ability to drive a bus was permanently impaired then Mr White would probably have started redeployment at that time.

[189]Therefore, the claimant’s claims that the failure to redeploy from November 2018 until September 2019 was unfavourable treatment arising from a disability fail. The reason Mr White did not redeploy the claimant at the time was not the ‘something arising’.

[190]We then turn to the requests for redeployment in June, August and November 2021. By that point the evidence was indicating that the claimant was unlikely to be able to return to driving a bus. However, again Mr White’s reason for not redeploying was essentially the same. The claimant had not received confirmation that his bus driving licence was revoked.

[191]Therefore we conclude that the non-redeployment did not arise out of the claimant’s inability to drive a bus. Again, it was due to the fact that Mr White had not received clear confirmation that the claimant could not drive a bus due to his licence being revoked. There remained a possibility that he may be able to return to driving a bus.

[192]The claimant has also said that the failure to redeploy the claimant amounted to harassment. The claimant had expressed a wish to be redeployed on several occasions, therefore the failure to redeploy him was unwanted conduct. However, looked at objectively we do not accept that this meets the definition of harassment. There was no obligation on the respondent to redeploy the claimant just because he said he wanted to be redeployed. We have concluded already that redeployment was not a reasonable adjustment in the circumstances. We have also concluded it was reasonable to postpone any consideration of redeployment until the claimant’s licence was revoked, given the limited opportunities for redeployment within the respondent business.

[193]Therefore the claimant’s claims for discrimination arising from a disability and harassment about the failure to redeploy do not succeed. Between 4 November 2019 and 10 June 2021 failing to put the claimant on earlier duties ending no later than 4pm

[194]As a matter of fact we have found that the claimant’s duties were adjusted so the majority of time he did earlier shifts. There were occasions where he was put on later shifts but this was not often.

[195]The claimant has not shown on the balance of probabilities that the respondent failed to put him on earlier duties. Therefore, the claim for discrimination arising from a disability and the claim for harassment based on these factual allegations do not succeed.

[196]For completeness, we also have reached the following conclusions about the limited occasions when the claimant was allocated a later shift:196.1 The claimant relies on the same ‘something’ for the claim that this was discrimination arising from a disability, namely his impaired ability to drive a bus. During this period of time (November 2019 – June 2021) the claimant was able to drive a bus.

196.2 On the occasions that the claimant was allocated a later shift, it was because of the logistical difficulties not because the claimant was unable to drive a bus.

196.3 A later shift may have been unwanted by the claimant. Looked at objectively we do not consider this can be described as harassment. It happened infrequently and it happened because the claimant’s preference about a single route was also being accommodated.

[197]In conclusion the claimant’s claims for discrimination arising from a disability and harassment about the timing of his shifts do not succeed. Threatening to dismiss the claimant at a meeting on 7 February 2022

[198]The claimant has said this is both unfavourable treatment arising out of disability and harassment related to disability.

[199]As a matter of fact we found that the claimant was not threatened. During the meeting on 7 February 2022 Mr White informed the claimant that he was at risk of dismissal. This was not a threat but just informing the claimant of one possible outcome of the meeting. Given the claimant’s length of absence and his prognosis it was very unlikely that the claimant was going to be able to return to bus driving. Mr White had also already informed the claimant of this risk in his email of 1 February 2022.

[200]Therefore, the claimant has not proved the unfavourable treatment or unwanted conduct occurred as he has alleged as the information was not imparted in a threatening manner.

[201]To the extent that giving that warning was unfavourable treatment, it did arise out of the claimant’s disability. The warning was given because the claimant’s ability to drive a bus was impaired and hence he was at risk of being dismissed. However, we have concluded that warning the claimant was justified for the following reasons:201.1 Managing the workforce, including absences and employees’ ability to carry out their roles is a legitimate aim.

201.2 Capability is a potentially fair reason to dismiss, so the respondent would potentially be able to fairly dismiss the claimant if he were no longer able to carry out his role as a bus driver.

201.3 Warning an employee who appears unable to carry out their role that they are at risk of dismissal is proportionate. There is no less discriminatory way of managing this situation. On the contrary, not warning an employee they are at risk of dismissal would risk making any potential dismissal unfair. Also dismissing without first warning would also be more detrimental to the employee so more discriminatory.

201.4 In this case the claimant was not dismissed at or after that meeting. Instead there were further discussions about alternatives to dismissal, such as redeployment.

[202]The claimant has also said this was harassment. Again, as a matter of fact we found that Mr White did not threaten the claimant with dismissal, he merely advised the claimant of the risk. This warning was related to the claimant’s disability, as it was due to him being unable to return to bus driving because of his eyesight. Looked at objectively we do not consider a general warning in the circumstances can be described as harassment, given that the claimant had been absent for seven months and it seemed unlikely he would be able to drive a bus again. On this we also note that the claimant had attended a number of absence review meetings over the years and before each one Mr White had written to him and warned that termination of employment was a possible outcome. Such a warning was not new and cannot have been unexpected.

[203]For these reasons both the discrimination arising from disability and harassment claims do not succeed. Blaming the claimant for being absent for more than 100 days at a meeting on 7 February 2022

[204]This is also an allegation of both discrimination arising from disability and harassment.

[205]As a matter of fact we concluded that Mr White did not blame the claimant for being absent for more than 100 days. Mr White referred to the length of the absence because he had been off that long and it formed the context for the discussion. Therefore, the claimant has not proved the unfavourable treatment or unwanted conduct occurred as he has alleged.

[206]To the extent that referring to the claimant’s level of absence was unfavourable treatment, it did arise out of the claimant’s disability. The absence was because the claimant was not fit to drive a bus because his vision was impaired. However, we have concluded that warning the claimant about his level of absence was justified for the following reasons:206.1 Managing the workforce, including absences and employees’ ability to carry out their roles is a legitimate aim.

206.2 Capability is a potentially fair reason to dismiss, so the respondent would potentially be able to fairly dismiss the claimant if he were no longer able to carry out his role as a bus driver.

206.3 Before making any decisions about termination of employment the employer should discuss the situation with the employee, including the reasons any decision may be made. Again, there is no less discriminatory way of managing this situation and not informing the claimant why he was at risk of dismissal would potentially make any dismissal unfair and discriminatory.

206.4 In this case the claimant was not dismissed at or after that meeting in any event.

[207]The claimant has also said this was harassment. Again, as a matter of fact we found that Mr White did not blame the claimant for the absence, he only referred to the level of absence to provide context. Looked at objectively we do not consider informing the claimant how long he had been absent can be described as harassment, given that it was just reporting on something that was a fact in the context of an absence review meeting.

[208]For these reasons both the discrimination arising from disability and harassment claims do not succeed. Constructive dismissal – unfair dismissal and discrimination arising from disability

[209]The claimant has said he was constructively dismissed. He has said this is both unfair dismissal and discrimination arising from disability.

[210]The claimant relies on the following allegations as conduct which he says was conduct that breached the implied term of trust and confidence and/or the implied term to provide appropriate support:210.1 failure to actively seek out and offer the claimant alternative employment;

210.2 failure to make reasonable adjustments such as putting the claimant on earlier shifts; and/or

210.3 threatening to dismiss the claimant at the 7 February 2022 meeting.

[211]As a matter of fact the respondent did not actively seek out and offer the claimant alternative employment before February 2022. We have already concluded that this was not a failure to make reasonable adjustments in the circumstances.

[212]We also find that this is not conduct that was calculated or likely to destroy or seriously damage trust and confidence. While the claimant may have liked the respondent to have been more proactive there was no obligation on the respondent to actively seek out alternative employment for the claimant at an earlier stage. The claimant must have known what the respondent business was like, and how few non-driving roles there were. The claimant cannot have had a reasonable expectation that the respondent ought to have been seeking out alternative work for him when he was still about to drive a bus or only unable to do so on a temporary basis. In addition, the claimant was always able to look at the vacancy list and apply for other roles but at no point did he do so.

[213]In addition, by the time the claimant did resign Mr White had actively sought out alternative roles. He had obtained the list of vacancies, enquired about whether driving duties could be removed from some roles and identified one role that the claimant could at least do on a temporary basis while he looked for some thing else suitable. The claimant had been informed of this but then did not engage in this process and resigned instead.

[214]In terms of making adjustments to the claimant’s shifts, we have found that in fact this did happen the majority of the time. There were occasions when it did not but as soon as the claimant raised concerns the situation was rectified. Any failing by the respondent in this respect was minimal and does not amount to conduct that was likely to destroy trust and confidence.

[215]Finally, we have concluded that Mr White did not threaten to dismiss the claimant on 7 February 2022. To the extent that he warned the claimant that he was at risk of dismissal, we find this was not conduct likely to destroy trust and confidence. In addition, Mr White had reasonable and proper cause to inform the claimant he was at risk of dismissal. The respondent by then was in a position where it was considering dismissal for a potentially fair reason and in needed to warn the claimant of this.

[216]In summary, the claimant has not shown that the respondent acted in a way that was calculated or likely to destroy or seriously damage trust and confidence. Overall, the respondent did make adjustments to the claimant’s shifts. When the claimant’s eyesight deteriorated to the point he was unable to drive a bus any more the respondent started to follow an appropriate procedure to consult with the claimant. This involved starting actively considering redeployment and warning him that he may be at risk of dismissal. The claimant resigned while that process was ongoing and after a potential alternative role had been identified.

[217]For these reasons we find the claimant was not constructively dismissed. Therefore both his unfair dismissal claim and the discrimination arising from disability claims do not succeed.

The claims

[1]Under Rule 70 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider a Judgment where it is necessary in the interests of justice to do so. On reconsideration, the Judgment may be confirmed, varied or revoked.

[2]An application for reconsideration shall be presented in writing within 14 days of the date upon Judgment is sent to the parties. The Judgment in this case was sent to the parties on 8 August 2024.

[3]On 21 August 2024 the claimant made an application for reconsideration of the judgment. The claimant said this was necessary because there were certain points which he said had not been fully adressed in the judgment. He then set out four separate issues which he said had not been addressed by the Tribunal. All four points related to the findings of fact, and points about the evidence which the claimant said the Tribunal had misconstrued or not fully addressed.

[4]Under Rule 70, a Judgment will only be reconsidered where it is necessary in the interests of justice to do so. This allows an Employment Tribunal a broad discretion to determine whether reconsideration of a Judgment is appropriate in the circumstances. The discretion must be exercised judicially. This means having regard not only to the interests of the party seeking the reconsideration but also the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.

[5]The procedure upon a reconsideration application is for the Employment Judge that heard the case to consider the application and determine if there are reasonable prospects of the Judgement being varied or revoked. Essentially, this is a reviewing function in which the Employment Judge must consider whether there is a reasonable prospect of reconsideration in the interests of justice. There must be some basis for reconsideration. It is insufficient for an applicant to apply simply because he or she disagrees with the decision.

[6]If the Employment Judge considers that there is no such reasonable prospect then the application shall be refused. Otherwise, the original decision shall be reconsidered at a subsequent reconsideration hearing. The Employment Judge’s role therefore upon the considering of the application upon the papers initially is to operate as a filter to determine whether there is a reasonable prospect of the Judgment being varied or revoked were the matter to be the subject of reconsideration hearing

[7]The Employment Appeal Tribunal has given guidance as to the nature of a request for reconsideration:7.1 Reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to re-argue matters in a different way or adopting points previously omitted.

7.2 There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule.

7.3 It is not a means by which to have a second bite at the cherry, or is it intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.

7.4 Tribunals have a wide discretion whether or not to order reconsideration. Where a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.

[8]The claimant has asked that the Judgement is reconsidered because he says certain matters within the evidence were not fully addressed. These are as follows:8.1 the distinction between ‘Blink’ and internal vacancies, which he says the Tribunal did not appreciate, and related issues about roles the claimant said he could do;

8.2 the claimant’s role and route assignment, which the claimant says was not fully understood;

8.3 claims regarding long-term sick leave of other employees, which the claimant says the respondent did not substantiate with evidence; and

8.4 availability of non-driving roles which the claimant said he could have done.

[9]In his application the claimant has just highlighted these points and said that they were either “improperly construed or not fully addressed”. He has then stated that this results in an injustice to the claimant, but he has not explained why this is the case. The claimant has just implied that the Tribunal may have made errors in its finding of fact, based on the points he has raised. He has not explained any the potential implications are of the points he raises.

[10]Specifically the claimant has not set out in his application the following: 10.1. The points raised all relate to understanding of the evidence. The implication appears to be the Tribunal did not fully consider the evidence and if it had then it may have reached some different findings of fact. However, the claimant has not identified any specific findings of fact that may be different if there was a reconsideration. 10.2. He has also not identified any specific conclusions the claims that he says may be different if the judgment was reconsidered based on the points he has made. 10.3. As a result of this, there is no indication of why the claimant is saying that a reconsideration based on the points he has raised may ultimately lead to the judgment being varied or revoked.

[11]Having reviewed the claimant’s application I am not satisfied that there are reasonable prospects of the judgment being revoked or varied on reconsideration because it would be in the interests of justice to do so. My reasons for this are as follows: 11.1. At the hearing the Tribunal heard evidence from both parties. Both parties were also able to put forward their case about what they said that evidence showed. Having heard the evidence and submissions the Tribunal reached its findings of fact, including on the points the claimant raises in his application for reconsideration. 11.2. When making its finding of fact the Tribunal considered all the evidence and reached the findings of fact it considered were needed in order to determine the claims. Not all evidence heard will have been referred to in the judgment if the Tribunal did not consider it of sufficient relevance. This does not mean that evidence was not considered. 11.3. The claimant’s application appears to solely be based on challenging the some of the findings of fact that the Tribunal reached. The claimant is suggesting evidence was not understood fully by the Tribunal and in turn this may have lead to errors in the findings of fact. This approach is an attempt to reopen reopening matters that have already been litigated, but seeking to present certain evidence in different ways than it was before in the hope that the Tribunal reaches different conclusions. 11.4. If the Tribunal were to reconsider these factual points, there is no indication that it would make any difference to the final conclusions on the claimant’s claims. The claimant has not explained how the points he makes now about the factual evidence may lead to the Tribunal reaching any different conclusions about his claims. 11.5. The consequence of this is that it cannot be said that there are reasonable prospects of the Judgment being revoked or varied, were the application for reconsideration to be allowed. The points the claimant has raised do not have any clear implications on the Tribunal’s Judgement as a whole. The result of any reconsideration would appear to be a purely speculative exercise.

[12]In conclusion, the claimant seems to be seeking to use the reconsideration to relitigate points which have already been fully ventilated and considered, in the hope of a different outcome. In these circumstances I am not satisfied that it is in the interests of justice to reconsider the Judgment.