Mr G Fordham v Compass Group UK & Ireland Ltd T/a Medirest: 3300073/2022 and 3300138/2022

EMPLOYMENT TRIBUNALS

Case No 3300073/2022, 3300138/2022

Between

Mr G FordhamClaimant

Compass Group UK & Ireland LtdRespondent

Before

Employment Judge Quill

In person for claimant

Date 7 June 2024

JUDGMENT

[1]The Claimant has a disability within the definition in section 6 of the Equality Act 2010 from no later than 19 April 2021 because of anxiety and panic attacks.

REASONS

Conclusions

[1]This is a claim presented by the claimant by two separate claim forms presented on 7 January 2022 and 11 January 2022. The claims were consolidated at a previous hearing on 17 November 2022.

[2]The claimant was employed as a Night Porter between 15 January 2001 until his dismissal on 31 December 2021. The respondent provided services to the NHS and the claimant was based at Northwick Park Hospital. The claimant brings claims for unfair dismissal and disability discrimination relating to his inability to wear a face mask due to his anxiety and depression. The respondent says that they dismissed the claimant due to capability and that any unfavourable treatment was pursuant to a legitimate aim.

[3]Judgment was issued in this claim on 7 June 2024, however this was not sent to the parties until 22 July 2024. On receipt of the Judgment, the claimant requested written reasons on 25 July 2024, oral reasons having been provided at the hearing. As outlined in correspondence already sent to the parties on 30 July 2024, Employment Judge French has had various points of leave between the request for written reasons and 4 September and these reasons have been provided as soon as possible around that leave. Evidence Case Nos: 3300073/2022 & 3300138/2022 2

Evidence

[4]By way of evidence, we had a bundle consisting of 455 pages. We heard from the claimant himself. For the respondent we heard from Ms Sian Richards, Human Resources manager and dismissing officer and Mr David Morgan, Contract Director and appeal officer. We had three skeleton arguments from the claimant together with written submissions. We had written and heard oral closing submissions from the respondent, and we had regard to both parties' submissions.

The issues

[5]The issues are set out in the case management order that appears in the bundle at page 58 to 61 and repeated here using the same numbering. Unfair dismissal1.1 What was the reason or principal reason for dismissal? The respondent says the reason was capability.

1.2 If the reason was capability, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:1.2.1 The respondent adequately consulted the claimant;

1.2.2 The respondent carried out a reasonable investigation, including finding out the medical position;

1.2.3 Dismissal was within the range of reasonable responses. Remedy for unfair dismissal

2.1 If there is a compensatory award, how much should it be? The Tribunal will decide:2.1.1 What financial losses has the dismissal caused the claimant?

2.1.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

2.1.3 For what period of loss should the claimant be compensated?

2.1.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

2.1.5 If so, should the claimant’s compensation be reduced? By how much?

2.1.6 If the claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct?

2.1.7 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

2.1.8 Does the statutory cap of fifty-two weeks’ pay apply?

2.2 What basic award is payable to the claimant, if any? Case Nos: 3300073/2022 & 3300138/2022 3

2.3 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? Discrimination arising from disability (Equality Act 2010 section 15)

3.1 Did the respondent treat the claimant unfavourably by dismissing him?

3.2 Did the following things arise in consequence of the claimant’s disability: 3.2.1 not being able to wear a face mask?

3.3 Did the respondent dismiss the claimant because of he did not wear a face mask?

3.4 Was the treatment a proportionate means of achieving a legitimate aim?

3.5 The Tribunal will decide in particular:3.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

3.5.2 could something less discriminatory have been done instead;

3.5.3 how should the needs of the claimant and the respondent be balanced?

3.6 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? Indirect discrimination (Equality Act 2010 section 19)

4.1 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP: 4.1.1 requiring employees to wear a face mask?

4.2 Did the respondent apply the PCP to the claimant?

4.3 Did the respondent apply the PCP to employees without a disability?

4.4 Did the PCP put persons with a disability at a particular disadvantage when compared with persons who do not have a disability?

4.5 Did the PCP put the claimant at that disadvantage?

4.6 Was the PCP a proportionate means of achieving a legitimate aim?

4.7 The Tribunal will decide in particular:4.7.1 was the PCP an appropriate and reasonably necessary way to achieve those aims;

4.7.2 could something less discriminatory have been done instead;

4.7.3 how should the needs of the claimant and the respondent be balanced? Reasonable Adjustments (Equality Act 2010 sections 20 & 21) Case Nos: 3300073/2022 & 3300138/2022 4

5.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

5.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 5.2.1 requiring employees to wear a face mask?

5.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that he could not wear a face mask?

5.4 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

5.5 What steps could have been taken to avoid the disadvantage? The claimant suggests: 5.5.1 Exempting him from the face mask requirement

5.6 Was it reasonable for the respondent to have to take that step?

5.7 Did the respondent fail to take that step? Remedy for discrimination or victimisation

6.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

6.2 What financial losses has the discrimination caused the claimant?

6.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

6.4 For what period of loss should the claimant be compensated?

6.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

6.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

6.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

6.8 Should interest be awarded? How much?

Findings of fact

[6]At a preliminary hearing on the 16 March 2023, it was determined that the claimant has a disability within the definition in section 6 of the Equality Act 2010 from no later than 19 April 2021 because of anxiety and panic attacks.

[7]It is a matter of fact that the claimant was signed off of work from June 2021 until his dismissal in December 2021. Case Nos: 3300073/2022 & 3300138/2022 5

[8]The claimant was employed as a Night Porter by the respondent who provided services to the NHS. The claimant worked at Northwick Park Hospital in this role. There was an incorrect reference to him being employed at Ealing, within Mr Morgan’s witness statement which was acknowledged by him as an error.

[9]It is agreed between the parties that the claimant worked in clinical areas in a patient facing role. His duties included the transportation of patients and supplies around the hospital setting.

[10]In March 2020 there was a global pandemic namely the covid 19 virus and that required staff within hospital settings to wear personal protective equipment (PPE) as a result of measures bought in to try and prevent the spread of the virus.

[11]In March 2021 there was a complaint from a nurse in relation to the claimant’s wearing of his mask below his nose; that mask forming part of the required PPE. He was spoken to informally by management at that time and shortly afterwards the claimant attended work without a mask and displaying an exemption badge.

[12]As a result, he was invited to an investigatory meeting which took place on 25 March 2021 and during that meeting the claimant identified that the mask made him feel anxious and that he could not breathe when wearing it. As such, the claimant was suspended with pay so that a referral could be made to Occupational Health and medical evidence obtained.

[13]The claimant first saw a nurse from Occupational Health who said that he was fit to work and made some recommendations in relation to the claimant’s use of the mask. That report can be found at pages 118 to 119 of the bundle. The report also confirmed, within the second bullet point at page 119, that the hospital had been spoken to and there was no alternative to the fluid resistant surgical mask, that being the recommended mask.

[14]The claimant disagreed with the report and there was a further referral to the doctor within Occupational Health and we have that report at page 133.

[15]The doctor also concluded that the claimant was fit to work but stated that he was not suitable for roles requiring mask wearing. It did however note that the claimant was happy to wear a face visor. In that regard, the claimant’s position is that his doctor was recommending that he wear a face visor as this appears under the section ‘Summary and Fitness to Work recommendation’. The tribunal do not accept that the doctor specifically recommended a visor and rather considers that it records that the claimant was happy to wear one. It comes under the heading ‘Summary and Fitness to work recommendations’ and this is summarising what he had said. The Tribunal does recognise that the report does go on to say that it is for the line manager to consider any suitability and that would have included any suitability around the use of a visor. The tribunal concludes that what the doctor is saying within the report is not a direction for the claimant to wear a visor but indicates he is happy to do so and that it is a decision for the employer to make.

[16]The tribunal do consider that this was explored by Ms Richards who made enquiries of the hospital and was told that it could only be a Type 1 or 2 Case Nos: 3300073/2022 & 3300138/2022 6 surgical mask and visors were not possible. That is evidenced in her email to the claimant to that effect at page 140 of the bundle.

[17]The tribunal take that evidence together with the mandate at page 123 of the bundle. This is a mandate from the Department of Health and Social Care published 5 June 2020. It states that ‘NHS staff already wear face masks in clinical areas within 2 meters of a patient, but this new guidance applies to everyone working in all areas of the hospital.’ It goes on to say that it applies to all areas save those designated as COVID secure workplaces.

[18]The tribunal also notes the email at page 100 of the bundle being an email between the respondent and the Head of Facilities at the hospital which says that ‘under no circumstances whatsoever can anybody who is not wearing a face covering be working in a clinical area.’

[19]The tribunal also note that the Occupational Health report at page 119 confirms that the hospital had been spoken to and the response was that there must be use of a surgical mask. The tribunal further note page 181 whereby there was instruction from the Chief Nurse that the NHS would continue the practice of mask wearing and that is outlined at page 183.

[20]The tribunal are satisfied, based on all of that evidence, that a visor was not a possibility in the circumstances.

[21]The tribunal were also taken to a report from the claimant’s own GP and that is at page 136. That confirms the claimant experienced anxiety and depression from 2012 and it made a request that the claimant be exempt from wearing a mask and indicated that he, himself, was not at high risk of catching covid 19. The tribunal considers that the letter does not say that the claimant is exempt from wearing a mask but rather makes a request that his manager do exempt him from wearing one due to his anxiety.

[22]The claimant’s position is that the respondent should have exempt him from the use of a mask because of what his GP had said. The tribunal concludes that what the doctor is saying here is a request of the manager to exempt him in the circumstances as outlined. Ultimately, any decision is a matter for the employer based on the information available to them.

[23]In relation to the mandate of mask use at pages 123 to 124 as outlined above, the respondent’s position is that there were no exceptions to that and it was a requirement. The respondent’s position is further that, if an individual chose not to wear a mask they would not be allowed on site.

[24]The claimant has referred us to the related content at the bottom of that document and we do note that there is reference to ‘how to apply for an exemption certificate and a large yacht code equivalence’. The claimant seeks to rely on this as support for the contention that there were exemptions, although has not provided this related content by way of evidence. The tribunal can only make a determination based on the available evidence to us and what we have not been taken to is any documentary evidence that there were any exemptions that would have applied to NHS staff.

[25]The tribunal note that, although the position on mask wearing may have been relaxed in public, a different position, as indicated in that mandate, was taken Case Nos: 3300073/2022 & 3300138/2022 7 in relation to hospitals. The claimant’s position is that that mandate was not law. The tribunal note it was government advice and that was then implemented by the Trust. Even if it was not law, the tribunal consider that it became a requirement of the claimant’s role. The tribunal fully accept what the claimant says that that was not written into his original contract but consider that was a change that was brought about in the circumstances of a global pandemic. Ultimately, the respondents have not terminated based on any breach of contract, they have terminated due to capability which is linked to the mandate to wear masks and what the tribunal do is draw a distinction between what is allowed in public as a whole, and exemptions that may have applied, and that which applied in hospitals and the employment environment in which the claimant was working.

[26]The mandate was followed up in July 2021, that is a document at page 181, and that notes that restrictions were removed for the wider public from 19 July but it makes clear that they will continue in hospitals.

[27]The tribunal note the sick note at page 145, that being the first sick note dated 2 June 2021. As a result of that, there is a welfare call to the claimant on 7 June and that takes place with Ms Richards and can be seen at page 150. In that the claimant says he would not be helped with less hours or more breaks in order to assist him with wearing a mask.

[28]There is then a welfare call with Ms Richards again on 21 June at page 156. The claimant says at that point he has not spoken to the employee helpline to which he has been referred and states that he does not want to. He reiterates he is unable to wear a mask. Ms Richards explores the option of wearing a clear mask and the claimant confirms he cannot wear a mask at all, and he does not like things or something obstructing his face.

[29]There is then a letter dated 24 June 2021 at page 159 inviting the claimant to a welfare meeting on 1 July. That takes place and the notes from the meeting can be seen at page 163. The claimant’s union representative is present at that meeting.

[30]There is a further invitation to a meeting on 2 August. Again, a union representative was present and the meeting notes are at page 171.

[31]There is then a further invitation on 25 August inviting the claimant to a meeting on 31 August and we can see that at page 191. The claimant here says he does not wish to attend the meeting, and that meeting takes place in his absence but with his union representative present. The meeting notes are documented at page 195.

[32]A letter following that meeting is sent to the claimant on 31 August and is at page 198. That letter confirms that the respondent has been unable to find alternative work in the Trust as they all require the wearing of a face mask. It provides a link to a careers page for alternative jobs which may be of interest to the claimant. The tribunal do accept that there was not alternative employment within the Trust because use of a face mask would have been compulsory in any available roles. We accept Ms Richards’ evidence that there was only one service role that would not have required the wearing of a face mask, and that vacancy was already filled. That was also confirmed by Mr Morgan in his evidence and the claimant did not suggest that further Case Nos: 3300073/2022 & 3300138/2022 8 alternative roles would have been available.

[33]What the tribunal do note in relation to the document at page 198 is that that was the first time that dismissal as a possible outcome is mentioned. The tribunal considers that from that date, namely 31 August 2021, the claimant was on notice of possible termination.

[34]What follows is a letter at page 199, being a further invitation to a meeting on 10 September. That is sent on the same day as another letter which can be seen at page 200 whereby it is documented that the claimant has expressed concerns about his line manager continuing to deal with the process, and what is offered in response is an alternative manager in order to encourage him to engage with the process. That letter also outlines the potential options available under the Long Term Absence Policy and that there may be a need to terminate the claimant's contract.

[35]It is at that point that Ms Richards formally takes over conduct of the matter as an alternative to the claimant’s line manager and on 14 September, at page 206, she invites the claimant to a welfare meeting. The meeting notes can be seen at page 209 and Ms Richards reiterates that it is a requirement to wear a mask.

[36]At page 211 of those meeting notes, the tribunal note that there was a discussion around looking at other jobs and the claimant’s reply is that if he is not well, he cannot return to work. He says that if his GP tells him then he will have a look after, once they advise him. This seems to ignore the fact that on the claimant’s own evidence he could have returned to work if he had not been required to wear a mask. This is not a case where the claimants depression and anxiety in itself prevented him from working but rather it was the requirement to wear a mask with his condition that prevented him from working.

[37]Again, at page 212, of those meeting notes the claimant reiterates that he just wants to return to work but without a mask. In relation to a discussion around other deployment he says his preference would be Harrow but he indicates he would be flexible. We do note that Ms Richards does refer to the need to possibly have more serious discussions if a solution cannot be achieved and the claimant reiterates that he has a right to be sick.

[38]At page 214 is the letter following that meeting. That again sets out the possible options, to include returning to work or alternative employment and warns that, if those options are explored and exhausted the claimant is at risk of termination. This letter again refers to the claimant’s ability to contact the employee support line should he wish to do so.

[39]There is then at page 255 a letter dated 29 October 2021 inviting the claimant to a meeting to discuss his absence on 3 November 2021. It confirms the purpose is to discuss possible termination, advises of the right to be accompanied, refers the claimant to the support line and also provides a link to available alterative roles; that included a number of porter roles within the hospital setting of which the claimant was unlikely to be eligible because of the mask wearing but included two other roles, one at Chelsea and a further one. Case Nos: 3300073/2022 & 3300138/2022 9

[40]In the intervening period, the claimant requested to see his GP again, and as such the meeting on 3 November 2021 was re-scheduled to take place on 22 November 2021. We can see the notes from that meeting at page 276 onwards and the tribunal makes the following observations.

[41]At page 277 the claimant confirms that he has not yet discussed a phased return to work with his GP.

[42]At page 278 the claimant confirms that he cannot wear a mask for his whole shift.

[43]At page 279 the claimant states his anxiety is because of the mask and he says that when he takes the mask down, he feels less anxious and is able to breathe.

[44]At page 282 the claimant says he does not think he will ever be able to wear a mask or return to full duties and he describes that he feels faint and dizzy when wearing one and that is supported by his witness statement which confirms this experience.

[45]The tribunal does consider that all of these points go to the issue of capability and Ms Richards’ belief that the claimant was unable to perform his role whilst there was a requirement to wear a mask. This is supported by the claimant’s own evidence to the tribunal that he simply could not work with a mask and that any suggestion that he could do so was simply a suggestion by his union representative and not a view he shared.

[46]Following that meeting an outcome letter is sent which can be seen at page 287. This again includes a warning of the risk termination in absence of any other options being suitable.

[47]At page 301 is an invitation letter to the meeting on 22 December 2021 which ultimately resulted in the claimant’s dismissal on 23 December 2021. That letter again confirms the meeting was to discuss possible termination, again refers to the right to be accompanied and again makes reference to the employee support line.

[48]The tribunal consider that in light of that letter and the previous letter the claimant was adequately warned regarding the risk of termination.

[49]There is then a sick note at page 312, that is dated 21 December 2021 and which signs the claimant off until 20 January 2022 and gives an indication that he wishes to return to work in February. The claimant’s explanation in relation to that delay was that his GP wanted to know what the respondent was going to do to help him namely what a phased return would look like.

[50]During the meeting on 22 December 2021, the minutes for which can be seen at page 314 onwards there is discussion about a phased return to work. When asked about this at page 317 the claimant stated that the reason why his fit note suggested a return in February despite him being signed off until 20 January 2022 was because his GP wanted to see what a phased return would be. This was despite the fact that the note states that he would not need to be seen again before his return. Case Nos: 3300073/2022 & 3300138/2022 10

[51]The issue of more regular breaks is also discussed however it is discussed that it does not seem feasible to provide these at the level the claimant requires whilst being able to continue to perform his duties and based on the fact that there is limited staff on the night shifts. The claimant also states at page 318 that he could not return to work unless he knew how it would look and his GP sign him as fit.

[52]It is noted at page 317 that the claimant stated that his anxiety was not related to wearing a mask. Ms Richards evidence was that she found very confusing because the claimant's position throughout and as detailed by his GP and the Occupational Health reports was that his anxiety was because of the requirement to wear a mask. The tribunal notes that Ms Richards explored this further as can be seen at page 319 where the claimant stated that “I suffer from anxiety and depression and is not about the mask”. Ms Richards evidence was that although Mr Fordham had made a commitment to return to work on that basis, this was at odds with all of the previous information before her namely that he could not wear a mask and that was the only reason he was unable to work. That was based on the claimant's information he provided at earlier meetings and the medical evidence and as such she considered his commitment was unlikely to be achievable.

[53]The tribunal makes an assessment based on Ms Richards knowledge at the time, however, do note that in his evidence before the Tribunal he confirms that his anxiety was solely related to the use of a mask and he would otherwise have been able to work. The claimant was not suggesting that his anxiety prevented him from working in its own right and he re-iterated to the tribunal the effects that wearing a mask had on him, namely that he felt he could not breathe. This evidence contradicted the responses he gave to Ms Richards during the December meeting namely that his anxiety was not related to the mask.

[54]The tribunal look at whether Ms Richards was entitled to conclude that the claimant’s return was not actually likely, and we find that she was. The claimant was signed off until January yet within that sick note it was indicated that he would not return until February. The claimant's explanation in that regard was that his GP would still need to look at what a phased return would look like and as such suggesting that issues remained unresolved. The claimant’s evidence throughout this whole period as documented above was that he could not return to work whilst wearing a mask, and indeed, it would make him unwell to do so. Any suggestion that he could wear a mask was by his representative and in contradiction to the claimant’s responses throughout the process were that he could not wear a mask.

[55]In those circumstances, the tribunal are satisfied that Ms Richards was entitled to conclude that the claimant was not likely to be able to return to work.

[56]There is then the dismissal that takes place on 23 December 2021. Capability is stated as the reason for that in the meeting and that is confirmed in the outcome letter at page 323. In that letter the claimant is informed of his right to appeal, and he takes up that right. He appeals by letter dated 5 January at page 342 and that is conducted by Mr Morgan.

[57]In terms of that appeal the tribunal note that Mr Morgan reviewed all of the Case Nos: 3300073/2022 & 3300138/2022 11 previous meeting notes. As part of his appeal the claimant also sent a letter identifying that he was placed in a control group for people wishing not to receive the Covid-19 vaccination as part of a medical study which can be seen at page 354. Mr Morgan asked their client (the NHS) whether this was a recognised group as there was soon to be a mandatory requirement for all staff working in hospitals to be vaccinated by April 2022, to which their client confirmed that the group was not recognised and thus this did not lead to exemption from being vaccinated which can be seen at page 366.

[58]Mr Morgan subsequently wrote to the claimant inviting him to attend a meeting to discuss his appeal on the 13 January 2022. This letter confirms that he had the right to be accompanied if he wished and can be seen at page 352. During that meeting, the notes for which can be seen at pages 356 to 363 of the bundle the claimant was accompanied by a trade union representative and raised his points of appeal. Having considered the same, Mr Morgan upheld the dismissal. His outcome letter dated 4 February 2022 can be seen at page 375 onwards. The law Unfair Dismissal

[59]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed and enforcement of that right is by way of complaint to the Tribunal under s.111. The employee must show that she or he was dismissed by the respondent under s.95 but in this case the respondent admits that it dismissed the claimant.

[60]S.98 of the Act deals with fairness of dismissals. There are two stages within s.98, the first is that the employer must show it had a potentially fair reason for the dismissal and second if the respondent shows that it had a potentially fair reason for the dismissal the Tribunal must consider without there being any burden of proof on either party whether the respondent acted fairly or unfairly in dismissing for that reason.

[61]In this case the respondent states that it dismissed the claimant because of capability which is a potentially fair reason for dismissal under s.98(2). Capability is defined in s.98(3)(a) ERA as ‘capability assessed by reference to skill, aptitude, health or any other physical or mental quality.’

[62]S.98(4) then deals with fairness generally and provides that determination of the question whether the dismissal was fair or unfair having regard to the reasons shown by the employer shall depend on whether, in the circumstances including the size and administrative resources of the employer, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and shall be determined in accordance with equity and the substantial merits of the case. Case Nos: 3300073/2022 & 3300138/2022 12 Discrimination

[63]The prohibition on discrimination against employees is found in section 39(2) Equality Act 2010. Employers must not discriminate:a. in the terms of employment;

b. in the provision of opportunities for promotion, training, or other benefits;

c. by dismissing the employee;

d. by subjecting the employee to any other detriment.

[64]The claimant relies on disability as his protected characteristic which is covered by s6 of the Equality Act. Discrimination arising from disability - Section 15 Equality Act 2010

[65]Section 15 Equality Act 2010 (“EQA”) provides: “(1) A person(a) (A) discriminates against a disabled person

(b) (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. Indirect discrimination - Section 19 Equality Act 2010

[66]Section 19 of the Equality Act 2010 provides: Case Nos: 3300073/2022 & 3300138/2022 13(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if- (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) It puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. Failure to make reasonable adjustments – Section 20 and 21 Equality Act 2010

[67]EQA section 39(5) provides that a duty to make reasonable adjustments applies to an employer.

[68]The duty itself appears in section 20. Section 21 provides that a failure to comply with any of the three requirements in section 20 is a failure to comply with the duty to make reasonable adjustments. That amounts to discrimination against the disabled person. Burden of proof – discrimination

[69]Section136(2) Equality Act 2010 provides that if there are facts from which the court or tribunal could decide, in the absence of any other explanation, that a person (A) contravened a provision of the EqA, the court must hold that the contravention occurred; and S.136(3) provides that S.136(2) does not apply if A shows that he or she did not contravene the relevant provision.

[70]We have taken into account the well-known guidance given by the Court of Appeal in Igen Ltd v Wong

[2005] ICR 931

which although concerned with predecessor legislation remains good law. It was approved by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

. Ayodele v Citylink Ltd

[2018] ICR 748

, CA confirmed that differences in the wording of the Equality Act 2010 have not changed the test or undermined the guidance in Igen Ltd. Case Nos: 3300073/2022 & 3300138/2022 14

[71]In the case of Igen, the Court of Appeal established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place (on the balance of probabilities). If so proven, the second stage is engaged, whereby the burden then ‘shifts’ to the respondent to prove on the balance of probabilities, that the treatment in question was ‘in no sense whatsoever’ on the protected ground. The consequence is that the claimant will necessarily succeed unless the respondent can discharge the burden of proof at the second stage. However, if the claimant fails to prove a ‘‘prima facie" case in the first place then there is nothing for the respondent to address and nothing for the Tribunal to assess Ayodele and Hewage.

[72]At the first stage of the test, when determining whether the burden of proof has shifted to the respondent, the question for the Tribunal is not whether, on the basis of the facts found, it would determine that there has been discrimination, but rather whether it could properly do so.

[73]The following principles can be derived from Igen Ltd v Wong (above), Laing v Manchester City Council

[2006] ICR 1519

EAT, Madarassy v Nomura International p/c

[2007] ICR 867

, and Ayodele v City link Ltd (above); which reviewed and analysed many other authorities.

[74]At the first stage a Tribunal should consider all the evidence, from whatever source it has come. It is not confined to the evidence adduced by the claimant, and it may also properly take into account evidence adduced by the respondent when deciding whether the claimant has established a prima facie case. A respondent may, for example, adduce evidence that the allegedly discriminatory acts did not occur at all, or that they did not amount to less favourable treatment, in which case the Tribunal is entitled to have regard to that evidence.

[75]It is insufficient to pass the burden of proof to the respondent for the claimant to prove no more than the relevant protected characteristic and a difference in treatment. That would only indicate the possibility of discrimination and a mere possibility is not enough. Something more is required, see Madarassy (above).

[76]The burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another. (Hewage v Grampian Health Board

[2012] IRLR 870

, SC.) Case Nos: 3300073/2022 & 3300138/2022 15 Conclusions Unfair Dismissal

[77]In relation to the unfair dismissal complaint, the tribunal conclude that the principal reason for dismissal was capability. We find that it was due to the fact that the claimant was unable to wear a mask which became a requirement of his role. In that regard we note the medical evidence that says that the claimant was capable of working but that he was not able to do so with a mask. The claimant was in effect rendered incapable of working by not being able to meet the mandated requirement to wear a mask within his place of work.

[78]The claimant himself confirms that he was unable to work with a mask. The medical evidence all confirms this, and based on that, we do consider that Ms Richards had a genuine belief that the claimant was unlikely to be able to return to work whilst the requirement to wear a mask remained and that belief was formed on reasonable grounds. It was based on the medical evidence and the claimant’s own evidence. Despite the relaxation of mask wearing within the general population the evidence before the tribunal was that this would not be changed within the claimant’s NHS setting where the requirement would remain. Ms Richards evidence was that at this time a new variant of the virus was prevalent and there was no indication that the requirement to wear masks would be relaxed in the near future.

[79]By the time Ms Richards made her decision the claimant had been absent from work since March 2021. This was initially paid suspension whilst the respondent investigated matters and later in June 2021 the claimant was signed off from work. Although the claimant’s fit note in December 2021 stated that he was fit to return to work in January 2022 it indicated that he would not return until February.

[80]The tribunal look at whether Ms Richards was entitled to conclude that the claimant’s return was not actually likely, and we find that she was. The claimant was signed off until January yet within that sick note it was indicated that he would not return until February. The claimant’s explanation in relation to that delay was that his GP wanted to know what the respondent was going to do to help him which Ms Richards states indicated to her that matters were not resolved to allow the claimant’s return.

[81]The claimant’s evidence throughout this whole period as documented above was that he could not return to work whilst wearing a mask, and indeed, it would make him unwell to do so. Any suggestion that he could wear a mask was by his representative and the claimant’s responses throughout the process were that he could not wear a mask.

[82]That belief is supported by the monthly fit notes provided by the claimant himself which says that he was not fit for work. Those sick notes are mixed in their contents, some of them say “depression and anxiety” is the reason but others refer to the fact that he can work once the mask requirement is lifted and that is understood to be the issue. The information available to Ms Richards at the time as detailed in the mandate and subsequent updates was that mask wearing would remain a requirement within the claimant’s Case Nos: 3300073/2022 & 3300138/2022 16 workplace and therefore there was no prospect of his return whilst this remained in place.

[83]The claimant has raised the issue that his dismissal may have actually been linked to the fact that he took the decision not to participate in the vaccination programme. The tribunal are not persuaded that that had any influence on the decision to dismiss because we note that that evidence only came to light at the appeal stage; it was presented to Mr Morgan after the dismissal. This is supported by the document itself at page 354 which is dated 21 January 2022 and therefore post-dates the dismissal on 23 December 2021. What Mr Morgan makes clear is that he did not take that into account when determining his appeal and there is no other evidence within the bundle to suggest that that was the reason behind the dismissal.

[84]We go on to look at reasonableness and we have specific regard to a number of factors as outlined in the list of issues at points 1.2 to 1.2.3.

[85]In relation to whether or not the respondent adequately consulted the claimant, we do consider that there was an adequate consultation. The claimant was warned from 31 August 2021 that there was a risk of termination, that is in the letter at page 198. That is repeated in future meeting invitations although the tribunal does note that is not then necessarily expressly stated during the subsequent meetings.

[86]There were a number of welfare meetings that did take place from March 2021 and there were a number of meetings around the claimant’s capability, those being conducted in September, November and December. Throughout all of those meeting's discussions took place in relation to supporting the claimant and what could be done to try and achieve his return to work and/or find alternative employment. The outcome letters re-iterated that should those options fail then termination of his employment may need to be considered. We consider in those circumstances that the claimant was adequately consulted.

[87]We go on to look at whether or not the respondent carried out a reasonable investigation including finding out the medical position. Regarding the medical position, there were two occupational health reports (pages 118 and 133) obtained and a letter from the claimant’s own GP (page 136). The tribunal do note that there was not a later referral to Occupational Health but in that regard, we note that the claimant accepted that there was no change to his position in relation to the use of the mask. In that regard it is noted that Occupational Health had indicated that they would not need to review the claimant again unless there was a change (page 119 and 134) and Ms Richards states this is the reason a further referral was not made. We consider, in those circumstances, that it was reasonable for Ms Richards not to have made a further referral.

[88]It is clear to the tribunal that when the issue of mask wearing was first raised by the claimant in March 2021, the respondent took steps immediately to get information from his GP and made a referral to Occupational health. Those reports are in turn supported by the monthly fit notes provided by the claimant himself which states that he was not fit to work. In those circumstances the tribunal consider that there was a reasonable investigation in relation to the medical position. Case Nos: 3300073/2022 & 3300138/2022 17

[89]As part of reasonableness, we do also look at alternative employment and what efforts were made in that regard. The tribunal notes the claimant’s lengthy employment history. We are satisfied that the respondent looked at other jobs within the NHS Trust and that none of those would have been suitable for the claimant because they required the wearing of a mask. Ms Richards confirmed this in her evidence, and it was unchallenged by the claimant. As such, it was acknowledged that there would need to be steps taken to look at alternatives outside of the Trust.

[90]There was criticism on the respondent for not creating a ‘pathway’ to alternative roles. The tribunal notes that the claimant was sent a list of alternative roles, and it was then on him to look at that list and pursue it from there. These were roles within the respondent company on behalf of companies outside of the NHS for which mask wearing was not a requirement. It is noted that the respondent’s main client is the NHS Trust and therefore alternative roles outside the NHS were limited.

[91]We consider that there could have been a more hands-on approach and support in terms of the alternative roles available such as putting him in touch with individuals or offering a trial period. The tribunal consider however that this was in circumstances where the respondent was unable to offer an alternative role within the claimant’s existing location and in those circumstances, there would need to be input from the claimant as to what was a suitable alternative. Here, the respondent put jobs to the claimant and the claimant’s response was that those were too far away or not in line with what he was currently doing. Any trial period for example, would still require the claimant’s willingness to do so and his ability to do so in a location that meets his requirements.

[92]The tribunal do acknowledge that the claimant was on an ‘ACT contract’ which we heard from Mr Morgan was a contract that actually provided better sick pay and better benefits than what the respondent would have ordinarily provided and it is noted that if the claimant had been transferred to one of those roles it would not have been under that contract. The tribunal notes this would have impacted on the claimant’s decision to look at alternative roles. The claimant’s position however is summarised at page 211 where he takes the view that if he is unwell, he is not required to look at alternative employment.

[93]The Tribunal concludes therefore that the respondent took reasonable steps to look at alternative employment.

[94]Turning to whether the dismissal was in the range of reasonable responses, we acknowledge how difficult it must have been for the claimant with 20 years’ service to have been terminated just before Christmas in light of a sick note which expired in January and included a suggestion that he may be able to return in February 2022. What we need to look at is whether it was in the band of reasonable responses. We are not here to say what we would do. We acknowledge that other employers may have taken a different step but we have to look at whether the dismissal was within the range of responses that an employer could take.

[95]The respondent indicates that when the decision was taken the claimant had been absent since March 2021 to December 2021 during which time they Case Nos: 3300073/2022 & 3300138/2022 18 were required to cover the claimant's shifts. This is against the background that hospitals were still facing the consequences and pressures of the covid 19 pandemic throughout this time.

[96]Mr Morgan’s evidence was that at the time the decision was taken the Omicron strain of covid 19 was prevalent. As a result, there was not only an increase in patients within the hospital setting but also a lack of staff due to the requirement to self-isolate or due to being ill themselves with the virus.

[97]The evidence that the tribunal heard from both Ms Richards and Mr Morgan was that the claimant worked night shifts and that parts of his role was specialised in understanding patient pathways for which the claimant agreed. As a result, the business had to rely upon existing trained colleagues to cover his absence via overtime, rather than being able to rely on agency staff who would not have had the required knowledge or skillset regarding pathways. Ms Morgan’s evidence was that this was managed by moving the staff trained in the claimant’s role to cover his absence and then back filling those people shifts by way of overtime. This became increasingly difficult at this time due to the pressures of staffing caused by the Omicron variant.

[98]The tribunal also note the evidence of Mr Morgan that the sick notes were on a month by month basis and that meant that the claimant's absence was more difficult to plan for as it was unknown if he would be returning the following month. In that regard, however, Ms Richards’ evidence was that training staff to perform the claimant's role would have been possible quite quickly namely within a number of weeks. It is also noted that the respondent is a large organisation employing a number of porters. In those circumstances the tribunal do not accept in itself that that is a sufficient reason to have terminated at that point.

[99]We do however note that based on our findings, Ms Richards was entitled to conclude that it was unlikely that the claimant was going to be able to return to work. His position until the meeting in December was that he could not work with the mask which triggered his pre-existing condition of anxiety. Even if it had been reasonable to await the expiry of the sick note in January, the claimant’s position was that he still would not return in January and that is supported by the sick note itself which suggests a return in February and his response to Ms Richards during the meeting that he wanted to await GP advice.

[100]On the evidence available there was no suggestion that the requirement to wear a mask in clinical settings was due to end at any time. This was set out in the mandates and the updates received by the respondent. Ms Richards was therefore entitled to conclude that there was not likely a chance of improvement given the claimant’s position throughout that he could not wear a mask, and such a conclusion fell within the band of reasonable responses.

[101]It is noted that Mr Fordham had a lengthy period of employment, and the tribunal considers it important to recognise this in assessing reasonableness. In the circumstances the claimant had been off for a period of nine months and Ms Richards was entitled to conclude, on the information available to her, that it was not likely that the claimant would be able to return to work wearing a mask. No adjustments could be made around the mask and there was no alternative work available despite steps taken to look into this. The dismissal Case Nos: 3300073/2022 & 3300138/2022 19 followed a lengthy process which included a number of welfare meetings as well as meetings within the long term absence policy.

[102]In all of the circumstances the tribunal therefore concludes that dismissal was within the band of reasonable responses.

[103]Therefore the claim for unfair dismissal is not well founded and is dismissed. Discrimination – Burden of proof

[104]In this case the tribunal relies upon Hewage v Grampian Health Board

[2012] IRLR 870

, SC cited above. This is a case where the tribunal is able to make positive findings on the evidence one way or another and we do so in our findings and conclusions. Discrimination arising from disability – s15 EQA

[105]It is accepted that the claimant was dismissed. It is also accepted that the claimant’s inability to wear a face mask arose as a consequence of his anxiety. It is also accepted that the respondent dismissed the claimant because he was unable to wear a facemask which became a requirement of his role.

[106]The key question for the tribunal to consider is whether the treatment was a proportionate means of achieving a legitimate aim.

[107]In relation to a legitimate aim, we find that there was one, and that is the use of masks with the aim of preventing the spread of covid 19. It is a matter of judicial notice that there was a global pandemic which commenced in March 2020. As a result, the UK government introduced a requirement for members of the public to wear face coverings in certain circumstances. This extended to hospital settings within which the claimant worked.

[108]The purpose of the use of face coverings was to attempt to minimise the spread of covid 19 and the government guidance at the time was that mask wearing did assist the spread. We do not make any findings as to whether it did or it did not, but that was the government advice, and the respondent was following that advice. That is supported by the mandate at page 123 which states that the ‘Scientific Advisory Group for Emergencies previously confirmed that face coverings can help reduce the transmission if you are suffering from coronavirus but not showing symptoms.’

[109]In applying this requirement, the respondent is following a government mandate to do so as seen at page 123. It is also following their client’s instructions which are repeated by the Head of facilities in an email at page 100. This was also supported by guidance given from the Chief Nurse as can be seen at page 181.

[110]This policy had the legitimate aim to protect the health and safety of both the workforce and patients within hospital by reducing the risk of the virus spreading. This was a matter of public interest. There were no other options which could have been adopted which would achieve this aim within the Case Nos: 3300073/2022 & 3300138/2022 20 claimant’s role. He was patient facing within a clinical setting and as such alternative measures such as social distancing was not possible. One of the claimant’s key duties was to transport patients within the hospital setting. This would not only see him come into contact with the patient but also a number of other individuals, namely other patients and hospital staff.

[111]We do consider in those circumstances that the treatment was appropriate and reasonably necessary way to achieve that aim. If the claimant had not been dismissed, he would have either remained on leave for an unknown period with no suggestion that the wearing of masks would be lifted in the near future. Alternatively, he would have attended his place of work without wearing a mask. The email at page 100 is that no one can be within the hospital setting without a mask and the respondent’s evidence is that, had the claimant attended in those circumstances, he would have been sent home.

[112]We find that there was not anything less discriminatory that could have been done instead because the issue of adjustments was looked at. At page 119 of the occupational health report, enquiries were made as to whether an alternative mask could be worn, and the response was it could not. The mandate at page 124 expressly states that this must be a type 1 or 2 surgical mask. It was explored whether additional breaks could be provided to allow the use of a mask however it was considered that this would not be possible in light of the claimant’s duties. In any event the claimant’s position had been that he could not wear a mask at all. Alternative employment was also looked at, however the available roles either required the claimant to wear a mask or were deemed not suitable by him.

[113]The tribunal acknowledges that the claimant was dismissed after 20 years of service in circumstances where mask wearing became a requirement of his role. His disability was such that he could not wear the mask and his needs in that regard need to be balanced. However, the respondent was required to follow its client’s instructions and the mandate of the use of masks within a hospital setting. This was to minimise the risk of the spread of the virus to the wider workforce and patients. The tribunal notes the business needs of the respondent and the need to have cover for the claimant’s role at a time when a new variant of the coronavirus was prevalent.

[114]The Tribunal therefore concludes that the claimant’s dismissal was a proportionate means of achieving a legitimate aim and the claim for discrimination arising from disability therefore fails. The complaint is not well founded and is dismissed. Indirect discrimination – s19 EQA

[115]It is accepted that the respondent had a PCP (policy) of requiring employees to wear a face mask and that policy applied to the claimant and employees without a disability.

[116]The PCP must put persons who share the claimant’s characteristic at a particular disadvantage when compared to persons who do not have that characteristic. This is referred to as a “group disadvantage”. Case Nos: 3300073/2022 & 3300138/2022 21

[117]In order to test whether there is a group disadvantage, it may be necessary to construct a pool of people for comparison.

[118]Some issue was taken by the respondent in terms of the identification of the pool by the claimant. Applying Allonby v Accrington and Rossendale College and ors

2001 ICR 1189

, CA the pool is not a factual question but one of logic once you know the PCP. The appropriate pool in the circumstances is all employees of the respondent who were affected by the policy, in this case all those working within a hospital setting.

[119]The Tribunal concludes that in comparing those without anxiety to those that do the claimant has shown that there is a particular disadvantage to those who share the claimant’s protected characteristic. The claimant described his experiences of mask wearing and the effects caused by his anxiety, and this was unchallenged. Whilst the Tribunal accepts that not all those with anxiety would suffer effects from wearing a face covering, the tribunal’s knowledge of the condition and its symptoms is such that it is a matter of common sense that the wearing of a face mask could trigger those symptoms. The resulting consequence of this is that those with the claimant’s disability were more likely to have been unable to work with a face covering and face a long term absence process as a result. The Tribunal therefore concludes that there was both a group disadvantage and individual disadvantage to the claimant as a result of the requirement to wear a face mask.

[120]Therefore, the key question for the tribunal was whether the policy (PCP) of mask wearing a proportionate means of achieving a legitimate aim. In that regard we repeat the reasons provided above which apply equally to this complaint.

[121]We therefore conclude that the PCP was a proportionate means of achieving a legitimate aim and the complaint of indirect discrimination therefore fails. The complaint is not well founded and is dismissed. Failure to make reasonable adjustments s20 and 21 EQA

[122]Following a report from a nurse in March 2021, the claimant was invited to an investigatory meeting on 25 March 2021. Within that meeting, the claimant disclosed that he had anxiety and that the wearing of a face mask was triggering the same. This was followed up by a referral to occupational health who confirmed the same. The respondent was also in receipt of medical evidence from the claimant’s GP dated 26 May 2021 which confirmed the claimant’s disability. The tribunal concludes from the same that the respondent knew the claimant had a disability from 26 May 2021.

[123]Again, it is accepted that the respondent had a PCP of requiring employees to wear a face mask. It is also accepted that this placed the claimant at a substantial disadvantage in that he was unable to wear a face mask and this led to his dismissal.

[124]The claimant states that the respondent could have exempt him from wearing a face mark by way of reasonable adjustment. In that regard the Case Nos: 3300073/2022 & 3300138/2022 22 Tribunal refers to page 100 of the bundle, that being correspondence from the head of facilities from the Trust indicating that in no circumstances can anyone not wear a face mask.

[125]The government mandate at page 123 of the bundle states that this applies to all staff. There is no reference within that document to exemptions save for a note at the bottom which is a link to a separate document. That separate document is not before the Tribunal and the claimant has not taken us to any documentary evidence that an exemption existed.

[126]The claimant contends that his GP’s letter exempts him from wearing a mask. Our conclusions in that regard are addressed above. To confirm the tribunal concludes that the letter set out his medical condition and in light of that made a request that the claimant be exempt from wearing a mask, rather than it in itself being an exemption.

[127]In contrast to that, the respondent's evidence was that no exemptions existed and that is supported by the email at page 100. It is also supported by occupational health’s enquiries at page 119, namely that there is no alternative to the fluid resistant surgical mask.

[128]The claimant's pleaded claim is that the reasonable adjustment should have been an exemption from wearing a face mask. There has also been reference to the wearing of a face visor and for completeness this issue is addressed.

[129]In that regard the claimant again points us to the doctor's occupational health report at page 133 and states this made a recommendation that the claimant wear a visor. Again, the tribunal’s findings on that document are noted above and we conclude that simply acknowledged that the claimant was willing to wear a visor.

[130]The mandate at page 123 is clear that only type 1 or 2 surgical masks can be worn. This is again supported by the occupational health report at page 199 which states that only these masks can be worn.

[131]In all of the circumstances the Tribunal concludes that it was not reasonable for the respondent to have exempt him from wearing a mask or allowing him to wear a visor in circumstances where it was a mandated requirement with the aim of preventing the spread of coronavirus.

[132]As such the complaint of failing to make a reasonable adjustment is not well founded and is dismissed. Employment Judge French Date: 4 September 2024 Judgment sent to the parties on 5 September 2024 For the Tribunal office Case Nos: 3300073/2022 & 3300138/2022 23 Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/ Case number: 3300073/2022 and 3300138/2022 EMPLOYMENT TRIBUNALS Claimant Respondent Mr G Fordham v Compass Group UK & Ireland Limited T/A Medirest RECONSIDERATION JUDGMENT The claimant’s application for a reconsideration of the Reasons Judgment sent to the parties on 5 September 2024, is refused.

[1]On 17 September 2024, the claimant applied for a reconsideration of the Reasons Judgment sent to the parties on 5 September 2024. The tribunal apologises for the delay in providing this reconsideration Judgment, however the claimant’s reconsideration application dated 17 September 2024 was not referred to Employment Judge French by the administrative team until 9 December 2024.

[2]I address each of the claimant's grounds for reconsideration in turn using the same headings. Ground 1 - Breach of Procedural fairness and natural justice.

[3]The claimant states that there should be reconsideration of the Judgment because new case law was introduced in the respondent's closing submissions, and he did not have the opportunity to address it. The respondent primarily relied on written closing submissions which were provided to the claimant by email 21 February 2024 and which was copied to the tribunal. . At the conclusion of the case the respondent relied on those written submissions and expanded on Case number: 3300073/2022 and 3300138/2022 them orally. The tribunal’s note of the oral submissions notes that the respondent referred to one case namely BS v Dundee City Council [2013] ScotsCS CSIH_91.

[4]The claimant had provided the tribunal with written submissions and at the conclusion of the respondent's oral submissions was given an opportunity to address the tribunal further, which he indicated he did not wish to do. The claimant did not request any additional time to look into the case referred to in the respondent's oral submissions. In the grounds for re-consideration the claimant has not identified how additional time to consider the case would have resulted in a different outcome such to make reconsideration of the Judgment necessary in the interests of justice in accordance with rule 70 of the Employment Tribunal Rules of Procedure 2013.

[5]Further, the case referred to by the respondent in oral submissions was dealt with by the Scottish Employment Tribunal and as such this tribunal are not bound by the decision in any event.

[6]Further, and most importantly, the tribunal did not rely on this case in any way to determine the claimant’s claim. It is not relied on in the law section of our reasons or in any part of our conclusions. Therefore, given the case played no part in the tribunal’s decision-making process, I do not consider that there is any reasonable prospect of the original decision being varied or revoked under this ground. Ground 2 - Violation of Employment Tribunal Rules of Procedure

[7]There is an overlap under this heading with the points raised in the first ground for reconsideration, namely that the claimant states that he should have been given time to consider and respond to the new case law and any failure to allow him to do so is a breach of the employment tribunal rules.

[8]The tribunal repeats its observations above. The tribunal did not apply the case referred to by the respondent in oral submissions in reaching its decision. Therefore, given the case played no part in the tribunal’s decision-making process, I do not consider that there is any reasonable prospect of the original decision being varied or revoked under this ground. Ground 3 - Improper application of

The law

[9]After a hearing on liability heard on 5 to 7 June 2024, the tribunal gave judgment on liability. In relation to the judgment on liability, the tribunal considered Case number: 3300073/2022 and 3300138/2022 carefully the evidence, made findings of fact, and applied the law to those findings in its conclusions.

[10]Having read the claimant’s application I am satisfied that this ground seeks to challenge the tribunal’s findings of fact and conclusions, and is an attempt to re-litigate the case. Ground 4 - Breach of the Equality Act

[11]Again, having read the claimant’s application I am satisfied that this ground seeks to challenge the tribunal’s findings of fact and conclusions, and is an attempt to re-litigate the case. Ground 5 - Human Rights Violations

[12]As above, having read the claimant’s application I am satisfied that this ground seeks to challenge the tribunal’s findings of fact and conclusions, and is an attempt to re-litigate the case. Ground 6 – misapplication of medical evidence and credibility

[13]As above, having read the claimant’s application I am satisfied that this ground seeks to challenge the tribunal’s findings of fact and conclusions, and is an attempt to re-litigate the case. The tribunal carefully weighed both the medical evidence and the evidence of Ms Richards and has explained our findings in light of that consideration. Where there has been preference given to evidence, we have provided reasons for that. Ground 7 – Breach of contract

[14]This appears to be an entirely new complaint in relation to the claimant’s sick pay entitlement that was not before the tribunal for determination. As such I do not consider that it is relevant to why the judgment on the matters that were before the tribunal should be reconsidered.

[15]The claimant suggests that the non-payment of his wages was the catalyst for his anxiety and depression, however the claimant's case before the tribunal was that his anxiety and depression was due to the requirement to wear a face mask, and this was supported by the medical evidence. The claimant therefore appears to Case number: 3300073/2022 and 3300138/2022 be raising an entirely different argument than that advanced by him at the final hearing and again, I consider it is an attempt to re-litigate the case. Ground 8 – delayed Judgment and reasons

[16]The tribunal gave an oral judgment with reasons at the conclusion of the three day full merits hearing on 7 June 2024. There was no delay in the claimant knowing the outcome of his claim as it was provided to the parties at the conclusion of the hearing orally.

[17]The Judgment was drafted by Employment Judge French on 7 June 2024 and sent to the administration team that same day to be sent to the parties. As previously explained to the claimant (in tribunal correspondence) the delay in sending this to the parties (not sent until 22 July 2024) was an administrative one. It has no bearing on the decision made by the tribunal which had already been made and delivered orally to the parties at the hearing on 7 June 2024.

[18]In relation to the written reasons, these were requested by the claimant on 25 July 2024 and acknowledged by Employment Judge French on 30 July 2024 who wrote to the parties to explain she was on a period of pre-booked annual leave until 4 September 2024. The reasons were provided immediately on my return and dated 4 September 2024. They were sent to the parties by the tribunal on 5 September 2024.

[19]As such the tribunal does not consider that this ground amounts to a reason why the decision should be reconsidered in the interests of justice. The tribunal’s decision would remain the same regardless of the unfortunate delay experienced by the claimant due to the administrative resources of the tribunal.

Conclusions

[20]Under rule 71 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, as amended, “ET Rules of Procedure”, a party can make an application for reconsideration within 14 days of the date on which the original decision was sent or within 14 days from the date that the written reasons were sent, if later.

[21]Rule 72(1) provides: “An Employment Judge shall consider any application made under rule 71. If the judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the tribunal shall inform the parties of the refusal. Otherwise the tribunal shall send a notice Case number: 3300073/2022 and 3300138/2022 to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application.”

[22]Under rule 72, ET Rules of Procedure, and having regard to the matters above, I have concluded that there is no reasonable prospect of the judgment being either varied or revoked. Accordingly, this application by the claimant for a reconsideration, is refused.