Employment Judge YoungIn person for claimantDate 11 July 2025
JUDGMENT
The unanimous decision of the Employment Tribunal is:[1]The Claimant’s complaint of unfair dismissal is not well founded and is dismissed.[2]The Claimant’s complaints of failure to make reasonable adjustments are not well founded and are dismissed.[3]The Claimant’s complaints of indirect disability discrimination are not well founded and are dismissed.[4]The Claimant’s complaints of discrimination arising from disability are not well founded and are dismissed.
REASONS
[1]The Claimant commenced employment with the Respondent on 27 February 2018. The Claimant worked as a part time postman; his role was “Operational Postal Grade” for the national postal service until his dismissal on 21 December 2023. The Claimant contacted ACAS on 6 February 2024 and an early conciliation certificate was issued on the 6 March 2024. The Claimant presented his claim form on 7 March 2024. The Claims and Issues[2]The Claimant’s claims were unfair dismissal, failure to make reasonable adjustments, discrimination arising from disability and indirect disability discrimination. The list of issues was revised on the day of the hearing as there was some gaps in the list that were provided on the morning of the first day of the hearing. The issues agreed are as follows:[1]Unfair dismissal1.1 What was the principal reason for dismissal and was it a potentially fair one in accordance with sections 98(1) and (2) of the Employment Rights Act 1996 (ERA)?: The Respondent asserts that the reason was misconduct which is a potentially fair reason.1.2 If the principal reason for dismissal was a fair one, was the dismissal fair or unfair in accordance with section 98(4) ERA, and, in particular, did the Respondent in all respects act within the so-called “band of reasonable responses? This applies to both the procedure followed and also the decision to dismiss.[2]Unfair dismissal remedy If the Claimant was unfairly dismissed:2.1 Should the tribunal order the Respondent to reinstate the Claimant?2.2 If the remedy is compensation:(i) Should any compensation awarded be adjusted to reflect mitigation and/or any failure on the part of the Claimant to take reasonable steps to mitigate his loss?(ii) If the dismissal was procedurally unfair, what adjustment, if any, should be made to any compensatory award to reflect the possibility that the Claimant would (a) still have been dismissed at the EDT or (b) have been dismissed in time anyway?(iii) Would it be just and equitable to reduce the amount of the Claimant’s basic award because of any blameworthy or culpable conduct before the dismissal pursuant to s122(2) ERA and, if so, to what extent?(iv) Did the Claimant, by blameworthy or culpable actions, cause or contribute to dismissal to any extent; and, if so, by what proportion, if at all, would it be just and equitable to reduce the amount of any compensatory ward, pursuant to s123(6) ERA? Disability discrimination The Respondent accepts that the Claimant was disabled at all material times by reason of anxiety and depression[3]Discrimination arising from disability: section 15 EqA3.1 Did the following thing arise in consequence of the Claimant’s disability? The Claimant took the Respondent’s van home on 28 September 2023.3.2 The Claimant says the Respondent treated the Claimant unfavourably by subjecting him to disciplinary proceedings and dismissing him.3.3 Did the Respondent treat the Claimant unfavourably in any of those ways?3.4 If so, did the Respondent treat the Claimant unfavourably because of “the thing” arising in consequence of his disability?3.5 If so, has the Respondent shown that the unfavourable treatment was a proportionate means of achieving a legitimate aim? The Respondent relies on the following as its legitimate aims: The absolute requirement of employees to be legally insured when driving Royal Mail vehicles in case of instance of a road traffic collision, damage, loss or theft etc. and achieving this via the imposition of strict policy/procedure surrounding the use of company vehicles with the potential result of disciplinary action and/or dismissal.[4]Indirect discrimination: s19 EqA4.1 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCP? Failing to give sufficient weight to an employee’s mental and/or physical impairments when(i) initiating and pursuing disciplinary proceedings and(ii) deciding on disciplinary sanctions.4.2 Did the Respondent apply the PCPs to the Claimant at any relevant time?4.3 Did the Respondent apply (or would the Respondent have applied) the PCP(s) to persons with whom the Claimant does not share the same disability (“the comparator group”)?4.4 Did the PCPs put persons with the same disability as the Claimant at one or more particular disadvantages when compared with the comparator group in that: 4.4.1. Not recognising the Claimant’s mental impairment 4.4.2. During that time had an increasing in stress and worsening health.4.5 Did the PCPs put the Claimant at those disadvantages at any relevant time?4.6 If so, has the Respondent shown the PCP(s) to be a proportionate means of achieving a legitimate aim? The Respondent relies on the following as its legitimate aim(s): The absolute requirement of employees to be legally insured when driving Royal Mail vehicles in case of instance of a road traffic collision, damage, loss or theft etc. and achieving this via the imposition of strict policy/procedure surrounding the use of company vehicles with the potential result of disciplinary action and/or dismissal.[5]Reasonable adjustments: ss 20 & 21 EqA5.1 Did the Respondent have the following PCP(s): Failing to give sufficient weight to an employee’s mental and/or physical impairments when(i) initiating and pursuing disciplinary proceedings and(ii) deciding on disciplinary sanctions.5.2 Did any such PCP put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time, in that: 5.2.1Not recognising the Claimant’s mental impairment 5.2.2 During that time had an increasing in stress and worsening health.5.3 If so, did the Respondent know, or could it reasonably have been expected to know, the Claimant was likely to be placed at any such disadvantage?5.4 If so, were there steps that were not taken that could have been taken by the Respondent to avoid any such disadvantage? The burden of proof does not lie on the Claimant; however, it is helpful to know what steps the Claimant alleges should have been taken and they are identified as follows:5.4.1 A more supportive, informal approach in the first instance rather than immediate disciplinary action.5.4.2 Consideration of medical evidence at an early stage. 5.4.3. Obtaining and properly considering Occupational Health advice. 5.4.4. Providing the Claimant with additional time to respond to allegations. 5.4.5. Allowing a representative, note-taker or advocate to assist the Claimant; 5.4.6. Modification of communication methods - consistent access and communication to a single investigating manager, with regular updates. 5.4.7. Providing information in written format, in a clear and concise fashion; 5.4.8. Avoiding disciplinary sanction where disability is a contributing factor; 5.4.9. Consideration of alternative responses such as support plans, referrals to Occupational Health and the setting of reasonable performance expectations.6.6 If so, would it have been reasonable for the Respondent to have to take those steps at any relevant time?[6]Discrimination Remedies If the Respondent discriminated against the Claimant, should the Tribunal:6.1 order the Respondent to pay the Claimant:6.2 compensation for financial loss; and/or6.3 an award for injury to feelings?6.4 make a declaration as to the rights of the Claimant and the Respondent in relation to the matters to which the proceedings relate?6.5 make a recommendation that the Respondent take specified steps for the purpose of obviating or reducing the adverse effect of any matter to which the proceedings relate on the Claimant or on any other person? The Hearing and Evidence[7]The hearing was via CVP over a period of 4 days. We received an agreed bundle of 449 pages. The Employment Tribunal was also given written witness statements for the Claimant and for the Respondent, Mr David Austin, Lead Customer Operations Manager (at the material time, he was Delivery Office Manager for Kiln Farm) and Mr Steven Potter, Independent Casework Manager. We heard evidence from all the witnesses who produced a statement.[8]The Employment Tribunal had granted the Claimant’s application to give evidence via CVP. However, on day 1 it became clear that the Claimant did not have access to the bundle or his statement at the same time as attending the hearing as he was using his mobile phone to access the hearing. The Employment Tribunal ordered that the Respondent send the Claimant a hard copy bundle and witness statements by 14:00 that day and that was arranged. The Employment Tribunal went through the ‘agreed’ list of issue but it became clear that the Claimant had not agreed the issues and so the Employment Tribunal obtained the missing information regarding what the Claimant said that the disadvantages were in respect of his reasonable adjustments and indirect discrimination claims were as well as confirming the steps that the Respondent failed to take regarding his reasonable adjustments claim.[9]On day 4 (Friday 11 July) the Employment Tribunal began giving oral reasons at 14:07. However, by 14:37 the Claimant left the CVP without warning. The Claimant did not rejoin the hearing. It is in these circumstances, that the Employment Tribunal provides full written reasons with its judgment.
Findings of fact
[10]The following findings of fact are made on a balance of probabilities. Only findings of fact relevant to the issues, and those necessary for the Tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it has read and/or was taken to in the findings below but that does not mean it was not considered if it was referenced to in the witness statements/evidence and considered relevant. All references in square brackets are a reference to the agreed bundle pages unless preceded by the word paragraph and then it is a reference to the paragraph numbers of the relevant witness statement.[11]The Claimant was not a credible witness, some of the Claimant’s evidence did not make any sense. Some of the Claimant’s answers were evasive. We found the Respondent’s witnesses to be witnesses of truth whose evidence was clear and consistent with the documentary evidence.[12]The Claimant’s continuous employment began on 27 February 2018. [61] The Claimant was employed as a part time 25 hours per week postman at the Luton Delivery Office. [62 & 63] The Claimant worked at various sites throughout his employment. From 5 November 2018 [77] the Claimant increased his hours to 30. He then moved to Sheffield from September 2019, but within 1 month moved back the Luton area. Initially the Claimant was moved to the Buckingham Delivery Office and because the Claimant did not have use of a car and so allowed to use the Respondent’s van on a temporary basis. From 18 November 2019 [79] the Claimant moved to Ampthill Delivery Office and reduced his hours from 30 hours to 25. We accept Mr Austin’s evidence that the arrangement regarding the use of the Respondent’s van was carried over to when the Claimant moved to Ampthill Delivery Office, but this was a temporary arrangement.[13]From the 25 April 2022 the Claimant increased his hours back to 30 hours per week [81]. Stuart Baxter was a manager at Ampthill Delivery Office. When the Claimant was working at the Ampthill Delivery Office, he had spoken to Stuart Baxter about his mental health issues. However, the Claimant’s oral evidence was that Mr Baxter’s response to this disclosure was not much. However, we note that Stuart Baxter did write to the recruitment office to follow up on the Claimant’s request of a transfer and this was in the period where the Claimant told the recruitment office that he had been referred to Occupational Health/First Class Support (employee assistance programme). Furthermore the Claimant’s written witness statement contradicts his oral evidence that Stuart did not do much as the Claimant himself states that Mr Baxter recommended that the Claimant speak to First Class Support to see what they could do [paragraph 11 of the Claimant’s witness statement].[14]The Claimant was offered a transfer to the Brinklow Delivery Office prior to September 2022. Prior to his transfer whilst at the Ampthill Delivery Office, the Claimant was told that he could not take the van home without permission [119].[15]The Claimant’s contract of employment stated that he was subject to the Respondent’s conduct policy [69]. The Respondent’s conduct policy states “ seek help as soon as they recognise that they are in a situation which could compromise their behaviour or if they have any concerns regarding their job” [41] The Claimant accepted in evidence that he had been trained on the Respondent’s policies during his employment but said that he did not realise that this obligation was part of the policy. We find that the Claimant was trained on the Respondent’s conduct policy and did know that he was obliged to seek help when he was in a situation that could compromise his conduct.[16]Since 2021 the Claimant had been applying for a transfer to a Delivery Office closer to his home. The Claimant wrote to the recruitment office on 4 March 2021 explaining that he has some mental health issues of depression panic attacks and anxiety and that he had a telephone call with Occupational Health/First Class Support [87]. The Claimant wanted to be transferred to the Luton Delivery Office.[17]The Claimant lost his nan in early 2022 and on 8 August 2022, the Claimant was informed that his father had died. The Claimant called his manager Paul Talbot and told him what happened and went home. In March 2023 the Claimant went to Turkey to see his father’s grave which had been delayed because of his mother’s illness. On his return the Claimant’s evidence was that he started to feel unwell, he would be emotional and sometimes breakdown due to stress. The Claimant said that his mother started to get unwell again. On 26 August 2023 the Claimant had a panic attack at Flitwick train station. The Claimant’s evidence was that he had been stressed out leading up to that incident. However, there was no medical evidence in the Claimant’s GP records that referred to such an incident. There was, however, evidence that on 20 September 2023 [160] the Claimant was feeling anxious and panicky. The Claimant was prescribed Sertraline which he had not been taking for 9 months prior to this date.[160] However, we note that there was no mention in the Claimant’s medical records of the Claimant feeling panicky and anxious up to the move to the Ampthill Delivery Office. Yet the Claimant said that he was experiencing psychological emotions and was anxious due to the upheaval of the move to Ampthill Delivery Office at the fact finding interview on 23 October 2023.[103][18]Tuesday 26 September 2023 was the Claimant’s first day at the Brinklow Delivery Office. Stuart Baxter was the manager there and on the first day, the Claimant asked Mr Baxter whether he could take the van home. Mr Baxter’s response was that that you do know that you can’t take the van home from here and the Claimant’s response to that was that he had been told that. Mr Baxter told him that there was a manager facing disciplinary action for taking the van from this office and the same would happen to him. The Claimant’s response to that was no worries he would be taking the bus and he had already been told not to take a van. The Claimant was told twice by Mr Baxter not to take the van home. Yet on that same day the Claimant took home the keys to the van [139] and the following day on 27 September 2023 the Claimant took the van keys home again. In the formal fact finding meeting the Claimant said that the reason he took the keys home on both occasions was that he forgot he had them in his pocket. We note however, in evidence he said that he was distracted and that he was talking to another member of staff.[19]On Thursday 28 September 2023, the Claimant attended work. His shift finished at 18:00. The Claimant said at the fact finding meeting that “I was anxious and panicky, sat in the van for 15 minutes to think about it and overpressured myself thinking too much.” [103]. The Claimant drove the van home. In oral evidence he said that his heart was going, he felt panicky and he wanted to get home to his safe space. He said that he sat in the van for 15 minutes because he wanted to calm himself down but things got worse. In evidence when asked why he did not contact any one before driving the van home. The Claimant said in oral evidence that he was not thinking about that due to increased stress and anxiety emotions everywhere.[20]On 29 September 2023 the Claimant drove to work the following day, even though Claimant said in oral evidence that he was feeing 50/50 and not too good. He said that he came to work because even though he was not feeling too good he wanted to see how it went through the day and he was still not feeling good throughout the day. The Claimant admitted that he did not speak to anyone on 29 September 2023 about the van because he was scared and still wasn’t feeling himself and then he was approached by a manager who asked him if he had taken the van home without permission. The Claimant admitted to that manager that he had taken the van home without permission and explained that he had taken the van because of his mental health.[21]On 30 September 2023, the Claimant was suspended from work [[92]. The Claimant was interviewed informally with his union representative present and when asked why he took the van home, he stated “I felt anxious and have previously suffered from mental health problems and wasn’t thinking straight and did think should I or shouldn’t I”. [90] The Claimant admitted that he had been given explicit instructions on Tuesday 26 September 2023 not to take the van home. The Claimant said that he had no problems taking the bus but felt at the time he needed to get home and he knew he shouldn’t have done it. The Claimant said that he was sorry for taking the van but he was on medication for anxiety and depression [91].[22]The Claimant was then invited to attend a formal fact finding meeting under the conduct policy for 23 October 2023 [99] by Catherine Soul. The Claimant attended that meeting, and repeated that he was aware there was no van retention policy at Brinklow [103]. When asked why he had taken the van home, he said “I was anxious and panicky, sat in the van for 15 minutes to think about it and over-pressured myself thinking too much.” [103]. He again stated that he knew he shouldn’t have taken the van and that he should be in control of his emotions but that his father died in August 2022, he still struggles dealing with it, he realised his mental health issues were gradually building up and he had just started to take medication again when incident happened and “so was experiencing panic attacks and anxiety which are stated in the medication side effects.” [104] The Claimant said in that interview that it will never happen again. The Claimant said that he had no further correspondence about his suspension.[23]Following the formal fact finding the Claimant was referred to Occupational Health [104]. The Respondent’s conduct policy had gross misconduct as including Deliberate disregard of health, safety and security procedures or Instructions” [43]. Ms Soul referred the matter to a higher authority manager, Mr David Austin.[106][24]The Claimant attended Occupational Health on 15 November 2023 [107- 108] Occupational Health produces a report. The Occupational Health advisor Dr Harpreet Saini states in the report under additional detail as per the referral form “Employee is on medication for mental health and has been on and off for 5 years, he thinks this could be the reason he is now on the formal conduct procedure and could be considered under the disability act.” [107][25]Dr Harpreet Saini states under the heading Equality Act in the report “based on my assessment the disability provisions of the Equality Act 2010 would be likely to apply…” [108][26]Dr Harpreet Saini states in the report “Mr Ozan tells me that he restarted medication on 20th September and was having some side effects of increased anxiety and nausea. On the day he took the van he reports not feeling himself and feeling panicky.” [108] We find that this is inconsistent with the Claimant’s witness statement that he restarted taking his medication on 27 September 2023 [paragraph 21 Claimant’s witness statement][27]Dr Harpreet Saini gives the opinion that “Using a validated tool to measure anxiety, Mr Ozan’s score was normal and not suggestive of anxiety. Mr Ozan is managing day to day activities.” And “Based on the information available to me today, Mr Ozan is fit for work. His symptoms of anxiety have improved with medication. He is fit to participate in work-related processes.” We find that Dr Harpreet Saini does not give any opinion or medical advice about why the Claimant took the van home, or that the Claimant’s mental health had anything to do with the Claimant having taken the van home. We find that no reasonable adjustments were required as Dr Saini found that the Claimant is fit to participate in work-related processes.[28]The Claimant was invited to a disciplinary hearing for 30 November 2023 [109] and 6 December 2023 [112] but the Claimant did not receive the invites before 6 December 2023. The Claimant received the letters dated 24 November 2023 & 1 December 2023 inviting him to a disciplinary for 30 November 2023 & 6 December 2023 respectively on 6 December 2023. In both letters, it stated “being invited to a formal conduct meeting to discuss the taking home of the vehicle which is against Royal Mail policy on the use of vehicles.” As well as “At this meeting you will be given every opportunity to fully explain your actions and present any evidence or points of mitigation in relation to your case, before a decision is made”. [109 & 112][29]The Respondent’s policy on vehicles states “that RMG vehicles will only be used for RMG business purposes, except where other use has been authorised and agreed by RMG through recognised processes e.g. Overnight Retention and Company Car agreements” [445][30]The letters also stated “You should be aware that:• I will take into consideration your conduct record which is currently clear. This formal notification is being considered as gross misconduct. If the conduct notification is upheld, one outcome could be your dismissal without notice.• You may be accompanied at the meeting by your trade union representative or a work colleague normally from the same work location.” [109 & 112][31]The Claimant contacted Mr Austin on 6 December 2023 to arranged for the meeting to take place on 8 December 2023. The Claimant admitted in oral evidence that he was constantly chasing the Respondent for an update. Mr Austin said that the Claimant was calling Ms Soul regularly and when he took over the case the Claimant called him every day. We accept Mr Austin’s evidence.[32]The Claimant attended the meeting without a union representative or colleague. The Claimant was asked if he wanted representation, but he said that he wanted the case over [116]. Mr Austin did emphasis the severity of the case and that dismissal was a potential outcome. [116] The Claimant admitted at the disciplinary hearing that Mr Baxter had told him on Tuesday 26 September 2023 “under no circumstances can vehicles be taken home” [116] Mr Austin asked him if he spoke to any one before he took the vehicle, and the Claimant’s response was “No I didn’t, I didn’t think, I just took it upon myself to get home quickly, I wasn’t thinking straight, that is what having a mental illness does to you.” [116] Mr Austin put to the Claimant “So at no stage did you think to contact Caf or anyone else, to explain how you were feeling and to get any permission.” [116] The Claimant’s response was “I knew that taking the vehicle home was wrong, wasn’t in control of emotions.” [117] The Claimant signed and agreed the notes of the disciplinary hearing on 11 December 2023 [117].[33]Mr Austin carried out further investigation by contacting Mr Baxter following the hearing. Mr Baxter provided a statement by email dated 18 December 2023 and Mr Austin sent this statement to the Claimant before making his decision so that the Claimant could comment on the statement. Mr Austin considered Mr Baxter’s statement, the Claimant’s fact finding interviews, disciplinary hearing notes and the 15 November 2023 occupational health report in coming to his decision.[34]By letter dated 19 December 2023 the Claimant was invited to attend an outcome meeting [122]. The Claimant attended the outcome meeting [127] and by letter dated 21 December 2023 [123-124] Claimant was summarily dismissed for gross misconduct. The reason for dismissal was set out by Mr Austin in the letter as “I can come to no other conclusion that you have knowingly made a serious breach of Royal Mail policy. I therefore have to consider what penalty to apply, and in doing so have also used a recent case in the Brinklow unit as a comparator. I have taken into account how you were feeling at the time, and you said, 'I didn't think, I just took it upon myself to get home quickly, I wasn't thinking straight, that is what having a mental illness does to you.' The fact that you chose not to contact anyone to say how you were feeling, to seek any help, you just went home in the vehicle, leads me to having to apply the most serious penalty I can apply, especially when I compare your case to that of another in the unit very recently, I have considered a lesser penalty but your actions, how you went about to make the decision to just get home and the penalty awarded in the other case, has left me with no other choice.” [123]. The letter stated that the Claimant’s last day of service was 21 December 2023. [124][35]Mr Austin stated in the letter that he took into consideration the fact the Claimant said that he was not feeling himself, but that the Claimant had been assessed by occupational health who confirmed that the Claimant was fit to perform his duties, The Claimant knowingly took the vehicle home, even though he admitted he knew this was in the wrong. Mr Austin gave oral evidence which we accept that the Claimant did not raise in the disciplinary hearing anything about how the disciplinary process impacted his mental health. Mr Austin also said in oral evidence that he considered the Claimant’s mental health at the time the incident took place but took the view that because the Claimant was at work, and he knew the sickness policy and the process and at no time did he declare himself sick, but he went home at end of the day and he didn’t ring to say he was not well but he attended work. Mr Austin had to assume that the Claimant was well at the time of the incident. Mr Austin clarified in his evidence that he had lost all trust and confidence in the Claimant’s ability to act in accordance with its policies and procedures [paragraph 23] and that is why the penalty of dismissal was appropriate. Mr Austin confirmed in oral evidence that the Claimant did not provide any examples in the disciplinary hearing of what the Respondent could do in order to ensure that the Claimant did not repeat the behaviour in the future. We note that when the Claimant was asked in evidence if there was anything that would have changed the situation on the day to ensure that the situation did not happen, the Claimant said that there was nothing.[36]We accept Mr Austin’s oral evidence that the manager in the same unit as the Claimant (referenced by Mr Baxter) was dismissed for taking a vehicle without permission. We find that Mr Austin did consider the Claimant’s case on its own merits although he did use the manager taking the vehicle as a comparator in respect of the penalty to be applied.[37]By letter dated 22 December 2023, Claimant appealed his dismissal. The Claimant responded on a reply slip by hand that the dismissal was unfair on the grounds of his mental health and that was not considered [128]. The Claimant also provided a typed version of his grounds of appeal providing a little more detail of matters that contributed to his mental health of 1.losing my father has had a huge impact in my life. 2. Anxiety/depression. 3. Family problems. Royal Mail should have taken that into consideration. The Claimant also added “during the meetings I was not well. I have not been thinking straight.” [129][38]By letter dated 4 January 2024, the Claimant was invited to attend an appeal meeting with Mr Steven Potter on 15 January 2024 [130]. The Claimant’s union representative presented a mitigation document setting out the reasons why the Claimant’s dismissal should be overturned [132]. In essence the arguments were that the Claimant should not have been dismissed on his first offence, it was not gross misconduct to take the van without permission, the OHU referral was not particularly clear, the Claimant suffers anxiety and a tries to self-medicate, he received no training for this particular new role, but to be fair he is familiar with delivering parcels but not at this location, and he certainly wasn’t familiar with any local arrangements. He now accepts that he needs to learn how to use the various support mechanism’s that in turn can help him with both his work and homelife choices.[39]On 18 January 2024, the Claimant attended the appeal hearing with his union representative. At the hearing Mr Potter told the Claimant that it was a complete rehearing and that the Claimant could submit additional evidence.[40]The Claimant said at the hearing “I had just started medication and the side effects got worse as the day went on. The medication can take 6-8 weeks to get into the system. At the time, all I could think about was getting home and the more I thought about it, the worse it became.” [137-138] The Claimant also added that “The busses turn up every hour but sometimes are 15-20 minutes late and are packed. If the bus is full you have to get on the next one. It is an absolute nightmare to get to work and to get home.” [138][41]By email dated 18 January 2024, the Claimant accepted the notes of the appeal meeting that he had been sent except for one amendment, which Mr Potter was happy to accept. [134][42]Mr Potter considered all the documents that Mr Austin considered and in addition the Claimant’s union representative mitigation document and the notes of the appeal hearing in coming to his decision.[43]By email dated 2 February 2024, the Claimant was told that his appeal was dismissed and the dismissal was upheld.[143-145] Mr Potter referenced considering alternative penalties to dismissal in the conduct appeal decision report to the Claimant. Mr Potter confirmed in evidence that he considered the list in the conduct policy [46]. Mr Potter set out in his appeal decision that the reason for rejecting the alternative penalties to dismissal was because the Respondent had lost trust and confidence in the Claimant. We accept Mr Potter’s oral evidence that he thought there was premeditation on the part of the Claimant because Claimant had taken keys home twice. Mr Potter considered that once was a mistake, twice was not and that the taking the keys home was a dry run. Mr Potter explained in his oral evidence that the fact that the Claimant described taking the bus as a nightmare led him to believe that the Claimant thought that taking the van was easier than waiting for the bus.[44]Mr Potter states in his appeal decision that he did consider the Claimant’s mental health at the time of the incident. We find that whilst the Claimant gave evidence that he spoke to Ms Soul after he received the occupational health report. The Claimant also said that Ms Soul told him that there was no mention of the Claimant’s mental health in the report and so she was going to refer the Claimant again. We do not accept the Claimant’s evidence on this point. We find that the occupational health report mentions the Claimant referring to his mental health twice in the report and so there would have been no reason for Ms Soul to have said this to the Claimant. Furthermore, there was nothing in occupational health report to suggest that the Occupational Health doctor considered that the Claimant’s mental health had anything to do with the reason why the Claimant took the van without permission.[45]Mr Potter’s evidence was that here was no corrective actions left that the business could take to ensure the Claimant followed important business instruction in future. The Claimant’s repeated behaviours had (to the contrary) demonstrated a complete unwillingness of the Claimant to do so. Law Unfair dismissal[46]The test for unfair dismissal is set out in section 98 of the Employment Rights Act 1996 (“ERA 1996”). Under section 98(1) ERA 1996, it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2), e.g. conduct, or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.[47]The reason for dismissal is “a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee.” (Abernethy v Mott Hay and Anderson [1974] ICR 323, CA.)[48]Under s98(4) ERA 1996 “… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and shall be determined in accordance with equity and the substantial merits of the case.”[49]Tribunals must consider the reasonableness of the dismissal in accordance with s98(4) ERA 1996. However, Tribunals have been given guidance by the EAT in British Home Stores v Burchell [1978] IRLR 379, EAT as to how to deal with misconduct dismissals. There are three stages:(1) did the Respondent genuinely believe the Claimant was guilty of the alleged misconduct?(2) Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief(3) did they carry out a proper and adequate investigation?[50]Tribunals must bear in mind that whereas the burden of proving the reason for dismissal lies on the Respondent, the second and third stages of Burchell are neutral as to burden of proof and the onus is not on the Respondent (Boys and Girls Welfare Society v McDonald [1996] IRLR 129, [1997] ICR 693).[51]Finally, tribunals must decide whether it was reasonable for the Respondent to dismiss the Claimant for that reason.[52]It is well rehearsed law that the Tribunal must not substitute its own decision as to whether the decision of the employer to dismiss the employee was fair but must decide whether the actions of the employer in dismissing the employee were within the range of reasonable responses of a reasonable employer.[53]In the seminal authority of Iceland Frozen Foods Ltd v Jones ]1983] ICR 17, EAT, the EAT set out the position as this: “(1) the starting point should always be the words of [S.98(4)] themselves; (2) in applying the section [a] tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the… tribunal) consider the dismissal to be fair; (3) in judging the reasonableness of the employer’s conduct [a] tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; (4) in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another; (5)the function of the… tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”[54]The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. The objective standards of the reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed. (Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23, CA)[55]Included in applying the reasonable responses test, the Tribunals must also take into account the ACAS Code on Disciplinary and Grievance Procedures (“Code”). By virtue of section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992, the Code is admissible in evidence and if any provision of the Code appears to the tribunal to be relevant to any question arising in the proceedings, it shall be taken into account in determining that question.[56]Failure by any person to follow a provision of the Code does not however in itself render him liable to any proceedings. However, the Code is also relevant to compensation. Under section 207A, if the claim concerns a matter to which the Code applies and there is unreasonable failure by either the employer or the employee to comply with the Code, there can be an increase or reduction in compensation (respectively) according to what is just and equitable of up to 25%. Discrimination Burden of Proof in Discrimination[57]Proving and finding discrimination is always difficult because it involves making a finding about a person’s state of mind and why he has acted in a certain way towards another, in circumstances where he may not even be conscious of the underlying reason and will in any event be determined to explain his motives or reasons for what he has done in a way which does not involve discrimination.[58]The burden of proof is set out at Section 136 Equality Act 2010 (“EQA 2010”). Section 136 EQA 201 says:- “This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”[59]It is for the Claimant to prove the primary facts from which a reasonable Tribunal could properly conclude from all the evidence before it, in the absence of any other explanation, that there has been a contravention of the Equality Act. If a Claimant does not prove such facts he will fail – a mere feeling that there has been unlawful discrimination, harassment or victimisation is not enough.[60]Once the Claimant has shown these primary facts then the burden shifts to the Respondent and discrimination is presumed unless the Respondent can show otherwise. Could conclude means “a reasonable Tribunal could properly conclude from all the evidence”.[61]As set out above at the first stage the Claimant must prove “a prima facie case”. “However, the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal could conclude that there has been discrimination. Each case is fact specific, and it is necessary to have regard to the totality of the evidence when drawing inferences. Once the burden of proof has shifted it is for the Respondent to show that the relevant protected characteristic played no part whatsoever in its motivation for doing the act complained of.[62]It is, however, not necessary in every case for the tribunal to specifically identify a two-stage process. There is nothing wrong in principle in the tribunal focusing on the issue of the reason why. As the Employment Appeal Tribunal pointed out in Laing v Manchester City Council [2006] IRLR 748 “If the tribunal acts on the principle that the burden of proof may have shifted and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever”.[63]This approach to the burden of proof has been confirmed by the Court of Appeal in Ayodele v City Link and another 2017 EWCA Civ 1913. Indirect Discrimination[64]Section 19 EQA 2010 sets out the statutory provision in respect of indirect discrimination as: “(1) A person(a) (A) discriminates against another(b) (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. (3) The relevant protected characteristics are— (a)[…] disability;”[65]Baroness Hale in Essop v Home Office; Naeem v Secretary of State for Justice [2017] UKSC 27, [2017] IRLR 558, provides helpful guidance in approaching indirect discrimination claims which can be summarised as: (1)indirect discrimination does not require an explanation of why a particular PCP puts one group at a disadvantage when compared with another. (2) indirect discrimination does not require a causal link between the less favourable treatment and the protected characteristic (being concerned with 'hidden barriers which are not easy to spot'). (3) The reasons why one group may find it harder to comply with a PCP are many and various; they and the PCP itself are ultimately 'but-for' causes (in that if they are removed the problem is solved). (4) There is no requirement that every member of the group sharing the protected characteristic be at a disadvantage – in Essop some BME/older employees will have passed the assessment, just as some women chess players will have done well in scoring. (5) The factual disparity of impact (without the need for establishing its reason) can be established by statistical evidence (as the SDA 1995 and the RRA 1976 had made clear on their wording). (6) It is always open to the Respondent to show that its PCP is justified. This is an essential part of the action for indirect discrimination, which should not be underplayed by Tribunals; it involves no stigma or shame on the employer relying on it as a defence. Justification in respect of indirect discrimination[66]When considering the defence of justification, the role of the Tribunal is to reach its own judgment, based on a critical evaluation, balancing the discriminatory effect of the act with the business needs of the Respondent.[67]The burden is upon the employer to show that the treatment is a proportionate means of achieving a legitimate aim. Unfavourable treatment because of something arising in consequence of disability[68]Section 15 of EQA 2010 states: - (1)“A person(a) (A) discriminates against a disabled person(b) (B) if – A treats B unfavourably because of something arising in consequence of B's disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Subsection (1) does not apply if A shows that A did not know and could not have reasonably been expected to know, that B had the disability.”[69]The correct approach when determining section 15 EQA 2010 claims is set out in the EAT decision of Pnaiser v NHS England and others UKEAT/0137/15/LA at paragraph 31.[70]The approach is summarised as follows: (a)The Tribunal must identify whether there was unfavourable treatment and by whom – no question of comparison arises; (b)The Tribunal must determine the cause of the treatment, which involves examination of conscious or unconscious thought processes. There may be more than one reason but the “something” must have a significant or more than trivial influence so as to amount to an effective reason for the unfavourable treatment; (c)Motive is irrelevant when considering the reason for treatment; (d)The Tribunal must determine whether the reason is “something arising in consequence of disability”; the causal link between the something that causes unfavourable treatment and disability may include more than one link – a question of fact to be assessed robustly; (e)The more links in the chain between disability and the reason for treatment, the harder it is likely to be able to establish the requisite connection as a matter of fact; (f)This stage of the causation test involves objective questions and does not depend on thought processes of the alleged discriminator; (g)Knowledge is required of the disability only, section 15 (2) EQA 2010 does not extend to requirement of knowledge that the “something” leading to unfavourable treatment is a consequence of disability;[71]In the EAT case of Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305, Langstaff P, summarises the approach as, ''[t]he current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The Tribunal has first to focus upon the words “because of something,” and therefore has to identify “something” – and second upon the fact that that “something” must be “something arising in consequence of B's disability”, which constitutes a second causative (consequential) link. These are two separate stages.'' Justification defence under section 15 EQA 2010[72]Having already set out the position on justification under section 19 EQA 2010 indirect discrimination above. The principles espoused in the abovementioned section apply equally to justification under section 15 EQA 2010.[73]In the case of indirect discrimination, it is the provision, criterion, or practice (PCP)] which needs to be justified whereas in the case of discrimination arising out of disability it is the treatment.[74]Although it is worth noting that unlike section 19 where knowledge of the disability is not a necessary component, knowledge of the disability is a requirement to justify section 15 discrimination arising from disability claim. Reasonable adjustments[75]The duty to make reasonable adjustments is set out in sections 20 – 21 EQA 2010, and in Schedule 8 (dealing with reasonable adjustments in the workplace).[76]The pertinent parts of Section 20 says: - “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”[77]Section 21 EQA 2010 establishes that a failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.[78]In the case of Secretary of State for Work and Pensions (Job Centre Plus) v Higgins [2013]UKEAT/0579/12 the EAT held at paragraphs 29 and 31 of the HHJ David Richardson’s judgment that the Tribunal should identify(1) the employer’s PCP at issue,(2) the identity of the persons who are not disabled in comparison with whom comparison is made,(3) the nature and extent of the substantial disadvantage suffered by the employee, and(4) identify the step or steps which it is reasonable for the employer to have to take and assess the extent to what extent the adjustment would be effective to avoid the disadvantage.[79]The statutory duty is for the Respondent to take such steps as are reasonable, in all the circumstances of the case, for it to have to take in order to avoid the disadvantage. The test of “reasonableness” therefore imports an objective standard (see Smith v Churchills Stairlifts plc [2005] EWCA 1220.) Submissions[80]The Respondent relied upon their written submissions. The Claimant’s submissions were in summary when the Claimant worked at Buckingham his car had broken down and that it why he took the van home. His car was left at the Buckingham site and that is why he was given permission to take the van home. He currently lives 10 minutes from Luton office and has done since 2017. He previously lived in Watford before that. The Claimant said that he was not spoken to about taking the van home, he said that no one said you cannot take a van because you will get dismissed.[81]The Claimant was asked why does that would make any difference as his argument was that he took van home without permission he wasn’t thinking about it. The Claimant agreed.[82]The Claimant added that the bus being overcrowded had no impact on his decision to take the van home. The only contact he had with Dave Austin was to set up the disciplinary meeting. The Claimant said that he was not calling him every day. The only special delivery he received was for his last case with Dave Austin to the best of his knowledge. The Claimant said that it would less likely happen again and he wouldn’t do it again. The Claimant said that he is fit to go back to work and he is on medication. He said that he had taken the necessary steps to better himself and take his medication. The last point the Claimant wanted to make was he didn’t know if it were true but that the manager that got dismissed was dismissed for another reason not related to the van. The Claimant said that maybe I am wrong about that, but I may be right. Analysis/ Conclusions Unfair dismissal[83]We concluded that the Claimant was dismissed by reason of misconduct. The Respondent had reasonable grounds to form a genuine belief that the Claimant was guilty of the misconduct. The Claimant admitted at all times, at the fact finding meeting, disciplinary hearing and at the appeal that he had taken the vehicle and he had been told not to. The Respondent’s policy sets out that deliberate disregard for instructions could amount to gross misconduct. The Claimant admitted being told that he could not take the van home only 2 days before he took the van home. The Respondent carried out a reasonable investigation by asking the Claimant why he took the van home, referring the Claimant to Occupational Health in order to determine whether the Claimant’s mental health was relevant to why the Claimant breached instructions. The Respondent asked the manager who gave the instruction to provide a statement which he did and the Claimant was given an opportunity to comment on the statement as even though the dates on the letter providing the statement and email Mr Austin were confusing, by the time of the appeal the Claimant had the statement for some time and this was acknowledged in Mr Potter’s appeal decision.[84]Whilst the Claimant raised the issue of his suspension not being reviewed we considered that the lack of suspension review although in breach of the Respondent’s processes did not impact in any way on the fairness of the Respondent’s process. We accepted Mr Austin’s evidence that the Claimant was speaking daily to Ms Soul and then him when he took over the case. The Claimant therefore had every opportunity to discuss his suspension with the managers should he have wished to. But the Claimant did not give any evidence that he did. Neither did the Claimant complain that the suspension went on too long. That it went on too long was never part of his case at the disciplinary hearing or the appeal hearing.[85]The Claimant’s position was that the penalty was too severe. In the Claimant’s appeal, the comparator of the manager who took a vehicle without permission was raised as not being an appropriate comparator, as every case should be judged on its own merits. Mr Potter dealt with the point in the appeal decision and took the view that the Claimant’s case was judged on its merits and Mr Austin only referenced Mr Baxter talking about this case. We find that Mr Austin actually went further than just referencing Mr Baxter’s evidence in his reasons for dismissal. However, we do not conclude that this affects the fairness of the dismissal because it is clear from Mr Austin’s decision that he did consider the Claimant’s case on its own merits. Furthermore, the Claimant did raise in his submissions the issue of the other manager who took a vehicle without permission not being dismissed for that but for something else. However the Claimant admitted in submissions that he did not know whether this was the case or not. We accepted Mr Austin’s evidence that the manager was dismissed for taking a vehicle without permission.[86]Both Mr Austin and Mr Potter reference considering alternative penalties to dismissal in their outcome letters to the Claimant. The Claimant’s argument throughout the process and during the Employment Tribunal hearing was that if the Respondent considered the medical evidence he provided then they would not have dismissed him. However, Mr Austin’s evidence was that he did consider the Claimant’s mental health struggles but the Claimant admitted he knew that what he was doing was wrong but did it anyway and we found that there was nothing in the occupational health report that gave medical opinion on why the Claimant took the van. There was no medical evidence presented to us or the Respondent that the reason that the Claimant took the van was because of his mental health. We accepted Mr Potter’s oral evidence that he thought there was premeditation on the part of the Claimant because Claimant had taken keys home twice which he did not think could be a mistake twice and the fact that he had described taking the bus as a nightmare and so taking the van was easier than waiting for the bus. The Claimant did say he was sorry at the first opportunity. However, Mr Austin clarified in his evidence that he had lost all trust and confidence in the Claimant’s ability to act in accordance with its policies and procedures. Mr Potter’s position was that there was nothing the Respondent could do to ensure that the Claimant did not repeat the behaviour and following important business instructions in the future. Both Mr Austin and Mr Potter confirmed in evidence that the Claimant did not provide any examples of what the Respondent could do in order to ensure that the Claimant did not repeat the behaviour in the future and when the Claimant was asked in evidence if there was anything that would have changed the situation, the Claimant said that there was nothing.[87]The Claimant tried to argue in his submissions that he was not told that if he took the van without permission he didn’t know he would be dismissed. He suggested that he did not know what would happen to him. We conclude that this was firstly not an argument before Mr Austin or Mr Potter, but that even if it was, both did not believe that the Claimant did not know that what he was doing was wrong. The Claimant had admitted on a number of occasions he knew what he was doing was wrong. Secondly, Mr Austin believed that the Claimant was familiar with the processes of the Respondent including the conduct policy. We found that the Claimant was trained on the conduct policy. The Claimant was warned in the disciplinary letters that what was alleged was gross misconduct. The Claimant’s argument was not credible in light of all the available evidence.[88]We therefore conclude that the Respondent’s decision to dismiss was within the range of reasonable responses. The dismissal was fair. The Claimant’s complaint is not well founded and is dismissed. Disability Discrimination Issue 5- Reasonable adjustments[89]No evidence was presented to us that the Claimant’s PCP of failing to give sufficient weight to the employee’s mental impairments when initiating and pursing disciplinary proceedings and deciding in disciplinary sanctions this was a practice.[90]In fact the evidence was to the contrary, the Respondent referred the Claimant to occupational health and specifically asked the Occupational Health doctor about the Claimant’s ability to take part in work related processes. In those circumstances there can be no failure to make reasonable adjustments. Even if we are wrong about that, the Claimant was not disadvantaged in respect of not recognising the Claimant’s mental impairment. The occupational health report specifically found that the Claimant’s anxiety and depression was in their view a disability. The Respondent accepted this. Furthermore the Claimant admits in the occupational health report that the medication was helping. By 15 November the Claimant was no long experiencing symptoms of anxiety as the measured by the validated tool to measure anxiety. The Claimant’s complaints of failure to make reasonable adjustments are not well founded and are dismissed. Issue 3- Discrimination arising from disability[91]Whilst we accept that the Claimant being put through disciplinary proceedings and being dismissed is unfavourable treatment by Mr Austin, there is no causal connection between the unfavourable treatment and the something arising in consequence. The reason is because there was no medical evidence presented to us that the Claimant took the van because of his disability. The Claimant had been working for 9 months having not taken medication and did not give any evidence that he had done something like this before. We conclude that the Claimant did not take the van in consequence of his disability. In those circumstances it wasn’t a “something in consequence of his disability”. The Claimant’s complaints are not well founded and are dismissed. Issue 4- Indirect discrimination[92]The PCP is the same for indirect discrimination as reasonable adjustments and in those circumstances our conclusions are the same in that there was no evidence was presented to us that failing to give sufficient weight to the employee’s mental impairments when initiating and pursing disciplinary proceedings and deciding in disciplinary sanctions was a practice. It was not. In those circumstances, the Claimant’s complaints are not well founded and are dismissed. Approved by: