Mr T How v Royal Mail Group Ltd: 3303877/2023 and 3312222/2023

EMPLOYMENT TRIBUNALS

Case No 3303877/2023, 3312222/2023

Between

Mr T HowClaimant

Royal Mail Group LtdRespondent

Before

Employment Judge Dick

Mr Lee (instructed by solicitor) for claimant

Date 19 July 2025

JUDGMENT

The unanimous judgment of the Tribunal is as follows:

[1]The following complaints are dismissed upon withdrawal: unauthorised deductions from wages, automatically unfair dismissal and victimisation.

[2]The complaint of unfair dismissal is not well-founded and is dismissed.

[3]The complaint of direct disability discrimination is not well-founded and is dismissed. Approved by: Employment Judge Dick 19 July 2025

REASONS

JUDGMENT having been sent to the parties on 4 August 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided. Numbers in square brackets are references to page numbers in the agreed bundle for the hearing. INTRODUCTION; CLAIMS AND ISSUES

the hearing.

[1]On 4 July 2025 we delivered an oral judgment and reasons, dismissing the complaints of “ordinary” unfair dismissal and disability discrimination after a full hearing. These are the written reasons for those decisions. (We had earlier dismissed some other complaints upon withdrawal; these reasons do not deal with those complaints.)

[2]The claimant was employed by the respondent for many years as an HGV/lorry driver. He was dismissed summarily because, the respondent said, he had deliberately driven his lorry on 22 January 2022 without having inserted his card into the tachograph unit when the unit had indicated he needed to take a break. Case Nos: 3303877/2023, 3312222/2023 It was the respondent’s case that the claimant had made admissions about his conduct to two of its employees (though only one of those admissions was relied upon during the disciplinary process). It was the claimant’s case that he had not knowingly driven without the card inserted, and he denied making any admissions to the contrary. He suggested (as part of his case before the Tribunal) that the tachograph device had a history of spontaneously ejecting the card. After a long disciplinary process, in which the claimant, broadly speaking, did not participate, the claimant was dismissed in August 2023. His appeal against that dismissal was treated by the respondent as having been withdrawn.

[3]There was no dispute that at all material times the claimant had post-traumatic stress disorder (“PTSD”) and so was a disabled person within the meaning of the Equality Act 2010 (“EqA”) and that the respondent knew that. It was the claimant’s case that he was unable to participate in the disciplinary process because of his disability; his dismissal was unfair procedurally and substantively, principally because the respondent should not have relied upon one of the admissions he was said to have made and because the respondent did not check to see that the tachograph was working correctly. The claimant also said that the dismissal was an act of disability discrimination because the respondent did not make adjustments to its processes, held his absence from the disciplinary process against him and did not consider the evidence relating to his disability. The respondent’s case was that the claimant was dismissed, fairly, for misconduct; the dismissal had nothing to do with his disability.

[4]The factual and legal issues for us to decide were, the parties agreed, as set out in the list of issues set out in the Case Management Summary prepared by Employment Judge (“EJ”) Postle following a preliminary hearing on 26 July 2024, with the exception of course of the complaints which were withdrawn. The relevant parts of the list of issues are reproduced in the Appendix below. PROCEDURE, EVIDENCE etc.

[5]We wish to express our thanks at the outset for the quick and efficient way in which the parties were able to deal fairly with the case in three days – the hearing originally had a time estimate of four days but for reasons which had noting to do with the parties the hearing could not begin on 1 July as had originally been planned.

[6]Before the evidence was called we explained to the parties that we would read the witness statements but they should be sure to refer us to any documents of relevance in the agreed bundle during the course of the evidence or submissions. Both advocates helpfully suggested a number of pages which we might read in advance as they would be dealt with during the course of the evidence. We also discussed the issues with the parties (see paragraph 4 above). We indicated that we would not need to hear evidence about remedy at this stage, with the exception of any points about whether, if the claimant was unfairly dismissed, he might otherwise have been dismissed had a fair Case Nos: 3303877/2023, 3312222/2023 process been followed, or whether he contributed to his dismissal in such a way as should affect any award of damages.

[7]After taking time to read the statements, we heard evidence from the witnesses. In each case the usual procedure was adopted, i.e. their written statements stood as their evidence-in-chief and they were then cross-examined. The claimant gave evidence and the respondent called the following witnesses:a. Mr James Parker – the claimant’s second line manager (i.e. his manager’s manager).

b. Mr David Fowell – Acting/Deputy Manager at the material time; LGV driver; reported in to Mr Parker.

c. Mr Ian Beauchamp – Traffic Office Control Room Manager at the respondent’s National Distribution Centre; conducted the initial investigation.

d. Mr Paolo Fiorello – Lead Distribution manager; decided to dismiss the claimant.

e. Mrs Clare Tebbutt – Independent Case Manager for the respondent; dealt with the claimant’s appeal.

[8]During the course of the hearing we took frequent short breaks as required by the claimant because of his PTSD. At the conclusion of the evidence we heard oral submissions, supplemented by written submissions, from both advocates. FACT FINDINGS

[9]We find the following facts on the balance of probabilities. Where facts were not in dispute we simply record them; where we have needed to resolve disputed facts we make that clear. We have not made findings on every fact presented to us, but merely on those which assist us to come to a decision bearing in mind the list of issues.

[10]The claimant had worked for the respondent as a professional driver since 1996. He had PTSD because of a traumatic event he had witnessed at work in 2014. The respondent agreed that the PTSD amounted to an industrial injury sustained at work within the meaning of its own sick pay policy.

[11]It is, generally speaking, a legal requirement for a driver to insert a tachograph card into a tachograph whenever the lorry is being driven. The card is inserted into what is known as the head unit. The tachograph card resembles a modern driving licence – a plastic card with a chip on the underside. In the event of a failure of the tachograph machine the driver is permitted to drive only if alternative paper logs are kept. We accept the unchallenged evidence of the respondent's witnesses about the operation of the tachograph machine, which we would summarise as follows. If a card was taken out of or disconnected from the machine a warning light would flash on the head unit (which was located above the driver’s head). While it is possible that driver might not notice that particular light flashing whilst driving should the card “pop out”, we think it likely that the driver would notice it when he or she came to eject the card at the end of the journey. There is also however another warning light, around the Case Nos: 3303877/2023, 3312222/2023 same place on the dashboard as the lorry’s speedometer, and in our judgment it would be impossible for the driver to miss that light flashing for any appreciable length of time. At the end of the journey, in order to eject the card, it is necessary to depress the eject button for several seconds and then to answer two questions on the unit before the card is ejected. Three of the respondent's witnesses were experienced HGV drivers. None of them gave evidence of ever having witnessed a card ejecting itself; one was specifically asked about that (see below). Two of the respondent's witnesses explained that the only circumstances they were aware of where a card would eject itself (i.e. without the driver having pressed the eject button) are when a card happens to expire at midnight; there was no suggestion that could have happened in this case.

[12]The claimant drew our attention in the course of evidence to three previous incidents which he said gave cause for concern about the operation of the tachograph machine in the lorry he was driving. The first was 7 June 2021, when he said that the card ejected itself while he was driving. In his written evidence to us the claimant said that the respondent’s Mr Ian Beauchamp was aware that that had happened, and had written to the claimant to say no further action would be taken against him. In fact the letter we were shown at [258] refers to records showing the claimant had not downloaded tachograph data since 7 April and so it does not say that the tachograph machine was not working; indeed, it clearly suggests that the claimant was at fault. However we also note that at [219] there is a written record covering the period 7 to 13 of June 2021. It appears on its face, and we accept it was, to have been completed by Mr Beauchamp after a debrief with the claimant on 11 June 2021. It says: “I have investigated any infringements shown and identified the following” and under the heading “reason for infringement” is written: “card ejected itself”. The record is signed by the claimant, but we conclude that the part we have just referred to would have been written by Mr Beauchamp. Although in his oral evidence, Mr Beauchamp told us that he had no knowledge of a card “pop-out” having happened to the claimant before, and had actually gone so as far as to say that if there was any evidence of that and he had missed it he would he would love to see it, unfortunately he was not taken to this particular record during the course of his evidence, and so we do not know what he would have to say about this. We conclude from looking at some notes at [220] that the claimant had clearly become aware of the card ejecting itself. It is unclear from the records whether Mr Beauchamp actively investigated the incident or simply took the claimant's word about what had happened. On the basis of the evidence that we have seen we do accept what the claimant says – that the card ejected itself while he was driving, but we do consider it significant that the claimant noticed that that had happened on that occasion.

[13]The second incident the claimant drew our attention to was in November 2021. There is a record of that at [252]. Someone whose name is a little unclear has noted that on 3 November 2021 an infringement “was caused because of a faulty tachograph machine”. The vehicle had been “logged off for repair”. The point about this, again, is that this was noticed – it was obviously reported by the claimant. We do not know what happened after the vehicle was logged off for repair. Case Nos: 3303877/2023, 3312222/2023

[14]The third incident to which the claimant drew our attention appears to us to be covered by documentation which starts at [270] and that documentation says it covers the period of 3 to 9 of January 2022. Mr Beauchamp records: “Tacho[graph] head error. Machine has been reported.” However the record on the previous page in the bundle indicates that the infringement was caused by a “manual entry error” and the “last card session not correctly closed”. We also note the claimant's own entry at [273] which records that he had noticed an error message. This all appears to us to be to do with the incident the claimant told us about in his evidence, when on 10 January 2022, after returning from rest days he noticed that the tachograph was showing that he had worked for 96 hours. He said that he had informed Mr Glynne Roberts about this. (Mr Roberts was one of the claimant’s managers, who we did not hear from.) We accept Mr Beauchamp's evidence on this point. He considered that the issue was most likely explained by the claimant having made a manual entry error, so this third point does not in fact show that there was any fault with the machine.

[15]All three of the incidents we have mentioned would, it seems to us a reasonable inference, have happened while the claimant was using the same tachograph card. We were not shown evidence allowing us to conclude whether or not they involved the same lorry that he was driving on 22 January, and it is clear the claimant did drive more than one lorry. In all three of the above instances, as we have said, the claimant noticed there was an error and reported it.

[16]The claimant had a spotless disciplinary record with the respondent. There is a slight qualification to that, in that we were shown a number of records, which spanned [189] to [251] ,showing that the claimant had on quite a number of occasions – in excess of five by our count – signed to acknowledge infringements (i.e. tachograph or driving hours breaches). We should say that clearly none of those incidents were viewed by the respondent as serious enough to warrant disciplinary action and it is clear from the records that they either resulted in words of advice or further training for the claimant.

[17]The central issue in this case is the events of 22 January 2022. Both parties agreed that it was necessary for us to make findings of fact about what happened that day, rather than, for example, merely making findings about what the respondent reasonably believed had happened. The events of 22 January came to Mr Beauchamp’s attention five days later, on 27 January, when data he was reviewing suggested that the claimant had taken insufficient breaks on 22 January for the amount of driving he had done and that “missing miles” were showing up on the same day, i.e. the lorry had been driven without a tachograph card inserted. We were taken to the relevant logs at [285] and we accept that, as Mr Beauchamp told us, they showed the following. The tachograph card was not inserted from 6:23 p.m., which was when the lorry stopped in a layby on the A5 for five minutes. It was then driven – still with no card inserted – for eight minutes, to the respondent's depot.

[18]We heard evidence from Mr David Farrell (the claimant’s manager) which in short, we accept. He told us that he had been in regular contact with the Case Nos: 3303877/2023, 3312222/2023 claimant since the traumatic event the claimant witnessed in 2014. He recalled a phone conversation with the claimant shortly after 22 January, though he could not recall exactly when it took place or who had called whom. The conversation had taken place out of Mr Fowell's concern for the claimant's welfare, Mr Fowell having become aware of the issue about the claimant’s use of the tachograph card on the 22nd. The claimant told him that he had taken his card out of the machine when he was about 10 minutes from base because the machine had told him he needed to take a break. The claimant denies that that conversation took place, but we find that it did take place just as Mr Fowell told us.

[19]It was the respondent's case that on 27 January 2022 the claimant's manager Mr Roberts had held what was known as a “seeking explanation” meeting with the claimant, about the events of 22 January. The claimant denied any such meeting took place. We were shown a written record of the meeting. The record showed that Mr Roberts had sought an explanation from the claimant, who had admitted that on the A5 the tachograph had started to flash, telling him he needed a break. The first layby he passed was full so he could not stop. He decided to remove his card, to avoid getting (another) infringement for failing to take a break. Mr Roberts noted that there was in his view a very concerning lack of knowledge about driving rules and regulations with the claimant having made a very poor decision. Although the record we were shown [286] is headed with Mr Beauchamp's first name, it is clear from the document that it was a cut- and-paste from an email Mr Roberts sent to Mr Beauchamp. It was in fact a near contemporaneous note made by Mr Roberts. We were also shown another email, sent by Mr Roberts to Mr Fiorello on 5 July, in which Mr Roberts confirmed that that the note accurately reflected his recollection. We took account of the fact that Mr Roberts was not himself called to give sworn evidence. The claimant points out that there was not formal record of the conversation. That is true, but there was, as we have said, a contemporaneous note. The claimant further points out that in a letter at [294] Mr Beauchamp wrongly refers to his discussion with the claimant rather than, as he should have said, Mr Roberts’ discussion with the claimant. Also, it is right to say that various other documents which we deal with below wrongly refer to a “fact- finding” meeting instead of a “seeking explanation” meeting. We find that these were simple administrative errors, which do not change our ultimate view that the account provided by Mr Roberts in that note is correct.

[20]Both Mr Roberts and Mr Fowell's accounts are entirely consistent with the data presented by the respondent and the claimant never provided a contrary account to the respondent. The claimant did of course give an account to us in evidence denying that any such conversations took place, although he did accept that he had been informed by Mr Roberts on 27 January that he was suspected of deliberately removing his tachograph card on the 22nd. The claimant's evidence was that he denied it and told Mr Roberts that he did not realise that the card had ejected. We do not accept that evidence. There is no dispute that claimant then went off on sick leave on the 27th, i.e. the same day that Mr Roberts had asked him for an explanation. We conclude that a material cause of that sickness absence was the claimant's concern about what Mr Roberts had told him, i.e. that he was under investigation. Case Nos: 3303877/2023, 3312222/2023

[21]The claimant’s case is that he had no knowledge of the card being ejected on 22 January. For the claimant's case on this point to be correct, the card would have had to have ejected itself, despite none of the other witnesses ever having experience of such an event, at the same time the claimant happened to stop in a layby. The claimant would have to have failed to notice the warning lights on the head unit and near the speedometer, while he drove the lorry for seven minutes. He would also have had not to have noticed the warning light when he pressed eject for several seconds and then answered the questions on the head unit. Further, the claimant (and other drivers) must have continued to use the vehicle without anybody ever reporting a fault on it, it being the respondent’s evidence that no such faults were then reported). Mr Fowell would also have had to have given us untrue evidence under oath and Mr Roberts would have to have made, at the time, an entirely untrue note of a conversation he had with the claimant. Viewing all of this in the round we do not accept the claimant's evidence. We find that he deliberately removed the card on 22 of January to avoid having to take a break when he was very close to base and therefore in reality at the end of his shift. (He was not in fact near the end of his shift, but the claimant's own evidence was that once he got back to base – even if early – he would have been allowed to go home.)

[22]On 2 February 2022 Mr Beauchamp commenced what was essentially a fact- finding process. He invited the claimant to a fact-finding meeting on 9 February. The invitation letter erroneously says following “my” discussion, when as we have already said, it should have referred to the claimant’s conversation with Mr Roberts. There was no dispute that the claimant told Mr Beauchamp he was too unwell to attend the meeting and the matter was then referred to the respondent’s occupational health department.

[23]An occupational health report was prepared, dated 25 February. It said that in the writer’s opinion the claimant was unfit for work. We do not accept the respondent's submission that this meant the claimant was unfit only to drive an HGV (as opposed to unfit for all work), because we note that the report writer says there was a “barrier to him returning to work in any capacity at the present time”, so we accept the claimant was unfit for any sort of work. Under the heading “manager questions” there was some further information. Firstly, a question was asked about whether there were medical barriers preventing the claimant attending a face-to-face meeting. The answer was that the claimant reported memory loss that he was finding “challenging and worse during face- to-face meetings”. Another question was posed whether the claimant was medically fit to cooperate via conference calls, in writing or via a third party and essentially the answer was that that should be tried. We note that the report did not say that the claimant was unfit for face face-to-face meetings, simply that he was saying he would experience memory loss worse in a face-to-face meeting. We also note that the report does not record the claimant asserting that he could not remember what happened on 22 January.

[24]On 6 April 2022 the claimant was invited for a second time to a fact-finding meeting that was to be on 15 April. That invitation was rather quickly superseded by another invite to attend a meeting “at home by writing”. Although Case Nos: 3303877/2023, 3312222/2023 it was somewhat clunkily worded, this was clearly in our judgment an example of the respondent making an adjustment to its usual processes as requested by the claimant, or a least as requested by occupational health on his behalf. On 19 April 2022 a similar letter was sent inviting the claimant to a meeting. This letter correctly now referred to Glynne's (i.e. Mr Roberts’) discussion with the claimant. It said the meeting would now take place in writing as the OH report had stated that would be acceptable. The claimant was sent written questions to answer. There was no suggestion that the claimant answered these questions.

[25]About a month later, on 25 May, a second occupational health report was prepared. The writer opined that the claimant remained unfit for work due to PTSD. The writer answered some questions, one of which was “what are the barriers preventing the employee from answering questions in writing in any capacity based on the previous referral advice”. The answer was that the claimant became stressed when thinking about work-related questions and this triggered memory loss which left him unable to answer. Beyond that it did not say any anything about his fitness to participate in disciplinary proceedings. We also note that we did not hear evidence from the claimant about whether at any point he could not remember what happened on 22 January and if not, when it was that he later came to be able to remember.

[26]On 7 July 2022 another letter was written to the claimant, now again erroneously referring to Mr Beauchamp's discussion with the claimant. It enclosed written questions and asked for a written response within 21 days, acknowledging that a face-to-face fact-finding could lead to the claimant becoming stressed and being unable to remember the events of the 22nd. It did offer a face-to-face meeting an alternative. In our view, although the occupational health report had said the claimant would have problems answering questions, it was still reasonable for the respondent to give him the opportunity to answer questions in writing should he feel able.

[27]The claimant’s evidence was that on 12 July 2022 his union representative wrote to the respondent, stating that the OH advice was that claimant was not fit to attend a meeting and that the claimant was waiting for a form of treatment called EMDR to start, asserting that the claimant was not able to answer questions posed by the respondent and suggesting that the [mis]conduct case should not take place until the claimant was declared fit for work. Although we were not shown the correspondence, the claimant’s recollection about what it said was unchallenged and we accept it.

[28]Matters having reached this point, Mr Beauchamp took the view that he was not in a position to make a decision on the case, and he therefore referred the case “up the ladder” to Mr Paulo Fiorello. That referral took place on 20 September 2022 and Mr Fiorello decided to initiate disciplinary proceedings against the claimant. Mr Fiorello accepted that he was aware at the outset of the claimant's disability.

[29]On 26 2022 September a letter was prepared by a cognitive behavioural therapist (“CBT”) and EMDR practitioner setting out the symptoms the claimant Case Nos: 3303877/2023, 3312222/2023 was experiencing. We note that memory loss was not one of the symptoms included. The letter said that the claimant was caused stress when the respondent contacted him. It is not clear on the face of the letter whether it was sent to the respondent, although it does appear to us that it was, as we explain below.

[30]On 14 October 2022 Mr Fiorello sent the claimant the first of three invitations to a disciplinary meeting/hearing, making clear that if the claimant felt unable to attend a face-to-face meeting a meeting could be arranged in a number of other formats: a telephone meeting, a meeting on Microsoft Teams, written questions and answers or a union representative attending in the claimant’s place and responding on his behalf. We note this is another example of the respondent adjusting its usual processes. A postponement of that hearing was requested because the claimant's union representative was unavailable and so on 31 October Mr Fiorello sent out the second invite to a disciplinary hearing, essentially on the same terms as the first letter had set out, the meeting to be on 3 November. The claimant responded on 3 November to say he was unable to attend because of his PTSD. He said he was currently undergoing the EMDR treatment and referred to an enclosed letter which we take to be a reference to the letter from the CBT and EMDR practitioner which we refer to above. The claimant said that he would attend after he finished the treatment and had the capacity to interact. He said that he was not refusing to comply. It is clear to us therefore that the claimant was able at this point to correspond in writing.

[31]On 21 November 2022 the claimant's union representative wrote to Mr Fiorello. He said: “Within the past 12 months it has been documented by the DWP that [the claimant’s] mental health condition has gone from 15% disability to 40%. This is clearly a cause for concern. As previously documented to yourself [the claimant] is undergoing intense EMDR treatment. On this basis, as I have previously requested to yourself I request that you cease from progressing the current live conduct you are pursuing against [the claimant] at this time and in turn I request that you stop contacting him regarding this matter. […] In summary, [the claimant] is undergoing intensive treatment to try and stabilise his condition and needs to be in a calm and relaxed state of mind to allow for treatment to be successful.”

[32]This was followed on 28 November 2022 by a third occupational health report, in which the writer said that in their opinion the claimant remained unfit for work. It did not offer any opinion about the claimant’s fitness to participate in a disciplinary process. After that point there were no more occupational health reports or any other sort of medical evidence provided to or available to the respondent.

[33]On 12 January 2023 the claimant emailed the respondent to inform the respondent that his EMDR treatment had been suspended due to the fact that he was suffering from high stress levels. The email did not specifically say that the stress was being caused by the disciplinary proceedings, although we regard that as a reasonable inference in the circumstances. The claimant said that he was “not in a fit medical condition to partake in [the] OH request". He said he was not refusing to cooperate and never would. He then said: “I want Case Nos: 3303877/2023, 3312222/2023 to be treated under the equity [sic] act”. Clearly at this point the claimant remained capable of communicating in writing.

[34]There was next an issue about some questions that the respondent wished the claimant to pass on to his doctor. That request was initially queried by the claimant's union representative on 31 January 2023. The union representative asked who had requested those questions to be produced. It is evident from [348] that the questions were then sent or resent to the claimant. The questions related to his medical condition, the likely impact of any medical condition on 22 January 2022, his fitness for attending meetings etc. In our judgment these were all perfectly reasonable questions to be put to the claimant's GP. Should the claimant's GP have felt unable to answer them then he or she could of course have said so. The union representative replied to suggest that the GP would not be in a position to answer some of those questions. We disagree and regard that as an unduly technical approach. The representative did nevertheless provide the claimant's consent for the respondent’s occupational health department to contact claimant's GP to request an answer to those questions.

[35]There next came an email from a Miss Simmons to the claimant on 23 March 2023. It said that Miss Simmons had been informed by OH that when they called the claimant he had withdrawn consent for the referral. She asked the claimant to reconsider his withdrawal of consent, framing it as one final opportunity. The claimant’s union representative replied within the requested deadline pointing out that the claimant had consented for OH to contact his GP, but the occupational health people had instead contacted the claimant. The representative suggested there was no need for another OH referral. Miss Simmons replied on 17 March to say: “I am confused we have tried to make the referral for [the claimant] as per your email saying he gives consent for OH to speak to his GP but he has refused saying he has not given consent. OH need to speak to him before they can speak to his GP.” The union representative replied: “on the basis that OH assist require a telephone conversation with [the claimant], to solely gain consent to allow further medical evidence to be collated. He gives permission to this.”

[36]On 24 April 2023 the OH provider sent an automated email to the respondent to say that the assessment did not take place due to “consent not given by employee”. On 2 June the respondent wrote to the claimant saying that the respondent could not go direct to his GP; if the claimant could not go straight to his GP himself, then he must talk to OH to give them the consent to speak to his GP. If the respondent did not get the medical evidence from his GP, the case would progress without it. We consider that it was reasonable for the respondent to take this approach. They had written consent only from the claimant's union representative, not from the claimant himself, and we consider it was reasonable that OH would have wanted to ask the claimant questions around the issue to fully work out whether he was consenting to the referral.

[37]On 6 June 2023 claimant's union representative wrote: “My understanding is that on his last referral, OH assist tried to put questions to [the claimant] that were by your previous emails, questions that needed to be answered by his Case Nos: 3303877/2023, 3312222/2023 GP. [The claimant] made the advisor aware of this, who in turn advised that they wouldn’t be able to gain consent from him and they duly ended the call. […] In closing, [the claimant] gives consent for Royal Mail/Occupational Health assist to contact his GP for FME etc.” That does not answer the respondent's essential request, which was which was that the claimant speak to OH to confirm his consent. The claimant's evidence was along the lines that his union representative had set out. We find that the claimant had taken a rigid approach and was not prepared to verbally give his consent when OH, quite reasonably in our judgment, asked questions around the subject. We consider in fact that claimant was taking a deliberately obstructive approach. Consent was not in fact gained because the claimant was declining to answer questions and refusing to give consent. We further observe that there was absolutely nothing to stop the claimant writing to his own GP, with or without his union representative’s help, to get the information the respondent was asking for.

[38]On 13 July 2023 Mr Fiorello sent a third invitation to a meeting to the claimant. The meeting was to be on 19 June [sic] and the previous offers for different forms the meeting could take were repeated. Another invite was sent on 7 August for a meeting 10 of August. It referred, again erroneously, to an investigation which happened on 27 October. (Clearly that is incorrect. 27 October was to have been the first fact-finding meeting which in fact never happened.) The claimant replied on 9 August to say he was unable to attend as he was still undergoing EMDR for PTSD. He again asserted that he was not refusing to attend and requested that he was treated under the Equality Act. We note again that the claimant was clearly capable of corresponding in writing.

[39]As will be clear, the ultimate result of the process conducted by Mr Fiorello was the summary dismissal of the claimant. That was communicated in a letter which is at [373] and a detailed report [375]. We were also provided with another letter, [371], which explained briefly the result of the disciplinary proceedings. Mr Fiorello told us that that letter was not actually sent to the claimant, but was provided as part of disclosure for the purposes of these Tribunal proceedings. Regardless of whether or not that is correct, we reject the claimant’s suggestion that the respondent somehow needed to pick one or other of the letters before it was to proceed with his appeal against the dismissal.

[40]Dealing now with two particular points from Mr Fiorello’s report, firstly, Mr Fiorello referred to the previous infringements (see para 16 above), referring to them because they demonstrated that the claimant was now (or should now be) aware of the correct procedures and also because, having had those previous infringements, the claimant might, for obvious reasons, not have wanted any more. The second point is that in his report Mr Fiorello uses the phrase, “I guess it is my belief that the employee did this knowingly.” That phraseology was unfortunate, as Mr Fiorello himself conceded, but reading the report in the report in the round, including the conclusion sections we deal with below, it is clear that Mr Fiorello made a positive finding that the claimant had knowingly removed the tachograph card. Case Nos: 3303877/2023, 3312222/2023

[41]The conclusions were at [381] and they were, first, that the claimant had driven without the card inserted. A later bullet point makes clear Mr Fiorello’s judgment that this was a deliberate act. Second, that there was no mitigation available which might lead to the conclusion that this was a one-off incident not to be repeated. Thirdly, that there was no conclusive evidence of incapacity to participate in the disciplinary process, or indeed of the claimant’s current health. Fourth, that, having considered alternatives to summary dismissal, summary dismissal was the appropriate option (with reasons being given for that conclusion). All of these four conclusions were in our judgment reasonable conclusions open to Mr Fiorello. We find as a fact that he had a genuine belief that the claimant had committed not just wrongdoing but gross misconduct, and further that he had a genuine belief that summary dismissal was the appropriate response. We also find that his belief was reasonable. On the basis of the evidence that we set out above – ignoring the evidence of Mr Fowell, of which Mr Fiorello was entirely unaware – in our judgment it was a perfectly reasonable conclusion to have come to that the claimant had done what he was accused of, even given the three previous concerns which we outline above about the operation of the tachograph. None of those concerns were raised by the claimant at any point in the disciplinary process. They could have been, even if not by him than by than by the union representative who was instructed to act upon his behalf. Nor did the claimant ever tell the respondent that the card had ejected itself. There was evidence that he had admitted to Mr Roberts that he deliberately removed the card to avoid an infringement for failing to take a break. On that basis there was simply no reason for the respondent to have investigated whether the machine was working properly. This was a machine used for keeping records for statutory purposes and in our judgment the respondent was entitled to assume that it was functioning properly unless any reasons to doubt that were drawn to its attention, and none were – indeed the claimant’s confession to Mr Roberts was consistent with the data and it was quite reasonable in our judgment for the respondent to take that into account. It was also quite reasonable for the respondent to have selected the penalty that it selected, given that the claimant's conduct on the face of it amounted to a criminal offence and given that he had had numerous previous training about it.

[42]We further find – and it is clear from Mr Fiorello's reasons – that he did not use the claimant's absence from the process as a basis for finding that he had done what he was accused of. What Mr Fiorello said about lack of mitigation really only amounted to him observing that he could not take account of things that he had not been told about. His decision therefore in our judgment had absolutely nothing whatsoever to do with the claimant's disability. We should also say that nor did it actually have anything to do with anything arising from the claimant’s disability, though that that was not pleaded as part of claimant's case (and the claimant was professionally represented). The reason for dismissal was, quite straightforwardly, the claimant's conduct on 22 January and nobody suggested during the course of these proceedings that the claimant's conduct on 22 January had anything whatsoever to do with his disability. Case Nos: 3303877/2023, 3312222/2023

[43]There was no dispute that during the disciplinary process the claimant was informed at all times of his right to be accompanied, nor was there any dispute that he was provided in advance with the evidence on which the respondent wished to rely.

[44]On 11 August 2023, the claimant completed a form indicating his intention to appeal against his dismissal. He wrote: " I wish to appeal your decision. As there are many inaccuracies and complications in your decision." We note again the claimant was at this point capable of corresponding in writing and that also that he chose not to raise any grounds for his appeal as he could have done. He did not suggest there was any technical fault with the machine, nor did he deny admitting to Mr Roberts that he had deliberately removed the card.

[45]There was no dispute that the claimant was provided with the documents required for his appeal; in fact he asked for some further documents and was, it appears, provided with them. On 25 August 2023 the claimant was invited to an appeal meeting on Teams on 7 September. He was offered the alternatives of a telephone call or putting his case in writing. He emailed back on 25 August to say that he wished to go ahead with his appeal, giving permission for the file to be sent to his union representative. The claimant was capable of corresponding in writing and chose at this point, again, not to provide any basis for his appeal although, as we have said, he was quite capable of requesting further documents which he considered to be necessary for the conduct of his appeal.

[46]The appeal hearing was rescheduled to 14 September on the claimant's representative’s request. On 1 September Mrs Tebbutt told the claimant by email that if he preferred he could submit written submissions, with his representative’s assistance. He was asked to indicate within three days which format he preferred. On 6 September Mrs Tebbutt wrote again to the claimant to say that he had not responded and requested that he either provide written submissions by 13 September or attend the hearing on 14 September. She said that if he did neither of these things, she would assume that he had withdrawn from the appeal process and would close his appeal. The claimant responded the following day. He said: “your file is incorrect inaccurate and the content letters are not signed” and “can you please send me an amended file as we cannot proceed without the file being correct” and he again asked to be treated under the Equality Act. The claimant clearly remained capable of corresponding in writing. His response was in our view illustrative of his deliberately obstructive approach. Rather than addressing the substance of the appeal, he attempted instead to take a groundless technical point. Note that he had never even specified how the respondent’s file was in his view incorrect or inaccurate. Mrs Tebbutt replied to say that if there were any inaccuracies they could be discussed at the hearing meeting and asked the claimant to tell her what adjustments he required in presenting the appeal. At that point the claimant quite simply ceased contact with Mrs Tebbutt. Mrs Tebbutt therefore treated his appeal as being withdrawn and in our judgment she was quite entitled to do so. No request to reopen the decision was ever conveyed to her. We find that none of this treatment by Mrs Tebbutt was because of the claimant's disability. It was not because he had PTSD, but quite Case Nos: 3303877/2023, 3312222/2023 straightforwardly because he had chosen not to pursue his appeal. It had nothing whatsoever to do with his disability.

LAW

[47]In the course of submissions our attention was drawn to a number of authorities. We do not set all of them out here, instead dealing only with those which establish the broad principles to be applied. Unfair dismissal and misconduct

[48]Section 94 of the Employment Rights Act 1996 “ERA” confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that he was dismissed by the employer (see s 95 ERA), but in this case the respondent admits that it dismissed the claimant.

[49]S 98 ERA deals with the fairness of dismissals in two stages. First, the employer must show that it had a potentially fair reason for the dismissal within section 98 (1) and (2). Second, if the employer 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.

[50]So far as the first stage of fairness is concerned, S 98 ERA provides, so far as is relevant:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— … (b) relates to the conduct of the employee…

[51]So in this case it is for the respondent to prove that the principal reason for the claimant’s dismissal was misconduct.

[52]The second stage of fairness is governed by s 98 (4) ERA: (4) … the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably Case Nos: 3303877/2023, 3312222/2023 in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

[53]In deciding fairness, we therefore must have regard to the reason shown by the respondent and to the resources etc. of the respondent. In general, the assessment of fairness must be governed by the band of reasonable responses test set out by the EAT in Iceland Frozen Foods Ltd v Jones

1983 ICR 17

. In applying s 98(4), it is not for us to substitute our judgment for that of the employer and to say what we would have done. Rather, we must determine whether in the particular circumstances of this case the decision to dismiss the claimant fell within the band of reasonable responses open to a reasonable employer.

[54]In a misconduct case, the Tribunal starts with the test set out by the EAT in British Home Stores Ltd v Burchell

1980 ICR 303

. Broadly, the question is whether the employer entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. The employer must show that:a. it believed the employee guilty of misconduct;

b. it had in mind reasonable grounds upon which to sustain that belief; and

c. at the stage at which that belief was formed on those grounds, it had carried out as much investigation into the matter as was reasonable in the circumstances.

[55]In considering (b) and (c) above it is however important to note that the Burchell test was formulated when the burden was on the employer to prove reasonableness – now that is no longer the case. The Burchell test also applies to the question whether it was reasonable for the employer to treat the reason as a sufficient reason to dismiss (although again the burden is not on the employer at that stage). In Sainsbury’s Supermarkets Ltd v Hitt [2003] I.C.R. 111 the Court of Appeal held that the range of reasonable responses approach applies to the conduct of investigations as much as it applies to other procedural and substantive aspects of the decision to dismiss for a conduct reason.

[56]By operation of s 207 Trade Union and Labour Relations (Consolidation) Act 1992, any failure to take account of the ACAS Code of Practice on Discipline and Grievance Procedures will be relevant to the issue of the fairness of the dismissal. In summary, the Code provides that employers must normally:a. carry out an investigation to establish the facts;

b. inform the employee of the problem;

c. hold a meeting with the employee to discuss the problem;

d. allow the employee to be accompanied at that meeting;

e. decide on the appropriate action;

f. provide the employee with an opportunity to appeal the decision.

[57]It will also be relevant whether the employer followed their own procedures. Other points relevant to whether the employer acted within the band of Case Nos: 3303877/2023, 3312222/2023 reasonable responses may include: the nature of the allegations, the position of the employee and the size and resources of the employer. A meticulous investigation of the kind that would be done in a criminal enquiry is not required.

[58]In the event that the dismissal was unfair, we would go on to consider whether any adjustment should be made to the compensation on the grounds that if a fair process had been followed by the respondent in dealing with the claimant’s case, the claimant might have been fairly dismissed, in accordance with the principles in Polkey v AE Dayton Services Ltd

[1987] UKHL 8

[59]We would also go on to consider whether any adjustment should be made to the compensation on the basis of “contributory fault”, applying s 123(6) ERA: “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the [claimant], it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.” Direct disability discrimination

[60]Since there was no dispute about the claimant’s disability or the respondent’s knowledge of it, we do not set out the law relating to the legal definition of disability.

[61]The EqA prohibits discrimination on the grounds of various “protected characteristics”, one of which is disability (s 6). An employer must not discriminate against an employee by (amongst other things) dismissing them or by subjecting them to any other detriment (sections 39 and 40). There was no dispute here that the claimant was the respondent’s employee within the meaning the Act. Nor was there any dispute that the respondent would be liable under s 109 for any contraventions of the EqA done by other employees (e.g. the claimant’s managers). The Tribunal’s jurisdiction to hear complaints about contraventions of the provisions prohibiting discrimination in employment is established by s 120.

[62]Under s 13(1) EqA read with s 6, direct discrimination takes place where because of disability a person treats the claimant less favourably than that person treats or would treat others.

[63]By s 23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case. The circumstances need not be precisely the same, provided they are close enough to enable an effective comparison: Hewage v Grampian Health Board

[2012] UKSC 37

. By s 23(2), in a disability case the circumstances relating to a case include a person's abilities – in other words the comparison must be with a person who is not disabled but has the same abilities as the claimant.

[64]In many direct discrimination cases, it is appropriate for a Tribunal to consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of a protected characteristic (in this case, disability). Case Nos: 3303877/2023, 3312222/2023 However in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the “reason why” the claimant was treated as they were (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

;

[2003] IRLR 285

[65]The protected characteristic need not be the only reason for the treatment, provided it had a significant influence on the outcome (Nagarajan v London Regional Transport

[1999] IRLR 572

, HL). The case law recognises that very little discrimination today is overt or even deliberate; people can be unconsciously prejudiced. A person’s motive is irrelevant, as even a well meaning employer may directly discriminate.

[66]We remind ourselves that discrimination may be sub-conscious. As Lord Nicholls said, in the context of a case about race discrimination, in Nagarajan v London Regional Transport

[1999] IRLR 572

: All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.

[67]S 136 of the EqA makes provisions about the burden of proof. If there are facts from which the Tribunal could decide, in the absence of any other explanation, that there was a contravention of the Act, the Tribunal must hold that there was a contravention, unless the respondent proves that that there was not a contravention. S 136 requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but has nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another (Hewage above). The burden of proof does not shift where there is no evidence to suggest the possibility of discrimination (Field v Steve Pye and Co (KL) Ltd

[2022] EAT 68

). Guidelines on the application of s 136 were set out by the Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

and the importance of these was recently restated by the Employment Appeal Tribunal in Field v Steve Pye and Co (KL) Ltd

[2022] EAT 68

. We do not reproduce the thirteen steps of the guidance here, but we took account of all steps. One important point to note is that the question is whether there are facts from which a Tribunal could decide… It is not sufficient for the employee merely to prove a difference in protected characteristic and a difference in treatment. Something more is required (Madarassy v Nomura International Plc

[2007] EWCA Civ 33

). Unfair or unreasonable treatment on its own is not enough (Glasgow City Council v Zafar

[1998] IRLR 36

). If the burden of proof does shift, under the Igen guidance the employer must prove that the less favourable treatment was “in no sense whatsoever” because of the protected characteristic. Because the evidence in support of the explanation will usually be in the possession of the employer, tribunals should expect “cogent evidence” for the employer’s burden to be discharged. Case Nos: 3303877/2023, 3312222/2023

CONCLUSIONS

[68]The claimant did not participate in the disciplinary/dismissal process. While he may have had some difficulty in participating in every aspect of the respondent’s usual procedure, we do not accept that he was incapable of participating with the necessary adjustments, which the respondent was plainly prepared to make. Even if the claimant had been genuinely incapable of participating in any way with the disciplinary process, the decision to dismiss him was taken 20 months after the events of 22 January. There was quite simply no end in sight. Even on the claimant's case the stress of the process was causing him difficulties that had caused him to stop his treatment, so there was no reason to expect any change to the situation if there had been any further delay to the proceedings. We find that the respondent waited long enough. It made reasonable efforts in our judgment to get medical evidence. Although the claimant now criticises the respondent for going ahead at this point rather than further delaying the process, the claimant’s own representative had been suggesting that the respondent should stop the process because it had been going on too long.

[69]Having reasonably decided in our judgment to proceed with the disciplinary process the respondent reached reasonable conclusions. It formed a genuine belief, upon reasonable grounds, that the claimant was guilty of misconduct after what was in our judgment an adequate investigation. The respondent reasonably concluded that the claimant’s actions were deliberate. Given that, and the potential criminal consequences for both the claimant and the respondent, the conclusion that it was gross misconduct was reasonable. So too was the conclusion that summary dismissal was appropriate. All of that means that the respondent's decision to dismiss was well within the band of reasonable responses.

[70]We reject the claimant’s suggestion that the respondent should not have relied upon the conversation with Mr Roberts. There was a contemporaneous note of it and Mr Roberts had later confirmed the contents by email, and the various errors in the respondent’s letters about that do not affect our view. We reject the claimant’s suggestion that a reasonable employer would have investigated the technical functioning of the equipment and reviewed prior incident records. It was reasonable of the respondent not to have done those things given that no issue was raised by the claimant with the operation of the machine.

[71]We reject the claimant’s suggestion that respondent did not properly consider what he had disclosed about his disability and the cognitive impact of his condition on his actions on 22 January. There simply was no evidence about the latter. The respondent did take proper note of what little evidence there was about the claimant’s disability. We note that the claimant did not provide us, let alone the respondent in 2023, with any evidence that what happened on 22 January had anything to do with his disability. The claimant's case before us Case Nos: 3303877/2023, 3312222/2023 was simply that he denied deliberately removing the card. There was no suggestion that that had anything to do with his disability.

[72]Turning to the questions in the list of issues relating to unfair dismissal, the claimant was dismissed for a potentially fair reason. The respondent has proven that he was dismissed by reason of conduct (or rather, misconduct). The respondent did act reasonably in treating that reason as being sufficient for dismissal in all of the circumstances. We have given particular regard to whether the respondent carried out a reasonable investigation – it did – and whether the respondent had reasonable grounds to sustain its belief that the claimant was guilty of misconduct – it did, and that belief was genuine. Having regard to all the circumstances of the case the respondent’s decision to dismiss the claimant did fall within the range of reasonable responses. The complaint of unfair dismissal is therefore not made out.

[73]Regarding discrimination, we remind ourselves that disability discrimination can be subconscious as well as conscious. We have already found that the respondent's treatment of the claimant (and in particular the dismissal) had nothing whatsoever to do with his disability, so it is strictly unnecessary for us to come to any further conclusions on the complaint of disability discrimination. But we should say something about the appropriate comparator in this case. The parties agreed that the appropriate comparator here would be somebody in the same circumstances as the claimant without his disability but otherwise with the same abilities as him, in other words, someone who was or was saying he was unable to participate in a disciplinary process (and had said nothing about any ability or inability to operate the tachograph machine properly). There is absolutely no basis to conclude that such a hypothetical comparator would have been treated more favourably than was the claimant. Indeed, on the basis of the evidence we heard there was reason to suggest that such a hypothetical comparator might have been treated less favourably, in other words subjected to dismissal sooner. That in our judgment applies to the investigation, the disciplinary hearing and the decision on the withdrawal of the claimant’s appeal. There is simply no basis whatsoever on which a Tribunal could conclude there was discrimination here. The burden of proof has not been reversed. The complaint of disability discrimination fails.

[74]We also note the following. The claimant suggested that the respondent had ignored repeated requests for adjustments (without making a legal complaint about failure to make reasonable adjustments, despite being professionally represented). On the basis of our findings that is simply factually incorrect. The claimant suggested also that the respondent required attendance at meetings, despite medical evidence. It did not. It made very clear to him that he could participate in other ways. The claimant further suggested that his absence from meetings due to his disability was used as evidence of non-cooperation. It was not. Finally, the claimant suggested that the respondent dismissed him without considering his mental health impairment or his medical records. The respondent did not do that. In his reasons, Mr Fiorello correctly observed that there was no medical evidence relating to the reasons for the claimant’s actions on 22 January 2022. Case Nos: 3303877/2023, 3312222/2023

[75]In answer to the questions posed in the list of issues, the answers to questions 13 and 14 are yes – the claimant was disabled and the respondent knew about it. The answers to questions 16 and 17 are no. The claimant's dismissal did not amount to less favourable treatment and it was not because of his protected characteristic, disability.

[76]Finally, EJ Dick apologises to the parties for the time it has taken him to prepare these reasons, which were requested while he was away for a significant period of time. [Appendix follows on next page.] Case Nos: 3303877/2023, 3312222/2023 APPENDIX: Edited Version of the List of Issues set out by EJ Postle following the hearing of 26 July 2024 (Only the parts of the list relating to the complaints which were not withdrawn are set out here.) Unfair Dismissal – s.98 Employment Rights Act 1996

CONCLUSIONS

[1]Was the Claimant dismissed for a potentially fair reason?

[2]If, as alleged by the Respondent, the Claimant was dismissed by reason of his conduct, within the meaning of s.98(2) of the Employment Rights Act 1996 (“ERA”)?

[3]Did the Respondent act reasonably in treating such reason [ejected the tachograph card and continue driving], as sufficient for dismissal in all the circumstances of the case?

[4]In particular:• Did the Respondent carry out a reasonable investigation?

• Did the Respondent have reasonable grounds to sustain its belief that the Claimant was guilty of misconduct?

• Did the Respondent’s decision to dismiss the Claimant fall within the range of reasonable responses having regard to all the circumstances of the case?

[5]If the Claim is upheld: a) would it be just and equitable to award the Claimant any compensation? b) if so, would the Claimant have been dismissed in any event and should there be a reduction in any award of compensation under the principles of Polkey v AE Dayton Services Ltd.

[1987] ICR 142

? c) should any compensation be reduced to reflect the Claimant’s contributory fault? […] 13 and 14. [Disability and respondent’s knowledge.] Direct Disability Discrimination – s.13 Equality Act 2010

[15]The Claimant relies on a hypothetical comparator in relation to the issues below.

[16]Did the Claimant’s dismissal dated 10 August 2023 amount to less favourable treatment?

[17]Was the alleged less favourable treatment because of the Claimant’s protected characteristic? (disability) Case Nos: 3303877/2023, 3312222/2023 Approved by: