Mr S Mainali v New Godalming Sushi Ltd: 3303979/2020

EMPLOYMENT TRIBUNALS

Case No 3303979/2020

Between

Mr S MainaliClaimant

New Godalming Sushi LtdRespondent

Before

Employment Judge Reindorf

Ms A Nanhoo-Robinson (instructed by counsel) for claimant

Mr H Dhorajiwala (instructed by counsel) for respondent

Date 20 July 2023

JUDGMENT

(1) The Claimant is granted permission to amend his ET1 to add complaints of direct disability discrimination and harassment (detriment only).

(2) The Claimant is refused permission to amend his ET1 to add claims for:

a. direct disability discrimination and harassment in respect of his alleged dismissal;

b. automatically unfair dismissal and detriment (public interest disclosure); and

c. unpaid travel allowance.

(3) The Respondent’s application to strike out the claim for accrued holiday pay succeeds.

(4) The remainder of the Respondent’s strike out application fails. 10.2 Judgment – rule 61 1 February 2018

REASONS

[1]The Claimant was employed by the Respondent as an Operational Manager working within the Respondent’s franchise in the Waitrose store in Godalming. He was a shareholder in the business. His employment began on or around 18 June 2018 and ended after his resignation on 22 January 2020.

[2]After a period of ACAS Early Conciliation from 3 March to 3 April 2020 the Claimant lodged his ET1 on 16 April 2020. The effective date of termination given in the ET1 was 28 April 2020. In Box 8 of his ET1 the Claimant ticked the boxes for ordinary unfair dismissal, pregnancy discrimination, disability discrimination, sex discrimination, redundancy pay, notice pay, holiday pay, arrears of pay and other payments.

[3]In Box 8.2 of the ET1 the Claimant gave a very short description of his case as follows: I was bullied and verbally abused in front of staff and accountant and alone in training room. I was also abused due to my family back home. I never got holiday pay, did not get holiday properly. Deduction from my salary to pay room rent. But shown as company expenditure

[4]The Claimant also ticked Box 10 which relates to information to regulators in protected disclosure cases.

[5]A claim for ordinary unfair dismissal was rejected by the Tribunal because the Claimant did not have two years’ service with the Respondent.

[6]In its ET3 the Respondent sought further particulars of the ET1, which were ordered at a Preliminary Hearing on 12 October 2021. At that hearing the Claimant withdrew his claims for sex discrimination and redundancy pay.

[7]The Claimant’s Further Particulars, drafted by counsel and lodged on 22 November 2021, gave his effective date of termination as around 22 January 2022, stated that he had been dismissed, and identified the disability upon which he relied as “mental health issues which include anxiety, insomnia and panic attacks”. It set out some details of the following claims: 7.1. direct disability discrimination and harassment, relating to various incidents from August 2019 to 17 January 2020; 10.2 Judgment – rule 61 2 February 2018 7.2. direct disability discrimination and harassment by way of dismissal; 7.3. detriment for exercising his right to take paternity leave, relating to incidents following the birth of his child in August 2019; 7.4. detriment for making protected disclosures, arising from various oral and written communications made between October 2019 and January 2020; 7.5. automatically unfair dismissal for making protected disclosures; and 7.6. outstanding payments, namely accrued holiday pay, travel allowance and six months’ contractual notice pay.

[8]The Further Particulars contained an application to amend insofar as it contained claims not raised in the ET1.

[9]In its Amended Grounds of Resistance served in response to the Further Particulars the Respondent argued that: 9.1. the Claimant was not a disabled person and the Respondent did not know at the material times that he had any of the alleged impairments; 9.2. the direct disability discrimination complaints remained inadequately pleaded and that in any event they were new claims which were raised out of time; 9.3. the harassment complaints were new and out of time; 9.4. no legal basis had been pleaded for the claim relating to detriment for taking paternity leave (noting that the Claimant had not withdrawn his claim for pregnancy discrimination), and it was both inadequately particularised and out of time; 9.5. the public interest disclosure detriment and dismissal claims were new, out of time and inadequately particularised; and 9.6. the Claimant had been paid all outstanding sums and was not contractually entitled to six months’ notice.

[10]The Respondent sought an order striking out the all the claims other than the pay claims on the basis that they had no reasonable prospects of success; and 10.2 Judgment – rule 61 3 February 2018

THE HEARING

[11]The hearing was conducted remotely by video (CVP) over a full day. Judgment was given orally.

[12]I had a bundle of 266 pages and a skeleton argument and authorities from the Respondent.

[13]I heard oral submissions from both counsel, for which I am grateful.

[14]At the conclusion of the hearing counsel helpfully cooperated to produce a list of issues for the final hearing. A separate case management order will be sent to the parties containing the list of issues.

THE ISSUES

[15]The case came before me to determine: 15.1. the Claimant’s application to amend his claim; and 15.2. the Respondent’s strike out application. THE LAW Amendments

THE LAW

[16]The principles relevant to the amendment of claims are described in Selkent Bus Co v Moore

[1996] IRLR 661

. The Tribunal should consider: 16.1. the nature of the amendment; 16.2. the applicability of statutory time limits; and 16.3. the timing and manner of the application.

[17]The Tribunal should take into account all the circumstances and balance the hardship and prejudice of allowing the amendment against the injustice and hardship of refusing it.

[18]The discretion to permit a party to amend its claim is not unconfined. An ET1 is “not something just to set the ball rolling “ (Chandhok v Tirkey

[2015] IRLR 195

). 10.2 Judgment – rule 61 4 February 2018 Striking out

[19]A Tribunal may strike out all or part of a claim on the grounds that it has no reasonable prospect of success (Rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013 (as amended) (“the ET Rules”)).

[20]Tribunals should not be deterred from striking out a claim that may involve a dispute of fact if they are entirely satisfied that there is no reasonable prospect of the facts necessary to find liability being established (Ahir v British Airways plc

[2017] EWCA Civ 1392

). Deposit orders

[21]By Rule 39 of the ET Rules a Tribunal may impose a deposit order if it considers that any specific allegation or argument in a claim or response has little reasonable prospect of success.

[22]The order may require the paying party to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.

[23]The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. CONCLUSIONS The Claimant’s amendment application Direct disability discrimination and harassment

[24]The direct disability discrimination and harassment claims as presented in the Further Particulars relate to three incidents of alleged detriment (paragraph 9(a) of the Further Particulars) as follows: a) On 15 and/or 16 January 2020 the Claimant felt bullied because Sumin Lohani told the Claimant he was not liked by members of staff and told him to leave his employment, the inference being that it was because of the Claimant’s disability. b) On 17 January 2020 the Claimant was called ‘mental’, ‘psycho’, and felt bullied. The Claimant was also concerned by the expression of aggression by Sumin Lohani to the extent that the Claimant perceived he was trying to headbutt him. 10.2 Judgment – rule 61 5 February 2018 c) On or around the 17 January, Sumin Lohani told the Claimant that staff were scared of him, the inference being that it was because of the Claimant’s disability.

[25]It is also alleged at paragraph 10 of the Further Particulars that the Claimant’s alleged dismissal amounted to direct disability discrimination and harassment.

[26]Ms Nanhoo-Robinson argues that these are not new complaints and amount to no more than particulars of the original ET1. She says that the particulars were foreshadowed in the Case Management Agenda prepared for the Preliminary Hearing in October 2021, so the Further Particulars were not the first time the Respondent received them.

[27]Mr Dhorajiwala argues that the original ET1 does not encompass these complaints. He says that the Claimant should be expected to provide more in his ET1 than the scant details he set out in Box 8.2, which are not adequate to cover the complaint now advanced.

[28]As to the detriment elements of the direct disability discrimination claim: 28.1. I am satisfied that these complaints amount to further particulars of the ET1. 28.2. I bear in mind that the Claimant was acting in person when he submitted the ET1. I also have regard to the fact that in its ET3 the Respondent requested Further Particulars of the disability discrimination complaint, rather than arguing that it should be struck out for lack of particularisation at that stage. The position now taken by the Respondent amounts to an argument that the ET1 is so deficient in particularisation that it does not disclose a claim for disability discrimination at all. By extension, the Respondent appears to argue, no particulars of the ET1 would amount to anything other than an application to amend. 28.3. In my judgment the particulars now given fall within what was already pleaded by way of the combination of a partially particularised allegation of “bullying” and the fact that the Box for disability discrimination was ticked.

[29]As to the dismissal complaint: 29.1. I do not conclude that this falls within the original ET1. There is no reference to the alleged dismissal in Box 8.2 at all. the only indication on the claim form that the Claimant intended to complain about his alleged dismissal is the fact that he ticked the box for unfair dismissal (that complaint having been rejected by the Tribunal at the outset of the proceedings). This is not sufficient, in my judgment, to raise a complaint of discriminatory dismissal. Nor 10.2 Judgment – rule 61 6 February 2018 is there any mention of a discriminatory dismissal in the Case Management Agenda prepared for the previous Preliminary Hearing or in the Case Management Summary of that hearing. 29.2. Accordingly I approach this element of the Further Particulars as an application to amend. 29.3. Applying the principles in Selkent Bus Co Ltd v Moore

[1996] ICR 836

(EAT):a. This is not a minor amendment, albeit that it is not the addition of an entirely new cause of action.

b. The amendment is substantially out of time, having been made some 22 months after the alleged dismissal.

c. No good reason has been given to explain why the amendment was raised for the first time in the Further Particulars. The fact that the Claimant was not represented is not sufficient, without more, to account for this. In any event the Claimant was represented from at least October 2021.

d. Moreover the manner in which the amendment is sought to be made is not satisfactory. No facts are pleaded in the Further Particulars relating to the Claimant’s dismissal other than under a different cause of action (automatically unfair dismissal), and the basis upon which it is said that the dismissal was discriminatory is not stated. If the claim were to be allowed to proceed, yet more Further Particulars would be required.

e. Considering the prejudice caused to the Claimant by depriving him of an opportunity to present the complaint as well as that caused to the Respondent by requiring them to respond to a complaint brought extremely late and in a barely particularised form, I find that that the balance of prejudice lies in favour of rejecting the amendment.

f. I therefore do not allow the amendment. Paternity leave

[30]The Claimant withdraws the complaint relating to his paternity leave in August 2019. That claim will be dismissed on withdrawal in a separate judgment. 10.2 Judgment – rule 61 7 February 2018 Public interest disclosure complaints

[31]The only indication of a protected disclosure complaint on the ET1 is that the Claimant ticked Box 10.

[32]In the Further Particulars the Claimant advances complaints that he was subjected to detriments because he made protected disclosures and that he was automatically unfairly dismissed for the same reason.

[33]In her submissions Ms Nanhoo-Robinson cut down the protected disclosure disclosures relied upon to the following:17. The Claimant relies on email communications dated 17 and 20 January 2020 from the Claimant to Robin Elson and Daniel Coole, where he raised: a) Withdrawal from the company account by Sumin Lohani and failure to repay/declare it. b) Sumin Lohani declared £12,000, when the correct sum was £50,000. c) Overdrawn accounts. h) … fraud.

18. The Claimant had also raised orally: a) A member of staff had been paid in cash (Natalie) – the Claimant first raised this with Robin Elson around October 2019. The Claimant had been instructed by Sumin Lohani to pay Natalie in cash in August 2019- September 2019, but the Claimant informed Sumin Lohani that it was wrong to make the cash payments and refused to do it again.

[34]Ms Nanhoo-Robinson also removed some of the detriments relied upon. The final list was: 21. In response to the Claimant raising the protected disclosures, the Respondent: a) Removed the Claimant’s travel allowance. b) Attempted to force the Claimant to resign. … d) Failed to provide the Claimant the correct notice (and pay) under the contract, causing a financial loss.

[35]The alleged dismissal is described at paragraph 19 as follows: 10.2 Judgment – rule 61 8 February 2018 The Claimant feared he was being forced out and/or being pressured to resign, because Sumin Lohani had shown a pre-prepared resignation letter to the Claimant for him to sign (the Claimant recollects that he was shown it in or around October 2019 and late November 2019, and 22 January 2020).

[36]Ms Nanhoo-Robinson submitted that the detriment complaints do not amount to an amendment. She said that some details of the complaints were contained in the Case Management Agenda from the last Preliminary Hearing, in which it was stated in Box 2.2 (which asks “Is there any application to amend the claim or response?”): Potentially – the Claimant has raised that the Respondent threatened the Claimant with dismissal and forced him to resign in response to the Claimant raising: - Suspected Tax avoidance/failure to abide by UK law by the R [Cash payments to staff]

[37]Ms Nanhoo-Robinson accepted that, the unfair dismissal claim having been rejected by the Tribunal, she now sought to reinstate it as an automatically unfair dismissal claim by way of amendment.

[38]Mr Dhorajiwala submitted that the public interest disclosure complaints were entirely new and that it was still not entirely clear what the claims consisted of. The legal basis of the complaints had not been pleaded in the Further Particulars and the factual basis of the dismissal claim was not adequately set out.

[39]In my judgment these complaints were not pleaded on the face of the ET1. The fact that the Claimant had ticked Box 10 does not amount to a protected disclosures complaint. That box is clearly not in the part of the claim form which requests details of the claim. There is no mention of protected disclosures anywhere else on the claim form.

[40]I therefore approach these complaints as proposed amendments.

[41]I do not permit the Claimant to proceed with these complaints. My reasons, applying Selkent, are that: 41.1. This is very substantial amendment introducing an entirely new cause of action. 41.2. The amendment is significantly out of time, having been made some 22 months after the alleged dismissal and even longer since the alleged detriments. 41.3. As with the discriminatory dismissal complaint, no good reason has been given to explain why the amendment was raised for the first time in the Further Particulars. 10.2 Judgment – rule 61 9 February 2018 41.4. The manner in which the amendment is sought to be made is not satisfactory. The pleading remains inadequate for the reasons stated by Mr Dhorajiwala. If the claim were to be allowed to proceed, yet more Further Particulars would be required. 41.5. The balance of prejudice is the same as that for the discriminatory dismissal complaint referred to above. 41.6. I therefore do not allow the amendment. Travel allowance

[42]I do not grant permission for the Claimant to amend his claim to include the claim for unpaid travel allowance which appears in the Further Particulars. My reasons are that: 42.1. it is an entirely new claim and therefore is a relatively substantial amendment; 42.2. it is out of time; 42.3. Ms Nanhoo-Robinson did not make submissions as to why it should be allowed to proceed; and 42.4. It had not been raised before the last Preliminary Hearing. Notice pay

[43]The claim for six months’ contractual notice pay is permitted to proceed. The Claimant ticked the box for notice pay on the ET1. This is therefore not a new claim. Summary of remaining claims

[44]The claims in respect of which I have allowed the Claimant’s amendment application or which were already contained in the ET1 are: 44.1. direct disability discrimination and harassment (detriment only); 44.2. accrued holiday pay; and 44.3. six months’ contractual notice pay. 10.2 Judgment – rule 61 10 February 2018 The Respondent’s strike-out application Disability

[45]I am not able to conclude that the Claimant has no reasonable prospect of showing he was a disabled person at the relevant times.

[46]However, I do conclude that the Claimant has little reasonable prospect of so doing. The Claimant’s disability impact statement contains very little information about the impact of his condition on his day-to-day activities and the medical evidence provided is sparse.

[47]I therefore make a Deposit Order relating to the issue of whether the Claimant was a disabled person at the relevant times. The Order will be made sum of £150, taking into account the information provided to me by Ms Nanhoo-Robinson about the Claimant’s means, which was that: 47.1. he now earns £1,600 a month, which is slightly more than what he earned when he was working for the Respondent; and 47.2. his wife is working part time but because he had been out of work for some time they were still struggling financially. Direct disability discrimination / harassment (detriment)

[48]It is not possible for me to assess the substantive merits of the complaints of direct disability discrimination and harassment at this stage.

[49]I therefore do not make any order that these claims be struck out. Holiday pay

[50]The claim for accrued holiday pay is struck out.

[51]No factual basis for the claim was described to me. The Claimant has had legal representation for some six months and yet has not given coherent instructions on this to his counsel. He has produced no documentary evidence in support of it. The claim has no reasonable prospects of success. Notice pay

[52]The application to strike out the claim for six months’ accrued notice pay fails.

[53]The contractual documentation which was shown to me is ambiguous and it would not be safe for me to reach a preliminary view about its meaning in the absence of oral and potentially other documentary evidence. I take 10.2 Judgment – rule 61 11 February 2018 account of the Respondent’s submission that the Claimant clearly resigned voluntarily. However I do not consider it possible to reach the conclusion that he did has no reasonable prospects of showing that he was in fact dismissed based only on the fact that he signed a resignation letter. His account needs to be tested. Summary

[54]The remaining claims are: 54.1. direct disability discrimination and harassment (detriment only), subject to a deposit order on the issue of whether the Claimant was a disabled person at the relevant times; and 54.2. six months’ contractual notice pay (i.e. wrongful dismissal).

The Facts

[55]We are satisfied that the Claimant signed these documents willingly. He knew that, by doing so, he was entering into formal, and legally binding, agreements. We are satisfied that he had the opportunity to read the documents, and consider the contents, before signing and that – subject to financial considerations, of course – he had the opportunity to take legal advice before signing.

[56]At the time he signed these documents (in or around June 2018), the Claimant did so because he wanted to be involved in the business venture. Nothing that Mr Lohani did tricked or coerced the Claimant into signing these documents.

[57]A further relevant document appears at page 229 of the bundle. Each of the Claimant and Mr Lohani signed and dated it on or around 26 April 2019. It bears the heading “New Godalming Sushi Ltd Business Partnership Deed”. On its face, it does not purport to be a new agreement entered into in April 2019, but rather purports to be a written record of the agreement that they had reached at the outset of creating the company and making it operational (so around April or May 2018).

[58]At the time he signed this latter document (on or around 26 April 2019), the Claimant did so because he believed that it accurately recorded what had previously been orally agreed. There are two crossings out (each initialled by both parties); we are satisfied that the Claimant gave the document some thought and consideration before agreeing to sign the final version (that is, including the handwritten amendments).

[59]Significantly, and amongst other things, the document included the following extracts: This document is proof of the agreement of SUMIN LOHANI and HEMANTA MAINALI becoming business partners for the purpose and time of New Godalming Sushi Ltd being operational, under the following terms:• HEMANTA MAINALI will own 30% of New Godalming Sushi Ltd, and SUMIN LOHANI will own 70% of New Godalming Sushi Ltd respectively, responsible for either loss or profit during trading.

• HEMANTA MAINALI will be the primary on-site full time Operational Manager of New Godalming Sushi Ltd.

• HEMANTA MAINALI will be given a NET Salary of £1500 per month

• If either party, HEMANTA MAINALI or SUMIN LOHANI, wish to exit from the terms and conditions stated here, as well as their ownership of New Godalming Sushi Ltd, they must give a minimum of Six months' notice and company will be valued on the base of company asset, liabilities, cash flow in bank and stock hold. By signing below both parties here by agree to the before stated terms and conditions, for the duration of New Godalming Sushi Ltd being operational

[60]The Respondent's witness, Mr Lohani, accepted that his interpretation of the document was that this reference to a notice period of six months applied to all parts of the agreement between him and the Claimant, including any parts that dealt with employment by the Respondent. 8 of 27

[61]The reference to “net salary” of £1500 per month was a reference to what the Respondent would pay the Claimant, and this was because he had agreed to work as the Respondent’s “primary on-site full time Operational Manager”. Each of the Claimant and Mr Lohani sometimes worked in the kiosk (and the Respondent also had other employees) but the Claimant worked there more frequently and regularly than Mr Lohani. The agreement was that Mr Lohani would more frequently work off-site and the Claimant was responsible for sourcing and dealing with suppliers, accounting and the monitoring of daily performance of the kiosk.

[62]No other contractual documents or written documents were created in relation to the Claimant’s employment relationship with the Respondent. This was because neither the Claimant nor Mr Lohani thought it was necessary at the time.

[63]As shown by the payslips in the bundle, the Claimant was paid by the Respondent each month from June 2018 to January 2020 inclusive. In the first few months, his pay fluctuated slightly before settling down at a steady £1200 net per month. From April 2019 to January 2020 inclusive, it was exactly £1500 per month. PAYE deductions are shown on each payslip, with the gross being stated as around £1772 per month. Thus, in April 2019, his gross pay increased by around £120 per month.

[64]There is not necessarily agreement between the parties about what happened in relation to specific shareholdings and specific capital payments at particular dates. However, there is no dispute that until (at least) January 2020, the Claimant was all of the following:64.1 Shareholder of the Respondent

64.2 Director of the Respondent

64.3 Employee of the Respondent

[65]In November 2019, KellyDeli (Mr Elson) met the Respondent (Mr Lohani and the Claimant). KellyDeli expressed some concerns about the Respondent’s performance. There was a further meeting around 20 December 2019, with the same three attendees. KellyDeli was not fully satisfied with the outcomes of two recent audits, and told the Respondent that improvement was required and it would be continuing to monitor the situation. However, it was not so concerned that it served any formal improvement notices, or that it urgently scheduled a further meeting. The plan was that the next meeting would not be until around a month later (22 January 2020).

[66]As far as Mr Lohani was concerned, the failings that KellyDeli was highlighting were operational issues for which the Claimant, as “primary on-site full time Operational Manager” was responsible. He also formed the opinion that KellyDeli had doubts about the Claimant’s suitability for this role.

[67]On 4 January 2020, at about 00:29, Mr Lohani sent out the rota for the following week. He sent it to the employees of the Respondent who would be working at the kiosk that week, including the Claimant. He sent it via WhatsApp. He did not send it to the Claimant only. He did not choose the time of sending to annoy the Claimant or anyone else. He had thought that people would read the message 9 of 27 when convenient to them, and had not expected them to read/respond straight away (and no response was necessarily required, unless there was a problem working the specified shifts).

[68]The Claimant’s phone made a sound when this message was received. That had not been Mr Lohani’s intention; he had simply given no thought to that possibility. The Claimant and his family were asleep, and were disturbed by the phone alert.

[69]The Claimant replied two minutes later, at 00:31, to say: This is very wrong to post at midnight. Go fuck yourselves

[70]Mr Lohani replied immediately, at 00:32, to say: Watch your mouth, I didn't ask you to check now

[71]There was a brief discussion, at work later in the morning, in which each reiterated their views of the matter (the Claimant objecting to having been awakened, and Mr Lohani objecting to the Claimant’s four letter response). As this exchange demonstrates, the Claimant’s and Mr Lohani’s friendship was under strain and (as we discuss below) there were some further incidents in January. However, as a self-contained incident, it was over after the brief discussion in the morning of 4 January. The Respondent did not commence any (formal or informal) disciplinary action against either of them, and nor did either raise a grievance.

[72]We reject the Claimant’s factual assertions that, on 15 &/or 16 January 2020, Mr Lohani told the claimant that the claimant needed to leave the business. Mr Lohani denies it, and there is no documentation or corroborating witness. Furthermore, during the tribunal hearing, whenever the claimant was asked about this particular allegation from the list of issues (as he was, several times), he consistently referred instead to his arguments about what happened on and immediately after 17 January.

[73]On 17 January 2020, Mr Lohani wished to have a conversation with the claimant. He therefore went to the kiosk while the Claimant was there. Another employee, Ionut Tiplea (one of the witnesses in the hearing), was also present. Mr Tiplea is referred to as “Jon” or “John” in some of the contemporaneous communications between the Claimant and Mr Lohani.

[74]Both the Claimant and Mr Lohani accept that the discussion became heated. However, they disagree about the details of what happened. They each suggest that the other was the more aggressive, and that they simply reacted to, and sought to defend themselves against, the other’s aggression.

[75]We accept Mr Tiplea’s evidence that he was paying attention to his work. He was using sharp knives and was seeking to avoid injuring himself and he had to complete his tasks quickly to avoid spoilage. Furthermore, he regarded Mr Lohani and the Claimant as his two bosses, and he was keen to avoid becoming involved in the confrontation. His account – which we accept is truthful – is that he does not know what specific words were used. This means that, on the one hand, he does not provide corroboration for the Claimant’s account of what was said to him. 10 of 27 On the other hand, the fact that Mr Tiplea did not hear such words does not, in the circumstances, provide corroboration for Mr Lohani’s denials.

[76]Mr Lohani’s account was that he wished to discuss the hygiene and performance issues which KellyDeli had raised in November and December. This was a Friday. They were due to meet KellyDeli the following Wednesday 22 January. His account is that he started that conversation and the Claimant reacted by becoming very aggressive and trying to punch him. He suggests that the Claimant had a knife in his hand at the time.

[77]The Claimant’s account is that nothing about hygiene or KellyDeli’s concerns were raised. Rather he says that Mr Lohani came over and said (words to the effect of) “what are you still doing here?” That is, on the Claimant’s case, Mr Lohani had previously been trying to persuade him to resign and was continuing that campaign on this day. The Claimant denies that he was using a knife, and says he was grating vegetables. He claims that Mr Lohani became aggressive and tried to headbutt him. He says that he simply put up his hands to defend himself. He says he tried to get away, but Mr Lohani blocked his escape route.

[78]After the incident, Mr Lohani spoke to Waitrose security staff. He wanted to know what, if any, CCTV existed. He was told, we infer, that if there was a request from the police, then Waitrose security would be willing to share what CCTV footage (if any) existed.

[79]At about 5pm, Mr Lohani wrote to the Claimant: This afternoon 17th Jan around 2.30-2.40pm your violence & aggressive behaviour is totally unacceptable, not only that, you raised your punch towards to me which is physical assault completely disgusting!! I have spoken to Waitrose management and security guy who is going to look in to CCTV footage during those time frame which will be pass on to police as physical assault complaint!! Jon is a witness as you crossed the line today, such a shame that I would not trust your presence in my kiosk anymore as all of my staffs are scared with your funny behaviour!!!! I need you to think how are you going to exit from my company before I start disciplinary action your behaviour!!

[80]He did not, in fact, contact the police himself, or make any further enquiries with Waitrose security as to whether they took any action at all.

[81]The Claimant replied to say: You have threatened me in the training room twice before. Which has be verbally reported to robin in the last meeting. You have made forged paper to sack me against the kellydaily policy. Today you started verbal abuse, hate speech, swear words and threatened me again. When I ask for clarification of why you started all this you came to attack me close to John, while he was cutting fish so I ask you to go out for safety of all. Anyway I feel much safer and it all on open sapne and recorded in Waitrose. There might be recording of training room incident as well. I did nothing wrong. I was doing my job you started verbal and physical abuse while at work.

[82]Mr Lohani’s response was: You live in dreaming with your fake story, I disagree with your fake accusations!! You proved that what level of your language you use and your abusive language which has 11 of 27 been recorded in our company WhatsApp group, all my staff agree with me that they don't feel safe and comfortable working with you, remember I gave you certain percentage, it's my company and I take the right step and decision for the better for company and staff. Anyway , rest of the process will be handled by police as you cross the line with witnesses of Jon and CCTV footage!!

[83]The Claimant answered by saying, “I welcome fair and just process.”

[84]Our findings are that each of the Claimant and Mr Lohani have exaggerated slightly both in terms of(a) how aggressive the other person was and

(b) how calm and restrained they themselves were. We take into account that this was an incident which took place in a supermarket during opening hours. At the start of the incident, Mr Lohani was on the customer side of the counter. We have been provided with no evidence that the incident was so heated that (i) any customer complained (to the Respondent or to KellyDeli or to Waitrose); (ii) that any member of Waitrose staff or Waitrose’s security became involved; (iii) that anyone (including Mr Lohani and the Claimant) actually got the police involved. We accept that Mr Tiplea was motivated to avoid becoming involved but, even so, if there had been as much aggression as each of Mr Lohani and the Claimant accused the other of, then he would have seen it.

[85]The Claimant alleges that Mr Lohani sought to head-butt him and we find that that did not happen. Mr Lohani's says that the claimant tried to punch him while holding a knife and we find that that did not happen. Our finding is that the oral argument escalated to some pushing and shoving. However, between the two of them before matters became too overheated, there was a realisation that having a very aggressive interaction in Waitrose during opening hours was not sensible for themselves as individuals, or for their business venture.

[86]On balance, we prefer Mr Lohani’s account of what started the argument. His account that he wanted to speak to the Claimant about the upcoming meeting with KellyDeli and wanted to be sure that the Claimant was going to be able to give satisfactory answers at the meeting about what improvements had been made is consistent with the chronology. Furthermore, it is more inherently plausible than the Claimant’s account. If Mr Lohani had wanted to provoke the Claimant (physically or orally) into a fight or a resignation, then he had every opportunity to do it away from Waitrose. Doing so on Waitrose premises, during opening hours, would run the risk of damaging the Respondent’s business significantly.

[87]We are not persuaded that Mr Lohani used the words “psycho” or “mental”. We are sure that he did not do so at the outset, to either insult or provoke the Claimant. If, contrary to our finding, he used them during the altercation as a response to what he perceived as the Claimant’s inappropriate response to the questions about hygiene matters, not because he thought the Claimant had a mental impairment.

[88]We do not think Mr Lohani made the threats of police involvement in bad faith. Our finding is that his perception on the day of the incident was that he had been assaulted (though he is probably mistaken that the Claimant was holding a knife at the time). However, on calmer reflection, he came to decide that the matter was not serious enough to involve the police, and/or that he lacked sufficient evidence. 12 of 27

[89]We are satisfied that Mr Lohani had no specific discussions with the other employees about whether they were (or were not) happy to work with the Claimant, or about whether they felt comfortable working with him. He was expressing his own opinion that he did not think staff were comfortable, and his own opinion that they would (therefore) agree with him if he asked them.

[90]Based – in particular – on the contents of the emails, we are satisfied that Mr Lohani gave some thought to whether it was necessary for the Claimant to leave the business. As well as the fact that his perception was that the Claimant was responsible for the fact that the 17 January 2020 discussion had become physical, he had also not received satisfactory answers to the matters he had wanted to discuss; that is, what assurances the Claimant was going to be able to give to KellyDeli on 22 January 2020.

[91]On the balance of probabilities, we accept that Mr Lohani’s recollection is correct and the claimant did come to work the following day, Saturday 18 January. We accept that there was some discussion about whether they could put things behind them. The reason that we think that the claimant must have come into work on at least one of the days between the 18 and 21 January is that we do accept that they both were going to the preplanned meeting on 22 January at KellyDeli, head office and there must have been some discussions about that trip after the email trail on 17 January finished.

[92]On 22 January, the claimant, Robin Elson and Mr Lohani met in Mr Elson's office. The exact details of what happened are in dispute.92.1 Mr Lohani's account is that there was no particular discussion about the events of 17 January or any other disagreements between the claimant and him, because as far as he was concerned, they had put all that behind them. He says he had accepted the claimant's apology (on or around 18 January) because of their long-standing friendship.

92.2 On the claimant's account, Mr Lohani had manipulated the situation and Mr Lohani had sought to persuade KellyDeli that there had been a breach of KellyDeli’s rules. According to the Claimant, Mr Lohani persuaded Mr Elson purely to listen to Mr Lohani's version of events of 17 January without giving any consideration to the Claimant’s version. Furthermore, the Claimant suggests that he was presented with a document in the meeting, which Mr Elson said the claimant had to sign and said that he, the claimant was not allowed to go back to the kiosk at all.

[93]The document mentioned by the Claimant is at page 257 of the bundle. It has handwritten signatures from each of the Claimant and Mr Lohani. It reads: Dear Robin, Hemanta Mainali wishes to resign from New Godalming Sushi Ltd as soon as possible. We will send through an application to replace Hementa no later than 27th January 2020. We both would like to request you to consider this application please. 13 of 27 Many thanks Hemanta Mainali Sumin Lohani

[94]The correct spelling of the Claimant’s name is “Hemanta”, as per the first and third appearances in the document just cited. The middle appearance, “Hementa”, is therefore spelt incorrectly.

[95]Mr Lohani's account of the production of this document is that the claimant decided that he would type something up on Mr Elson's laptop, and that he borrowed Mr Elson’s laptop and produced this document of his own accord. Mr Lohani repeatedly said, when asked, that the wording was all of the claimant's own creation without any input from either Mr Lohani or Mr Elson.

[96]Our findings are that what actually happened is somewhere in between these two extremes, but in important respects is closer to the claimant's version of events.96.1 We do not accept that, by 22 January, Mr Lohani had put the events of 17 January as fully behind him as he professed, in the tribunal hearing, to have done.

96.2 We accept (based on Mr Lohani's evidence, which is to some extent consistent with the claimant's evidence on this point) that during the meeting Mr Elson expressed some concern about the claimant's performance. [He may well have also expressed concerns about other aspects of the respondent's performance, including things that were the responsibility of Mr Lohani; but he did particularly refer to the onsite issues at the kiosk and query whether the Claimant was on top of things.]

96.3 During the course of the meeting, Mr Lohani formed the definite view that the Claimant should leave the business and do so promptly. He had been thinking about the Claimant’s departure already (as the emails on 17 January demonstrate). It is possible that he had already decided, before the meeting, that he definitely wanted the Claimant to leave straight away. However, we think it more likely that he was more focused on getting the meeting with KellyDeli out of the way first, and to have further discussions with the Claimant about the business’s future after that. However, on hearing what Mr Elson said about on-going concerns about the kiosk, Mr Lohani decided to ask what Kelly Deli's attitude would be to claimant's leaving and KellyDeli said that this would have to be in writing.

96.4 We are not persuaded that Mr Elson would have loaned his laptop to the claimant to produce the document. It seems unlikely (thought not impossible) that the Claimant would have mistyped his own name. However, in any event, regardless of who actually did the typing of the document, we are satisfied that the wording was chosen by Mr Lohani and/or Mr Elson, and not by the claimant. There would, for example, have been no reason for the claimant to write in this document “We will send through an application to replace Hementa no later than 27th January 2020” if he was simply writing his own unprompted document. Similarly, the whole of the document – as well as the 14 of 27 signatures – made clear that it was a joint letter, and not a letter from the Claimant alone. We think it implausible that the Claimant would have typed this without input from any body else, and we find that he did not do so.

[97]We are also satisfied that Mr Lohani was acting on the behalf of the Respondent (the limited company, New Godaiming Sushi Ltd) during the meeting on 22 January. He was the 70% shareholder and had referred to it as “my” company when writing to the Claimant. We are satisfied that Mr Lohani was aware that the claimant did not wish to sign this letter (257) to KellyDeli. We are satisfied it was not the claimant who suggested that the Claimant would resign (as an employee, or as a director, or as a shareholder). We are satisfied that, as of 22 January, the claimant wanted to stay in the business.

[98]The Claimant signed the documents because he was told that Mr Lohani (who was acting on behalf of the Respondent) was not giving him the choice and that the business was going to carry on without the claimant.

[99]After the document had been signed during the meeting, at 15:15 on 22 January, Mr Lohani wrote to the Claimant saying: As we discussed earlier, please work till next week Friday and I will organise Yadu to visit next week Friday in our kiosk to reconciliation of our P&L till this month, you may wish to bring your accountant if you feel needed, otherwise our company accountant Yadu will finalise our accountants. Can you please bring all company documents which you took those few months ago, thanks Sumin

[100]“Yadu” refers to Mr Aryal of Kanti & Co Ltd, the Respondent’s accountants. “Next week Friday” was the last day of the month, 31 January 2020.

[101]The Claimant replied half an hour later, saying: As discussed earlier, it was said I may damage kiosk/ reputation so though I wanted to help. I have emailed robin saying conversation ended me being on leave. Though I could help it doesn't seem right to be there without KellyDeli permission. And I have other priorities. Thanks Hemanta

[102]What the Claimant says in that email was his genuine understanding of the situation. That is, as far as he was concerned, he had been told in the meeting that he was leaving the business almost immediately, as a result of what happened during the meeting, and he had been told that he would be on some form of leave (whether holiday or garden leave) with immediate effect.

[103]Our finding is that Mr Lohani acknowledged as much in his reply 17 minutes later, which said: Ok, understood , then please come to the kiosk on Friday 31st Jan for final account. Please bring your uniform, locker keys and company documents on Friday 31st. Thanks 15 of 27

[104]Our finding is that the fact that Mr Lohani said he wanted the claimant spend a few more days working at the kiosk is not inconsistent with the Claimant’s assertion that it was Mr Lohani’s decision that he leave the business. Rather, having gone ahead and ended things during the meeting (with some input from KellyDeli), after the meeting Mr Lohani realised that he needed somebody urgently to cover some shifts. Furthermore, he was keen (not unreasonably) to recover the company paperwork which the Claimant had previously taken home (with permission).

[105]Regardless of the Claimant’s status between 22 January and 31 January (that is, regardless of whether he was on annual leave, or some other sort of absence), Mr Lohani’s emails at 15:15 and 16:02 made clear that the Claimant’s last day as an employee was to be 31 January. He was being told to hand in his uniform and the keys because he would no longer need them (or have the right to use them) after that date.

[106]On Sunday 26 January, there was a further exchange of emails in which the arrangements for the forthcoming Friday 31 January were discussed. This correspondence (like all the rest at around this time) makes clear that both sides knew that the Claimant would not be an employee after 31 January.

[107]We take account of the item of late disclosure, which is “Deed of Adherence”. The Claimant (as well as Mr Lohani, and some others) signed this document. The effect (or at least the intention) was to replace the Claimant “as both a shareholder and director” with Mr Lohani’s wife. She also replaced the Claimant in the contractual agreements between the Respondent and its directors and KellyDeli. This item is dated 28 February 2020 and cross-refers to the letter of 22 January cited above. The Respondent alleges that this shows that the Claimant was content with, and still agreed with, the contents of that letter. The Law Burden of Proof under Equality Act 2012 “EQA”

The Law

[108]Section 136 of the Equality Act deals with burden of proof and is applicable to all the Equality Act claims in this action. Section 136 of EA 2010 states (in part):(1) 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.

[109]Section 136 requires a two stage approach:109.1 At the first stage, the tribunal considers whether there are proven facts from which the tribunal could conclude, in the absence of an adequate explanation from the respondent, that the contravention has occurred. At this stage it would not be sufficient for the Claimant to simply prove that what she alleges happened did, in fact, happen. There has to be some evidential basis upon which the tribunal could reasonably infer that the proven facts did amount to a 16 of 27 contravention. That being said, the tribunal can look at all the relevant facts and circumstances and make reasonable inferences where appropriate.

109.2 If the Claimant succeeds at that first stage, then that means that the burden of proof has shifted to the respondent and that the claim must be upheld unless the respondent proves that the contravention did not occur.

[110]Where we do not find, on the balance of probabilities (taking into account the evidence from both sides and drawing inferences where appropriate), that a particular alleged incident did happen then complaints based on that alleged incident fail. Section 136 does not require the Respondent to prove that alleged incidents did not happen. Harassment

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

[112]Disability is a relevant characteristic for the purposes of section 26. The facts needs to establish - on the balance of probabilities - that the Claimant has been subjected to “unwanted conduct” which has the “the prohibited effect”. To succeed, in a claim of harassment, it is not sufficient for a claimant to prove that the conduct was unwanted or that it has the purpose or effect described in Section 26(1)(b) Equality Act 2010. The conduct also has to be related to the particular protected characteristic (in this case disability). However, because of section 136, the claimant does not necessarily need to prove - on the balance of probabilities - that the conduct was related to the protected characteristic. To shift the burden of proof, we would need to find facts from which we can infer that the conduct could be so related.

[113]In HM Land Registry v Grant

2011 ICR 1390

, the court of appeal stated that – when considering the effect of the conduct, and taking into account section 26(4) – it was important not to “cheapen” the words used in section 26(1). It said. 17 of 27 Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. The claimant was no doubt upset … but that is far from attracting the epithets required to constitute harassment. … to describe this incident as the Tribunal did as subjecting the claimant to a “humiliating environment” when he heard of it some months later is a distortion of language which brings discrimination law into disrepute.

[114]When assessing the effects of any one incident which is one of several incidents, it is not sufficient to consider each incident by itself in isolation. The impact of separate incidents can accumulate and the effect on the work environment may exceed the sum of the individual episodes. In Qureshi v Victoria University of Manchester, the EAT warned against taking too piecemeal an approach to the analysis of a set of incidents which were each said to amount to harassment or discrimination. Taking the allegations as a whole (as well as considering each individually) is necessary not just when assessing the effect of the Respondent’s conduct on the claimant, but also when deciding whether to draw inferences that the unwanted conduct (or any of it) was related to race.

[115]When deciding whether particular unwanted conduct was related to disability or not, then the alleged harasser’s knowledge about the Claimant’s (alleged) impairments will be relevant, but not decisive. For example, a response to something which the Claimant did because the Claimant was disabled, might be “related to” the disability. Direct Discrimination

[116]Direct discrimination is defined in s.13 of EQA. (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[117]It has two elements; firstly whether the Respondent has treated the Claimant less favourably than it has treated others (“the less favourable treatment question”) and secondly whether the Respondent has done so because of the protected characteristic (“the reason why question”). So for the less favourable treatment question the comparison between the treatment of the claimant and the treatment of others can potentially require decisions to be made about the characteristics of a hypothetical comparator. That being said, the two questions are intertwined and sometimes an approach can be taken that the Tribunal deals with “the reason why question” first. If the Tribunal decides that the protected characteristic was not the reason even in part for the treatment complained of it will necessarily follow that the person whose circumstances are not materially different would have been treated the same. That might mean that in those circumstances there is no need to construct the hypothetical comparator.

[118]When considering the reason for the claimant’s treatment we must consider whether it was because of the protected characteristic or not. We must analyse both the conscious and sub-conscious mental processes and motivations for actions and decisions and s.136 applies. In other words, if there are proven facts from which the Tribunal could infer that there had been unlawful discrimination then the burden of proof shifts to the respondent and the claim must be upheld 18 of 27 unless the respondent proves that the treatment was in no sense whatsoever because of a protected characteristic.

[119]In approaching the evidence in a case and considering the burden of proof provisions the Tribunal can have regard to the guidance given by the Court of Appeal in, for example, Igen v Wong

[2005] ICR 931

and Madarassy v Nomura

[2007] ICR 867

. The burden of proof does not shift simply because the claimant proves a difference in sex or race and a difference in treatment. That only indicates the possibility of discrimination, and that is not sufficient. Something more is needed. In In Deman v Commission for Equality and Human Rights

2010 EWCA Civ 1279

, the Court of Appeal suggested that “something more” does not need to be a great deal more. For example - depending on the facts of the case - a nonresponse from a respondent, or an evasive or untruthful answer from a respondent or an important witness, could be the “something more” that is required. Against other factual circumstances, it may simply be the context of the act itself. In SRA v Mitchell, the EAT upheld a tribunal’s decision that the burden of proof shifted based on a finding that the employer had given a false explanation of the less favourable treatment. That being said, it is important for us to remind ourselves that the mere fact alone that a Tribunal rejects the employer’s explanation for some particular act or omission does not mean that the burden of proof necessarily shifts, see for example Raj v Capita Business Services.

[120]As per Essex County Council v Jarrett EAT 0045/15, when there are multiple allegations, the Tribunal has to consider each allegation separately when determining whether the burden of proof has shifted in relation to each one. It should not take a broad-brush approach in respect of all the allegations.

[121]When a comparator is used the actual or hypothetical comparator’s circumstances must be the same as the claimant's other than the protected characteristic in question. In relation to comparators for allegations of direct disability discrimination, the Equality and Human Rights Commission’s Code of Practice on Employment gives useful guidance 3.29 The comparator for direct disability discrimination is the same as for other types of direct discrimination. However, for disability, the relevant circumstances of the comparator and the disabled person, including their abilities, must not be materially different. An appropriate comparator will be a person who does not have the disabled person’s impairment but who has the same abilities or skills as the disabled person (regardless of whether those abilities or skills arise from the disability itself). 3.30 It is important to focus on those circumstances which are, in fact, relevant to the less favourable treatment. Although in some cases, certain abilities may be the result of the disability itself, these may not be relevant circumstances for comparison purposes. Example: A disabled man with arthritis who can type at 30 words per minute applies for an administrative job which includes typing, but is rejected on the grounds that his typing is too slow. The correct comparator in a claim for direct discrimination would be a person without arthritis who has the same typing speed with the same accuracy rate Definition of Disability

[122]The statutory provisions are to be found in the Equality Act 2010 (“EqA”). Section 6 provides the statutory definition of disability. In part, it states: 19 of 27(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

(2) A reference to a disabled person is a reference to a person who has a disability.

[123]Schedule 1 contains supplementary provisions relating to the determination of disability. Sub-paragraphs 2(1) and 2(2) of the Schedule provide:(1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c)it is likely to last for the rest of the life of the person affected.

(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

[124]In SCA Packaging Ltd v Boyle

[2019] UKHL 37

;

[2009] ICR 1056

, the House of Lords made clear that the word “likely” in this context means something that could well occur, as opposed to something that is more likely than not to happen.

[125]Sub-paragraphs 5(1) and 5(2) of Schedule 1 provide:(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect.

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

[126]In summary, there are 4 matters which the tribunal must consider:126.1 Whether the Claimant has a physical or mental impairment;

126.2 Whether the impairment affects the person's ability to carry out normal day-today activities.

126.3 The effect on such activities must be 'substantial' which means more than trivial

126.4 The effects must be 'long term'

[127]The third and fourth of these matters - long-term and substantial – can be analysed separately but it is also important to bear in mind that they are inter-connected. The substantial effects must also be long-term. 20 of 27

[128]In Walker v Sita Information Networking Computing Ltd [2013] the EAT, emphasised that when considering whether or not an individual is disabled the ET must concentrate on the question whether he or she has a physical or mental impairment; the cause of the impairment, or absence of apparent cause, is not of zero significance, but its significance is evidential rather than legal. In other words, a cause identified by a medical expert might corroborate that the impairment exists, and the lack of such a proven cause might lead the tribunal o conclude that the Claimant does not genuinely suffer from the impairment. However, if satisfied of the genuineness of the symptoms then lack of a specific diagnosis of the cause does not mean that the Claimant had failed to prove “impairment”.

[129]In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Activities which are not performed by the majority of the population might still be day to day activities, and activities which are usually performed only in connection with work – such as attending an interview, or maintaining a shift pattern – can potentially be considered day to day activities.

[130]Guidance has been issued “On matters to be taken into account in determining questions relating to the definition of disability”. In that Guidance, it is suggested: “An impairment might not have a substantial adverse effect on a person's ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, when taken together, could result in an overall substantial adverse effect.”

[131]Furthermore, at paragraph B7 of the Guidance, it is suggested that the ability of a person to modify their behaviour to cope with an impairment may be of relevance in deciding whether it is substantial.

[132]Paragraph B9, advises that an impairment may exist even though there is some ability to carry out tasks. Deciding how substantial an adverse effect is requires analysis of what someone cannot do rather than what they can.

[133]The time at which the question of disability is to be determined, that is as at the date of the alleged discriminatory act or omission: Cruickshank v VAW Motorcast Ltd

[2002] IRLR 24

, EAT.

[134]That means, amongst other things, that where it is necessary to decide whether an impairment was “likely to recur” (as per paragraph 5(2) of Schedule 1 EQA), the Tribunal must base that decision on whether the evidence shows that, as of the relevant on which the alleged discrimination occurred, it was “likely to recur” . Evidence that the impairment did actually recur later does not necessarily establish that it had been “likely to recur” as of the relevant date. McDougall v Richmond Adult Community College

[2008] ICR 431

;

[2008] IRLR 227

[135]In Sullivan v Bury Street Capital Ltd

[2021] EWCA Civ 1694

, the following list was approved as questions for the Tribunal to address when determining whether or not a claimant is disabled for the purposes of EQA. 21 of 27135.1 Was there an impairment?

135.2 What were its adverse effects?

135.3 Were they more than minor or trivial?

135.4 Was there a real possibility that they would continue for more than 12 months or that they would recur?

[136]These are questions for the Tribunal. Medical evidence may be of great assistance, but the Tribunal, it is not bound by any expert opinion on the disability question. Furthermore, a lack of medical evidence (either generally, or on a particular point) does not prevent the Tribunal accepting the Claimant’s evidence and other evidence to demonstrate that the Claimant had the impairment at particular times, or the effects of treatment, etc.

[137]It is, however, for the Claimant to prove that they meet the definition, not for the Respondent to prove that they do not. Breach of Contract

[138]The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 allows the Tribunal to deal with breach of contract claims, and award up to £25,000 in damages. The requirements included that the Claimant was an employee of the Respondent. This is subject to the requirements in Article 3: Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if-(a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine;

(b) the claim is not one to which article 5 applies; and

[139]The exclusions defined by Article 5 are: This article applies to a claim for breach of a contractual term of any of the following descriptions-(a) a term requiring the employer to provide living accommodation for the employee;

(b) a term imposing an obligation on the employer or the employee in connection with the provision of living accommodation;

(d) a term imposing an obligation of confidence;

(e) a term which is a covenant in restraint of trade. 22 of 27 In this article, “intellectual property” includes copyright, rights in performances, moral rights, design right, registered designs, patents and trade marks. Analysis and

CONCLUSIONS

[140]As per the list of issues, the first set of matters to determine are: A. Disability 1. Was the Claimant disabled within the meaning of s 6 of the Equality Act (‘EqA’) 2010 at the relevant times? 2. The Claimant states that he is disabled by reason of: i. Anxiety; ii. Insomnia; and iii. Panic attacks. 3. Did the Respondent have knowledge of the Claimant’s alleged disabilities, and if so, from what date?

[141]Our decision is that claimant is not disabled within the meaning of the Equality Act 2010 (“EQA”) by reason of those alleged impairments.

[142]He has not proven to our satisfaction, the relevant elements of the definition were met as of the relevant dates.

[143]In the findings of fact, we went through the medical notes in some detail. We noted the 2013 injury. We noted the September 2014 items referring back to the injury about growth hormone. We noted the 2016 episode between 31 August and 29 September. We noted the hospital discharge form on page 225. We noted the entries for March 2017, which refers to “discharge care programme approach review”.

[144]We also noted the February 2019 “Stay well plan” and that, on the claimant's own account, it was he who was invited by the surgery to come in.

[145]The sections on the form (also replicated in the GP notes; so pages 227 and 126 of bundle) were things, according to our findings, that the GP was telling the claimant to look out for. He was being told that he were to have these symptoms he should contact the surgery, but he was not been diagnosed as having these symptoms. He was not recorded as informing the GP that he had these symptoms; on the contrary, the GP believed that the Claimant did not have those symptoms at the time.

[146]We also noted, in our findings of that, that in relation to the hospital discharge plan, there was a discussion that the claimant had been having severe sleep deprivation immediately prior to the August/September 2016 episode. Seemingly that was the cause of the episode we described in the findings. At the time, he was prescribed some medication, by the hospital, and we accepted the claimant's evidence that he continued to take them for longer than the 28 days initial supply. 23 of 27 Although his GP records do not explicitly confirm, the duration, on his own account, he finished taking that medication within a few months of 29 September 2016. The March 2017 discharge review section in the GP notes does not mention that he is taking the medication by then, and we infer that he had stopped a significant period of time prior to that review.

[147]There is no indication in the notes that the claimant was regularly suffering, insomnia after the 2016 episode or, other than in the 10 days or so in immediate run up to it, before that 2016 episode either.

[148]There is no indication in the notes that the claimant was regularly suffering or that he had anxiety or panic attacks.

[149]Although it is not conclusive that he was not prescribed medication for any of these alleged impairments, he was, in fact, prescribed no medication, other than, as just discussed, the medication given to him by the hospital in September 2016, which he took for a few months, ceasing a significant amount of time prior to March 2017. That medication did include medication to help with sleep. However, it was also to deal with the psychotic episode. We are not persuaded that it was for anxiety or panic attacks.

[150]We discussed what the notes said about hospital attendance for the head injury which happened in 2013. As far as is potentially relevant to the impairments, insomnia, anxiety or panic attacks, other than for the 2016 episode, he does not seem to have been referred to a hospital for any form of non-medication treatments whether it be counselling or something else. He did have a stay well plan, and that advised him on usual healthy options such as diet and reducing alcohol and so on, as well as “continue to engage with my friends / family, spend time with family …”

[151]The claimant has said that he believes he socialises much less frequently then he used to do so prior to his head injury in 2013. It is not one of the three things that are specifically alleged as impairments, but rather the Claimant would like us to consider it as an effect of anxiety. This includes speaking less on the telephone. While this may be true, that does not demonstrate causation to our satisfaction, and there is nothing in the medical notes to indicate that he discussed with his GP that he was socialising less frequently since 2013.

[152]He also refers to lack of concentration and forgetfulness. Again, these are not impairments in their own right, but the alleged effects of the anxiety and insomnia. He gives an example of having turned up for work on a day when he was not on the rota. However, we are not satisfied that he has shown that that particular incident was in some way linked to any impairment. It is the type of error that people sometimes make. Having an impaired memory is not something for which the Claimant and his GP appear to have discussed any treatment for. Such an incident of making a mistake which the claimant puts down to forgetfulness.

[153]Thus, for the anxiety and panic attacks, we are not persuaded that the Claimant had these impairments.

[154]For insomnia, at most, he has shown that he had sleep deprivation for a period of time in 2016. On the assumption that the sleep deprivation was caused by 24 of 27 insomnia, he has shown that it had a significant affect on his day to day activities. His ability to communicate was affected, as was his ability to reason, as was his perception of reality. He did recover after a fairly short period of time (episode began no more than about 2 weeks before 31 August 2016, and finished no later than 29 September 2016). We must ignore the effects of treatment, but he was not having medication for more than a few months.154.1 On the evidence, the impairment of insomnia did not last for close to 12 months, and nor was it likely (as of January 2020) to recur.

154.2 In the alternative, if the insomnia was on-going any later than the period August 2016 to (at the latest) March 2017, the effects on day to day activities were no more than trivial. There is no medication or other treatment to ignore after this period. The more than trivial effects were not likely to recur.

[155]Furthermore, we are not persuaded that Mr Lohani perceived the Claimant as being disabled, or as having a mental impairment.

[156]In relation to the harassment allegations, the Claimant has failed to prove that the alleged unwanted conduct in item 2i of the list of issues occurred (on the alleged dates of 15 or 16 January). He has also failed to prove (as per item 2ii of the list of issues) that(a) he was called “mental” or “psycho” or

(b) that Mr Lohani tried to headbutt him.

[157]For item 2iii, Mr Lohani did use the words, “all my staff agree with me that they don't feel safe and comfortable working with you”. This was unwanted conduct, but was not related to any (actual or) perceived disability. It was because the Claimant and Mr Lohani had had an argument earlier that day.

[158]The harassment allegations all fail.

[159]The Claimant’s complaints of direct discrimination fail. He has not been treated less favourably because of (actual or perceived) disability. Breach of Contract

[160]It is not one of the specific issues, but, as per the findings of fact, the claimant did not persuade us that he was improperly forced to sign the April 2019 document (page 229). Furthermore, and in any event, this is the document on which the claimant places reliance when asserting entitlement to 6 months’ notice, and so it would be inconsistent with his case for him to argue that this was void and/or did not represent the actual contractual agreement that he is claiming existed between the Respondent and him. In fact, it is our finding that the document does accurately reflect an agreement reached between Mr Lohani and the Claimant. Strictly speaking, it was not a written agreement between the Respondent and the Claimant.

[161]However, the respondent's witness, Mr Lohani accepted that this document did – in his opinion – say that there was a 6 month notice period applicable to employment relationship (as well as to other parts of the agreement). We are satisfied that there was a meeting of minds between the Claimant and the Respondent. Both the Claimant and the Respondent intentionally and validly 25 of 27 agreed that either of them would be required to give the other 6 months’ notice in order to unilaterally terminate the employment contract. It does not particularly matter whether that was an agreement which the Claimant and the Respondent first made at the start of the Claimant’s employment, or whether April 2019 was the first time that this particular clause was agreed. Either way, it was agreed no later than April 2019.

[162]Although not a specific item in the list of issues claimant suggested that the WhatsApp message of 4 January at 266 was deliberate attempt to disturb him, and perhaps encourage him to leave. We find that that is not the case. Even if the claimant is right in his belief that it was sent to his own contact address, not just to the group contact address, that does not indicate that he was being targeted or deliberately disturbed at night. As a co-owner of the respondent and somebody also responsible for drawing up rotas, there is nothing suspicious about the item being sent to him directly (if that was in fact the case).

[163]On the claimant's account, and genuine belief, Mr Lohani manipulated events so that, at the meeting on 22 January 2020, KellyDeli came to the view that there had been a breach of KellyDeli’s rules or agreements. The Claimant thinks that KellyDeli made the decision that he, the Claimant, had to leave (albeit, according to the Claimant, they were tricked into doing so by Mr Lohani).

[164]As per the findings of fact, our finding was that it was Mr Lohani who decided the Claimant should leave the business and who, acting on behalf of the Respondent, decided that that would include ceasing to be an employee. The Claimant was presented with a document in the meeting, which he was told he had to sign. During the meeting, it was made clear to the Claimant that he would not be going back to work at the kiosk at all (as the emails later on 22 January make clear and confirm). The fact that his last day as an employee would be 31 January was made clear to him on 22 January (including in the emails).

[165]The Claimant did not wish to cease to be director or shareholder or employee. It was Mr Lohani’s decision, not his. In the case of the Claimant’s employment, Mr Lohani, the 70% shareholder was acting (and was intending to act) with the Respondent’s authority, and the Claimant knew this.

[166]As per the findings of fact, it was not the claimant who suggested resignation. It is not true that the Claimant typed up the 22 January letter. The Claimant signed that document only because he was told that Mr Lohani was not giving him the choice.

[167]The 22 January document did not state that the Claimant was waiving his entitlement to notice as an employee. In the findings of fact, we quoted the exchange of emails sent later that day. It is our decision that, by telling Mr Lohani that he would not work up to 31 January, the Claimant was not breaching any term of his employment contract. Rather, he was simply repeating in writing what he had been told earlier that day by Mr Lohani (and/or Mr Elson) that he would be on leave, not working at the kiosk, with immediate effect. Mr Lohani did not seek to contradict what the Claimant had written (because what the Claimant had written was true) and did not suggest that if the Claimant did not come to work he might be subject to disciplinary action, or deemed to be in breach of contract. It is likely 26 of 27 that, had it wanted to do so, the Respondent could simply have informed the Claimant that his leave (whether holiday leave or garden leave) was cancelled, and the Claimant would have to work after all. However, the point is academic, because the Respondent did not purport to do so, having received the Claimant’s email of 1545 on 22 January.

[168]We note that the claimant did not promptly raise allegations that what occurred on 22 January 2020, was a dismissal. We also note that the Claimant did not promptly assert an entitlement to payment in lieu of 6 months notice, or damages for failure to give notice.

[169]However, our decision is that:169.1 As conceded by Mr Lohani, the 26 April 2019 document confirmed that the Claimant was entitled to 6 months notice if the Respondent wished to terminate the Claimant’s employment contract

169.2 The Claimant did not waive that entitlement

169.3 The Claimant had not committed any breach of contract such that the Respondent was entitled to terminate without notice

169.4 The Respondent’s actions on 22 January 2020 did amount to termination, with effect from 31 January 2020.

[170]The Claimant is therefore entitled to damages for the failure to give notice of a termination which could (if notice had been lawfully given) taken effect no earlier than 21 July 2020.

[171]The Claimant’s entitlement to salary was to £1500 net per month. Therefore, the parties may well be able to agree the appropriate sum themselves. However, if not, the panel will decide the amount at a remedy hearing.

The Law

[1]The Claimant’s entitlement to damages for breach of contract is assessed at £7678.31.

[2]The Respondent is not ordered to pay these damages until further order of the Tribunal. ORDERS 1. There will be a hearing on 20 July 2023 to determine what should happen to the deposit which the Claimant paid, and to determine any costs application that either side makes against the other. That hearing will take place at Employment Tribunals, Second Floor, 51 Clarendon Road, Watford, Hertfordshire, WD17 1HP, and last a maximum of ONE day, starting at 10am. 2. Any applications and documents for that costs hearing must be sent to the other party by 3 May 2023.

The Law

[1]This was a hearing which was mainly in person, except that the two non-legal members attended by video. It was a remedy hearing which followed on from panel’s previous liability decision.

[2]As set out in liability decision, the Claimant was entitled to be given 6 months’ notice of dismissal. He was dismissed without being given 6 months' notice.

[3]He was told on 22 January 2020 that his contract was terminated with effect from 31 January 2020. What he should have been given was notice to expire 22 July 2020.

[4]We said in the liability reasons why the net amount of earnings that the Claimant ought to have been receiving during the notice period was £1500 per month.

[5]The Claimant has suggested that there should be an additional £200 per month. He acknowledges that it was not set out on his payslips. He also acknowledges that it was not salary. He says that it was an amount that he was entitled to receive for travel costs.

[6]However, we do not allow this, and we continue to treat the net loss as being £1500 per month. There are several reasons for this, any one of which was potentially sufficient on its own.a. The document on page 251 of bundle is the partnership deed, which each signed, and is discussed in the liability reasons. It is from April 2019. There are two crossed out parts which are each initialled. The parties do not agree about whether this was done before or after the document was signed. But our decision is that it makes no difference, because it is clear that the parties intended to, and did, enter into this agreement on the basis that those parts were crossed out and did not form part of the agreement. The agreement was that each of the Claimant and Mr Lohani would receive £1500 net salary, and neither would receive a further £200 [for Rent/Travel in the Claimant’s case and for Fuel/Travel in Mr Lohani’s].

b. Prior to this document, we do accept that the company (the Respondent) had been contributing towards the rent of a property at which the Claimant was residing for the better performance of his duties. The Respondent was paying that directly to the landlord of the property. There is a dispute about how much was paid (Mr Lohani arguing it was more than the Claimant’s suggested £400 per month figure). However, we do not need to resolve what the precise cost to the company, or benefit to the Claimant, was, because the agreement changed. The Claimant ceased living in the accommodation and the Respondent ceased paying for it (and ceased deducting a contribution from the Claimant’s wages). The Claimant resumed living at home and therefore had a longer commute, but the Respondent did not agree to pay for the costs of that. The Claimant’s aspiration was that the Respondent would agree to pay £200 per month, but, by the end of the negotiaitons, that was not agreed. The old arrangement (for accommodation) was part of what was replaced by the new arrangement in the Deed signed on 26 April 2019.

c. The Claimant never received the disputed £200 per month.

d. Furthermore, even if there had been an agreement that the Respondent would pay £200 for travel because of the extra commute, during the notice period, he was not travelling.

e. Finally, at the preliminary hearing, EJ Reindorf decided that the claim as presented did not include the claim for travel allowance. She heard an application to amend, and refused it. Therefore, arguably, this element of the claim had already been disposed of. However, we rejected it on the merits in any event (on the basis of being part of alleged damages for failure to give notice).

[7]The Respondent’s bundle, at page 156, shows a calculation that the part of the January 2020 payment attributable to the period after 22 January 2020 was £435.48. We agree with that calculation.

[8]The Claimant has not supplied satisfactory documentary evidence about the start date of his Universal Credit. However, he has given evidence oath that the first payment was the £1308.21 that was paid in July 2020. Doing the best we can with the available information, we have treated that as a payment for the 31 days of July and calculated a daily rate. We agree with the Respondent’s calculations, and, within what should have been the notice period, the Claimant received £886.21 as Universal Credit.

[9]This was based on the entire household’s needs. However, prior to dismissal, the Universal Credit was zero, and so the entire amount should be taken into account when assessing the damages suffered as a result of the breach of contract.

[10]So the net earnings during the full notice period would have been £9000.00 (6 x £1500).

[11]From that we deduct £435.48 (payment made by the Respondent, attributable to notice period) and £886.21 (payment of Universal Credit, attributable to notice period) The recoupment regulations do not apply.

[13]In terms of the Claimant’s arguments as per page 153 of bundle (which we took as his evidence in chief) were considered and rejected.a. Notice period was 6 months, not 8 months.

b. We were not satisfied that, for May 2018, there was an agreement that he be paid something greater than that which he actually did receive. This was 11 months before the partnership deed was signed, and it no amount for training was included in that.

c. The fact that he was not paid in February 2020 is already taken into account in the calculation of damages for failure to give notice.

d. Any dispute about share ownership, or payments for shares, is a separate matter to that which we were dealing with, and is not a dispute within the Tribunal’s jurisdiction. It is not a claim for damages based on his employment contract.

e. His alleged legal costs are also not a claim for damages based on his employment contract. It is up to him to make a costs application if he decides to do so.

f. We have not decided that the Claimant failed to act reasonably to attempt to mitigate his losses during the notice period. (The Covid pandemic started not long after the end of his employment with the Respondent). We accept that he did not work during the period up to 22 July 2020, but the fact that he remained unemployed until May 2021 is not relevant.

g. His claim for loss of reputation – sometimes known as stigma damages – fails on the facts. A claim for a sum of money to reflect the damages caused by breaches of contract which have damaged the Claimant’s reputation and made it more difficult to find work (at the same rate of pay) in the future can succeed in appropriate circumstances. However, in this case, we dealt, in the liability reasons, with correspondence and discussions with Kelly Deli and Waitrose security staff. There is no evidence (and it is inherently unlikely) that anything the Respondent (or Mr Lohani) said to Kelly Deli or Waitrose security staff would come to the attention of prospective employers, or have any effect on the Claimant’s employability or job search. There is no evidence that he would have obtained a job more quickly, but for comments made about him to Kelly Deli or Waitrose security staff.

[14]The damages to which the Claimant is entitled is therefore £7678.31.

[15]The payment does not have to be made until we have decided on the costs application.

[1]The Claimant’s allegation or argument that he had a disability within the definition in section 6 of the Equality Act 2010 failed for substantially the reasons given in the deposit order sent to parties on 19 May 2022. The Claimant’s deposit of £150 will not be returned to him and will be paid to the Respondent.

[2]We make a costs order in favour of the Respondent in the sum of £3000. After allowing for the deposit, the net amount is £2850. The Claimant’s application for costs is refused.

[4]The overall effect of the decisions today on costs and our decision on remedy at the previous hearing is that the Respondent is ordered to pay the net sum of £4,828.31 to the Claimant. It must make the payment within 14 days of the date this judgment is sent to the parties.