Mr T Anandrajmohan v Mr H R Atputhanath (T/a AH Services): 3305170/2023
EMPLOYMENT TRIBUNALS
Case No 3305170/2023
Between
Mr T AnandrajmohanClaimantMr Henlly Robert Atputhanath (t/a AH Services)Respondent
Before
Employment Judge Shastri-Hurst,Date 12 June 2024
JUDGMENT
[1]The claim for reasonable adjustments is well founded and succeeds in part;[2]The claim for discrimination arising from disability is not well-founded and is rejected;[3]The claim of harassment is not well-founded and is rejected;[4]The claim of breach of regulation 4 of TUPE is not well-founded and is rejected.
REASONS
Conclusions
[1]The claimant was at all material times employed by the respondent at premises trading as “Jet Petrol” on College Road, Woking, as a Service Station Cashier.[2]The claimant’s employment started in March 2012 with SONCO Ltd (“Sonco”), whose owner was Dilip Sodha (“DS”). DS sold the business to NTS Motor fuel Ltd (“NTS”) towards the end of June 2022. NTS and the respondent entered into a franchise agreement, part of which set out that the respondent was responsible for employing staff.[3]The claimant’s employment transferred to the respondent towards the end of June 2022.[4]Prior to the transfer, the claimant had been working 16 hours a week, 8 hour shifts across 2 days, not on Tuesdays and Fridays (these were delivery days), and not on consecutive days.[5]The claim arises primarily in relation to issues arising from changes to the claimant’s shift pattern following the transfer of his employment to the respondent. The claimant relies on his working pattern prior to transfer as formulating contractual terms that should have transferred over with his employment.[6]Early conciliation started on 24 February 2023 and ended on 7 April 2023. The claim form was presented on 6 May 2023, in which the claimant brought claims of disability discrimination.[7]The claimant relies on disabilities of: 7.1. Back pain; 7.2. Heel pain; 7.3. Diabetes; and, 7.4. Asthma.[8]The respondent accepts that the claimant was at the relevant time disabled by way of his diabetes and asthma, but not as a result of his other conditions. In fact, the only alleged disability of relevance to this claim is the claimant’s back pain.
Issues
[9]The claimant was represented by his daughter throughout the hearing, and the respondent was represented by Ms Bradbury. We had two bundles, following discussion around disclosure at a preliminary hearing on 16 February 2024. It was decided that the agreed bundle would be referred to as the “Main Bundle”, references to page X in that bundle being recorded as [MB/X]. The claimant was permitted to produce a short additional if he so chose: this was referred to as the Additional Bundle. Reference to page Y of the Additional Bundle is to [AB/Y].[10]The claimant produced a witness statement in support of his claims. The respondent also presented a witness statement, as did Mr Cyril Bekoe (“CB”). CB is the sole director of Bekoe Consultancy Ltd, a company that provides Human Resource advice and support to companies. References to paragraph Z within a witness’s (say AB’s) witness statement are referenced as [AB/WS/Z].[11]Part way through the hearing, we were provided with some additional photographs from the respondent, marked as Section D at [MB/396-415].[12]Both parties also produced for us a chronology and list of people.[13]The final hearing was originally listed for 5 days. However, a sixth day was required to hear CB’s evidence and submissions; this day was listed at the end of Day 5, for 21 March 2024. Ms Bradbury provided us with a written skeleton argument, and both she and Ms Anandrajmohan provided oral submissions.[14]The Tribunal informed the parties that it would reserve its decision, and that it had listed 3 April 2024 as a day in Chambers, as well as 24 May 2024, if a second day were necessary. Due to unforeseen circumstances, the 3 April date was lost and was rescheduled for 24 April 2024. In the event, the Tribunal concluded their deliberations on that date. Issues[15]The issues that the Tribunal will determine are as follows: 1. Disability 1.1. Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide: 1.1.1. Did they have a physical impairment (back and heel pain)? 1.1.2. Did it have a substantial adverse effect on their ability to carry out day-to-day activities? 1.1.3. If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? 1.1.4. Would the impairment have had a substantial adverse effect on their ability to carry out day-to-day activities without the treatment or other measures? 1.1.5. Were the effects of the impairment long-term? The Tribunal will decide: 1.1.5.1. did they last at least 12 months, or were they likely to last at least 12 months? 1.1.5.2. if not, were they likely to recur? 2. Reasonable Adjustments (Equality Act 2010 sections 20 & 21) 2.1. Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date? 2.2. A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 2.2.1. PCP1 – requiring employees to stand in the till area; 2.2.2. PCP2 – requiring the employees to work on consecutive days; 2.2.3. PCP3 – requiring the employees to work less than 8 hour shifts. 2.3. Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that: 2.3.1. The claimant suffered exacerbation of his heel and back pain. 2.4. Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage? 2.5. What steps could have been taken to avoid the disadvantage? The claimant suggests: 2.5.1. Permitting the claimant to do shift patterns of 8-hour shifts 2 days a week on non-consecutive days; 2.5.2. Providing a chair for the till area. 2.5.3. It is ultimately a matter of the Tribunal to determine what reasonable adjustments should have been taken. 2.6. Was it reasonable for the respondent to have to take those steps and when? 2.7. Did the respondent fail to take those steps? 3. Discrimination arising from disability (Equality Act 2010 section 15) 3.1. Did the respondent treat the claimant unfavourably by: 3.1.1. Removing the chair which the claimant had previously used; 3.1.2. Altering the claimant’s shift pattern from two eight hour shifts on non-consecutive days to shifts of six hours which from time to time are on consecutive days. 3.2. Did the following things arise in consequence of the claimant’s disability: 3.2.1. The need to sit down from time to time, particularly during quiet periods of work, to alleviate his heel/back pain; 3.2.2. The need to work on non-consecutive days to accommodate his disabilities and his recovery time? 3.3. Was the unfavourable treatment because of any of those things? 3.4. Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 3.4.1. Regarding removal of the chair (Issue3.1.1 above): 3.4.1.1. Organisational efficiency – to keep the area behind the till as clear as possible to enable the staff to reach: Storage areas and stock - tobacco products are stored under the till counter in a stock drawer. This needs to be pulled out to access stock and so any obstruction (chair/stool) would need to be moved each time the drawer was opened. Different machines - the emergency button is situation behind a door in the till area that would be difficult to access should a chair with a back be placed in the till area. It was essential to be able to reach this in cases of emergency to shut down the pumps in the event of a fire. There are also special machines to deal with certain transactions (Deliveroo, PayPoint). Access to these would be impeded should a chair with a back be placed behind the till. 3.4.1.2. Safety requirements. To keep the area behind the till as clear as possible to allow staff easy and quick access and exit. The till area is elevated and can only be accessed by stepping up into it. A chair in this area would prevent quick access and exit. The stool is light enough to be removed when not in use. 3.4.1.3. Business requirements and economic viability. To facilitate a chair would require extensive and prohibitively expensive remodelling. In discussions with the owner of the property, the Respondent was informed that a chair could not be accommodated in the area and alternative arrangements should be implemented. These alternative arrangements were a proportionate measure. 3.4.2. Regarding altering the shift pattern (Issue3.1.2 above): 3.4.2.1. Staff health and safety. The Claimant complained that he was struggling with 8-hour shifts when he had a break. 3.4.2.2. Business requirements. The shift rotas required, on occasion, employees to work different shift patterns to promote operational efficiency so no single individual bore an undue burden in terms of less desirable shifts. 3.4.2.3. Altering job duties. The Respondent had already ensured the Claimant was not working on delivery days, did not have to clean the forecourt or replenish stock. The only duties he carried out were till oriented. 3.4.3. The Tribunal will decide in particular: 3.4.3.1. was the treatment an appropriate and reasonably necessary way to achieve those aims; 3.4.3.2. could something less discriminatory have been done instead; 3.4.3.3. how should the needs of the claimant and the respondent be balanced? 3.5. Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date? 4. Harassment related to disability (Equality Act 2010 section 26) 4.1. Did the respondent do the following things: 4.1.1. Removing the chair which the claimant had previously used; 4.1.2. Altering the claimant’s shift pattern from two eight hour shifts on non-consecutive days to shifts of six hours which from time to time are on consecutive days. 4.2. If so, was that unwanted conduct? 4.3. Did it relate to disability? 4.4. Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 4.5. If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 5. Breach of Regulation 4 of the TUPE Regulations 2006 5.1. Did the respondent breach regulation 4 in that the terms of the claimant’s contract after the transfer were not the same as they were before the transfer, in that: 5.1.1. He was required to work shifts of six hours, not eight; and, 5.1.2. He was required to work consecutive days.
Findings of fact
[16]On 10 June 2022, the claimant was sent an email by DS, informing him of a planned TUPE transfer to NTS on 27 June 2023 – [MB/206]. This letter confirmed that the claimant’s terms of employment would continue and simply transfer to NTS.[17]On 23 June 2022, the respondent and NTS Motor Fuel Ltd entered into a Service Station Contract Management agreement – [AB/4]. That agreement records that the respondent is the Contract Manager, and sets out his obligations at clause 6.[18]On 23 June 2022, the respondent says that the claimant was presented with the document at [MB/207], which states that: “Employees will transfer to AH Service statement under the transfer of undertakings (protection of employment) Regulations 2006, (TUPE 2006). The employing name AH Service station In line with AH Service station obligations under TUPE, the contracts of employment of all those people affected will transfer to AH Service station and contractual terms of employment will be honoured”.[19]We find that the transfer took place on 23 June 2022. We note that the document at [MB/206] suggests 27 June 2022 as the date of “planned” transfer, suggesting that it was not set in stone at that time. In contrast, the documents that specifically relate to the transfer date as being 23 June 2022 are documents that came into existence at the time of the transfer actually taking place - [MB/207] and [AB/5]. To the extent it is relevant, we therefore find that the date of transfer was 23 June 2022.[20]The respondent relies on the signed declaration at [MB/208] as proof that the claimant was given the letter at [MB/207]. That document at [MB/208] bears the signature of the claimant, and his colleague Nagadevan Indrsekaram Pillai (“NIP”).[21]However, the claimant told us that he and NIP were presented with a blank piece of paper and were asked to sign in the middle of it. The claimant’s understanding is that, subsequent to obtaining the two signatures, the respondent printed the text above the signatures on [MB/208].[22]We find that the claimant signed the page on [208] as it is written, not a blank or folded copy. We do not see the gain that the respondent would get from hiding the text from the claimant: there is no good reason why the respondent would complicate matters by getting the claimant to sign something that would be manufactured. The document is just a document that briefly sets out the respondent’s legal obligations but without any real detail. There is thus no benefit to the respondent in trying to conceal the contents from the claimant.[23]The TUPE transfer occurred on 23 June 2022, as set out above. We find that the respondent could have made the positions of the entities involved in the transfer clearer for the claimant, including the identity of the franchisee, the role of NTS, who his employer was. This lack of clarity led to about the identity of the claimant’s employer.[24]By a text on 25 June 2022, the claimant asked DS for a copy of his existing employment contract (“the Original Contract”) - [MB/210]. He was not provided with one.
Findings of fact
[25]Following the transfer, it was the respondent’s plan to refurbish the petrol station, with the intent of increasing turnover and profit. The plans for that refurbishment are at [MB/391]. We do not have a floor plan of the station before the refurbishment. The station was closed for refurbishment until 11 July 2022. Some photographs of the new layout are at [MB/392-394]. As mentioned above, mid-way through the final hearing, the respondent produced further photographs of the station post-refurbishment. Those are at [MB/396-415]. There is no page number [MB/395]. The claimant has also included some photos in his additional bundle – [AB/23].[26]The claimant attended work on 2 July 2023 whilst the refurbishment was still ongoing, to assist with general jobs needed to be completed for the reopening. The respondent told the claimant that he need not bend down to do any weeding: this was because the respondent knew of the claimant’s back pain.[27]Whilst doing some work on 2 July 2023, the claimant says he asked the respondent where the chair was that had been provided for use by employees in the old till area – [C/WS/28]. It transpired that it had been thrown away by the removal men who were clearing the site for refurbishment. The claimant says he reminded the respondent of his disability and asked whether he would provide a suitable chair for all staff to use behind the till. The claimant says that the respondent told him he would buy a chair.[28]We accept that there was discussion about where the old chair had gone. The respondent however denies that the claimant asked for a new chair and the respondent promised one. We find that it is more likely than not that, following on from a conversation about where the old chair had gone, it would be natural for the claimant to ask about a replacement, as the presence of a chair was important to him in the context of his chronic back pain. It also follows that it is more likely than not that, at this early stage in the working relationship, and trying to build working relationships, the respondent did say he would provide a replacement chair. We therefore accept that this conversation tool place as the claimant alleges.[29]On 10 July 2022, the claimant completed the Employee Details Form at [MB/215]. This clearly states that the claimant suffered from chronic lower back pain and heel pain, as well as asthma and diabetes.[30]On 20 July 2022, the respondent sent the claimant an email, stating that DS had failed to provide a copy of the Original Contract, and asking for the claimant to send the respondent a copy – [MB/217]. Unfortunately, the claimant did not have a copy of the Original Contract in his possession, and so reached out to DS again on 23 July 2022 to ask DS for a copy - [MB/221]. Again, no copy of the Original Contract was forthcoming.[31]On 27 July 2022, the claimant confirmed to the respondent in an email that he had “disabilities - hip joint pain, back pain and heel pain” as well as asthma. He stated that this was the reason he worked part time (16 hours a week) - [MB/222].[32]The claimant refers to further oral conversations on 14 and 30 July 2022, and 13 and 30 August 2022 – C/WS/33, 42, 46, 50. These conversations are all towards the beginning of the working relationship. We accept that the claimant raised certain issues from the beginning of his employment, those being: 32.1. his need for a chair; 32.2. the fact that he had difficulties with back pain; and 32.3. the shift patterns he was being given.[33]We find that the respondent said that he would provide a chair at various intervals in July and August, and did not say at those early stages that there were reasons why no chair could be provided. We accept that the respondent was inexperienced, and getting to grips with running the business: the claimant’s need for a chair was not high on his priorities but he (the respondent) wished to appease his employee. Although the respondent denies promising a chair, we find that the presence of a chair was important to the claimant, and was an issue he kept asking about. We find that it is more likely than not that the respondent wanted to build good working relationships with his employees and the provision of a chair would have appeared to be a way of furthering this objective. New contract[34]The claimant’s case is that, on 31 July 2022, the claimant attended work. During that shift, the respondent’s brother, Mr Riyaldeen Francis, (“RF”) had a conversation with him about his contract of employment. It is common ground that RF had no official/formal connection or role with the respondent’s business, nor with NTS. The claimant says that he made it clear that he would work 16 hours a week, doing 8-hour shifts on two non-consecutive days. The claimant told us that RF assured him that he (the claimant) would not be put on any shifts outside his preferred pattern.[35]The claimant’s account of this conversation is set out also in his email to the respondent dated 12 September 2022 - [MB/253-254]. He told us that the respondent was within earshot throughout the conversation with RF.[36]The respondent’s account of this conversation differs from that of the claimant’s somewhat. He told us that he asked his brother RF to talk through the new contract with the claimant, as his (RF’s) English is better than the respondent’s. The respondent says that his brother exceeded his authority if RF did promise the claimant anything specific in terms of his contract/hours of work. The respondent accepted that he was covering the tills when RF was speaking to the claimant ([MB/294]); we therefore infer that he was within earshot of RF and the claimant’s conversation. We also note that at [MB/254] on 14 September 2022, the respondent stated the following: “...During the initial meetings with myself and my brother (Riyaldeen) you mentioned you only work 16 hours per week and your unavailability to work Tuesdays and Fridays was agreed. During the initial meetings with myself and my brother (Riyaldeen) you did not mention, that you cannot work two consecutive days or require minimum/maximum hours per-shift. As I was not aware of this and I did not agree to the above. The meeting with Riyaldeen concluded with you taking the contract away to read carefully and make an independent decision. There was no verbal agreement or guarantee given to you by Riyaldeen (who is not in any position to do so) or myself”.[37]We have no evidence from RF as to the conversation between him and the claimant, we only have the claimant’s evidence on this conversation. Although the respondent was nearby, we accept that he may not have been paying attention, and we accept that there is a language barrier to some extent. Regardless of what precisely was said in this conversation, we find that RF did not have the authority to bind the respondent into certain contractual terms. RF had no legal standing to do that, he was not acting as agent for the respondent at this time; he was just someone whose English was better than the respondent’s. However, we accept that, whatever in fact RF said, the claimant reasonably took from that conversation that he would remain working to his previous shift pattern. For the avoidance of doubt, we accept that factually the claimant did have a working pattern with DS that was 2 non-consecutive days for 8 hours a day. There is no good evidence to suggest anything to the contrary. The contractual implications of this fact are considered later in our judgment.[38]On 31 July 2022, the claimant signed a new contract of employment with the respondent (“the New Contract”) – [MB/239]. The claimant told us he was content to sign it on the reassurance from the respondent’s brother RF that his preferred shift pattern would be honoured. In terms of hours of work, the New Contract stated: “Your normal hours of work are 16 hours per week flexible; this is based over a seven-day working week inclusive of Public and Bank Holidays. You will be advised of your shift pattern. [sic] Including days and daily working hours by your Operation Manager following operational requirements ...” Shifts worked following TUPE transfer[39]The claimant has produced a summary of the shifts he worked whilst under the respondent’s employment – [MB/211]. The shifts he worked that were not 8-hour shifts on non-consecutive days (and therefore allegedly breached what the claimant says were his terms of employment) were as follows: 39.1. 30 & 31 July 2022 39.2. 13 & 14 August 2022 39.3. 27 & 28 August 2022 39.4. 3 & 4 September 2022.[40]However, there is nothing in writing in the bundle that shows that the claimant complained about these particular shifts to the respondent.[41]At this stage, we address the schedule of shift patterns produced by the respondent at [MB/223]. The claimant alleges that this data is made up. We find that this schedule was drawn up at the time of the grievance and was a self-serving document. We find this in light of the fact that the shift patterns at [MB/211] are agreed as being accurate, and yet there are discrepancies between that shift record, and the data produced at [MB/223].[42]Although this issue of [MB/223] is not strictly relevant to the claims, it was a point of contention eagerly pursued by the claimant. We therefore considered it wise to address it. September 2022[43]On or around 2 September 2022, the claimant and respondent had a telephone conversation. In relation to what was said in that conversation, there appears to in fact be little divergence between the parties.[44]The respondent’s account is set out at [MB/254], in which he recalls that the claimant told him that standing for prolonged hours and ongoing work was causing the claimant discomfort and pain. In that call, the claimant asked if he could sit at the till. The respondent agreed that the claimant could use a little plastic footstool (a footstool for standing on to reach higher shelves). We find that this was a footstool already in the respondent’s premises that the claimant located. The respondent, on his case, did not agree to buy the claimant a “proper chair”. This is confirmed in [R/WS/28].[45]The claimant’s account of this conversation is at [C/WS/50], and again we note that there is much common ground between the two accounts. It is the claimant’s case that he told the respondent that he had difficulty working continuous shifts because of his chronic back pain. He also says that he told the respondent that there was no suitable chair for him (the claimant) to use. The claimant’s case is that the respondent then said he could use the footstool temporarily until a suitable chair could be provided.[46]On the balance of probabilities, we find it more likely than not that the claimant did ask for a “proper chair” in this conversation. We find it more likely than not that the respondent did agree to provide a chair of some description in response to this request. We make this finding as it is consistent with the evidence from 12 September 2022 [MB/253] of the respondent offering to buy a chair if the stool is not comfortable. The respondent agreeing to a request for a chair on/around 2 September 2022 is consistent with him agreeing to provide a chair on 12 September 2022.[47]On 11 September 2022, the claimant received the schedule for the week ahead, which required him to work the following shift pattern: 47.1. Wednesday 14 September 1300 – 1800 (5 hours); 47.2. Thursday 15 September 1300 – 1800 (5 hours); 47.3. Saturday 17 September 1400 – 2000 (6 hours).[48]The claimant considered that this violated the terms of his employment that had been established with DS, that he work 2 shifts of no less than 8 hours, on non-consecutive days.[49]Accordingly, the claimant emailed the respondent on 11 September 2022 stating - [MB/251]: “I cannot work shifts less than 8 hours because I travel nearly 2.5 hours for each shift and this costs me £12 in fuel. Please consider making my shift 8 hours for each shift like it was so far. ... Before signing the contract, your brother assured me that I would be working at least 8 hours per shift”.[50]We note that, at this point, the claimant did not complain about the fact that two of the scheduled days were consecutive days. He also only seemed to be complaining about the cost of travel as the reason for needing 8 hour shifts, as opposed to raising his back pain as the reason.[51]In response, the respondent accepted that the claimant had recently raised with him that it was difficult for the claimant to work 8-hour shifts on two consecutive days due to it “taking a toll” on his physical health - [MB/251]. This email also records that the respondent reduced the claimant’s duties after considering his (the claimant’s) physical health, to just manning the till and light restocking if required. The respondent also recorded that he had provided the claimant with a stool in the till area. The respondent confirmed that, on this occasion, he could not accommodate the claimant’s request regarding his shift pattern – [MB/252].[52]A telephone conversation between the two parties following this email, as referenced in the next email from the claimant at [MB/252]. It is in this email that the claimant raises the issue of being scheduled for consecutive days: “If you are concerned about my health then why have I been put for two consecutive shifts? Additionally, before the transfer there was a proper chair provided which staff could sit on during shifts for a few seconds when there were no customers however since I started there has not been a chair provided until only recently (when I asked and you said I could sit on the stool on 2nd September). Before I asked, you put me on shift for Saturday and Sunday consecutively which caused a lot of pain hence why I asked you for a chair on my next consecutive shift. I only needed the stool for when I work consecutive days. To reinstate [sic], I can work 8hr shifts for two days out of any of the days I listed above, as long as they are not consecutive. The issue was not the 8hr shift but the consecutive shifts you put me on (Saturday and Sunday) and again this week Wednesday and Thursday at reduced hours. If you are concerned with my health, then putting me on a 3 day (5hr, 5hr, 6hr shifts) and having two of the days consecutive, is more detrimental to my health because I now have to travel for an extra day and be on shift for an extra day – rather than just work for my 8hr shifts for two non-consecutive days. I hope this clarified my issue with working on consecutive days. Hopefully, you can rectify this so I can continue to work 8hr shifts for two non-consecutive days”.[53]On one specific point, that the claimant only needed a stool for working consecutive days, this seemed at odds with the claimant’s position that he had been using a chair to rest on periodically whilst under DS’s employ, when he did not work consecutive days. The claimant clarified this in answer to the Tribunal’s question: he said that particular part of his email was a mistake.[54]The respondent replied the following day, 12 September 2022, stating: “The arrangement you have before the transfer in mid-July was with previous management. Since you explained and asked if you could sit in the till area, I have agreed, and a stool was provided. If the stool is not to your comfort, please let me know and I will order an alternative stool/chair”.[55]The respondent permitted the claimant to take his Wednesday shift as paid leave, not affecting his holiday entitlement. The respondent explained that he had to plan his employees’ schedules with the business’s needs in mind, and balance all employees’ requests. He did however agree to avoid scheduling the claimant for consecutive days going forward.[56]The claimant replied on 12 September 2022, again stating that he needed his preferred shift pattern and “proper seating” to accommodate and ameliorate his back pain - [MB/254].[57]The respondent responded on 14 September 2022 stating that the request for a “proper chair” would be put on hold as the position was still not clear, namely - [MB/255]: “If you require a “proper” chair during your shift to meet your health needs. Did the previous management provide a “proper” hair to meet your health need or for all staff to use. Do you only need a “proper” chair during your shift on consecutive days or during all your shifts?”[58]This email, we find, marks a change in the respondent’s approach to the claimant: the respondent became more intransigent in relation to the discussion of a chair. We also find that, as at the time of this email on 14 September 2022, the respondent had not at any stage raised with the claimant that a chair could not have been fitted in the till area due to the newly refurbished dimensions of that area. This issue rose as on objection by the respondent later on in the chronology.[59]In this email, the respondent offered the claimant a choice: he could either work 2 x 8-hour shifts on non-consecutive days, or he could work 3 nonconsecutive days.[60]The claimant confirmed that he wanted to work 2 x 8-hour shifts on nonconsecutive days, using the stool provided, until a suitable chair was made available - [MB/255-256]. The claimant also gave some detail about what he considered to be a proper chair, namely that “it has to be adjustable and have back support, you can find examples online under petrol garage cashier’s chair”. The claimant also confirmed that this was the type of chair DS had provided for use by all staff.[61]On 23 September 2022, the respondent emailed DS asking him for a copy of the Original Contract – [MB/257]. DS responded on 26 September 2022, stating that the claimant had never returned a signed copy to him (DS). DS did however attach a copy of a contract issued to all employees of Sonco: that contract is at [MB/259]. The full copy of that contract is at [AB/29-32]) and, in terms of hours of work, states the following: “[ ] hours per week, worked Monday to Sunday night (from time to time you may be required to work additional hours to cover holidays and sickness)” - [AB/29] ... “You must be ready to start you shift at the time stated on the rota as determined by your manager.” - [AB/30][62]The claimant denies that this is the Original Contract he had with DS. He highlights the fact that it makes reference to a locker, for example. He told us that he had never had a locker, meaning that this contract was not tailored to him, and therefore proving it was not the one that he signed with DS.[63]We accept that the contract provided by DS which is at [AB/29] is the same as the Original Contract. It is not infrequent that template contracts are used by businesses, particularly small businesses with limited resources. Such contracts, inevitably, retain some terms that are irrelevant to certain specific roles. If the claimant is right, and the contract at [AB/29] is not the same as his Original Contract with DS, this would mean DS was lying in his response to the respondent: we find that there would be no purpose/benefit in him doing so at the point at which the request for the claimant’s Original Contract was made.[64]Even if we are wrong, and [AB/29] was not the same as the Original Contract with DS, we are not satisfied in any event that any contract with DS set out that the claimant would work 2 x 8 hour shifts on non-consecutive days and not Tuesdays and Fridays. We accept that the reference to hours that appeared in the Original Contract was “16 hours a week” only. There is no good evidence before us that the claimant’s specific requirements were set out at the commencement of the claimant’s employment with DS, and prior to or at the time of the agreement of the Original Contract. The two shifts of 8 hours appears to have become his pattern of working over a period of time, in agreement with DS. We are not satisfied that the claimant’s specific work pattern was ever expressly enshrined within his Original Contract of employment with DS.
Legal framework
[65]At this point, we note that it would have been preferable, and indeed in line with the TUPE Regulations, for DS to have provided this sample contract to the respondent, or for the respondent to have asked for this information, in advance of the transfer.[66]On 26 September 2022, the respondent specifically asked DS about the claimant’s Original Contract, the particular terms that the claimant said had existed, and the chair DS had provided. DS answered on the same day as follows - [MB/261]: 66.1. The claimant’s contract did state 16 hours a week; 66.2. DS did not agree to 2 non-consecutive days or any other stipulations; 66.3. The claimant did not usually work Tuesdays and Fridays, however that was not a contractual agreement; 66.4. A chair was available for all staff, not just for one employee specifically. It was at DS’s discretion and did not form part of the claimant’s contract. October 2022[67]Following the September exchange of emails summarised above, the claimant’s shift pattern returned to being 2 shifts of 8 hours a week on nonconsecutive days, until the week commencing Monday 24 October 2022. On 17 October 2022, the claimant was informed of his schedule for the following two weeks which was to work three days a week, albeit on non-consecutive days – [MB/212].[68]On 17 October 2022, the claimant sent another email to the respondent, complaining about the changed shift pattern, restating his desired shift pattern. He also raised TUPE, stating that the terms of the Original Contract included his desired shift pattern (2 non-consecutive days, 8 hours a day) and that this shift pattern was therefore protected - [MB/262].[69]The respondent replied the same day. He stated that, following investigation with DS, it had come to light that the claimant had misled the respondent as to the contractual position. The respondent said he had discovered that the 2 non-consecutive days of 8 hours were not contractual terms. As such, the respondent intended to disregard those requirements. The respondent did however ask the claimant which contract he wanted to follow – [MB/264].[70]The claimant duly responded on 21 October 2022, repeating his arguments to date – [MB/264]. He stated that he wished to continue to follow his Original Contract. The claimant put the respondent on notice that he would shortly receive a grievance. Grievance[71]On 26 October 2022, the claimant submitted a grievance to the respondent - [MB/266-268]. His grievance was two-fold: first, that his new working shifts were not a minimum of 8 hours and, second, that he had not been provided with a suitable chair. He also complained about breaks, however they do not form part of any of the issues in the claims with which we are dealing. His desired outcome was to work 2 x 8 hour shifts on non-consecutive days, and not on Tuesdays and Fridays.[72]The respondent forwarded the grievance to NTS. In turn, NTS recommended that the respondent instruct CB to handle the grievance, as an external and independent HR professional. NTS had used CB’s services before, however on this occasion CB was instructed directly by the respondent. There was some confusion about what company had instructed CB towards the beginning of the process, for which CB apologised in the course of his evidence. However, he told us that it was the respondent who he invoiced for his services in relation to the claimant’s grievance, and the respondent who paid those invoices.[73]A grievance meeting was originally scheduled for 2 November 2022. The letter inviting the claimant to this meeting is at [MB/272]. CB stated that he would “mediate” the meeting, “asking questions of each attendee”. We can understand why such language caused the claimant some confusion, but CB’s intent we find was to conduct a 121 meeting with the claimant to understand his grievance better.[74]On 1 November 2022, the claimant asked for a postponement as his “representative”, NIP, was unable to attend. By representative, we understand that the claimant meant that NIP was to be a witness for him during the grievance process.[75]On 3 November 2022, the claimant emailed the respondent again about arrangements for the grievance meeting, asking for a Tamil interpreter.[76]A note on interpreters at this stage. The claimant’s representative made much about the grievance meeting interpreter’s ability/accuracy. We also understand from the notes of the grievance meeting that initially the interpreter was dialing in from the car due to traffic issues - [MB/280-281]. We also note that the claimant, when asked whether his translator request had been satisfied, said “yes but not fully, he is not present, but you have explained why and although it is not fully satisfied, we can continue” - [MB/281].[77]However, the Tribunal was not told of any specific detriment that the claimant suffered as a result of the alleged poor interpreting. We also note that the claimant’s understanding of English is good: although he quite properly required an interpreter whilst giving evidence to us (as did the respondent), his level of understanding of the rest of the hearing was so good that the interpreter on Day 6 felt redundant, to the extent that she asked to leave: a request that was granted in agreement with the parties. The claimant was, throughout the case, making comments, or giving instructions to his daughter, in response to something that was said in English.[78]We therefore find that, even if the translating through the internal grievance process was not perfect, we have no good evidence to suggest that this led to any unfairness or detriment impacting upon the outcome of the grievance, or, more importantly, the claimant’s claims.
Conclusions
[79]The grievance meeting was rearranged for 10 November 2022 - [MB/278]. The notes of the grievance are at [MB/280-288]. The meeting lasted 3 hours. The notes in the bundle cannot therefore be verbatim, neither are they held out to be such.[80]The relevant points made at the meeting were as follows - [MB/283/284/287]: 80.1. When asked why the claimant could not work consecutive days, he said “Before I could work 16 hours, I had a chair to sit. For my back pain I cannot sit, so then started working 8 hours and that was better. There is no chair now and I cannot stand for long hours, so working two days in a row is very hard as I am standing and working mainly busy days Saturday and Sunday”; 80.2. Regarding back pain, the claimant said “I used to work in a supermarket in the night. This caused permanent wear and tear issues which I took steroid injections for a long time ago. I notified [the respondent] of my health issues when I completed my health form, I have Asthma, diabetes, back pain and heel pains”; 80.3. The claimant said he could provide notes from his doctor confirming his health issues. Regarding his back pain, the claimant told CB that “[a] long time ago [he] had pain killers and injections. [He] stopped this on doctors [sic] advise [sic] and instructions not to lift and stand for long hours, when possible, sit down”; 80.4. He told CB that “[m]ost of the time standing up for long periods is an issue, so I need a chair”; 80.5. When asked why a chair was needed, the claimant stated “I need to sit down and relax based on my doctors’ [sic] instructions. When there are no customers and we are also issuing fuel, I can take a rest”; 80.6. When asked whether the configuration and size of the till area had changed, the claimant answered “[s]imilar size, with aesthetic changes”; 80.7. CB asked the claimant to provide him with the details of all medication he was on at that time. CB also stated that, at that stage, he would not ask for the claimant’s medical records, but may do in the future.[81]Following the grievance meeting, the claimant sent to CB the details of the medication he was on, which was for his asthma and diabetes - [289-291].[82]On 15 November 2022, CB held an investigation meeting with the respondent. The relevant points to come out of that meeting were as follows: 82.1. The first time the claimant had requested a chair was two months after the respondent took over; 82.2. The respondent had asked the Area Manager for NTS about a chair, and he (Area Manager) confirmed that NTS does not provide chairs in their stations; 82.3. The Area Manager told the respondent that a risk assessment would be completed and sent over (no such risk assessment was ever done to the respondent’s knowledge); 82.4. The respondent told the claimant that there was no space for a chair in the till area; 82.5. The respondent had informed the claimant that he could sit in the office and monitor the pumps and shop area via the CCTV in the office, but the claimant said he did not want to use the office; 82.6. The respondent knew about the claimant’s issues with his back from their first meeting; 82.7. When the respondent took over the business, he was only informed of employees’ contracted hours, he was not given their contracts of employment.[83]On 21 November 2022, the respondent sent to the claimant notes of his grievance meeting – [MB/296-298].[84]On 25 November 2022, CB sent to the claimant the recording of the grievance meeting, following the claimant’s request for the same – [MB/299].[85]On 1 December 2022, the claimant confirmed that the notes that CB had sent to him were “a reflection of the grievance meeting” - [MB/300].[86]The grievance outcome letter is dated 9 December 2022, and appears at [MB/307]. The grievance was not upheld, the salient points being as follows - [MB/309/310]: 86.1. No pressure was placed on the claimant to sign the New Contract; 86.2. There was no evidence of there having been fundamental changes to the claimant’s contractual terms; 86.3. Shifts of less than 8 hours may provide the claimant with additional support and reduce the length of time for which the claimant is on his feet; 86.4. The till area had been refurbished, and the size of it reduced, “for greater product offering and efficiency needs”; 86.5. If a chair were placed in the till area, following the refit, this would restrict access; 86.6. The office space, with a suitable chair, has been made available to the claimant, with access to the CCTV system. It is less than 1 meter away from the till area; 86.7. In light of the above provisions, CB determined that a chair was not required in the till area, given that he deemed there to be a suitable alternative.[87]At the conclusion of his letter, CB stated: “[a] new rota will be in effect from the 1st of January 2023. Once the new schedule is provided, it is the company's expectation that you may be issued rota’s [sic] with shifts of less than 8 hours which in some cases will be either 5 or 6 hours a day, to work over the number of days required by the company which may in certain circumstances be 3 or more days, and your shifts may also be issued on consecutive days (on day after another) as required by the needs of the business”.[88]On 22 December 2022, CB sent to the claimant the grievance outcome letter, as well as the evidence that the claimant had provided, and a copy of the notes of the grievance meeting – [MB/304]. Grievance appeal[89]On 5 January 2023, the claimant appealed his grievance outcome – [MB/312- 327]. In that appeal, he highlighted that working 3 or more days a week was detrimental to his back pain due to the travel back and forth to work. He also pointed out that with shift patterns of 6 hours or less, he is not legally entitled to a break. He also argued against consecutive working days as he stated that this did not give sufficient time for him to rest.[90]In terms of a suitable chair, the claimant made the point that the respondent’s solution of a chair in the office was not a viable solution, as that he would have to leave the store and outside areas unattended - [MB/314].[91]The claimant also complained about CB’s handling of the grievance - [MB/314]. He concludes on [MB/323] that: “[f]or the avoidance of doubt, you are the root cause of my conditions mentioned above, and I hold you entirely responsible for the damage that has been caused to me and my family, which is still ongoing”.[92]The claimant’s appeal hearing took place on 30 January 2023, again dealt with by CB.[93]CB held telephone interviews with Balasingham Thirukumar, the respondent, RF and Kalithass Gunasekaran individually on 12 January 2023 - [MB/330- 336].[94]On 15 January 2023, the claimant sent to CB a copy of a doctor’s note dated 12 January 2023 that stated as follows - [MB/337-338]: “[the claimant] suffers with Chronic Back Pain, which he states is exacerbated after standing for more than 10 minutes. I believe he has requested a chair to enable him to have somewhere to sit, in order to relieve the strain from his back. I would support this request”.[95]CB in response on 15 January 2023 asked the claimant for permission to contact his (the claimant’s) GP surgery in order to obtain information about his medical conditions, medications and support requirements - [MB/339].[96]The claimant refused to grant this permission and, in the same email at [MB/339], set out that he was not happy about CB being the appeal officer, as well as the initial grievance officer. He asked for someone else to hear the appeal. CB’s response to this was to say that there was no alternative person available to deal with the appeal and that this was “not negotiable” - [MB/340].[97]On the issue of CB being both grievance and appeal officer, we find this unusual and, in fact, this should not have been the case. We find that it would have been possible to provide someone else to undertake the role of Appeal Officer, albeit we accept CB’s evidence it would have taken several weeks to get a third party involved, and that he (CB) spoke to ACAS about this.[98]We are not satisfied that the practicalities involved in providing a different Appeal Officer were prohibitive. For example, CB could have explained to the claimant that to get a new Appeal Officer would take longer, and obtain the claimant’s view on that. CB also said it would cost the respondent more money to instruct another third party, in that he would need to pay for the additional time it would take a new person to read into the case. We accept CB’s rationale, but are not satisfied that these were sufficient reasons for CB to deal with the appeal. We find that someone else should have dealt with it for justice to be done and to be seen to be done.[99]The grievance appeal was rescheduled, and was convened on 8 February 2023. The notes of the meeting are at [MB/354-363]. We note the following salient points: 99.1. The claimant states [MB/355] that travelling 3 days is not suitable for his back pain and that doing 3 shifts he has “less time for breaks. We understand this to mean that doing three shifts would mean doing shifts of 6 hours or less, meaning he would not be entitled to a statutory break; 99.2. The claimant states that the office chair is not a workable solution – [MB/356] - remains of the view chair in till area would be more suitable[100]After that hearing, CB spoke to the following people again: 100.1. The respondent - [MB/364]; 100.2. RF - [MB/365].[101]The grievance appeal outcome was sent to the claimant on 19 February 2023 – [MB/369]. CB did not uphold the claimant’s appeal. February 2023 onwards[102]The claimant’s shift pattern changed once again from 24 February 2023 until he signed off work sick on 4 May 2023. His shift pattern from 24 February 2023 became three days a week, 5 or 6 hours per shift.[103]The claimant was sent the new rota on 24 February 2023 by text and by return set out his concerns again, stating that the schedule was “not reasonably adjusted to [his] disability” - [MB/374]. The respondent replied that the rota sent out was final, and that there would be no further discussion on the matter - [MB/375].[104]It was on 24 February 2023 that the claimant commenced the ACAS early conciliation process. That process came to an end on 7 April 2023.[105]Out of the shifts he worked from 24 February up to and including 3 May 2024, the only week in which the claimant was in fact required to work two consecutive days was 19 and 20 April 2024 (22 April 2023 was his third shift that week) – [MB/213]. He was scheduled to work other shifts that would have required consecutive working days, however in practice he went off sick before those shifts were worked – [MB/214].[106]The claimant went off sick on 4 May 2023 and has not returned.[107]On 6 May 2023, the claimant presented his claim form to the Tribunal.[108]On 10 August 2023, the claimant sent an email to the respondent stating that he was willing to attend an Occupational Health Assessment, but only if carried out by a Consultant Neurologist – [MB/385]. To that email, the claimant attached various medical documents. This request for a Consultant Neurologist was (unsurprisingly) not met by the respondent.[109]The respondent sent a letter to the claimant on 11 December 2023, as he had just received the claimant’s most recent fit note stating that he would not be fit to work until 4 February 2024. The respondent asked the claimant to attend an Occupational Health assessment in order that the respondent could see how he could support the claimant - [MB/387]. The claimant did not agree to this assessment.[110]On 4 January 2024, the respondent again wrote to the claimant, repeating his request for the claimant to undertake an Occupational Health Assessment – [MB/389]. The claimant never did attend for an Occupational Health Assessment. Medical evidence[111]We have the following medical evidence relevant to the claimant’s back/heel issues (including relevant citations from the claimant’s GP record): 111.1. A neuroradiology appointment card - [MB/88]; 111.2. A list of physiotherapy appointments in the last quarter of 1996 - [MB/89]; 111.3. A neurosurgery clinic letter, following an appointment on 30 January 1997 in which a CT was organised – [MB/90]; 111.4. An appointment letter from the neuroradiology department for a CT scan for 25 February 1997 – [MB/91]; 111.5. A neurosurgery clinic letter, following an appointment on 27 March 1997 in which a CT was organised. There was “no suspicious disc prolapse or other pathology” – [MB/92]; 111.6. Confirmation of an appointment for assessment at the Wolfson Medical Rehabilitation Centre on 29 April 1997 - [MB/93]; 111.7. Confirmation that the claimant’s insoles were ready for collection/fitting from St George’s Hospital, by letter dated 18 August 1997 - [MB/95]; 111.8. Multidisciplinary discharge report (back pain management programme) for admission 17 July 1997 – [AB/58]; 111.9. Letter from Consultant Rheumatologist dated 18 November 1998 – [AB/60]; 111.10. Letter following Rheumatology clinic, dated 5 February 1999 – [AB/61]; 111.11. Letter 9 April 1999 from Rheumatology clinic, arranging an x-ray of the upper thoracic spine - [AB/62]; 111.12. Acknowledgement of the claimant’s application for Biomechanics treatment, from the Chiropody Service at Croydon NHS Primary Care Trust, dated 25 September 2006 – [MB/97]; 111.13. Confirmation of an appointment at the Biomechanics Clinic for 23 October 2006 - [MB/98]; 111.14. On 1 September 2017, the claimant attended his GP with a whiplash injury - [AB/66]; 111.15. On 7 May 2019 the claimant attended his GP following a motor vehicle traffic accident – [AB/66]; 111.16. Confirmation of an appointment on 4 May 2022 at the Chest Clinic – [MB/103]; 111.17. Confirmation of an appointment on 20 May 2022 at the Chest Clinic – [MB/100]. That appointment was subsequently changed to 26 May 2022 - [MB/101]; 111.18. GP record for 14 September 2022 states chronic lower back pain, “Having to stand for long periods at work” - [AB/82]; 111.19. GP letter dated 12 January 2023 stating that the claimant suffers Chronic Back Pain “which he states is exacerbated after standing for more than 10 minutes” - [MB/107] (see GP record [AB/81]); 111.20. The GP record for 13 March 2023 states “In pain ++, particularly at work. Has to stand for long periods. Paracetamol not helping” - [AB/79]; 111.21. Fit note dated 3 May 2023, stating that the claimant may be fit to work taking into account the advice given of “May benefit from being allowed to sit down on a supportive chair periodically”. This fit note ran from 4 May 2023 to 3 June 2023 – [MB/112]; 111.22. The corresponding GP record for 3 May 2023 states “advise to request Occ.Health Assessment” - [AB/79]; 111.23. Fit note dated 5 June 2023, as above, from 4 June 2023 to 4 August 2023 – [MB/121]; 111.24. Emergency Department admission, 11 May 2023 – [AB/46&63]; 111.25. Fit note dated 4 August 2023, as above, for three months – [MB/125]; 111.26. Letter 30 October 2023 from Croydon GP Hubs following a visit due to longstanding back pains – [AB/64]; 111.27. Clinic letter regarding the claimant’s asthma, 26 January 2024 - [AB/51]; 111.28. Fit note dated 31 January 2024, stating the claimant may be fit for work with amended duties and workplace adaptations, and that he “feels unable to walk more than 100m or stand for more than 10 mins”. Fit note effective from 5 February 2024 to 5 May 2024 - [AB/53];[112]The relevant parts of the claimant’s GP records are as follows: 112.1. 11 May 2023 - “History of presenting complaint knee/back pain...It started in 1996 pain is getting worse. ...Condition getting worse 2-3 months” - [MB/113].[113]The claimant has produced some evidence from a company called ProBack (Advanced Back Care). The claimant was evaluated on 16 October 2023 - [MB/139]. There follows a letter from Yohanis Kidane, Proback Practitioner, dated 2 November 2023 – [MB/160]. This, the respondent submitted, is the closest we have to a medical report. It states as follows: “Due to the nature of his condition, it is advised that he is cautious of overexerting himself with work in the form of lifting heavy objects. I would suggest trying to avoid any heavy lifting and excessively turning as well as standing for long periods. Failure to do so may impact progression and may reverse the current benefits gained. Moreover, it would be beneficial for short frequent breaks throughout his shifts as we want to minimize aggravation to the area.”[114]On [AB/49], there is another letter from Yohanis Kidane, dated again the 2 November 2023. This letter adds in more detail than the version at [MB/160], and includes the above referenced paragraph with the addition emboldened below (our emphasis): “...I would suggest trying to avoid any heavy lifting and excessively turning as well as standing for long periods, with a chair available behind the till at work.”[115]It was put to the claimant in cross-examination that this was suspicious, particularly given that the signature of Mr Kidane appears to be identical on each of the two documents. It was suggested that either Mr Kidane had changed the letter on the claimant’s request, or the claimant himself had changed it.[116]The claimant told us that every 12 sessions, the ProBack team update the last report. The claimant said that the letter at [AB/49] is in fact from January 2024, and was the amended version of [MB/160], following a further 12 sessions.[117]We are not satisfied that there is anything fraudulent or falsified about the document at [AB/49], for the following reasons; 117.1. The respondent in part relies on the fact that Mr Kidane’s signature is exactly the same. We take judicial notice that, nowadays, electronic signatures are used on documents (including Tribunal judgments) meaning that an electronic signature will look identical on two different documents; 117.2. There is no good evidence to show that the claimant was the one to edit the document at [MB/160] to produce that at [AB/49]; 117.3. We accept that the second document has more detail regarding the claimant’s back, and the need for a chair. We also find that some of the contents of the letter are odd given that the claimant, by this time, had not been in work for some 6 months. However, this is not sufficient to find that there is any underhand or devious intent in the alterations made to this letter.[118]The claimant has provided us with a log of days on which he says he had various appointments - [MB/105-106]. He has also produced a Disability Impact Statement at [MB/185]. This sets out that the claimant has suffered chronic back and heel pain since 1996. This statement is dated 11 November 2023, and is written in the present tense (“I can no longer drive...” for example). We therefore take it that the information therein refers to the claimant’s situation in Winter 2023. This is at least 6 months after the alleged discrimination. We note that the claimant’s condition clearly deteriorated following his leaving work in May 2023: for example, he had been driving to work for every shift, which was a round trip of 2.5 hours, and yet this statement says he can no longer drive. The impact statement does not appear to reflect his condition at or before May 2023.[119]In relation to the impact of the claimant’s back pain whilst working for the respondent, he said - [MB/186]: “My chronic back and heel pain used to be manageable in the past. This is because I have had to take medication, steroid injections, attend physiotherapy, hydrotherapy, occupational therapy sessions and pain management courses in order to learn how to manage and live with the pain I experience. I can no longer manage the pain I experience due to the changes made under new management to my working pattern and working conditions such as removing the suitable chair behind the till area...It was only after the TUPE transfer...where both my physical and mental health deteriorated”.[120]The claimant further stated – [MB/186]: “I have been employed in a petrol station cashier role for over ten years and never had any severe issues with my chronic back and heel pain...My working pattern...meant that my pain from my disability was manageable”.[121]We note also, that, in his appeal, the claimant stated that he was not on medication for his back pain, as his doctor advised of the risks of taking high dose painkillers/steroid injections long-term. His doctor advised that he could use over the counter painkillers - [MB/318].[122]We have also been provided with medical evidence that post-dates the alleged discrimination (post-May 2023), some which is relevant to other health issues the claimant suffers, but not to his back and heel problems.[123]We find on the above evidence that the claimant has chronic back pain that had started in the mid-1990s. Furthermore, we accept the following: 123.1. The claimant for years did not work on Tuesdays and Fridays (delivery days for DS) by agreement with DS in order to avoid having to put his back under strain by helping with deliveries; 123.2. It was agreed by all that the claimant only did light stocking of shelves during his employment with the respondent, and his employment with DS. He only did the stocking he could manage due to his back pain; 123.3. During his employment with DS, he had a way of working that gave him the time he needed for his back to recover between shifts.[124]The claimant had therefore put in place coping mechanisms and adjustments that enabled him to hold down his job with DS. However, these coping mechanisms were jeopardized under the respondent’s employment. Law Disability[125]The definition of disability is set out at s6 EqA: “(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. (3) In relation to the protected characteristic of disability – (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is reference to persons who have the same disability.”[126]There are four questions the tribunal must ask itself when considering whether a claimant fulfils the definition of disability: 126.1. was there an impairment; 126.2. what were its adverse effects; 126.3. were they more than minor or trivial; 126.4. had those effects lasted 12 months, or was it likely that they would continue for 12 months or that they would re-occur?[127]In terms of impairment, the relevant question is the effect of an impairment not the cause.[128]Tribunals can approach the question of disability in two ways: it can consider the impairment first, followed by the effects of that impairment. In the alternative, when there are difficult issues as to the nature and extent of an impairment, the tribunal can consider the question of long-term substantial adverse effect first. Substantial adverse effect[129]Under section 212(2) EqA, “substantial” is defined as meaning more than minor or trivial.[130]In Elliott v Dorset County Council [2021] IRLR 880, the Employment Appeal Tribunal set out the test of substantial adverse effect. This requires a comparison between the ability of the person as an individual to carry out these activities versus how they would carry them out if not suffering from an impairment. Long term effect[131]When considering whether the effects are likely to last for 12 months or more, or are likely to recur, the meaning of “likely” has been held to mean “could well happen", as opposed to something that is more likely than not to happen – SCA Packaging Ltd v Boyle [2009] UKHL 37.[132]The question as to whether the adverse effect was likely to occur or last 12 months or more is one that needs to be answered without having regard to subsequent events (McDougall v Richmond Adult Community College [2008] EWCA Civ 4). It involves a “prediction on the available evidence” (Pill LJ at paragraph 23): “In my judgment, it is on the basis of evidence as to circumstances prevailing at the time of [the alleged discrimination] that the Employment Tribunal should make its judgment as to whether unlawful discrimination by the employer has been established”[133]In other words, the tribunal must discount any evidence regarding the effects of the claimant’s impairment that post-dates the alleged discrimination.[134]In a similar vein, at paragraph 33, Rimer LJ said: "… The evidence relating to the relevant time either will, or will not, prove the likelihood of recurrence. If it does prove it, evidence of subsequent events is unnecessary and irrelevant. If it does not prove it, evidence of those events cannot fill the gap. That is because it is fallacious to assume that the occurrence of an event in month six proves that, viewing the matter exclusively as at month one, that occurrence was likely. It does not. It merely proves that the event happened, but by itself leaves unanswered whether, looking at the matter six months earlier, it was likely to happen, a question which has to be answered exclusively by reference to the evidence then available. …"[135]In short, the relevant question is whether, at the time of the alleged discrimination, the effect of the impairment was likely to last at least 12 months, or recur. The assessment of that question must be on the facts and circumstances that existed at the time of the alleged discriminatory acts.[136]Ultimately, the question of disability is a legal question for the tribunal. Although it is assisted by medical evidence, it is not bound by that evidence. Effects of behaviour[137]Under the Equality Act 2010 Guidance on matters to be taken into account in determining questions relating to the definition of disability (“the Guidance”), the following is said about the effect of a claimant’s behaviour: “B7 Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities. … Account should be taken of the degree to which a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities. When considering modification of behaviour, it would be reasonable to expect a person who has chronic back pain to avoid extreme activities such as skiing. It would not be reasonable to expect the person to give up, or modify, more normal activities that might exacerbate the symptoms; such as shopping, or using public transport.” Failure to make reasonable adjustments – ss20/21 EqA[138]Ss20/21 EqA provide: “20(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. ... 21(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.” Provision, criterion or practice (“PCP”)[139]The first requirement of this claim is that there be a PCP. The terms “provision, criterion or practice” are not defined within the legislation, and are to be given their ordinary meaning; they are broad and overlapping terms and should not be narrowly construed – Ishola v Transport for London [2020] EWCA Civ 112. A PCP can cover informal as well as formal arrangements.[140]The finding of a PCP is a matter of fact for the Tribunal – Jones v University of Manchester [1993] IRLR 218. Substantial disadvantage[141]There is no requirement under ss20/21 for a comparator to be considered regarding the alleged disadvantage suffered – Sheikholeslami v University of Edinburgh [2018] IRLR 1090: ''It is well established that the duty to make reasonable adjustments arises where a PCP puts a disabled person at a substantial disadvantage compared with people who are not disabled. The purpose of the comparison exercise with people who are not disabled is to test whether the PCP has the effect of producing the relevant disadvantage as between those who are and those who are not disabled, and whether what causes the disadvantage is the PCP. That is not a causation question … For this reason also, there is no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person's circumstances.”[142]The definition of “substantial” is at s212(1) EqA, which provides that substantial means more than minor or trivial. Reasonableness of adjustments[143]The ECHR Code of Practice on Employment (2011) sets out various factors that may be relevant when considering the reasonableness of any proposed adjustments: “whether taking any particular steps would be effective in preventing the substantial disadvantage; the practicability of the step; the financial and other costs of making the adjustment and the extent of any disruption caused; the extent of the employer's financial or other resources; the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and the type and size of the employer.”[144]There is no requirement that adjustments suggested by a claimant should remove the substantial disadvantage in its entirety – Noor v Foreign and Commonwealth Office [2011] ICR 695. The statute states that the reasonable adjustment should “avoid” the disadvantage. Therefore, a respondent will not avoid liability solely by demonstrating that the disadvantage would have been suffered even with the adjustment. If the adjustment would have acted to avoid the disadvantage, that is sufficient for liability to attach under ss20/21. Respondent’s knowledge[145]The knowledge required of respondents under ss20/21 is that they have knowledge that(a) the claimant is disabled and(b) that the claimant would likely be placed at the substantial disadvantage in question by the PCP.[146]The requirement for a respondent to have knowledge covers both constructive and actual knowledge. In other words, as set out in Eastern and Coastal Kent Primary Care Trust v Grey [2009] IRLR 429, at para 11, a respondent will escape liability if it: “(i) does not know that the disabled person has a disability;(ii) does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;(iii) could not reasonably be expected to know that the disabled person had a disability; and(iv) could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.” Discrimination arising from disability – s15 EqA[147]S15 EqA provides: “(1) A person(a) (A) discriminates against a disabled person(b) (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.” Respondent’s knowledge[148]Under s15, the sole requirement of knowledge on the part of the respondent is knowledge of the claimant’s disability. It is not necessary for the respondent to know that the “something” arose from that disability. Unfavourable treatment[149]Under this section, no comparator is required. The question is simply whether unfavourable treatment was suffered by the claimant. In this context, unfavourable treatment requires the tribunal to consider whether a claimant has been disadvantaged. This requires an assessment against “an objective sense of that which is adverse as compared to that which is beneficial” - TSystem Ltd v Lewis UKEAT/0042/15. Because of something arising in consequence[150]First, it is necessary for the tribunal to identify the “something” that is said to be the cause of the alleged unfavourable treatment.[151]Second, it is necessary for that “something” to have arisen in consequence of the claimant’s disability. These are the two causal steps that are required by s15 EqA.[152]In terms of the first step, the Tribunal must determine what, consciously or unconsciously, acted on the mind of the alleged perpetrator. The relevant test is whether the “something” had a significant influence, or was an effective cause, of the unfavourable treatment – Pnaiser v NHS England [2016] IRLR 170. Motive is irrelevant under s15. Justification[153]If discrimination is established, then a respondent can still defend a s15 claim on the basis that the unfavourable treatment was a proportionate means of achieving a legitimate aim.[154]In Hensman v Ministry of Defence UKEAT/0067/14, Singh J held that: “the Employment Tribunal must reach its own judgment upon a fair and detailed analysis of the working practices and business considerations involved. In particular, it must have regard to the business needs of the employer.” Harassment in relation to disability[155]The definition of harassment is set out at s26 EqA: “(1) A person(a) (A) harasses another(b) (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, mediating 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 to have had the effect.” Unwanted conduct[156]It is for the individual to set the parameters as to what they find acceptable, and what is unwanted: “it is for each person to define their own levels of acceptable” – Reed v Stedman [1999] IRLR 299, and more recently Smith v Ideal Shopping Direct Ltd UKEAT/0590/12. Purpose or effect[157]S26 makes it clear that it is sufficient for the unwanted conduct to have the effect set out in s26(1)(b): it is not necessary for that to be the purpose of the alleged perpetrator. For example, harassment may still be made out where there is teasing, also called banter, without any malicious intent.[158]In terms of effect, the alleged perpetrator’s motive is again irrelevant. The test is both subjective and objective. First, it is necessary to consider what the effect of the conduct was from the claimant’s perspective (subjective element). If it is found that the claimant did suffer the necessary effect set out in s26(1)(b), the next stage is to consider whether it was reasonable for the claimant to feel that way (objective element). Related to the protected characteristic[159]The causal link required for harassment is much broader than that for direct discrimination. The requirement is that the conduct must be related to the protected characteristic, in this case disabililty. There is no protection from general bullying within the EqA; harassment will not be proven where someone is picked on or singled out, unless that treatment is related to a protected characteristic.[160]There is limited guidance from the appellate courts as to what is meant by “related to”. Some guidance has been given by the Court of Appeal in the case of UNITE the Union v Nailard [2018] EWCA Civ 1203. The facts of this case were that the respondent had failed to deal with the claimant’s sexual harassment complaint. The Employment Tribunal found that, because the failure related to a grievance regarding harassment, that was sufficient to find that the failure was itself an act of sexual harassment. The Court of Appeal found the tribunal had got it wrong. The tribunal had not made findings as to the thought processes of the individuals who failed to deal with the grievance; therefore, it could not be found that the failure itself was an act of sexual harassment. A finding would have to be made that those who failed to deal with the grievance were guilty of sexual harassment. The tribunal had, in effect, used the “but for” test; in other words, they found liability on the basis that, but for the grievance, there would have been no failure. This is not the correct legal test under section 26.[161]In Tees Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 495, HHJ Auerbach reminded tribunals that the claimant’s perception that conduct is related to a protected characteristic is relevant to, albeit not determinative of, the issue. The tribunal must: “articulate distinctly, and with sufficient clarity, what feature or features of the evidence or facts found have led it to the conclusion that the conduct is related to the characteristic as alleged”.[162]It therefore follows that a claimant’s understanding and a respondent’s intention are not strictly relevant to the issue of causation. The context in which the alleged harassment occurs is a key factor in determining whether the conduct was related to the relevant protected characteristic – Warby v Wunda Group plc EAT 0434/11. Burden of proof under the Equality Act 2010[163]The burden of proof for discrimination claims is set out in s136 EqA: “(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”.[164]In Laing v Manchester City Council and anor [2006] ICR 1519, Mr Justice Elias held that: “the onus lies on the employee to show potentially less favourable treatment from which an inference of discrimination could properly be drawn”.[165]This requires the tribunal to consider all the material facts without considering the respondent’s explanation at this stage. However, this does not mean that evidence from the respondent undermining the claimant’s case can be ignored at “stage one” – Efobi v Royal Mail Group Ltd 2021 ICR 1263.[166]It is only if the initial burden of proof is reached that the burden shifts to the respondent to prove to the tribunal that the conduct in question was in no sense whatsoever based on the protected characteristic – Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases [2005] ICR 931. Breach of TUPE regulation 4[167]Regulation 4 provides: “(1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee. (2) Without prejudice to paragraph (1), but subject to paragraph (6), and regulations 8 and 15(9), on the completion of a relevant transfer -(a) all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and(b) any act or omission before the transfer is completed, of or in relation to the transferor in respect of that contract or a person assigned to that organised grouping of resources or employees, shall be deemed to have been an act or omission of or in relation to the transferee. (3) Any reference to paragraph (1) to a person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to a relevant transfer, is a reference to a person so employed immediately before the transfer, or who would have been so employed if he had not been dismissed in the circumstances described in regulation 7(1), including, where the transfer is effected by a series of two or more transactions, a person so employed and assigned or who would have been so employed and assigned immediately before any of those transactions. …”[168]In short, this means that all express terms, implied term, terms implied by collective agreements and by custom and practice, all are transferred over when an employee’s employment is transferred.[169]Non-contractual elements of an employee’s relationship with his employer do not transfer under regulation 4 – Metroline Travel Ltd v D’Auvergne UKEAT/0214/19.[170]The Tribunal must therefore determine whether certain working arrangements are implied contractual terms which do transfer, or just working conditions, which do not transfer.[171]Terms can be implied into a contract in several ways. Here, the relevant possibilities for implying terms are: 171.1. Implied by conduct; 171.2. Implied by custom. Terms implied by conduct[172]The orthodox view is that conduct relied upon by a party to imply a term must be evidence of what was agreed at the time of entering the contract. It is not sufficient for subsequent conduct over a period to demonstrate a change of mind that the parties have undergone since entering the contract.[173]It is possible that conduct that happens after a contract is agreed can lead to a variation of the original contractual terms. Lord Hoffman in Carmichael v National Power plc [2000] IRLR 43 stated (paragraph 33): “I think that it was open to the…tribunal to find, as a fact, that the parties did not intend the letters to be the sole record of their agreement but intended that it should be contained partly in the letters, partly in oral exchanges at the interviews or elsewhere, and partly left to evolve by conduct as time went on. This would not be untypical of agreements by which people are engaged to do work, whether as employees or not”. Terms implied by custom and practice[174]This scenario relates to terms that are regularly adopted in certain industries. In that case, where a term is regularly adopted across a specific trade, then it may well be implied into every contract in that trade. The logic behind this is that the parties must have been assumed to have agreed upon that which is obvious to those working in that industry – Sagar v H Ridehalgh & Son Ltd [1931] 1 Ch 310.[175]To qualify as a term implied by custom, the term must be “reasonable, notorious and certain” – Devonald v Rosser & Sons [1906] 2 KB 728. Conclusions Disability[176]We are satisfied on the evidence that we have heard and seen that the claimant was disabled in relation to his chronic back condition during his employment with the respondent.[177]We have copious evidence that informs us that the claimant has a long standing impairment of chronic back pain, as we have found above.[178]The issue here is whether that impairment caused the requisite effect under s6 EqA.[179]We have taken into account the following evidence regarding the effect his back pain had on his work life: 179.1. The claimant for years did not work on Tuesdays and Fridays (delivery days for DS) by agreement with DS in order to avoid having to put his back under strain in helping with deliveries; 179.2. It was agreed by all that the claimant only did light stocking of shelves during his employment with the respondent, and his employment with DS. He only did the stocking he could manage due to his back pain; 179.3. During his employment with DS, he had a way of working that gave him the time he needed for his back to recover between shifts.[180]The claimant had therefore put in place coping mechanisms and adjustments to allow him to do his work in a manner that reduced the effects of his back pain. We have to consider whether those coping mechanisms are ones that we could reasonably expect a claimant to put in place, or whether it is unreasonable to expect him to input those adjustments to his daily life.[181]We remind ourselves of the Guidance, specifically paragraph B7 (cited above). We find that it was not reasonable for the claimant to have had to modify his working life with the coping/avoidance mechanisms put in place. Even with those mechanisms in place, he still experienced a level of pain.[182]We did consider the fact that the claimant was able to drive for 2.5 hours a day during his employment with the respondent. This would point away from the claimant experiencing substantial adverse effects of his back pain whilst driving. However, the claimant’s evidence was that he could do this providing he did not have to do the journey on consecutive days and only did the drive 2 days a week. We therefore again return to the issue of whether it is reasonable to expect someone to stagger their working days to avoid or reduce the pain they experience from an impairment. As above, we find that it is not reasonable to expect this level of adaptation.[183]We therefore conclude that the claimant’s impairment, throughout the course of his employment with DS and the respondent, had a more than minor or trivial effect on his ability to undertake normal day-to-day activities. These effects had lasted more than 12 months by the time of the alleged discrimination.[184]As such, we conclude that the claimant was, at all material times, disabled by way of his chronic back condition. Reasonable adjustments The respondent’s knowledge of disability[185]We find that the respondent made reasonable attempts to find out the claimant’s medical position, asking for the claimant’s permission to speak to his GP. The claimant unreasonably obstructed the respondent in their efforts to make further enquiries. The respondent’s enquiries were reasonable, as an employer is under a duty to make reasonable enquiries.[186]The respondent did however have knowledge of the claimant’s chronic back pain from when he (the respondent) first took over as his employer. The respondent knew enough to know that the claimant could not bend down, could not do deliveries, and that standing exacerbated his pain. The claimant informed the respondent of his conditions, including his back disability, early on in his employment – for example [MB/222].[187]This is enough knowledge for us to be satisfied that the respondent had constructive knowledge of the claimant’s disability. Provision, criterion or practice[188]The three alleged PCPs are as follows: “PCP1 – requiring employees to stand in the till area; PCP2 – requiring the employees to work on consecutive days; PCP3 – requiring the employees to work less than 8 hour shifts.”[189]PCP1 is accepted as being a PCP by the respondent. The respondent denies that PCP2 and PCP3 are PCPs under the EqA.[190]We conclude that PCP2 and PCP3 do not fulfil the requirement of a PCP set out in the EqA. It was not a case that the claimant was in fact always required to work on consecutive days, or was always required to work less than 8 hour shifts. The requirement put in place by the respondent was for its employees to be flexible about their shift pattern, hence the wording of the contract that rotas would be put in place by management. Sometimes the claimant was able to work non-consecutive days of 8 hours; others, he was not.[191]We therefore continue to consider the reasonable adjustments claim in relation to PCP1 only. Substantial disadvantage compared to someone without chronic back pain[192]We accept that PCP1 would place someone with chronic back pain at a substantial disadvantage to someone without that back pain. This PCP led to the claimant experiencing exacerbation of that pain. We conclude that the PCP would equally put other persons with chronic back pain to that same disadvantage. It would not however lead to exacerbation of back pain in those who did not suffer from chronic back pain. Knowledge of disadvantage[193]We are satisfied that the respondent knew that the claimant would be placed at a substantial disadvantage (exacerbation of pain) by PCP1. Soon after his acquisition of the petrol station business, the respondent had been told about the chair provided by DS and the claimant’s use of that chair. The claimant had also raised with the respondent, even on the respondent’s case at the latest by September 2023, that standing exacerbated his pain – [MB/254]. Reasonable adjustments[194]The claimant alleged that there were two reasonable adjustments that should have been made, however only one of those relates to PCP1: the provision of a chair in the till area. We therefore limit our conclusions to that one alleged reasonable adjustment.[195]The claimant alleges that it would have been a reasonable adjustment to provide a chair in the till area.[196]The respondent’s position is that this would have been reasonable as the till area was not big enough to house the type of chair the claimant wanted/needed.[197]We conclude that providing a chair for the claimant would have been a reasonable adjustment for the following reasons: 197.1. As stated in our findings, no health and safety/risk assessment was ever done regarding a chair in the till area. Neither have we seen any evidence of measurements of the till area and proposed chairs to support the respondent’s assertion that a chair would not fit. 197.2. CB during his grievance investigation process did not do any research into possible chairs and whether they would in fact fit given the dimensions of the till area. The respondent’s position that a chair would not fit appears to have been accepted at face value by CB. 197.3. Despite the claimant’s repeated requests, the respondent did nothing to explore the dimensions of chairs available. 197.4. The respondent argued that a chair in the till area would have limited the access to the emergency pump button. We have photos at [MB/401, 404, 405]. These show that only one door of the cupboard needs to be open to access the pump button; we find this would be possible even with some form of chair in place. 197.5. The respondent argued that a chair in that area would present a health and safety risk given the step down from the till area to the main shop floor. However, that step down is marked with a step liner to alert people to the risk. 197.6. We find that the respondent has been content in the past to place a heater, bin and stool in the same till area in which he says a chair could not fit. We have no evidence that any risk assessment was done in relation to placing those items in the till area, or any concerns from the respondent about those items being in that area. This undermines the respondent’s position that a chair in that area would cause a health and safety risk – [MB/397]. It also undermines the position that a chair could not fit in that area.[198]We conclude that it would have been reasonable to provide the claimant with a chair in the till area.[199]The respondent has argued that it took sufficient reasonable steps in providing a chair in the office room, opposite the till area, and thus it has met its duty under ss20/21 EqA.[200]In our conclusions, that is not sufficient to extinguish the respondent’s duty under s20 to provide a reasonable adjustment of a chair in the till area.[201]We accept that the claimant did not try to use the office chair to see whether it ameliorated his back pain. We also accept that one can see the CCTV and therefore could see when customers were approaching, enabling one to move to the till area.[202]However, the office was cramped with goods (alcohol etc); we accept that it was reasonable for the claimant to have a genuine fear of being accused of stealing goods from the office, given he was often in the petrol station alone, and items can go missing, leading to allegations of this nature.[203]We also accept that the emergency pump button was only accessible from the till area, and therefore could not be reached quickly if an emergency was witnessed from the office.[204]The respondent’s business had increased its turnover since being transferred to the respondent from DS. In other words the petrol station was getting busier. During busy periods, we conclude it would be harder for the claimant to go to and from the office to take a seat. A chair in the till area would have enabled him to effectively bob up and down as the need presented itself.[205]Although we accept that the offer of the chair in the office was a step in the right direction, it was not a sufficient reasonable adjustment to mean that the respondent had exhausted its duty under s20. Discrimination arising from disability[206]This claim fails due to the fact that the manner in which the factual allegation is drafted does not make sense within the legislative framework: particularly in relation to the causative link required by s15 EqA.[207]The claim is framed as follows:3.1 Did the respondent treat the claimant unfavourably by:3.1.1 Removing the chair which the claimant had previously used;3.1.2 Altering the claimant’s shift pattern from two eight hour shifts on nonconsecutive days to shifts of six hours which from time to time are on consecutive days.3.2 Did the following things arise in consequence of the claimant’s disability:3.2.1 The need to sit down from time to time, particularly during quiet periods of work, to alleviate his heel/back pain;3.2.2 The need to work on non-consecutive days to accommodate his disabilities and his recovery time?3.3 Was the unfavourable treatment because of any of those things?[208]This means that the claimant’s case has to be that the removal of the chair and the altering of the claimant’s shift pattern was because of his need to sit down and his need to work on consecutive days.[209]This is not in fact what the claimant’s case was on the evidence. He does not in fact say that the removal of the chair and the change in pattern by the respondent was because of his need for a chair and non-consecutive day shifts. Indeed, and for the avoidance of doubt, we find that the removal of the chair was not because of the claimant’s need to sit down from time to time. We also find that the respondent’s changing the claimant’s shift pattern was not because of his need to work non-consecutive days.[210]The Tribunal considers that this claim was misconstrued, and in fact the claimant’s claim has always really been one of reasonable adjustments, it was simply mis-formed early on. Harassment in relation to disability[211]The claimant relies on two matters of “unwanted conduct”: “Removing the chair which the claimant had previously used; and, Altering the claimant’s shift pattern from two eight hour shifts on non-consecutive days to shifts of six hours which from time to time are on consecutive days.”[212]Taking first the removal of the chair. It was not the respondent who removed the chair. This is common ground on the evidence we have heard. It was in fact the removal men. As such, the respondent did not remove the chair.[213]Even if it were to be argued that the respondent is in some way vicariously liable for the removal men (a point that has not been argued), we have no evidence to demonstrate that the removal men knew of the claimant’s disability, or removed the old chair for any reason connected with his disability.[214]Regarding the alteration of hours, we find that the respondent’s reason for putting in place the claimant’s shifts as he did throughout the course of the chronology was solely due to business need and efficacy. The respondent employed two employees only, and worked in the petrol station himself from time to time. With that limited scope of staff resource, we accept that business efficacy was the rationale behind the shift patterns he put in place. The change in hours therefore was not in relation to the claimant’s disability.[215]The harassment claim therefore fails. Regulation 4 TUPE claim Terms of the claimant’s Original Contract[216]One of the claimant’s claims (regulation 4 TUPE) rests on whether two aspects of his employment with the respondent’s predecessor, DS, were contractual terms or not, those being: 216.1. Working shifts of no less than 8 hours; and 216.2. Working on non-consecutive days.[217]We have found that the Original Contract was the same as that set out at [AB/29] in terms of its contents. See paragraph 63 above.[218]We have also found that the terms alleged by the claimant to have been included are not express terms of that contract – see paragraph 64 above. We have found that, even if we are wrong on that, we do not accept that the specific alleged terms appeared as express terms within the claimant’s Original Contract – see paragraph 64 above.[219]Turning then to consider whether the alleged terms were implied into the Original Contract.[220]Firstly, we consider conduct of the parties to the Original Contract at the beginning of the contract. We do not have sufficient evidence from the claimant or DS to understand how that contract came about. The evidence we do have has led us to find that the Original Contract, in terms of hours, simply stated that the claimant was contracted for 16 hours a week. We also have the evidence from DS at [MB/261] that the two alleged terms were not part of the claimant’s Original Contract. We accept that evidence. We find that the conduct of the claimant and DS over the following years does not evidence that there was an agreement at the time of entering into the Original Contract that the two alleged terms would be included.[221]We consider whether the parties conduct over the years led to a valid variation of the Original Contract to include the two alleged terms. We accept again the evidence of DS informing the respondent that these were not terms of the claimant’s contract. We see no reason why he would benefit from misleading the respondent about that, given any liabilities he (DS) had would have transferred to the respondent.[222]We are not satisfied that the conduct of the parties led to a variation of the claimant’s contract to include the two alleged terms.[223]Secondly, we consider whether the two alleged terms could have become contractual terms by way of custom and practice. However, for terms to be implied on this basis, they have to be reasonable, notorious and certain in the industry. It has not it been suggested to us that working not less than 8 hours on non-consecutive days is something that is reasonable, notorious and certain within the parties’ industry, nor could this reasonably be suggested to be the case given the lack of evidence to this effect. It would be difficult to see a case in which it could be said that “everyone in the petrol station business knows that you work no less than 8 hour shifts, on non-consecutive days”, for example.[224]Therefore, we conclude that the two alleged terms did not form either express or implied terms of the claimant’s Original Contract. They were simply working practices.[225]As such, there was no legal requirement for those working practices that the claimant had with DS to transfer over when his employment transferred to the respondent. This claim therefore fails. REMEDY JUDGMENT
Introduction
[1]The respondent shall pay the claimant the following sums: 1.1. Compensation for past financial losses: £10,507.81 1.2. 10% uplift on compensation for past financial losses in accordance with s207A Trade Union & Labour Relations (Consolidation) Act 1992: £1,050.78 1.3. Interest on compensation for past financial losses calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996: £1,084.73 1.4. Compensation for injury to feelings: £22,450 1.5. 10% uplift on compensation for injury to feelings in accordance with s207A Trade Union & Labour Relations (Consolidation) Act 1992: £2,245 1.6. Interest on compensation for injury to feelings calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996: £4,635.06[2]The respondent shall pay the claimant the total of the above sums at paragraph 1 (£41,973.38) within 42 days of the date of the judgment.[3]The claimant’s application for a preparation time order was refused. 10.2 Judgment - rule 61 February Case No: 3305170/2023 REMEDY JUDGMENT having been sent to the parties on 10 January 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunal Procedure Rules 2024, the following reasons are provided:[1]The claimant was at all material times employed by the respondent at premises trading as “Jet Petrol” on College Road, Woking, as a Service Station Cashier. The claimant commenced his employment with the respondent’s predecessor, SONCO Ltd, in March 2012. His employment transferred under the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) in June 2022, to the respondent.[2]The claimant commenced the ACAS early conciliation process on 24 February 2023. That process ended on 7 April 2023, following which the claimant presented his claim form on 6 May 2023. The claim form presented various disability discrimination claims as well as a claim under regulation 4 of TUPE.[3]The claim did not involve the termination of the claimant’s employment; however, we understand that he went off on sick leave on 6 May 2023 and eventually resigned as a result of his ill health on 23 February 2024.[4]The final hearing regarding liability was heard on 29 February, 1, 4, 5, 6, and 21 March 2024. The Tribunal met in chambers on 24 April 2024 to complete their deliberations, and the Reserved Judgment was sent to the parties on 4 July 2024.[5]The Tribunal upheld the claimant’s claim of failure to make reasonable adjustments in part. The claims of discrimination arising from disability, harassment and breach of regulation 4 of TUPE were not well-founded and were rejected. These Written Reasons should be read in conjunction with our Reserved Judgment on liability.[6]The claim that the Tribunal upheld related to the respondent’s failure to provide the claimant with a chair following the TUPE transfer. The claimant was disabled by way of chronic back pain. The relevant provision, criterion or practice was “requiring employees to stand in the till area”, which led to the claimant suffering the substantial disadvantage of exacerbated back pain. We concluded that it would have been a reasonable adjustment to provide the claimant with a chair.[7]A remedy hearing was listed and took place on 29 November 2024. The claimant produced a bundle of 341 pages (page X of that bundle is referred to below as [X]) as well as a witness statement for the purposes of the remedy hearing.[8]The claimant’s Schedule of Loss is at [135] and is divided into eleven sections as follows: 8.1. Section 1 – unpaid leave 27 June to 10 July 2023; 8.2. Section 2 – past loss of earnings 6 May 2023 to 23 February 2024; 8.3. Section 3 – interest of 8% on past losses; 8.4. Section 4 – future loss of earnings 23 February 2024 for 12 months; 8.5. Section 5 – injury to feelings; 8.6. Section 6 – interest on injury to feelings; 8.7. Section 7 – ACAS uplift under s207A Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”); 8.8. Section 8 – medical expenses; 8.9. Section 9 – initial legal advice; 8.10. Section 10 – hotel expenses; 8.11. Section 11 – travel expenses. Issues[9]The issues to be determined at the remedy hearing were set out in the Case Management Order sent to the parties along with the Reserved Judgment, and were recorded as follows:1.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?1.2 What financial losses has the discrimination caused the claimant?1.3 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?1.4 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?1.5 Did the respondent unreasonably fail to comply with it?1.6 If so is it just and equitable to increase any award payable to the claimant?1.7 By what proportion, up to 25%?1.8 Should interest be awarded? How much? The respondent’s submissions[10]The respondent’s position was that Section 1 (unpaid leave) did not flow from the discrimination and as such should not be awarded.[11]The respondent conceded that the figures claimed at Section 2 for losses up to the claimant’s resignation did flow from the discrimination. Although the respondent argued that interest was not payable on this figure (Section 3).[12]Regarding Section 4 (future losses), the respondent argued that not all losses flowing from the resignation were as a result of the discrimination. He argued that the claimant’s back condition had been in existence since 1996, and that it is a condition that is incredibly difficult to treat. It was highlighted that the back condition had been manageable for the claimant for some time during his employment with the respondent. In short, the respondent said that we could not be satisfied that the exacerbation in the claimant’s back condition was attributable to the failure to make reasonable adjustments. The respondent summarised by arguing that losses following the termination of the claimant’s contract should be limited to six months.[13]In terms of Section 5 (injury to feelings), the respondent argued that an award within the lower band of the relevant guidance would be more appropriate: the relevant guidance being the “Presidential Guidance: Employment Tribunal awards for injury to feelings and psychiatric injury following De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879, Sixth Addendum” (“the Presidential Guidance”). The basis of this submission was that this was a single act of discrimination, which was not egregious. The respondent also highlighted that some of the claimant’s health concerns now were not related to the discrimination. The respondent accepted that interest is payable on an award for injury to feelings (Section 6).[14]In relation to the ACAS uplift at Section 7, the respondent did not accept that an uplift was appropriate. The point being considered by the Tribunal was the fact that the same person was the decision-maker for the claimant’s grievance and the grievance appeal. The ACAS Code does not require as mandatory that a new person be involved at the appeal stage of the grievance process; the relevant paragraph (paragraph 43) provides that: “The appeal should be dealt with impartially and wherever possible by a manager who has not previously been involved in the case”.[15]As such, the respondent submitted that it was not a fundamental breach of the code to have the same person deal with the grievance as the appeal and argued that no uplift should be awarded.[16]In terms of the expenses set out in Sections 8 to 11, the respondent averred that those expenses were not within the Tribunal’s jurisdiction to award. The claimant’s submissions[17]Regarding Section 1, on understanding that the unpaid leave on the specific dates mentioned was not something that could be said to flow from the discrimination, the claimant did not pursue this head of loss.[18]In terms of Section 2, the claimant argued that he had been forced to go off sick and then resign from his employment with the respondent as a direct result of the respondent’s failure to provide a chair. This was because the lack of chair led to such a deterioration in his health that he was no longer able to work. As such, the claimant claimed his losses from 6 May 2023, when he went off work sick due to his back (giving credit for statutory sick pay received) to the date of his resignation on 23 February 2024. The claimant claimed interest on his past loss of earnings (Section 3).[19]Furthermore, the claimant claimed losses for 12 months following his resignation (Section 4). The claimant referred us to [251] which is the most up to date Proback Clinic report from October 2024, which stated: “Mr Anandrajmohan has stated that he benefits from treatments, but currently gets short term relief. We have tried radiofrequency last treatment, Mr Anandrajmohan stated he benefitted from it and wishes to continue this form of treatment in the future. The radiofrequency promotes increase of ionic exchange at a cellular level which encourages tissue repair and assists in pain management. We have informed Mr Anandrajmohan due to the severity of his condition; his progression will take some time”.[20]It was the claimant’s opinion that he would not have had to go to Proback for their help with his back had he been provided with a chair. We were informed that the claimant had looked for work in December 2023 but his disability had already worsened during his time with the respondent. He therefore cannot predict when he will next be employed (if ever).[21]In terms of injury to feelings (Section 5), the claimant sought an award in the middle band of the three bands set out in the Presidential Guidance. He claimed interest on any award for injury to feelings (Section 6). The claimant asserted that he had been promised a chair, then the respondent changed its mind and said a chair would be a health and safety hazard. However, the photographs we have of the till area at [267/268] and [296-298] demonstrate that the respondent was willing to place a heater and bin behind the till area. The respondent relied on a risk assessment in refusing a chair, but could not provide that assessment: it even failed to measure the area to double check whether a chair would fit. The discrimination led to a significant and lasting effect on the claimant. He experienced more severe pain after having to work a new shift pattern without a chair. The lack of chair directly contributed to his decline in physical and mental health: following that decline, the claimant is no longer independent. We were told of the limitations on the claimant’s life now, and his heavy reliance on his wife.[22]The claimant also claimed an uplift under s207A TULRCA of the maximum of 25% on relevant figures (Section 7). The claimant argued that there were many things within the Code of Practice on Grievances that were not done by the respondent. For example, paragraph 34 of the Code provides that: “employers, employees and their companions should make every effort to attend the [grievance] meeting. Employees should be allowed to explain their grievance and how they think it should be resolved”.[23]When the claimant was invited to the meeting with Mr Cyril Bekoe, it was originally proposed that the respondent would be there and Mr Bekoe would mediate. This is not what happened, and the respondent did not attend the grievance meeting. The respondent still has given no reason why he did not attend: the claimant’s view is that, had he attended, mediation may have been possible. It was said for the claimant that the involvement of Mr Bekoe created more confusion than clarity, as it was never clear to the claimant whether Mr Bekoe was an employee of the respondent or not. The claimant also submitted that there were unnecessary delays in the grievance process, and a lack of transparency when it came to sharing notes of meetings. The claimant picked out a few other parts of the procedure that he said were not compliant with the ACAS Code.[24]The claimant also sought to recover various expenses both in terms of medical appointments and regarding expenses of this litigation (Sections 8 to 11). Findings of fact Figures[25]Following the claimant’s transfer to the employment of the respondent, he worked 16 hours a week. He was paid at a rate of £10.42 per hour, meaning his weekly salary was £166.72. The claimant’s salary was at such a rate that he was not required to pay tax on it. Therefore, for the purpose of any calculations, the claimant’s gross and net weekly pay was the same, £166.72. Sections 2 – financial losses 6 May 2023 to 23 February 2024[26]Prior to the respondent taking over the claimant’s employment, the claimant had been able to do the same job for a decade with no issues regarding exacerbation of his back condition, and with no period off sick due to back pain. He had had use of a chair in those initial ten years with the respondent’s predecessor. The claimant explained that, during his employment with SONCO, he had experienced constant pain, but it was manageable.[27]We note from the medical evidence that the claimant’s GP noted in January 2023 that his back pain was exacerbated by standing for more than 10 minutes - [146]. In May 2023, he told his GP that the back pain had been getting worse over the previous 2 to 3 months – [151]. The claimant has produced his fit notes from May 2023 through to May 2024, all of which reference back pain other than the final one. That final sick note for the period of 5 February 2024 to 5 May 2024 references depression, but it also states “feels unable to walk > 100m or stand for > 10 minutes”; we find that this is a clear reference to the claimant’s back condition. The fit notes are at [150, 162, 163, 197, 212].[28]We are satisfied that the claimant’s back condition in the period of 2012 to 2022 (with a chair) was markedly different compared to the decline we see after the respondent took over the claimant’s employment.[29]We also note that the claimant told us he had only used a wheelchair since the decline in his back due to standing too much at work.[30]We accept that the claimant’s back condition was degenerative: see at [231] the GP entry dated September 2022 recording that a CT in 2022 showed degenerative changes, and at [152] an MRI report of May 2023 recording “mild degenerative changes”. However, we are satisfied on the evidence before us that the degeneration had been low up until he was without a chair at work in 2022. We remind ourselves that his condition was diagnosed in 1996, and he was still able to work without issue (with a chair) up to summer 2022, 26 years after his diagnosis. From the point of removal of a chair, the claimant’s back condition degenerated at a much more alarming rate than it had done over the previous quarter century.[31]We find that the material difference between the claimant managing his back condition for 26 years (a decade of that period being in employment at the petrol station) and the swift decline from summer 2022 to May 2023 when the claimant went on sick leave was the lack of chair. We therefore are satisfied that the discrimination was the reason that the claimant had to go on sick leave in May 2023.[32]Furthermore, we accept that, by the time of the claimant going on sick leave, the damage to his back due to the lack of chair was done, and he would never fully be restored to the position he had been in prior to the respondent taking over his employment. The claimant told us that he is undertaking physiotherapy at home, undertaking his exercises and applying ice. Unfortunately, this has not led to any improvement; in fact, his condition is worsening in his view.[33]As such, we are satisfied that the claimant remained on sick leave up to his resignation due to the decline in his back condition that was directly caused by the discrimination.[34]We therefore are satisfied that financial losses from 6 May 2023 to 23 February 2024 are attributable to the discrimination and are recoverable. Section 4 – financial losses from 23 February 2024 onwards[35]The claimant alleges that he was essentially forced to resign in February 2024, as it became clear that he would not be able to return to work in light of his back condition at that time. He claims a further 12 months of losses. The respondent argues that a further 6 months of losses is reasonable.[36]The claimant informed us that he went to the job centre in December 2023 and was told straight away to apply for a Personal Independence Payment (“PIP”) award. We find that this meant, as at December 2023, he was unlikely to be sufficiently fit to obtain new employment.[37]We also refer to the contents of the claimant’s fit notes as we have recorded above. In terms of the period from February 2024, the only one we have is from 5 February 2024 to 5 May 2024. That note references depression, but it also states “feels unable to walk > 100m or stand for > 10 minutes” - [212].[38]Unfortunately, the Tribunal did not have sight of any expert medical evidence regarding the claimant’s back as to what would have happened but for the discrimination. Ideally, we would have medical evidence as to whether the claimant would have been able to remain at work, or return to work, at some future point, but for the discrimination. The claimant’s view on this was that, if he had been provided with a chair, he would have been able to continue working for the respondent for 10 to 15 more years.[39]As we have already found, we take account of the fact that degeneration of the claimant’s condition over a quarter of a century had been fairly slow. We therefore find that, although there may well have been some decline in the claimant’s back condition but for the discrimination, it would not have been to the extent in fact suffered.[40]We consider that the arguments of both parties carry equal weight. We are satisfied that the claimant needed to resign because of his back condition, which was exacerbated by the discrimination to the extent that the claimant could no longer work; indeed, this is not disputed by the respondent. We infer this from the fact that they accept some losses are payable under this heading.[41]The only evidence we do have as to what would have happened but for the discrimination comes from the claimant, that he considers he could have remained working at the respondent for another 10 to 15 years but for the discrimination. However, he has capped his losses at 12 months.[42]In light of both parties’ positions, and the evidence in front of us (or lack thereof), we consider an award half-way between the two parties’ positions to be appropriate. We therefore award losses following the claimant’s resignation for a period of 9 months. Section 3 – interest on past financial losses[43]All of the claimant’s financial losses are past losses as at the date of the remedy hearing. As such, interest is payable on the financial losses under both Sections 2 and 4.[44]The calculation for interest requires us to pinpoint the date of the discrimination. We found in our liability judgment that the claimant first asked for a chair on 2 July 2022. Giving the respondent a reasonable period to research and purchase a chair, we consider a chair should have been in place from four weeks following that request. This would coincide with when the claimant attended work, following refurbishments, on 31 July 2022. We therefore find that a chair should have been available for him from that point when the petrol station reopened and the claimant returned to work.[45]As such we find that the date of discrimination was 31 July 2022 for the purposes of calculating interest. Section 5 – injury to feelings[46]The claimant had been making requests for a chair from the time at which his employment transferred to the respondent. This means that he was fighting to be given a chair for over ten months before he went on sick leave.[47]The respondent procrastinated, having initially said he would provide a chair, and then changed his mind. The respondent shifted position from being willing to provide a chair, to putting the onus on the claimant to find an appropriate chair, to then saying there was no room for a chair.[48]The claimant therefore had a period of ten months at work, during which he worked without a chair. As a result, he suffered from exacerbated back pain, which led to a step change in his condition and ultimately resulted in him having to be signed off sick. We refer to our findings at paragraphs 30 to 31.[49]Furthermore, we accept that the ensuing health issues and his treatment at work has caused his mental health to decline. The claimant had not experienced any mental health issues prior to his time working with the respondent. We note that, as at November 2023, the claimant had been suffering with low mood for 4 to 5 months, attributed to “health problems, employment issues and finances” – [196]. Later in November 2023, the claimant’s PHQ-9 (depression) score was 24, and his GAD-7 (general anxiety) score was 21; there had been no real impact despite him undertaking a Talking Therapies course – [204-205]. We accept that the discrimination was not the sole factor that contributed to his mental health. For example, at [217], in February 2024 prior to his resignation, the claimant told the GP that he was harassed at work as his manager “wanted to increase his hours”; this was part of the discrimination we upheld. We find that the decline in the claimants’ overall physical and mental health declined at least in part due to the respondent’s discriminatory conduct. Section 6 – interest on injury to feelings[50]Interest is payable on an award of injury to feelings. We refer to our findings at paragraphs 44 and 45 above as to the date of the discrimination. Section 7 – ACAS uplift[51]The claimant had pleaded that he should be awarded an uplift under s207A TULRCA.[52]The only matter we considered could be a breach sufficient to attract an uplift under s207A TULRCA was the fact that Mr Cyril Bekoe had played the part of both the grievance and appeal officer.[53]We remind ourselves of our findings at paragraphs 97 and 98 of the Reserved Judgment on liability: “On the issue of CB being both grievance and appeal officer, we find this unusual and, in fact, this should not have been the case. We find that it would have been possible to provide someone else to undertake the role of Appeal Officer, albeit we accept CB’s evidence it would have taken several weeks to get a third party involved, and that he (CB) spoke to ACAS about this. We are not satisfied that the practicalities involved in providing a different Appeal Officer were prohibitive. For example, CB could have explained to the claimant that to get a new Appeal Officer would take longer, and obtain the claimant’s view on that. CB also said it would cost the respondent more money to instruct another third party, in that he would need to pay for the additional time it would take a new person to read into the case. We accept CB’s rationale, but are not satisfied that these were sufficient reasons for CB to deal with the appeal. We find that someone else should have dealt with it for justice to be done and to be seen to be done.”[54]As above, we are not satisfied that CB’s reasons for fulfilling both roles were sufficient. We consider that it is simply too big a risk to have the same person dealing with the grievance hearing then the appeal hearing. Human nature dictates that it is very unlikely that one would overturn one’s own decision. We find that this was a breach of the ACAS Code, and that this breach was unreasonable in all the circumstances.[55]On the other hand, we accept that the respondent was a small employer with limited resources to spend on HR matters. This was not a complete failure to follow the ACAS Code on Grievances, nor have we found that the grievance process was a sham (for example). Section 8 – medical expenses[56]The claimant makes a claim for medical expenses. We are not satisfied that, but for the discrimination, he would not have had at least some of these appointments, or some other appointments of equivalent value. We have no expert evidence saying that he would not have needed these appointments but for the discrimination. We are not satisfied that the claimant has proven that these losses flow from the respondent’s discrimination.[57]We therefore reject the claim for medical expenses. Section 9 – initial legal advice[58]This claim is in fact a claim for legal costs. Costs is a separate matter to heads of loss flowing from discrimination. As such, this is not an appropriate head of loss and we reject this claim for legal expenses. Section 10 – hotel[59]The claimant stayed at a hotel for the duration of the final hearing and claims this expense. As above, the costs of litigation (including costs of getting to the Tribunal) fall under the heading of “costs” and as such are not an appropriate head of loss flowing from discrimination.[60]As such, we reject this claim. Section 11 – travel[61]The claimant claims travel costs of getting to medical treatments by bus and for travel costs of getting from his hotel in Reading to the Tribunal.[62]In terms of travel to medical appointments, as above, we are not satisfied as to what treatment the claimant would have needed and undertaken but for the discrimination. We therefore are not able to find that the need for the specific medical appointments claimed, and therefore associated travel, flowed from the discrimination.[63]In terms of travel cost to the Tribunal, once again this is a cost wrapped up within the litigation and does not form an appropriate head of loss flowing from the discrimination.[64]This claim is therefore rejected. Legal framework Causation – losses flowing from discrimination[65]As per the EAT in Ministry of Defence v Cannock and ors 1994 ICR 918, pages 935 to 936: “as best as money can do it, the applicant must be put into the position she [or he] would have been in but for the unlawful conduct”.[66]In other words, the question for the Tribunal is what loss has been caused by the discrimination. This may require the Tribunal to consider the divisibility of any harm or injury; in other words, where the harm suffered by a claimant is in part due to other (non-discriminatory) factors, the Tribunal will need to determine what proportion of the harm was suffered due to the discriminatory treatment, and what proportion was caused by those external factors. For example, in Thaine v London School of Economics [2010] ICR 1422, the EAT upheld the Tribunal’s decision to reduce compensation by 60% given its findings that there were a number of causative factors leading to the claimant’s psychiatric illness, one of which was discriminatory treatment.[67]The Court of Appeal in Essa v Laing Ltd 2004 ICR 746 held that any award for discrimination should encompass all harm caused “directly and naturally” by the discriminatory act – paragraph 37. Injury to feelings[68]The Employment Appeal Tribunal in Prison Service and ors v Johnson [1997] ICR 275 provided guidance as to the appropriate award for injury to feelings, at page 282: “(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor’s conduct should not be allowed to inflate the award. (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could...be seen as the way to “untaxed riches”. (iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. (iv) in exercising their discretion is assessing the sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. (v) Finally, tribunals should bear in mind Sir Thomas Bingham’s reference to the need for public respect for the level of awards made.”[69]The Tribunals now have the benefit of bands being set by Presidential Guidance each year. At the time this claim was presented, the Presidential Guidance set out the three bands as follows: 69.1. Lower band of £1,100 - £11,200; 69.2. Middle band of £11,200 - £33,700; and, 69.3. Upper band of £33,700 - 56,200.[70]The focus of an injury to feelings award should be the effect of the discrimination, rather than the gravity of the acts by the respondent – Komeng v Creative Support Ltd EAT 0275/18.[71]The same causative link is required for injury to feelings as is set out at paragraphs 48 to 50 above. ACAS uplift[72]TULRCA s207A provides as follows: “(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that -(a) The claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,(b) The employer has failed to comply with that Code in relation to that matter, and(c) That failure was unreasonable, the employment Tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.”[73]It is important to note that the uplift is only engaged if the failure to follow the correct Code of Practice is unreasonable. An adjustment may be made if it is “just and equitable in all the circumstances”.[74]The relevant factors to be taken into account by the Tribunal when contemplating what is just and equitable were set out by Mr Justice Underhill in Lawless v Print Plus EAT 0333/09 as follows, at paragraph 10: “(4) The circumstances which will be relevant will inevitably vary from case to case and cannot be itemised, but they will certainly include:(a) Whether the procedures were ignored altogether or applied to some extent...;(b) Whether the failure to comply with the procedures was deliberate or inadvertent; and(c) Whether there are circumstances which may mitigate the blameworthiness of the failure”.[75]In other words, the respondent’s culpability needs to be considered. It is also relevant to consider the size and resources available to the respondent.[76]Regarding the percentage uplift to be applied, some guidance has been given in the case of Slade and anor v Biggs and ors [2022] IRLR 216, as follows: “77. In future, when considering what should be the effect of an employer’s failure to comply with a relevant Code under section 207A of TULRCA, tribunals might choose to apply a four-stage test, in order to navigate the various points which I have been considering in this appeal: i) Is the case such as to make it just and equitable to award any ACAS uplift? ii) If so, what does the ET consider a just and equitable percentage, not exceeding although possibly equalling, 25 %? Any uplift must reflect “all the circumstances”, including the seriousness and/or motivation for the breach, which the ET will be able to assess against the usual range of cases using its expertise and experience as a specialist tribunal. It is not necessary to apply, in addition to the question of seriousness, a test of exceptionality. iii) Does the uplift overlap, or potentially overlap, with other general awards, such as injury to feelings; and, if so, what in the ET’s judgment is the appropriate adjustment, if any, to the percentage of those awards in order to avoid doublecounting? This question must and no doubt will be answered using the ET’s common sense and good judgment having regard to the final outcome. It cannot, in the nature of things, be a mathematical exercise. The EAT must be reluctant to second guess the ET’s decision either to adjust or not adjust the percentage in this respect, or the amount of any adjustment, because it is quintessentially an exercise of judgment on facts which can never be as fully apparent on appeal as they were to the fact-finding tribunal. The EAT will certainly not substitute its own view for the judgment of the ET in the absence of an obvious error. iv) Applying a final sense check, is the sum of money represented by the application of the percentage uplift arrived at by the ET disproportionate in absolute terms and, if so, what further adjustment needs to be made? Whilst wholly disproportionate sums must be scaled down, the statutory question is the percentage uplift which is “just and equitable in all the circumstances”, and those who pay large sums should not inevitably be given the benefit of a non-statutory ceiling which has no application to smaller claims. Nor should there be reference to past cases in order to identify some numerical threshold beyond which the percentage had to be further modified. That would cramp the broad discretion given to the ET, undesirably complicate assessment of what is “just and equitable” by reference to caselaw, and introduce a new element of capping into the statute which Parliament had not suggested. Indeed, the reduction by Parliament in the range from 50% to 25% after the decision in Wardle may be taken to be a reconsideration of what is proportionate in the most serious cases, and therefore, a strong indication on that aspect.”[77]The Court of Appeal has made it clear that it will be an error of law not to consider the size (monetarily) of an award when considering the appropriate percentage uplift to award – Wardle v Credit Agricole Corporate and Investment Bank 2011 ICR 1290. Interest[78]The Industrial Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (“the 1996 Regulations”) provides as follows: “2(1) Where, at any time after the commencement of these Regulations, an industrial tribunal makes an award under the relevant legislation –(a) It may, subject to the following provisions of these Regulations, include interest on the sums awarded; and(b) It shall consider whether to do so, without the need for any application by a party in the proceedings. (2) Nothing in paragraph (1) shall prevent the tribunal from making an award or decision, with regard to interest, in terms which have been agreed between the parties. ... 4(1) In this regulation and regulations 5 and, “day of calculation” means the day on which the amount of interest is calculated by the tribunal. (2) In regulation 6, “mid-point date” means the day which falls half-way through the period mentioned in paragraph (3) or, where the number of days in that period is even, the first day of the second half of the period. ... 6(1) Subject to the following paragraphs of this regulation – (a) in the case of any sum for injury to feelings, interest shall be for the period beginning on the date of the contravention or act of discrimination complained of and ending on the day of calculation. (b) In the case of all other sums of damages or compensation ... and all arrears of remuneration, interest shall be for the period beginning on the mid-point date and ending on the day of calculation.”
Conclusions
[79]We take each section of the Schedule of Loss in turn. Section 1 – unpaid leave 27 June to 10 July 2023[80]Section 1 was a claim for wages (unpaid leave for 27 June to 10 July 2023). This claim had not been pleaded in the claim form, and was not a loss flowing from the discrimination. As such, we did not award this figure. Section 2 – financial losses from 6 May 2023 to 23 February 2024[81]Section 2 was a claim for past loss of earnings from 6 May 2023 to 23 February 2024. As set out above, we are satisfied that this loss of earnings flows from the discrimination, and as such we award those losses.[82]The period of 6 May 2023 to 22 February 2024 is 42 weeks.[83]The claimant’s loss of earnings for that period was therefore (42 x 166.72) = £7,002.24. We then gave credit for SSP received in that 42-week period; the claimant’s Schedule of Loss stated that SSP received totaled £3,063.20. Therefore, the claimant’s actual loss was (£7,002.24 - £3,063.20 =) £3,939.04. Section 4 – financial losses following 23 February 2024[84]We have set out our findings on losses from 23 February 2024 above, and conclude that a period of 9 months following the claimant’s resignation is appropriate to attribute to the discrimination here.[85]Nine months following the resignation gives an end date, or a cut off for losses, of 23 November 2024. This is a period of 39.4 weeks, at a weekly rate of £166.72. As such, we award losses from 23 February 2024 as being (39.4 x £166.72 =) £6,568.77.[86]The claimant’s total financial losses were therefore £10,507.81. Section 7 – ACAS uplift on financial losses We refer to our findings at paragraphs 52 to 55.[88]We do not consider that the ACAS Code was flouted altogether, nor do we consider that the respondent breached the Code in bad faith. We find that there was an element of culpability however, as the respondent did apply its mind to the question as to whether to get a third party involved at the appeal stage. The reality is that the respondent weighed up the risk of keeping Mr Bekoe as the appeal officer against the cost and delay of getting a third party involved and decided the balance weighed in favour of taking a risk.[89]We consider it would have been feasible for the respondent to assign the grievance appeal to someone other than Mr Bekoe, in light of the respondent’s resources which were sufficient to hire Mr Bekoe in the first place.[90]Taking into account all the circumstances, we consider an uplift of 10% is just and equitable.[91]Given our above findings, the percentage uplift we impose is 10% on all financial losses. This equates to £1,050.78. We consider that the monetary value of this 10% uplift is appropriate. Section 3 – Interest on financial losses[92]Interest is awarded on financial losses at 8% from the midpoint between the discrimination and the remedy hearing. The grand total for financial losses is (£10,507.81 + £1,050.78 =) £11,558.59.[93]The period from 31 July 2022 (date of discrimination) to 29 November 2024 (date of remedy hearing) is 122 weeks. The midpoint is therefore 61 weeks.[94]As such, we will award interest on financial losses for a period of 61 weeks at 8%. This equates to a figure for interest as follows: 11,558.59 x 0.08 x (61/52) = £1,084.73. Section 5 – injury to feelings[95]The claimant was seeking an award at the middle of the middle band set out within the Presidential Guidance, around the sum of £22,450.[96]In light of our findings at paragraphs 46-49, we consider the need to compensate the claimant for the decline in his health, both physical and mental, which was contributed to by the respondent’s discriminatory conduct. We consider that the effect of the respondent’s conduct ultimately was that the claimant was unable to keep working and so lost his job with the respondent.[97]Taking into account our findings, we accept that a figure at the mid-point of the middle band is an appropriate amount and award the figure sought. Section 7 – ACAS uplift on injury to feelings[98]Again, we apply the 10% uplift to the award for injury to feelings, giving an uplift of £2,245. Section 6 – Interest on injury to feelings[99]Interest is awarded at 8% for the full period between discrimination and remedy. As above, that period we have found to be 122 weeks. The grand total for injury to feelings is (22,450 + 2,245 =) £24,695.[100]The interest on the award for injury to feelings is therefore: 24,695 x 0.08 x (122/52) = £4,635.06. Sections 8, 9, 10, 11 – expenses[101]These claims are rejected on the facts. Grand total[102]In light of the above, the grand total of the claimant’s award for the respondent’s failure to make reasonable adjustments is: Head of loss Amount (£) Financial losses Financial loss 06.05.23 - 22.02.24 3,939.04 Financial loss 23.02.24 - 23.11.24 6,568.77 Running total financial loss 10,507.81 ACAS uplift on financial loss 1,050.78 Running total financial loss 11,558.59 Interest on financial loss 1,084.73 Total of financial losses 12,643.32 Injury to feelings Injury to feelings award 22,450 ACAS uplift on injury to feelings 2,245 Running total 24,695 Interest on injury to feelings 4,635.06 Total of injury to feelings 29,330.06 Grand total 41,973.38 Approved by