Mr L Neagoe v D Port and Crystal Electronics Ltd: 3305353/2022
EMPLOYMENT TRIBUNALS
Case No 3305353/2022
Between
Mr L NeagoeClaimantD Port and Crystal Electronics LtdRespondent
Before
Employment Judge K J PalmerIn person for claimantMr M Nadin (instructed by Solicitor) for respondentDate 29 April 2024
JUDGMENT
[1]The Claimant is a disabled person at the material time under S.6 of the Equality Act 2010.
REASONS
[1]This matter came before me today pursuant to a notice of Hearing issued by the Tribunal, dated 17 July 2022. The purpose of the Hearing was to consider the following: 1.1. Whether at the relevant times the Claimant was a disabled person within the meaning of s.6 Equality Act 2010.[2]Sadly the Hearing was under listed and only three hours was allowed for the Hearing to take place. That was insufficient. I had further hearings in the afternoon and therefore there was simply no time for me to give Judgment within the three hour time slot.[3]It was therefore necessary for me to reserve this Judgment. History[4]The Claimant presented a claim to this Tribunal on 5 May 2022. The Claimant was employed by the Second Respondent between 1 October 2018 and 18 February 2022 when he was dismissed. The Respondents argue that the dismissal was by reason of the Claimant’s conduct. The Claimant at the time of his dismissal was a Director of the Respondents and Head of the Booking Department.[5]In his ET1 the Claimant pursues claims for unfair dismissal and disability discrimination.[6]The claim is home made and the Claimant is not represented.[7]The nature of the Claimant’s claims in disability are not entirely clear from his pleading. It would appear, however, that he is pursuing claims in direct discrimination under s.13 Equality Act 2010 and discrimination arising from a disability under s.15. He also pursues a claim for unfair dismissal.[9]The Claimant has joined in Dean Port as First Respondent. Dean Port is the Managing Director and Principal Shareholder of Crystal Electronics Limited, the Second Respondents who employed the Claimant.[10]The Respondents filed an ET3 through their Representative. Those Representatives instructed by the Respondents represent both Respondents. Mr Nadin of those Representatives was before me today.[11]I had a Bundle before me, running to some 83 pages. I heard evidence from the Claimant.[12]The only issue before me today was to determine whether the Claimant is a disabled person under s.6 Equality Act 2010 for the purposes of his disability discrimination claims going forward. At the same time that this matter was listed for a Preliminary Hearing to determine that issue, the Tribunal caused an Order to be sent to the Claimant requiring him to provide information with respect to the disability he is relying on in these proceedings. The Claimant complied with that Order and provided what amounts to a Statement dated 12 August 2022. That Statement takes the form of a Disability Impact Statement and runs to some 4 pages. This was before me in the Bundle at pages 39 – 42. I also had before me in the Bundle various medical evidence upon which the Claimant relies in support of his claimed disability. The claimed disability the Claimant relies upon is depression and anxiety disorder.
Findings of Fact
[13]The Claimant accepts that after commencing work at the Second Respondent, he rose swiftly to a position of some responsibility. He said that he did so as a result of working six days a week and devoting his life to work. He accepted in evidence that whilst he raised his disability with Dean Port on many occasions, he only did so verbally and not in writing. He said he did raise issues about reasonable adjustments at the end of 2021 but that was in a conversation and it was never followed up by him. In his Statement dated 12 August 2022, the Claimant specifies that he has suffered from depression and anxiety disorders for some 15 years. He said he was diagnosed and started treatment in May of 2007. He said his mental health impairment was severely aggravated during the period of August 2021 to February 2022 as a result of the actions of the Respondent.[14]He goes on to list the impairment having the following effects on his ability to carry out day to day activities: 14.1. He says he constantly feels tired and restless, even without engaging in any physical or mental activity. He says he finds it very difficult to wake up in the morning and he always gets up from bed tired. He says going to work makes him feel very tired and most times he sleeps all weekend. He says during his employment at the Second Respondents, the First Respondent purposefully held late meetings until 12am and required him to work long out of hours. He said these actions were deliberately done to affect his mental health impairment and to create additional stress. 14.2. He says he has disturbed sleep and wakes up during the night. He says it is very hard to wake up in the morning and he is very tired during the day. He said at night he finds it very difficult to fall asleep and stay asleep. He says that even after a lot of sleep he still feels fatigued and lethargic. 14.3. He says he experiences low mood and feels sad and irritable. He said these affects have been aggravated by participating in meetings where the First Respondent intentionally used denigrating language towards him and demoted him in front of other colleagues. He says the unfair and biased disciplinary process which he was put through was purposefully organised to add more stress and put more pressure on him. 14.4. He said on 31 January 2022 the First Respondent used an intentionally aggressive tone to him and shouted at him to leave the room in front of other members of staff. 14.5. He said he feels very emotional, he gets tearful and starts crying. He said although the First Respondent was aware of his mental health disability, he shouted at him and humiliated him over two meetings in the same day, in front of colleagues on 21 January 2022. 14.6. He said he does not feel good about himself and he loses self confidence and over thinks things. He said he has low self-esteem and sometimes finds it very difficult to engage with people. He says this has been further aggravated by numerous accusations and insults throughout the period of August 2021 to February 2022. He said on 22 November 2021, the First Respondent purposefully shared private and confidential information about his mental health condition to different members of staff in order to denigrate and humiliate him. 14.7. He says he feels very anxious and gets panic attacks. He said before important meetings, or getting close to the deadline he gets very agitated. He says during heated conversations or important meetings he gets very stressed and anxious and shakes. He says his legs shake and he bites his nails. He said if he receives or is about to receive what may sound like negative or bad news, he gets very scared and anxious. He said if he is going through a problem or stressful situation and gets bad news or fails at something, he loses control of himself and has panic attacks. He said the Second Respondent deliberately knew about this and they have refused requests to organise the disciplinary meeting outside the office in a private setting, although this was done for other employees. He said that on 20 September 2021 in a meeting with several participants, Dean Port humiliated him in front of many members of staff. He said this offended him and he used numerous threats saying he would be dismissed and that his car would be taken from him. He said the experience was horrible and affected him very much and aggravated his condition. 14.8. He says he has reduced concentration and struggles to focus. He said he struggles to stick to deadlines and has trouble finishing Reports or documents in time. He said he constantly revisits tasks given to him numerous times and second guesses his ability to complete the work to the best standard. He said he loses concentration and takes lots of breaks to finish the work. He said the first Respondent constantly switched his tasks and duties in order to create confusion and make it unclear as to what his job roles were and furthermore, used that against him. 14.9. He says he is losing interest and enjoyment in his favourite physical exercising activities. He says he finds it very difficult to go swimming or walking. He says this makes him upset as he knows that swimming and walking will help him improve his impairment and by not doing them he is not helping himself. He says he does not want to go out with friends and he does not want to leave the house. He says although he recognises that spending time with friends will improve his mood, he still struggles and lacks motivation to meet up with them. 14.10. He said he is feeling guilty and worthless. He said if he gets into a debate or a misunderstanding, he over thinks things and blames himself even when he is not to blame. 14.11. He said he feels rejected and constantly lives with the fear of being rejected by work colleagues, family members, friends and his life partner. He said he feels that he will be isolated and left by himself. 14.12. He says he does not have the energy to do simple household tasks such as going to the store to buy food. He says he struggles to pay bills on time and he will leave everything to the last minute. He said he fails to manage cleaning the house, washing dishes or doing laundry. He said he does not have the energy to cook and sometimes he stops in the middle of cooking and does not finish it. 14.13. He says he gets unhappy for no reason and his mood changes extremely quickly from being normal to being unhappy. 14.14. He said the affects of his mental impairment started 15 years ago and have never stopped. He expects the impairment to last for the rest of his life. 14.15. He said that ever since he was diagnosed with depression and anxiety disorder, he had been under strict medical treatment. He said he has been on medication from May 2007 to the present day and has also done various forms of therapy such as Cognitive Behavioural Therapy, Interpersonal Therapy and Counselling. 14.16. He said that as a consequence of the First Respondent’s treatment of him in the period between August 2021 to September 2022, his disability was aggravated and he suffered a chronic mental breakdown. He said that after medical consultations he received two consecutive sick notes signing him off from work between 24 September 2021 and 24 October 2021 and further from 24 October 2021 to 21 November 2021. He said as a consequence of the treatment he suffered at the hands of Dean Port, his medication dosage was doubled from 10mg to 20mg of Escitalopram. He then provides a lengthy list of medication which he says he has been taking variously from 2007 to the present day. 14.17. He goes on to say that without medication, his condition gets much worse and life becomes unbearable. He says some of the effects he has experienced are: mental breakdowns, uncontrollable crying for hours and severe panic attacks, inability to leave the bed for several days, complete loss of appetite, inability to leave the house for any reason, self-imposed isolation, pain in the body from stress, loss of weight in a very short period due to not eating, being extremely negative, frustrated and pessimistic and cannot see any solution to his problems, insomnia and inability to perform everyday self-care activities such as washing and shaving. 14.18. He said Dean Port, the First Respondent and the Second Respondent were aware of his disability and medical treatment as this was discussed with them in several correspondence from different senior members of staff.[15]The Respondents’ position is that the medical evidence produced by the Claimant in support of his allegation that he is disabled, does not gel with the Statement produced by him on 12 August 2022. Essentially, Mr Nadin’s position is that for the purposes of this Hearing, the Claimant has substantially “gilded the lily” and fabricated much of the effects of his condition. The Respondents accept that the Claimant has an impairment of depression and anxiety, but they rely on the fact that the impairment is not serious enough to amount to a disability as defined at s.6 of the Equality Act 2010. They say based on the medical evidence supplied by the Claimant, the Respondents maintain that the impairment relied upon by the Claimant does not have a substantial adverse effect on his ability to carry out normal day to day activities.[16]I had before me in the Bundle such medical evidence had produced for this Hearing. Both in cross examination and in submissions, we were taken by Mr Nadin to a letter from the Claimant’s General Practitioner dated 16 August 2022. At no point in that letter does the GP state that the Claimant has a mental impairment that has a substantial and long term adverse effect on their ability to carry out normal day to day activities. He says that letter does not contain a professional medical opinion that the Claimant has a disability as defined in the EqA 2010. He says the GP’s letter states at various points throughout the letter, that the Claimant has normal speech, is well dressed, has good rapport, looks well, appears alert, has no thought disorder, no delusion and no thoughts of self-harm or suicide. Mr Nadin’s position is that such observations by a medical professional are not consistent with the information given in the Claimant’s Statement dated 12 August 2022.[17]This was the main stay of Mr Nadin’s approach on behalf of the Respondents, both in cross examination and in submissions. He also said that the evidence in the Bundle showed that there had been significant gaps in the Claimant’s taking of medication suggesting that his condition was mild. The Claimant largely refuted this but did admit that there was a gap when he moved to England, but that gap was only for a few weeks.[18]It is the Respondents’ position that this is not supported by the documentation in the Bundle. He referred the Claimant to a Medical Report from a Romanian practitioner describing his condition as a recurring depressive disorder with a current moderate episode.[19]The principal Medical Report before me dated 16 August 2022, is from The Mount Medical Centre in Northampton, addressed to “Whom it may concern”. Mr Nadin says that this Report simply does not support he extreme picture painted by the Claimant in his Statement of 12 August 2022. He said that the picture painted by the evidence suggests that the Claimant was treated until May 2016 and then there was no further treatment between May 2016 and September 2017 when the Claimant was by then in the United Kingdom. He said this shows a considerable gap rather larger than that admitted to by the Claimant.[20]He refers the Claimant and me to page 49 which lists various medications taken by the Claimant in his referral form for Adult Mental Health Services. He says that looking at the timeline there are considerable gaps in what appeared to be the prescription of medication to the Claimant. He said these gaps in the taking of medication appeared to continue throughout 2021 and 2022.[21]The Claimant refuted this and said he had continued to take medication throughout but that documents did not reflect the fact accurately that he was on repeat prescriptions. He said the medications continue until there is a change. He said he had continued to take the medication monthly throughout.[22]Mr Nadin also questioned the Claimant’s evidence in his Statement that he had had a chronic mental breakdown in September of 2021. He said there is no evidence in the Bundle to support this either in the GP notes produced or any of the other evidence put forward.[23]He draws the Claimant’s attention to the fact that the Claimant’s appointments with the Northampton Health Care NHS Foundation Trust Changing Minds Service, between 2017 and 2019, and that this suggests a mild condition.[24]Mr Nadin suggested to the Claimant that difficulties experienced in or around August and September 2021 and beyond probably related to a severe bout of Covid which the Claimant suffered in August of that year.[25]In the letter dated 16 August 2022, Mr Nadin says that there is a gap in treatment between August 2019 and 24 September 2021, a gap of two years and that the Claimant missed various sessions and pursued no GP appointments.[26]In response, the Claimant said there was no gap and he continued to take medication but did not need to see anyone through that period. When asked why he had missed an appointment with the Mental Health Team previously, he said that he had now started attending such appointments again.[27]He was questioned by Mr Nadin as to the fact that he had agreed to become a Crew Member on an ocean going boat as part of a reward scheme operated by the Second Respondent. He said he had agreed to go on such a trip despite the fact that he was going to be surrounded by other people, some of which he would not know. He was asked how he would have the confidence for such a trip, bearing in mind that he would be surrounded by many total strangers for three weeks. The Claimant responded by saying that he did not go on the trip in the end as it was cancelled due to Covid.[28]He was also questioned about why he had not disclosed his disability when he completed an Induction Form when he started working at the Second Respondent. He had indicated that he did not have a disability when completing this form. He said that he had misunderstood the form and thought it was referring only to a physical disability. He said his English was not good then and he clearly misunderstood.[29]He was questioned about what essentially would be the material period in this case being between August 2021 and February 2022. He said that in that period of time there were lots of activities he could not do, namely washing, ironing, shaving, preparation of food and eating food.[30]I heard submissions from both Mr Nadin and from the Claimant. Mr Nadin said that the evidence does simply not support the fact that the depression and anxiety was sufficiently substantial to qualify as a disability under s.6 EqA 2010. He said that on the evidence before me, the Claimant fails the “substantial test”. He said the material time was August 2021 to February 2022.[31]He said that the Claimant’s Statement did not gel with the rest of the evidence. The alleged chronic mental breakdown is not revealed in Medical Certificates produced at the time the Claimant alleges the breakdown took place.[32]He said that in September of 2021 the Claimant had suffered from a severe bout of Covid. There was no mental breakdown. He was hospitalised for one week with severe Covid. He said any difficulties were much more likely to be linked with the Covid infection. He said the documents before me simply do not go far enough. The Report at pages 80 – 83 was a Report produced pursuant to a telephone conversation. He said there was no professional medical opinion about s.6 in that Report. He said the letter made it clear that the Claimant had normal speech, was well dressed and had no thoughts of self-harm or suicide. He said the other evidence suggested only a moderate anxiety condition. He said there was perhaps some treatment provided overseas, but no evidence of this. He said he missed an appointment on 27 November 2019, some 27 months prior to the relevant period.[33]He said the documentary evidence in front of me was therefore considerably at odds with the disability Statement. There were significant gaps in what appears to be the medication taken by the Claimant. He went for a period of time of two years without seeing his GP, or without any other medical treatment. He said that therefore his evidence in the Statement is misleading. He said that prior to August 2021 when the disciplinary process was initiated against the Claimant, his attendances had been excellent and there had been very little time taken off. He said the picture painted by the Statement provided pursuant to these proceedings is very different from that illustrated in the documentation in front of me.[34]He said the Respondents could not have known about the Claimant’s disability. He specifically indicated in an Induction Form that he was not disabled and nothing in his approach to work suggested that he was, including the agreement to go on a sailing trip. He would be a crew member having to conduct the very normal day to day activities he says he cannot do.[35]He refers me to the case of J v DLA Piper (UK) LLP [2010] ICR1052. He said that although the Claimant has the impairment and that is accepted, it is not substantial.[36]In his submissions, the Claimant said that he has been taking medication since 2007 and there were no gaps. He said he cannot explain how apparently the details listed in some of the documentation before me suggested that there were gaps. He said that the filling in of the Induction Form was simply a mistake due to poor English. He said that the sailing trip was never asked for by him, it was something offered. He said he never went on it anyway as it was cancelled.[37]He explained the Doctors notes, by which I believe he was referring to the GP Report, did not detail his condition fully. He said the chronic incident in September 2021 was a massive episode and it doubled the amount of his medication.
The Law
[38]For the purposes of pursuing discrimination claims on the basis of the protected characteristic of disability, a Claimant must satisfy the test under s.6 of the Equality Act 2010: 6 Disability(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 a reference to persons who have the same disability.(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.(5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).(6) Schedule 1 (disability: supplementary provision) has effect.[39]When considering whether a person is disabled under s.6 EqA 2010, the Supplementary Provisions for determining that disability appear in Part 1 of Schedule 1 to the Equality Act 2010. Guidance is also given in the Disability Discrimination (Meaning of Disability) Regulations 1996 and the Equality Act 2010 (Disability Regulations 2010) as well as the Government Guidance on matters to be taken into account in determining questions relating to the definition of disability. Tribunals must take this guidance into account where they consider it to be relevant. “Substantial”[40]The substantial part of the test is defined in s.212(1) EqA 2010 as meaning “more than minor or trivial”. In the case of Anwar v Tower Hamlets College EAT0091/10, the Employment Appeal Tribunal held that an Employment Tribunal had not erred when it found that the effect of an impairment was “more than trivial”, but still “minor” as opposed to “substantial”. In the case of Aderemi v London and South East Railway Limited [2013] ICR 591, the Appeal Tribunal which did not refer to Anwar commented on the definition of “substantial” in s.212(1) EqA 2010 stating that, “The act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial, but provides a bifurcation, unless a matter can be classified as within the heading trivial or insubstantial it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other. It is generally suggested that that is the preferred view. In determining whether an adverse effect is substantial, a Tribunal must compare the Claimant’s ability to carry out normal day to day activities with the ability the Claimant would have if not impaired. Tribunals should consider first and foremost whether an adverse effect is substantial in the light of the statutory definition. The guidance and code are supplementary. It is important that the Tribunal considers and concentrates on what an individual cannot do rather than what an individual can do.”[41]In Igweike v TSB Bank Plc [2020] IRLR267, His Honour Judge Auerbach reiterated the established principle that a Tribunal should always consider the effect on the particular individual concerned and specifically, whether that effect was more than minor or trivial.
Conclusions
[42]I am asked by Mr Nadin to conclude that the Claimant has substantially gilded the lily in his Statement of 12 August 2022. He says that the Statement is not reflective of the documentary evidence before me in the form of medical certificates, the GP Report and other documents.[43]English is not the Claimant’s first language and whilst in cross examination he was unable to explain fully the anomalies in the documentary evidence relating to medication, his answers were clear and unshakeable in my judgment.[44]I have to judge the evidence that is before me and I do so on the basis of a combination of the documents in front of me, including the Claimant’s Statement of 12 August 2022, the other documents and his live evidence given at this Hearing.[45]It is for the Claimant to prove on the balance of probabilities that he is a disabled person for the purposes of s.6 EqA 2010 and having read his Statement and heard his live evidence, whilst there is some disparity between that evidence and the documentary evidence in front of me provided by the medical certificates and the Report, I consider that on the balance of probabilities the Claimant has given an accurate indication of the nature of the impairment and I believe him when he says that he has taken medication almost constantly for many years.[46]I therefore believe the evidence of the Claimant, both before me today and in his Statement of 12 August 2022.[47]Mr Nadin pointed out differences between that evidence and the physical documentation before me and there are some differences and it may be that the Doctor’s Assessment does not go far enough. But that does not mean that the evidence of the Claimant is manufactured or fabricated. I therefore accept the Claimant’s evidence.[48]Applying that evidence to the test, the test is satisfied. I regard the Claimant’s impairment as being more than minor or trivial and therefore substantial.[49]The Claimant has a mental impairment and the impairment has a substantial and long term adverse effect on his ability to carry out normal day to day activities.[50]The impairment has been continuing for some time and continued throughout what is the material period for the purposes of this case between August 2021 and February 2022.[51]The Claimant is therefore disabled by reason of the impairment being depression and anxiety.[52]It is not part of my remit today to make any findings with respect to knowledge and any such findings must be left for a later date.[53]It will be necessary now to have a Telephone Preliminary Hearing Case Management Discussion and one should be listed on the next available date with three hours allowed. The parties should attend with completed Agendas and where possible, a List of Issues. It may be necessary for there to be further Orders at that Hearing for the provision of further and better particulars, or at least clarification of the Claimant’s claims in disability discrimination.
Findings of fact
[54]In the documentary evidence the first time Mr Port refers to use of the Tesla being a loan is 22 November 2022 at the meeting which took place on his first day back at work following his 2 months of sick leave. In oral evidence Mr Port sought to explain how other employees had the use of a company Tesla car as a company car while he considered the use by Mr Neagoe a loan on the basis that the other employees had to visit clients. While that may be the case (and was confirmed by Ms Howell, Mr Parsler and Ms Webster) this explains why these employees had company Tesla’s as a benefit, not why the use of the Tesla by Mr Neagoe was a loan.[55]To summarise, Mr Port cannot provide any details of the conversation in which he initially told Mr Neagoe the car was a loan, the company finances the car’s costs (insurance, fuel), the first reference by Mr Port to the car being a loan is November 2021 and HMRC recorded use of the car by Mr Neagoe as a benefit. we find that the Tesla used by Mr Neagoe was a company car. For these reasons, we find that Mr Port did not expressly tell Mr Neagoe the Tesla was a loan at the time he was given the keys, as he now suggests; 22 November 2021 meeting[56]Mr Neagoe returned to work on 22 November 2021. He complains that he did not have a “return to work meeting”. The respondents contend he did, the meeting they referred to as a “welfare meeting” which took place that day. We have seen notes of that meeting taken by Ms Webster and Ms Molver. Both sets of notes title the meeting as a “welfare meeting”.[57]The company may have had the best intentions to conduct a meeting about the Mr Neagoe’s welfare, exploring the reasons for his absence and any support the company could put in place to facilitate his return to work after an absence of 2 months. However, by its own admission at this hearing, however well intended the meeting, the company did not follow its own guidance. Having considered both sets of notes, which align, and for this reason we dismiss Mr Neagoe’s suggestion they are manipulated, we find that Mr Port did not conduct a supportive meeting, following company guidance, of an employee who had been signed off work for 2 months for stress at work.[58]At the very least the company should have considered using its own return to work interview document. While not mandatory by reference to its own policies, it begs the question why an employer would have this documentation and not complete it for an employee who had been absent on sick leave for 2 months. The questions asked by Mr Port at this meeting do not reflect the questions in those forms. Mr Neagoe is not given the opportunity to explain why he believes he is now fit to return to work. Mr Port focuses on needing to address what at work resulted in Mr Neagoe’s 2 months of absence.[59]Having read both sets of notes, with particular reference to Ms Webster’s notes which record the exchange of questions and answers between Mr Port and Mr Neagoe, we find the meeting interrogatory on the part of the employer. Several times Mr Port says he “needs to know” what at work made Mr Neagoe unwell. Early in the meeting Mr Port suggests that Mr Neagoe “said to another director that you are being treated unfairly” and states that he “wants to know what is making [Mr Neagoe] unwell. Later in the meeting, Mr Port asks: “anything you need from us [the company] to make you well” and goes on to reference concerns raised by Mr Neagoe about shouting and swearing. At this point Mr Neagoe states that the meeting doesn’t “feel like a welfare meeting”. We agree. By his own words in that meeting Mr Port’s focus is the “need to address the issues”, rather than identifying, constructively, what the company can do to support Mr Neagoe’s return to work. The witness recollections of the meeting are misguided. Ms Webster told us Mr Neagoe confirmed he was happy to have the meeting. This is not recorded in her notes.[60]The meeting may be labelled in the notes as a welfare meeting. However the substance of the discussion focuses on what the company has done to cause the absence and not Mr Neagoe’s welfare and what the company can do to support his return. For these reasons we find the meeting was not a welfare meeting, however labelled and the company did not conduct a return to work meeting in line with the guidance in its own policy and documents or at all.[61]Indeed, Mr Neagoe was given limited notice of the meeting; he was told to attend on the day he returned and not given the documents the company’s policy suggests an employee in his situation should be given to complete in advance of the meeting. We find this meeting was sprung on Mr Neagoe on the day he returned to enable Mr Port to find out what at work had caused Mr Neagoe’s absence. This was the focus of the meeting, not Mr Neagoe’s welfare. he manner of the meeting is an interrogation not a welfare meeting. There was no return to work meeting in November 2021 or at all. 22 November 2021 Bookings meeting[62]Mr Neagoe attended a second meeting on 22 November with several employees to discuss strategies for booking engineer visits to clients (the “bookings meeting”). At this meeting, Mr Neagoe alleges Mr Port discussed his medical conditions and the reasons for absence. Mr Port does not address what happening in this meeting in his witness statement.[63]At the hearing Mr Port was asked by Mr Neagoe whether he discussed his absence from work. He told us he “[didn’t] recall but if [he] did it would have been in a welfare capacity.” He denied called Mr Neagoe names. It is curious that Mr Port does not specifically address the meeting in his witness statement, initially tells the Tribunal that he cannot recall discussions about mental health but vehemently denied name calling. His evidence about this meeting lacks credibility. Either he recalls the meeting or he does not. For this reason, and in the context of the earlier meeting which we have found was not welfare focused, we prefer Mr Neagoe’s recollection of this meeting.[64]There are no minutes of this meeting. Mr Parsler gave evidence about this meeting; he told us he was sure that Mr Port did not mention Mr Neagoe’s “mental health”, but could not comment further on what Mr Port did say at this meeting.[65]Given we have found that Mr Port’s did know at this time that Mr Neagoe had depression and anxiety and our finding about the nature and tone of the “welfare meeting”, we prefer the claimant’s recollection (in the absence of any details from Mr Port) that Mr Port did reference Mr Neagoe’s absence and the reasons for it at this meeting in front of other staff.[66]We heard evidence about email exchanges between Mr Port and Mr Neagoe in December 2021 and a meeting to discuss Mr Neagoe’s duties and role at this time. These events are not matters raised by the claimant in the list of issues. Accordingly, the Tribunal does not need to making findings about these events.[67]Mr Neagoe has a further period of sickness leave from 7 to 17 January 2022 due to Covid-19. His first day back at work is Monday 17 January 2022. 17 January 2022 meeting[68]The respondents says that on 17 January 2022 2 employees (Sophie White and Daniel Addis) raise complaints about Mr Neagoe. Mr Port had a meeting with these employees. This is the Monday. Following that meeting, at his request, both provide written statements of their concerns by email on 21 January 2022. We have read the minutes of that meeting and the email statements. Ms White and Mr Addis have not provided evidence to this Tribunal.[69]Ms White’s email refers to an alleged incident on the day Mr Neagoe returned to work (17 January), saying she was “ignored” by Mr Neagoe, that he didn’t “deal with the situation very well…was very rude, belittling….”. Mr Addis’ email refers to an incident “on Tuesday”, the day after Mr Neagoe returned to the office, alleging Mr Neagoe was “very rude” with Mr Neagoe allegedly saying Mr Addis was “not doing any work and just creating problems”. The Tuesday must be the day after the meeting with Mr Port on the Monday (Tuesday 18 January). It cannot be the Tuesday of the preceding week as Mr Neagoe was off sick from 7 to 17 January.[70]Therefore, we find that the respondents’ recollection of the complaints by Ms White and Mr Addis is inaccurate. In the meeting on 17 January (Monday) Mr Port says Mr Addis refers to an incident when he says Mr Neagoe was “very rude”. This is repeated in his email of 21 January when he says the incident being complained about is the Tuesday. The allegations against Mr Neagoe lack accuracy and are implausible. Indeed, this discrepancy calls into question the accuracy of the 17 January meeting notes. It cannot be the case that Mr Addis complained on the Monday about events he says in writing took place on the Tuesday, which must be the day after given Mr Neagoe was absent the previous Tuesday. In any event, to have a meeting to address complaints about an employee on the day he returned from sick leave, relating to events that same day is hasty at best.[71]The respondents refer to the 17 January meeting as an “investigation meeting”. At this meeting Ms White and Mr Addis explain in outline their complaint. However, there is no investigation process following this meeting. The allegations were not put to Mr Neagoe before he received the invitation to the disciplinary meeting. There was no investigation meeting; there was no attempt by the respondents to hear Mr Neagoe’s side of the story.[72]The respondents say they held an investigation meeting with Mr Neagoe on 17 January. There are no minutes of a meeting with him. Given we have found some of the allegations relate to the following day, we must find there was no meeting with Mr Neagoe on this day which put to him in full the allegations alleged by the respondents 21 January and 5 February invitations to disciplinary meetings. 21 January 2022: second disciplinary meeting invitation[73]The email statements from Ms White and Mr Addis are received by the second respondent at 11.38 and 16.11 respectively on 21 January. The same day the first respondent sent a letter to Mr Neagoe inviting him to a disciplinary hearing. We find, on balance, that this letter was written before receipt by the second respondent of Mr Addis’ written statement. The chronology evidences a complete failure by the respondents to conduct a fair investigation into the allegations made by Ms White and Mr Addis. He was not given a right of reply; he was invited immediately to a disciplinary meeting.[74]The 21 January invitation references constant rudeness to Ms White and Mr Addis: this does not reflect what they say in the 17 January meeting nor their own email statements; both refer to one situation. The first disciplinary invitation also references several other allegations, none of which have been put to Mr Neagoe previous as part of an investigation process. We find there was no investigation process regarding these allegations; the respondents did not conduct an interview with Mr Neagoe about any allegations stated in the 21 January letter. No documentary evidence substantiating any if the allegations is included with the letter.[75]The 21 January was a busy day for the respondents. Two further meetings took place, about which Mr Neagoe complains. 21 January 2022 Boardroom meeting[76]It seems the company does not keep notes of all its meetings. We have notes of meetings on which the respondents seek to rely, but lack notes of meetings about which Mr Neagoe complains. Mr Neagoe and Mr Port’s recollection of this meeting differs. Mr Neagoe alleges that at this meeting Mr Port used “derogatory language and insults” (“worst employee ever”, “stupid”), “ordering him to leave the room and shouting at him in an aggressive way”. Mr Parsler was also in this meeting. He does not address this meeting in his witness statement. At the hearing Mr Parsler told us the only meeting he recalled on 21 January was a meeting about “door knocker” strategy.[77]Mindful of our findings on credibility, and the lack of minutes for this meeting, the fact that when giving evidence Mr Port acknowledged that there was tension in the relationship at that time, we found it more likely than not that some unprofessional language was used in this meeting.[78]At a further meeting on 21 January, to discuss a strategy of staff knocking on doors of houses where work needed to be carried out to confirm 21 January 2022 “door knocker” meeting[79]At the hearing Mr Parsler told us he recalled attending a meeting about “door knocking” around this time. We find this is likely to have been the meeting about which Mr Neagoe complains. He doesn’t not recall Mr Neagoe’s health being discussed at this meeting.[80]On 24 January Mr Neagoe emails Ms Molver complaining that he has not received a return to work meeting and that a disciplinary meeting is unsuitable at this time. We find that the invitation to a disciplinary meeting the day he returns from sick leave, citing events alleged to have happened that day (we have found that the events Mr Addis complained about happened the following day), with no evidence about these events or the other allegations included with the invitation, wholly inappropriate in all the circumstances. We have found that there had been no investigation process involving Mr Neagoe when the 21 January disciplinary invitation was sent out, nor any evidence to substantiate the allegations made against him.[81]Indeed, on 25 January references the need for an investigation meeting, and asks for a neutral location off-site for any meeting. In this email Mr Neagoe suggests the invitation to the disciplinary meeting is “impromptu”. Given the timeline discrepancies we have found with the allegations, the fact the invitation is sent the same day as written statements about the allegations are received by Mr Port, the complete lack of any investigation involving Mr Neagoe, we agree. This invitation lacks process and integrity. 26 January 2022 meeting[82]At a meeting on 26 January 2022 Mr Neagoe alleges that Mr Port uses derogatory language, asking him to leave his car keys and to leave the room. Mr Port accepted that he asked Mr Neagoe to leave the room, saying this was in the context of the meeting moving to discuss matters that did not concern Mr Neagoe and it was for this reason he was asked to leave.[83]In the context of events to date, our findings about the implausibility of the timing of allegations made by Mr Addis, the haste with which the company dispatched the invitation 21 January disciplinary invitation, the fact that both parties admit by this time the relationship between Mr Port and Mr Addis had broken down, and in the absence of any minutes and specific recollections from third parties at this meeting, we find it is more likely than not that Mr Port did behave in the manner alleged by Mr Neagoe. 31 January 2022 meeting operations room meeting[84]Mr Neagoe complains that on 31 January in the operations room Mr Port asked what Mr Neagoe was doing there and asked him to go downstairs. He admitted that his office was on the ground floor. Mr Neagoe has not offered an explanation as to why he was in the operations room. Therefore, we found that Mr Dean reasonably made these enquiries. There is no contemporaneous evidence he did so in the violent manner alleged. 5 February 2022: second disciplinary meeting invitation[85]On 5 February 2022 Ms Molver writes again to Mr Neagoe, rescheduling the disciplinary meeting (following his request to do so) to 14 February 2022. The letter states that a return to work meeting and investigation meeting have taken place. Based on our findings, this is inaccurate. This letter extends the allegations made against Mr Neagoe. No investigation meeting has taken place with Mr Neagoe addressing these additional allegations prior to receipt by him of this letter. Again, there is no due process putting the allegations to Mr Neagoe and affording him a right of reply. The respondents, again, hastily jump straight into a disciplinary meeting.[86]This letter does attach some documentary evidence; however, this does not cover all the allegations made in the letter. Again, following the addition of allegations, there is no investigation process involving the claimant nor any opportunity for him to put his case until the disciplinary meeting. Disciplinary Hearing 14 February 2022 We have considered the minutes of the disciplinary meeting. It was conducted by Mr Port, with some input from Mr Nadin. Mr Port was witness to, and complainant in, several of the allegations stated in 5 February meeting invitation. Neither set of minutes record that the allegations were put in a structured manner. We find he was not afforded a right of reply for all allegations he was facing. Disciplinary outcome letter 18 February 2022[87]It is Mr Port who issues the outcome letter on 18 February 2022. This letter makes it clear that Mr Port is the decision maker for all allegations. As we have found him integral to some of the allegations as complainant and witness, we find that the disciplinary process was inherently unfair, even accounting for the size of the company. Indeed, the outcome letter introduces allegations and references evidence not put to Mr Neagoe in the disciplinary letter. We find the decision to dismiss Mr Neagoe was based on a disciplinary process that lacked fairness throughout. Appeal[88]On 25 February 2022 Mr Neagoe appealed the decision to dismiss him. While he does not raise new evidence regarding the allegations he faces, Mr Neagoe’s email does raise concerns about the fairness of having Mr Port as decision maker. Ms Howell did not rectify this unfairness in the appeal hearing. Ms Howell upholds the decision to dismiss in her letter dated 14 March 2022. The minutes of the outcome meeting does not accompany this letter; Ms Howell told us she conducted the appeal hearing on a KIT day and did not have a scanner available. There is no evidence before us the minutes were subsequently sent to Mr Neagoe, Legal tests applicable to this claim[89]Section 94 of the Employment Rights Act 1996 (the ‘1996 Act’) confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that he was dismissed by the respondent under section 95. This is also satisfied by the respondent admitting that it dismissed the claimant (within section 95(1)(a) of the 1996 Act).[90]Section 98 of the 1996 Act deals with the fairness of dismissals. There are two stages within section 98: 90.1. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Where this is in dispute, an employer bears the burden of establishing that it had a potentially fair reason for dismissing its employee. The potentially fair reason must be capable of justifying the dismissal (Abernethy v Mott Hay Anderson [1974] ICR 323) 90.2. Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.[91]Section 98(4) of the 1996 Act deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.[92]Where the reason for dismissal is misconduct, Tribunals should have regard to the well-established guidance in British Home Stores v Burchell [1978] ICR 303. We have not felt it necessary to include the often-cited passage from Arnold J’s Judgment in Burchell. The Tribunal must decide whether the employer held a genuine belief on reasonable grounds, and after carrying out a reasonable investigation, that the employee was guilty of misconduct. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed. It is immaterial how the Tribunal would have handled the events or what decision it would have made. The employer, and not the Tribunal, is the proper person to conduct the investigation into the alleged misconduct. Burchell and countless decisions since have served as a reminder that a Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones 1982 IRLR 439 and Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23). The employer is the primary fact finder; the Tribunal’s role is to review the facts evident during the disciplinary process, not what may be raised at a later date (Fuller v The London Borough of Brent [2011] EWCA Civ 267, at [32] of Cossington).[93]The case of Iceland Frozen Foods is similarly long-standing authority that reminds Tribunals that their function is to decide whether in the particular circumstances the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. The question for the Tribunal is whether the employer acted fairly and reasonably in all the circumstances at the time he was dismissed (London Ambulance Service NHS Trust v Small 2009 IRLR. In Sainsburys Supermarket Ltd v Hitt [2003] IRLR 23 CA, the Court of Appeal confirmed that the band of reasonable responses applies to both the procedures adopted by the employer as well as the dismissal. Ultimately a Tribunal must consider, on the facts of the case, no reasonable employer in the respondent’s position would have dismissed the claimant (British Leyland (UK) Ltd v Swift [1981] IRLR 91). The Tribunal cannot and must not ask whether a lesser sanction would have been appropriate.[94]The Tribunal must consider the whole process when determining fairness, notwithstanding any potential deficiencies (Taylor v OCS Group Ltd [2006] ICR. A Tribunal must consider whether any defect is so significant as to render the whole process unfair, considering equity and the substantial merits of the case to balance the seriousness of the misconduct and any procedural imperfections.[95]The compensatory award if a claim of unfair dismissal is successful must be ’just and equitable’. As a result of the decision in Polkey v AE Dayton Services Ltd [1987] IRLR 503 a Tribunal may reduce the compensatory award to reflect the chance that the claimant would have been dismissed in any event had the dismissal followed a fair process. If, in reaching its conclusions, the Tribunal identifies a deficiency with the process such that it concludes the dismissal was unfair, the Tribunal must assess whether this deficiency made a difference to the overall outcome. The assessment as to the percentage likelihood of dismissal without the defect is by reference to the actual employer in the claim. To substitute the Tribunal’s own mindset is an error of law. Discrimination Time limits[96]Section 123 s123 of the Equality Act 2010 sets the time limits. The ACAS early conciliation procedure covers discrimination claims. The primary timelimit is within 3 months of the discriminatory action. If the claim is late, the tribunal has a ‘just and equitable’ discretion under s123(1)(b) to extend time. In Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, the Court of Appeal held that ‘an act extending over a period’ can comprise a ‘continuing state of affairs’ as opposed to a succession of isolated or unconnected acts. There needs to be some kind of link or connection between the actions. Direct disability discrimination: section 13 Equality Act 2010[97]Under section 13, Equality Act 2010, “EqA”, direct discrimination is defined: “(1) A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[101]The protected characteristics are set out in section 4 EqA and includes race, sex and disability. Direct discrimination occurs where the employer treats the employee less favourably because of a protected characteristic. There is no defence of justification for direct discrimination in respect of disability.98. Section 23 of EqA provides for a comparison by reference to circumstances in a direct discrimination complaint. The Tribunal must consider whether the employee was treated less favourably than they would have been treated if they did not have the protected characteristic.99. The Tribunal must consider the “mental processes” of the alleged discriminator: Nagarajan v London Regional Transport [1999] IRLR 572. The protected characteristic need not be the only reason for the less favourable treatment. It may not even be the main reason. Provided that the decision in question was significantly (that is, more than trivially) influenced by the protected characteristic, the treatment will be because of that characteristic. 100. The burden of proof provisions are contained in section 136 of EqA: (2) If there are facts from which the [tribunal] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the [tribunal] must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene that provision. 101. We have considered the guidelines on the application of the burden of proof provisions were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142. Section 136 prescribes two stages to the burden of proof: Stage 1 (primary facts) and Stage 2 (employer’s explanation). At Stage 1, the burden of proof is on the claimant Ayodele v Citylink Ltd & Anor [2017] EWCA Civ 1913 Royal Mail Group Ltd v Efobi [2021] UKSC 22 Stage 2 considers the employer’s explanation. Has the employer proved on the balance of probabilities that the treatment was not for the proscribed reason. In a direct discrimination case, the employer only has to prove that the reason for the treatment was not the forbidden reason. There is no need for the employer to show that they acted fairly or reasonably. Discrimination arising from disability: section 15 Equality Act 2010[102]Section 15 of 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. Reasonable Adjustments: sections 20 & 21 Equality Act 2010[103]Section 20 EqA sets out the duty on an employer to make adjustments; 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. (4)The second requirement is a requirement, where a physical feature 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. (5)The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put 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 provide the auxiliary aid. Section 21 provides: (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.[104]In the case of Mr J Hilaire v Luton Borough Council [2022] The Court of Appeal held that, however widely and purposively the concept of a PCP was to be interpreted, it did not apply to every act of unfair treatment of a particular employee. All three words ("provision", "criterion" and "practice") carried the connotation of a state of affairs indicating how a similar case would be treated if it occurred again; although a one-off decision or act could be a practice, it was not necessarily one.[105]Section 26 EqA sets out the legal definition of harassment; sections (1) and (4) relate to claims of harassment related to disability: (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of- (i) Violating B’s dignity, or (ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; whether it is reasonable for the conduct to have that effect.[106]In considering the words “intimidating, hostile, degrading, humiliating or offensive” a Tribunal must be sensitive to the hurt comments may cause but balance so as not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase: Richmond Pharmacology Ltd v. Dhaliwal [2009] IRLR 336. Where a claim for harassment is brought on the basis that the unwanted conduct had the effect of creating the relevant adverse environment, section 26 has been interpreted as creating a two-step test for determining whether conduct had such an effect; Pemberton v Inwood [2018] EWCA Civ 564. The steps are: 106.1. Did the claimant genuinely perceive the conduct as having that effect? 106.2. In all the circumstances, was that perception reasonable?
Conclusions
[107]Mr Neagoe’s claims turn on the questions for each complaint we set out in the list of issues.[108]It is agreed that the company terminated Mr Neagoe’s employment on 18 February 2022. First, to decide whether Mr Neagoe was unfairly dismissed we must determine the reason or principal reason for dismissal. The respondents say the reason was gross misconduct, specifically allegations that Mr Neagoe bullied his colleagues. The Tribunal will need to decide whether the respondents genuinely believed the Mr Neagoe had committed misconduct. When judged objectively, on the balance of probability, and based on our findings we conclude that Mr Port genuinely believed he was dismissing Mr Neagoe for misconduct, specifically his behaviour to colleagues.[109]However, Mr Port and the company did not act reasonably in all the circumstances in treating their allegations of misconduct as a sufficient reason to dismiss the claimant. We have found that the chronology of the complaints by Mr Addis implausible. The “investigation meeting” predated Mr Addis’ complaint and took place the day Mr Neagoe returned from a period of sick leave which meant Mr Addis’ allegations of behaviour on a Tuesday could not have taken place the week before.[110]Indeed, at the time the belief that Mr Neagoe had committed misconduct was formed by Mr Port and the company (17 January, the day the first disciplinary meeting invitation was sent out), there had been no investigation involving Mr Neagoe. We have found that the specifics of the allegation had not been put to him and he had not had the opportunity to consider the allegations (which are very serious) nor answer questions about his alleged behaviour to Ms White and Mr Addis. To the extent there was an investigation by the company, it was a short meeting with Mr Addis and Ms White only, short emails from them lacking any detail about what, specifically was said and done by Mr Neagoe, received very shortly before the email was sent inviting Mr Neagoe to a disciplinary hearing. There was no fair investigation involving Mr Neagoe and little evidence on which to base the conclusion of misconduct.[111]We must consider whether Mr Port and the company acted in a procedurally fair manner. The fact Mr Port was one of the complainant’s about Mr Neagoe’s behaviour (some of the allegations directly involving the pair of them) and a witness to other allegations, that he conducted the meetings with Mr Addis and Ms White and had overall conduct of the disciplinary meeting, making the final decision recorded in his outcome letter, was fundamentally unfair, even for a business the size of the respondent.[112]In reaching this conclusion we have considered the reasons why Mr Neagoe considers his dismissal unfair. We have found there are fundamental flaws in the 17 January evidence of Mr Addis, tainting the evidence the respondents rely on for pursuing disciplinary action. While the location of the meeting is not, in our judgment an issue, the lack of investigation process involving Mr Neagoe, allowing him to give a statement about the events concerning Ms White and Mr Addis. The amount of time Mr Neagoe was given initially to consider the allegations, Mr Port’s role[113]Given the fundamental flaws in evidence and procedure, dismissal was not within the range of reasonable responses. In all the circumstances, we conclude Mr Neagoe’s dismissal was substantively and procedurally unfair. Discrimination Time limits[114]Employment Judge Warren has found that the claimant had a physical impairment of depression and anxiety. We must decide if Mr Neagoe brought his claim within the time limits set by law (section 123 of the Equality Act 2010). The claim form was presented on 5 May 2022.[115]Accordingly, and bearing in mind the effects of ACAS early conciliation (which commenced on 12 April 2022 and a certificate being issued on 14 April 2022), any act or omission which took place before 3 February 2022 is potentially out of time. Given our findings about Mr Neagoe’s dismissal, and the fact several of his discrimination complaints were facts considered in the dismissal process, our findings the respondents have misrepresented the situation with the car and Mr Port’s conduct in some of the meetings about which Mr Neagoe complains, we conclude it is just and equitable to extent time to include all Mr Neagoe’s factual complaints.[116]We have found that Mr Port has misrepresented his relationship with Mr Neagoe, which remained warm until January 2022. However, there is no evidence that during Mr Neagoe received any support from the respondent’s management during his period of sick leave, or on his return. Mr Neagoe’s chronology is misguided. The disciplinary meeting dd not take place after this sick leave. It was on his return from a Covid illness in January 2022 that the respondent arranged the disciplinary meeting. At this time Mr Neagoe’s medical records were not considered, simply because he did not provide them. By his own admission he was very private about his disability, complaining to this Tribunal that he was unhappy when references were made to the reason for his sickness in meetings.[117]We have found that, following Mr Neagoe’s return from sick leave, Mr Neagoe did not participate in a return to work or welfare meeting in substance. He was cross-examined at the meeting about what at work had caused him stress. The meeting was driven by the company’s desire for information rather than a desire to support Mr Neagoe.[118]We have found the respondents have misrepresented the status of the Tesla vehicle used by Mr Neagoe. It was a company car; however, we have found it was removed from outside his house while he was overseas and the reason for doing so was to fit a tracker.[119]We have found the explanation there was a delay in paying Mr Neagoe his SSP as the respondents believed he had done overseas implausible on the timeline.[120]We have found that at a meeting on 22 November 2021, during which we have found Mr Port discussed the reasons for Mr Neagoe’s absence, and at another meeting later that day. On 22 January 2022, Mr Port used derogatory language towards Mr Neagoe in front of colleagues, subsequently confronting him in the Operations Room on 26 January 2022.[121]We have found the company was aware of Mr Neagoe’s disability during this time In our judgment, on balance, this conduct by an employer and senior manager / owner of a business to an employee is unwanted. On balance, this behaviour over this period related to Mr Neagoe’s disability, specifically it was his depression and anxiety which had, in substance, been the reason for his absence and his managers and colleagues knew.[122]Taking into account Mr Neagoe’s perception at the time, we conclude the self-titled “welfare meeting” seeking information rather than a desire to support Mr Neagoe, nonpayment of the SSP for “reasons” not accepted by the Tribunal as valid and Mr Dean’s conduct in meetings in November and January 2022 had the effect of creating a hostile and humiliating environment for Mr Neagoe. For these reasons we conclude that the respondents harassed the Mr Neagoe.[123]We conclude the other allegations which we have found took place as Mr Neagoe described are not harassment as we have accepted that the respondents had fair reasons for behaving as they did. They did not offer Mr Neagoe support and encouragement during his two months of absence due to illness as initially they were aware (from the GP note) that he was suffering with stress at work and thought it in his best interests that work did not contact him during this time. Mr Neagoe’s Tesla was removed to have a tracker fitter, and once the respondents had established Mr Neagoe was back in the country and back at work, the car was returned to him. Direct Disability Discrimination section 13 Equality Act 2010[124]We must decide whether these allegations, which we have upheld factually, but have concluded are not harassment, amount to direct discrimination, in that the respondents treated Mr Neagoe less favourably than it would have treated a hypothetical comparator, being a person who is not disabled and who was not in materially different circumstances. In our judgment the respondents would not have contacted any employee they had been told was suffering stress at work, to allow that person to recover. They would have removed a company car to fit a tracker (as they did to other company cars at that time). For these reasons Mr Neagoe’s claim of direct disability discrimination does not succeed. Discrimination arising from disability: section 15 Equality Act 2010[125]Mr Neagoe relies on his dismissal as the unfavourable treatment. He was absent from work due to his disability of anxiety and depression; the stress at work was caused by this. However, based on our findings about the dismissal process, the reason for Mr Neagoe’s dismissal was not this absence from work. The reasons given were misguided and partially investigated allegations made by a couple of Mr Neagoe’s colleagues and the breakdown in his relationship with Mr Port. However, there is no evidence that the claimant had decided to dismiss Mr Neagoe due to his 2 month absence in November 2022. Mr Neagoe was not dismissed due to his disability; his section 15 claim fails. Failure to Make Reasonable Adjustments: section 20 and section 21[126]We have found the respondents knew Mr Neagoe was a disabled person. However, we have found there is no evidence that the respondents had a “PCP” (provision, criterion or practice, of requiring its Production Director to manage the Engineering Team, the Projects Co-ordinators and the Project Managers Teams? As they did not have the practices Mr Neagoe alleges, Mr Neagoe reasonable adjustments claim cannot succeed.[127]For these reasons we conclude that : 127.1. The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed by the second respondent; 127.2. The complaint of harassment related to the claimant’s disability is well-founded and succeeds; 127.3. The complaint of direct discrimination related to the claimant’s disability is not well-founded and is dismissed; 127.4. The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed; and 127.5. The complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed.[128]The Tribunal will identify a date to determine remedy for the successful claims of unfair dismissal and harassment. The claimant and respondent will then be informed of the date in writing and will receive case management orders for that hearing. It may be several weeks before you receive notification of the remedy hearing date and the case management orders. If at any time before the hearing parties are able to settle the claims they should write to the Tribunal so that the hearing can be vacated. JUDGMENT on RECONSIDERATION APPLICATION The respondents’ reconsideration application is refused.
Conclusions
[1]The Tribunal reserved judgment at the hearing on 11 April 2024, deliberated on 12 April 2024 and settled the judgment unanimously on 29 April 2024. A judgment with written reasons was sent to the parties on 2 May 2024 (“the Judgment”) following a multi-day final hearing to determine liability in April 2024.[2]In an email dated 14 May 2024 the respondents applied for reconsideration of the Judgment. The Tribunal requested copies of the hearing file and witness statements as these had not been retained; electronic versions were received by the Tribunal on 11 June 2024.[3]Rule 70 of the Employment Tribunal Rules of Procedure 2013 empowers the Tribunal, either on its own initiative or on the application of a party, to reconsider any judgment where it is necessary in the interests of justice to do so. Under Rule 72(1), an Employment Judge may determine an application on their own and without a hearing if they consider that there is no reasonable prospect of the original decision being varied or revoked.[4]Rule 71 requires that any application for reconsideration must be presented in writing within 14 days of the date on which the written record, or other written communication, of the original decision is sent to the parties. The Judgement was sent to the parties on 2 May 2024 and accordingly the respondents’ application (14 May 2024) has been made in time.[5]I am satisfied that the interests of justice do not require that there is a hearing to determine the respondents’ application for reconsideration and that I can deal with these matters fairly and justly on the strength of what is a detailed written application. The reconsideration application[6]Turning then to the application for reconsideration, the starting point has to be the decision the Tribunal reached after the liability hearing which took place from 8 to 11 April 2024, the Tribunal then spending the entirety of 12 April 2024 in deliberation and liaising subsequently to finalise the Judgment. The decision of the Tribunal was unanimous on all points. We provided detailed written reasons for our Judgment. Should these matters be examined on appeal, it would be for the Employment Appeal Tribunal or other appellate court to say whether those reasons and our decision can stand. Any suggestion that we erred in Law is generally a matter for appeal; there seems to be an oblique suggestion in relation to the application by the Tribunal of the test as to whether the claimant is disabled, although it is not clear from the application whether an error of law is the point made - Ebury Partners UK Ltd v Acton Davis [2023] EAT 40. Incorrect application of an legal test is a matter for appeal, not for reconsideration.[7]In Outasight VB Ltd. v Brown UK EAT/0253/14, the Employment Appeal Tribunal considered the Tribunals’ powers under Rule 70 of the Employment Tribunal Rules of Procedure 2013. At paragraphs 27 – 38 of her Judgment Her Honour Judge Eady QC, as she then was, set out the legal principles which govern reconsideration applications, and observed, “The interests of justice have thus long allowed for broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.” These principles were affirmed by His Honour Judge Shanks in Ebury Partners.[8]Similarly, should the Judgment be examined on appeal, it will be for the Employment Appeal Tribunal or other appellate court to say whether the Tribunal’s findings, analysis and conclusions (“the Reasons”) and the resulting Judgment can stand. Any suggestion that our findings or conclusions were perverse is generally a matter for appeal rather than reconsideration.[9]In Outasight, the Employment Appeal Tribunal was referred to the EAT’s Judgment in Redding v EMI Leisure Ltd. EAT/262/81 in which the EAT had observed: “…When you boil down what is said on [the Claimant’s] behalf, it really comes to this: that she did not do herself justice at the hearing so justice requires that there should be a second hearing so that she may. Now, “justice” means justice to both parties. It is not said, and, as we see, cannot be said that any conduct of the case by the employers here caused [the Claimant] not to do herself justice. It was, we are afraid, her own experience in the situation…”[10]The respondents do not say in their application for reconsideration that they feel they did not do themselves justice on 29 June 2022, but if it is the case then it is not for want of being afforded a reasonable opportunity to state their position. The Tribunal had the benefit of witness statement from 4 witnesses of the respondents, all of whom gave sworn evidence at the hearing; they were cross examined by the claimant, the Tribunal had the opportunity to ask them questions, and did so, and their representative was afforded the opportunity to re-examine them.[11]The overall impression given by the application is that the respondents are dissatisfied with the Tribunal’s decision, in particular our unanimous findings of fact, and are seeking a ‘second bite of the cherry’. The respondents’ interests are not the only consideration here. Justice has to be done to both parties and there are broader policy considerations including the need for finality in litigation. Litigation has to be kept within sensible bounds. The respondents were afforded a reasonable opportunity to make representations in response to the claimant’s complaints, their representative doing so in closing submissions, while having the benefit of being involved in and present at some of the meetings about which the claimant complained. .[12]Indeed, the challenges made by the respondents in the request for reconsideration seek to re-assert the case made by the respondents at the hearing, where the Tribunal has not accepted the respondents’ version of events. The Tribunal has provided a reasoned explanation in its written reasons as to why the Tribunal has not accepted what the respondents allege happened. That the respondents do not agree with the Tribunals findings of fact is not a reason for a Tribunal to reconsider its decision. In my judgment, it is not necessary in the interests of justice that the respondents should be afforded an opportunity to revisit the evidence; the fact the Tribunal disagreed with the respondents version of events is not a ground for reconsideration.[13]For example, the Tribunal has not accepted the respondents’ position that there was an investigation meeting. As explained in the reasons, the Tribunal made a finding of fact that a written record of a meeting which took place labelled in the notes of that meeting as an investigation meeting was not, in fact, an investigation meeting in substance, the Tribunal having examined at length the evidence before it from both parties (written and oral) about the discussions which took place at that meeting. The substance of the meeting informed the Tribunal’s conclusion that, while the meeting record provided by the respondents labelled the meeting as an investigation meeting, the content of that meeting was not. That a party disagrees with a finding of fact made and reasoned by a Tribunal is not a basis for reconsideration. Based on this finding of fact, the Tribunal’s conclusion that the procedure was unfair for lack of an investigation meeting is reasoned and sound.[14]Time limits: whether to extend time limits in a claim of discrimination is within the discretion of the Tribunal. The respondents are referred to the reasons in the Judgment for the Tribunal’s decision to extend the time limit. As stated above, a reconsideration is not a “second bite of the cherry”; it is fair and just that one party is not afforded a second opportunity to succeed with its case because it disagrees with the discretion exercised by the Tribunal unanimously.[15]Accordingly, in my judgement, the respondents have no reasonable prospect of persuading the Tribunal that it is necessary in the interests of justice for them to be afforded a second opportunity to put their case.[16]For these reasons, the respondents’ application for reconsideration of the Judgment has no reasonable prospect of success and is refused.