R Craddock v C A Educo Ltd: 3310808/2023 and 3302974/2024
EMPLOYMENT TRIBUNALS
Case No 3310808/2023, 3302974/2024
Between
R CraddockClaimantC A Educo LtdRespondent
Before
Employment Judge Din, D Sagar and S WoodwardRepresenting himself for claimantDate 18 November 2025
JUDGMENT
[1]The complaints of being subjected to detriment for making a protected disclosure are not well-founded and are dismissed.[2]The complaints of direct disability discrimination are well-founded and succeed.[3]The complaints of failure to make reasonable adjustments for disability are not well-founded and are dismissed.[4]The following complaints of harassment related to disability are wellfounded and succeed:a. The Respondent telling the Claimant to leave the Respondent’s site on 20 June 2023;b. The Respondent telling the Claimant to leave the Respondent’s site on 3 July 2023. The remaining complaints of harassment related to disability are not wellfounded and are dismissed.
REASONS
[1]The Claimant was employed by the Respondent, a special needs school, as a gardener / maintenance site manager from 1 September 2022 until 12 September 2023.[2]Early conciliation started on 27 July 2023 and ended on 1 September 2023.[3]The Claimant’s first claim form was received by the Tribunal on 4 September 2023. A second claim form was received by the Tribunal on 18 September 2023.[4]In those claim forms, the Claimant made the following complaints:4.1 Unfair dismissal;4.2 Discrimination on the grounds of disability;4.3 A whistleblowing claim;4.4 He is owed holiday pay;4.5 In the “another type of claim” section: “Constructive dismissal (ever evolving job role), Work Place Accident, Harassment and victimisation”.[5]If his claim is successful, the Claimant seeks compensation and a recommendation.[6]The Respondent provided responses. These were received by the Tribunal on 6 and 8 April 2024. The Respondent denies the complaints. Preliminary matters and hearings[7]On 2 July 2024, Employment Judge Graham made directions with respect to the Claimant’s disability discrimination and whistleblowing complaints.[8]A preliminary hearing took place before Employment Judge Young on 17 September 2024. The claims and issues were discussed at that hearing and various Case Management Orders made.[9]At paragraph 54 of the Record of a Preliminary Hearing in relation to the 17 September 2024 hearing it states, “The Respondent accepts the Claimant’s anxiety as a disability”.[10]A further preliminary hearing took place on 9 October 2024 before Employment Judge Laidler to discuss judicial mediation.[11]At paragraph 4 of the Record of a Preliminary Hearing in relation to the 9 October 2024 hearing, it states “The Claimant not only brings claims of protected disclosure, but also disability discrimination and the Judge felt it appropriate to make Orders for further information in connection with the anxiety that the Claimant relies upon”. Various Case Management Orders were made, including Orders for the Claimant to provide further information regarding his stated anxiety. The Claimant provided an impact statement and medical records in response.[12]The previous name of the Respondent was Central Academy London Limited. Following a change of name, it was agreed by the parties that the correct name of the Respondent is C A Educo Limited. The heading to this judgment reflects that name. Evidence and other materials Documentation[13]There is a bundle setting out relevant materials (Hearing Bundle). Witness statements[14]The Tribunal has a witness statement from the Claimant and the Tribunal heard from him.[15]The Tribunal has witness statements on behalf of the Respondent from Rohan Murphy, Michael Nicholls and Lisa Gilbert. Mr Murphy is the proprietor of the Respondent. Mr Nicholls is a governor at the Respondent. Ms Gilbert is the head teacher at the Respondent.[16]The Tribunal heard from Mr Murphy and Ms Gilbert. The parties agreed during the course of the hearing that it would not be necessary for Mr Nicholls to appear. Complaints and issues[17]The complaints and issues are as follows. These were agreed by the parties following the preliminary hearing before Employment Judge Young. The Claimant agreed that he was not dismissed because of whistleblowing and, as such, there is no unfair dismissal claim. Complaints[18]At the hearing before Employment Judge Young, it was agreed that the Claimant is making the following complaints:18.1 Detriment arising from protected disclosures;18.2 Direct disability discrimination;18.3 Failure to make reasonable adjustments;18.4 Harassment related to disability. Issues[19]Except in one respect, there are no disagreements regarding the issues as set out in the Record of the preliminary hearing before Employment Judge Young. As such, they are reproduced as in that Record below. The one matter in respect of which there is a dispute is disability. This is dealt with separately. Protected disclosure[20]Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:20.1 What did the Claimant say or write? When? To whom? The Claimant says they made the disclosures on these occasions:20.1.1 On 17 May 2023, the Claimant said to the Respondent that it is not safe to work at that height and to carry out that job (unsaid but meaning cleaning out the gutters around the school building);20.1.2 On 17 May 2023, the Claimant said to the Respondent that he tried to do the job, [the] ladder slipped and [the Claimant was] not prepared to go up and do the job again without someone footing the ladder;20.1.3 On 17 May 2023, the Claimant said to the Respondent if I fall off that ladder I potentially will never work again and may get a £5k payout.20.2 Did they disclose information?20.3 Did they believe the disclosure of the information was made in the public interest?20.4 Was that belief reasonable?20.5 Did they believe it tended to show that:20.5.1 A person had failed, was failing or was likely to fail to comply with any legal obligation?20.5.2 The health or safety of any individual had been, or was being or was likely to be endangered.20.6 Was the belief reasonable?[21]If the Claimant made a qualifying disclosure, it was a protected disclosure because it was made to the Claimant’s employer. If so, it was a protected disclosure. Detriment (section 48 of the Employment Rights Act 1996)[22]Did the Respondent do the following things: 22.1 Dismissed the Claimant[23]By doing so, did it subject the Claimant to detriment?[24]If so, was it done on the ground that they made a protected disclosure? Remedy for Protected Disclosure Detriment[25]What financial losses has the detrimental treatment caused the Claimant?[26]Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?[27]If not, for what period of loss should the Claimant be compensated?[28]What injury to feelings has the detrimental treatment caused the Claimant and how much compensation should be awarded for that?[29]Has the detrimental treatment caused the Claimant personal injury and how much compensation should be awarded for that?[30]Is it just and equitable to award the Claimant other compensation?[31]Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?[32]Did the Respondent or the Claimant unreasonably fail to comply with it?[33]If so, is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?[34]Did the Claimant cause or contribute to the detrimental treatment by their own actions and if so, would it be just and equitable to reduce the Claimant's compensation? By what proportion?[35]Was the protected disclosure made in good faith?[36]If not, is it just and equitable to reduce the Claimant's compensation? By what proportion, up to 25%? Direct disability discrimination (section 13 of the Equality Act 2010)[37]In the list of issues as set out in the Record of the preliminary hearing before Employment Judge Young, it is stated that the Claimant’s disability is anxiety. However, the Tribunal notes that there is a dispute between the parties regarding disability. To the extent that disability is a matter to be decided by the Tribunal, the issues are as follows: 37.1 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:37.1.1 Did they have a physical or mental impairment: anxiety?37.1.2 Did it have a substantial adverse effect on their ability to carry out day-to-day activities?37.1.3 If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?37.1.4 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?37.1.5 Were the effects of the impairment long-term? The Tribunal will decide:37.1.5.1 Did they last at least 12 months, or were they likely to last at least 12 months?37.1.5.2 If not, were they likely to recur? Further issues[38]If it is found that the Claimant was disabled at the relevant time, then the remainder of the issues in relation to direct disability discrimination are as set out in the Record of the hearing before Employment Judge Young as follows.[39]Did the Respondent do the following things:39.1 On 20 June 2023, did the Respondent tell the Claimant [to] leave [the school] site because of the Claimant's anxiety and medication.39.2 On 3 July 2023 did the Respondent tell the Claimant that he could not return to work until 4 July 2023.[40]Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant's. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The Claimant has not named anyone in particular who they say was treated better than they were.[41]If so, was it because of disability etc?[42]If disputed: Did the Respondent's treatment amount to a detriment? Reasonable adjustments (sections 20 and 21 of the Equality Act 2010[43]Did the Respondent know, or could it reasonably have been expected to know the Claimant had the disability? From what date?[44]A “PCP” is a provision, criterion or practice (PCP). Did the Respondent have the following PCPs 44.1 The requirement to prove [his] fitness to return to work and be around children.[45]Did the PCP[s] put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that it was assumed because of the Claimant’s disability he was unfit to work and be around children?[46]Did the Respondent know, or could it reasonably have been expected to know the Claimant was likely to be placed at the disadvantage?[47]What steps could have been taken to avoid the disadvantage? The Claimant suggests:47.1 The Respondent should have provided 'skyvac' & tower scaffolding so the Claimant could work at height.47.2 Reduce his workload.47.3 Provide access to support services i.e another person to clear the gutters.47.4 The Respondent should have engaged in dialogue with the Claimant to discuss his individual needs and explore potential solutions together.47.5 The Respondent should have done a risk assessment.[48]Was it reasonable for the Respondent to have to take those steps and when?[49]Did the Respondent fail to take those steps? Harassment related to disability (section 26 of the Equality Act 2010)[50]Did the Respondent do the following things:50.1 On 17 May 2023, during a walkaround with Respondent require the Claimant to go up a ladder to carry out duties that were unsafe.50.2 On 20 June 2023, did the Respondent tell the Claimant [to] leave [the school] site because of the Claimant's anxiety and medication.50.3 On 3 July 2023 did the Respondent tell the Claimant that he could not return until 4 July 2023.50.4 On 10 July 2023, did the Respondent tell the Claimant not to come back to site and followed the Claimant to his car and [kept] asking the [Claimant] questions50.5 On 10 July 2023, did the Respondent [ask] the Claimant to attend a without prejudice meeting.[51]If so, was that unwanted conduct?[52]Did it relate to disability?[53]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?[54]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. Remedy for discrimination or harassment[55]Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?[56]What financial losses has the discrimination caused the Claimant?[57]Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?[58]If not, for what period of loss should the Claimant be compensated?[59]What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?[60]Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?[61]Is there a chance that the Claimant's employment would have ended in any event? Should their compensation be reduced as a result?[62]Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?[63]Did the Respondent or the Claimant unreasonably fail to comply with it? [Note – the list of issues in the Record has extraneous words and have been disregarded for this judgment].[64]If so, is it just and equitable to increase or decrease any award payable to the Claimant?[65]By what proportion, up to 25%?[66]Should interest be awarded? How much? Holiday pay (Working Time Regulations 1998)[67]Did the Respondent fail to pay the Claimant for 2 weeks annual leave the Claimant had accrued but not taken when their employment ended? Unauthorised deductions[68]Did the Respondent make unauthorised deductions from the Claimant's wages of 2 [weeks’] pay and if so, how much was deducted? Law Protected disclosures[69]The relevant legislation is contained in section 47B of the Employment Rights Act 1996: (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.[70]In order for a whistleblowing disclosure to be considered as a protected disclosure, then the relevant provision is section 43A of the Employment Rights Act 1996.70.1 There needs to be a disclosure.70.2 That disclosure needs to be a qualifying disclosure.70.3 It must be done in accordance with sections 43C to 43H of the Employment Rights Act 1996.[71]As part of whether or not the disclosure is a qualifying disclosure, it is necessary that the worker making the disclosure has a reasonable belief that the disclosure is in the public interest.[72]A leading case in this area is Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979. The Court of Appeal found that it is for the Tribunal to rule as a matter of fact as to whether there was sufficient public interest to qualify under the legislation. The statutory criterion of what is in the public interest does not lend itself to absolute rules. Where the disclosure relates to a breach of a worker’s own contract of employment, there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker.[73]As a guide, the court referred to the following four factors:73.1 The numbers in the group whose interests the disclosure served;73.2 The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect;73.3 The nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;73.4 The identity of the alleged wrongdoer – the larger or more prominent the wrongdoer, the more likely it is that the public interest is engaged (although this should not be taken too far).[74]The mental element imposes a two stage test:74.1 Did the claimant have a genuine belief at the time that the disclosure was in the public interest; then74.2 If so, did they have reasonable grounds for so believing?[75]The necessary reasonable belief in that public interest may arise on later contemplation by the employee and need not have been present at the time of making the disclosure. However, as an evidential matter, the longer the gap in timing, the more difficult it may be to show reasonable belief.[76]In the case of Parsons v Airplus International Ltd UKEAT/0111/17 (13 October 2017, unreported), the EAT found that disclosures that could have been protected disclosures but were made as part of a disciplinary dispute were made only in self-interest, rather than in the public interest. Direct disability discrimination[77]Unless it is agreed by the Respondent, then the Claimant has to show they were a disabled person at the relevant time.[78]The statutory definition is in section 6 of the Equality Act 2010. Section 6(1) of the Equality Act 2010 states: (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.[79]Section 212 of the Equality Act 2010 defines “substantial” as being more than minor or trivial. This is a matter of fact for the Tribunal to determine.[80]Paragraph 5 of Schedule 1 to the Equality Act 2010 states:(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if: (a) measures are being taken to correct it, and (b) but for that, it would be likely to have that effect.(2) ‘Measures’ includes, in particular, medical treatment and the use of a prosthesis or other aid.[81]The Guidance says that the above provision includes treatments such as counselling.[82]The Tribunal must take account of such guidance as it thinks relevant. The “Equality Act 2010 Guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability” (May 20100) (Guidance) was issued in accordance with the Equality Act 2010.[83]Following the case of Goodwin v Patent Office [1999] ICR 302, the Court of Appeal in Sullivan v Bury Street Capital Limited [2021] EWCA Civ 1694 set out the following questions as being relevant to disability:83.1 Was there an impairment? (the ‘impairment condition’);83.2 What were its adverse effects on normal day-to-day activities? (the ‘adverse effect condition’);83.3 Were they more than minor or trivial? (the ‘substantial condition’);83.4 Was there a real possibility that they would continue for more than 12 months? (the ‘long-term condition’).[84]The Tribunal may be assisted by medical evidence, but is not bound by any opinion expressed.[85]The relevant point in time to be looked at is the time of the alleged discriminatory act. With respect to past disability, someone who is no longer disabled but who met the requirements of the definition in the past will still be covered if the discrimination is due to the past disability. The disability must still meet all parts of the statutory definition.[86]The Guidance states that a disability can arise from, amongst other impairments, mental health conditions with symptoms such as anxiety, low mood and panic attacks, as well as mental illnesses such as depression.[87]The terms “mental impairment” should be given its natural and ordinary meaning.[88]“Day-to-day activities” cover activities that are relevant to participation in personal and professional life. The Tribunal is to focus on what a claimant cannot do, rather than what they can do.[89]“Long-term” is defined in Schedule 1, part 1, paragraph 2 of the Equality Act 2010 as follows: (1) The effect of an impairment is long-term if – (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. (3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed. (4) Regulations may prescribe circumstances in which, despite subparagraph (1), an effect is to be treated as being, or as not being, long-term.[90]“Likely” in the above context means a real possibility or that it could well happen (rather than, say, more likely than not). The Guidance states that conditions with effects that recur sporadically or for short periods can be long term impairments under the Equality Act 2010. If the effects on normal dayto-day activities are substantial and are likely to recur beyond 12 months after the first occurrence, they are to be treated as long term. Discrimination[91]The relevant legislation as contained in the Equality Act 2010 is at section 13: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[92]As such, direct discrimination occurs where the employer treats an employee less favourably because of a protected characteristic.[93]The circumstances of any comparator must be the same as those of the Claimant, or not materially different (see section 23 of the Equality Act 2010). However, comparators are a means to an end. The key question is what is the reason why the Claimant was treated as they were treated. Was it because of the protected characteristic? Or was it wholly for other reasons? See the case of Shamoon v Royal Ulster Constabulary [2003] UKHL 11.[94]The protected characteristic need not be the only or the main reason for the less favourable treatment. The test is whether the relevant decision was significantly (i.e., more than trivially) influenced by the protected characteristic.[95]The Tribunal will need, in this matter, to look at the mental processes of the alleged discriminator when assessing whether any discrimination was because of a protected characteristic. This is not the same as “motive” – a well-meaning employer can still discriminate.[96]As the disability must be the conscious (or subconscious) reason for the less favourable treatment, there must be some evidence that the employer knew, or ought to have known, of the disability. See the case of Patel v Lloyds Pharmacy Ltd UKEAT/0418/12. Reasonable adjustments[97]The duty to make reasonable adjustments is found in section 20 of the Equality Act 2010. Section 21 of the Equality Act 2010 states that a failure to comply with any of the three requirements in section 20 of the Equality Act 2010 is a failure to comply with the duty to make reasonable adjustments and is discrimination against the disabled person.[98]A claimant suffering a past impairment will not be covered – the impairment must be continuing.[99]In circumstances where a PCP (or physical feature of premises or the absence of an auxiliary aid) places a disabled person at a substantial disadvantage in relation to a relevant matter when compared with a person who is not disabled, the employer is under a duty to take such steps as reasonable, in all the circumstances of the case, for it to have to take in order to avoid the disadvantage.[100]In Archibald v Fife Council [2004] UKHL 32, the House of Lords said that the duty necessarily requires the disabled person to be treated more favourably in recognition of their special needs.[101]Any relevant Code of Practice must be taken into consideration by the Tribunal insofar as its provisions are relevant.[102]The PCP should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions.[103]However, there are limits. There has to be an element of repetition (whether actual or potential). In the case of Nottingham City Transport v Harvey [2013] All ER(D) 267 (Feb), EAT, the one off application of a flawed disciplinary process to the Claimant was found not to be a PCP. There was no evidence to show that the employer conducted its disciplinary process in that way.[104]A failure to consider whether a particular adjustment would or could have removed the disadvantage amounts to an error of law (see Romec Ltd v Rudham [2007] All ER(D) (206)(Jul) EAT). In the same case, it was found that if the adjustment sought would have no prospect of removing the substantial disadvantage, then it could not amount to a reasonable adjustment. However, if there was a real prospect of removing the disadvantage, then the adjustment may be reasonable.[105]The reasonableness of the adjustment should not be seen in isolation if there are other adjustments that can be made (see Burke v College of Law [2012] All ER(D) 29). Harassment related to disability[106]Section 26 of the Equality Act 2010 states the following: (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.[107]It goes on: (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—(a) the perception of B;(b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.[108]There is no need for a comparator.[109]The test of conduct “related to” a protected characteristic is wider than the test for direct discrimination (which applies a “because of” test). However, there still needs to be a connection between the conduct and, in this case, the disability (see Governing Body of Windson Clive Primary School v Forsbrook [2024] EART 183).[110]Where it is not the purpose of A to violate B’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment, then the Tribunal needs to look at the effect. Such an effect is looked at from B’s subjective viewpoint and it does not matter whether A intended the effect.[111]Whether it was reasonable for A’s conduct to have the effect it did on B is an objective test. However, the Tribunal must take into account B’s subjective perception (see Driskel v Peninsula Business Services Ltd [2000] IRLR 151). Holiday pay (Working Time Regulations 1998) and unauthorised deductions[112]The Working Time Regulations 1998 (WTR) give workers certain entitlements to leave each leave year.[113]The right not to suffer an unauthorised deduction is contained in section 13(1) of the Employment Rights Act 1996: An employer shall not make a deduction of wages of a worker employed by him unless – the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or the worker has previously signified in writing his agreement or consent to the making of the deduction.[114]Section 23 of the Employment Rights Act 1996 gives a worker the right to complain to the Employment Tribunal of an unauthorised deduction of wages.[115]Further, an Employment Tribunal can deal with breach of contract claims under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. Relevant findings of fact[116]The Claimant started his role as a gardener and handyman with the Respondent on 1 September 2022.[117]On 2 September 2022, the Claimant signed a “Pre-Employment Health Questionnaire”, which he had completed. In the section headed “Present Health Status”, the Claimant ticked the box “Yes” in answer to the question “Are you at present taking any medication prescribed by a doctor?”. In the column regarding details, the Claimant put “ANXIETY”.[118]In the section headed “Medical History”, he was asked “Have you ever suffered from any of the following illnesses?”. The Claimant ticked the box saying “Yes” with respect to “Severe anxiety, depression, or other psychiatric disorder”. In the details section, the Claimant put: “10 YEARS AGO I HAD COUNSILLING I ZERO DAYS OFF”.[119]Mr Murphy states that he reviewed this form, but did not think it gave rise to any significant issues and so took no further action.[120]In a further form headed “Confidential Medical History Form”, completed by the Claimant and signed by him on 28 November 2022, when asked whether he was “…currently Taking any prescribed medicines…”, the Claimant said “Yes” and “Citalopram”.[121]The Claimant states that shortly after joining, his responsibilities grew. He was asked to drive the school minibus for trips and to greet children at the school gate each morning.[122]By February 2023, the Claimant says that his role expanded even further. He was asked to assist with health and safety compliance and to rewrite policies when his line manager went on long-term sick leave. The Claimant says that he felt overwhelmed.[123]On 17 February 2023, the Claimant fell off a step ladder at the school site.[124]In February 2023, the Claimant was given a £2,000 pay rise following a performance review. That month, he was asked if he would be interested in the site manager role at the Respondent.[125]On 23 and 24 March 2023, an incident involving a minibus took place. On 23 March 2023, the Claimant identified that a school minibus was untaxed and uninsured. He notified the Respondent. The Claimant says that he was shouted and sworn at by Mr Murphy. Mr Murphy says that he did shout and swear, but it was in relation to the situation and not at the Claimant. The Claimant states that he was upset and left the school site at 9.10am the following day (24 March 2023). The Claimant was asked to return to the site and said that he would do so on the following Monday (27 March 2023) once he had calmed down.[126]As a result of his leaving the school site, the Respondent states the Claimant was unable to perform a role relating to the distribution of medicines to certain school children. The Claimant denies this, saying that he left after performing this task.[127]On 26 March 2023, the Claimant was sent a message by Ms Gilbert asking about the two of them meeting with Mr Murphy the following day. The Claimant agreed to the meeting.[128]A meeting between the Claimant, Ms Gilbert and Mr Murphy took place on 27 March 2023 at which they discussed the minibus incident, Mr Murphy’s behaviour and the Claimant walking off site.[129]They then discussed the site manager role, with the Claimant saying he would like to go back to his contracted role of gardener and handyman. After some discussion, the Claimant agreed to take the site manager role.[130]On 17 May 2023, ahead of a planned meeting with Ms Gilbert and Mr Murphy, the Claimant states that he had a “Health and Safety walkaround” the site with Mr Murphy. Mr Murphy is alleged by the Claimant to have said, “some tasks do not need to be written down because then it’s in writing for the auditors to see”.[131]The Claimant then met with Ms Gilbert and Mr Murphy. The Claimant states that Mr Murphy got angry about the Claimant wanting someone to foot his ladder as he cleaned the gutters. The Claimant said “if I fall off the ladder, I potentially never work again and maybe get a 5 grand pay-out”. The Respondent states that Mr Murphy provided the Claimant with a ladder mat to steady the ladder. The Claimant denies that any such mat was provided.[132]At the meeting they also discussed whether the Claimant’s current role was too big for one person.[133]The Claimant says that, following the meeting, he had a panic attack. On 18 May 2023, the Claimant self-certified as sick to deal with his anxiety, which he states had escalated.[134]After contact with the Claimant’s GP on 23 May 2023, the Claimant was signed off for a further two weeks (to 6 June 2023) and received a Statement of Fitness for Work in this regard dated 23 May 2023. This document referred to the Claimant’s condition as being “anxiety/depression”.[135]He spoke again to his GP on 5 June 2023 and was signed off for two more weeks (until 19 June 2023), as shown in a further Statement of Fitness for Work of 5 June 2023. This document referred to the Claimant’s condition as being “Anxiety state”.[136]On 19 June 2023, the Claimant emailed the office manager at the Respondent to say that he was returning to work on 20 June 2023.[137]On 20 June 2023, the Claimant arrived at work at 7.30am (his usual start time) but was informed the officer manager that as per an email the day before, the Claimant should not return to work any earlier than 9.30am for his return to work meeting. The email had been sent to the Claimant’s work email, which he did not have access to while he was away. The Claimant was asked to leave the school site, which he did.[138]At the return to work meeting that day, Mr Murphy asked the Claimant about the source of the anxiety/depression and anxiety state, as referred to on the notes from the Claimant’s GP. The Claimant explained it was work-related anxiety. After a short discussion about the Claimant’s sick leave, Mr Murphy said, “Because obviously, we’ve got a safeguarding concern. Someone’s got depression in the school, is not- we need to get comfort. So we’re going to have to go into some of it”.[139]Mr Murphy then asked the Claimant a number of questions about what the Claimant had discussed with medical staff and his treatment. The Claimant confirmed again that absence was work-related, and they talked about the Claimant’s job.[140]Mr Murphy said “Obviously, you’re saying that this has triggered it, that this has been a long-term personal issue of anxiety”. The Claimant agreed. Later in the meeting the Claimant confirmed that the medication that he was on for anxiety was the same as he had been on “…for a long period of time…”. He stated that the medication was citalopram.[141]Mr Murphy asked the Claimant whether the Claimant had physically met his GP and whether the Claimant’s GP knew about the nature of the Claimant’s job. In a note of the meeting prepared by Ms Gilbert, it said “RM [Mr Murphy] has requested that due to nature of his illness we have concerns over his mental health and working with Special needs children on a day-to-day basis unaccompanied, so we would like a fit to return note form his GP with an understanding of what his job involves. RC [the Claimant] said he would contact his GP immediately and arrange an appointment. RM has asked him to remain off work until we have received this as we have a duty of care to protect our students. RM has agreed that once we have the certificate we can arrange another meeting to discuss things further”.[142]Mr Murphy said “From my perspective, I would like you to go to a doctor and say, “This is my role. I work in a school. I manage gardening equipment, drills and things, in your opinion, am I fit to return to that sort of role?””.[143]When asked, the Claimant’s GP said that they do not provide the type of confirmation that the Respondent sought.[144]On 20 June 2023, Ms Gilbert emailed the Claimant to say that the Respondent was taking advice on next steps. She stated “While we await receipt of this advice we ask that you remain off work until further notice”.[145]Ms Gilbert consulted with the National Association of Head Teachers (NAHT) through a helpline. There is no record of this discussion. Following input from the NAHT, the Respondent decided that the Claimant should see an occupational health therapist and that the Claimant should not return to the school site until an assessment had taken place. The Respondent states that this is in accordance with the Claimant’s employment contract. The Claimant agreed to an occupational health assessment and met with an occupational health therapist on 26 June 2023.[146]The occupational health therapist produced a clinical report dated 26 June 2023 (OH Report). It was addressed to Ms Gilbert and copied to Mr Murphy. As part of the OH Report’s conclusions it said that, from a purely clinical perspective, there does not appear to be any reason why a return to work could not be attempted and that the barrier to a return to work seems to be more related to employee workplace concerns as a result of events at work.[147]The OH Report stated that the Claimant does have a history and diagnosis of mental health problems and anxiety which has been managed by his GP for around 10 years. In terms of whether this could be a disability under the Equality Act 2010, the OH Report says “It is likely the Equality Act (2010) would apply in [the Claimant’s] case given the length of time [the Claimant] has experienced problems and the need for long-term medical intervention and management”. The OH Report goes on, “This is a medical opinion. Ultimately this would be a legal decision arguable in a Court of Law. I would however remind the Company of their obligations in relation to this”.[148]The OH Report was sent to Ms Gilbert on 29 June 2023. Ms Gilbert responded stating that she has some concerns and asked that the following questions are answered: “1. Is Mr Craddock fit to work with venerable [sic. – this is assumed to be “vulnerable”] special needs children in a school environment. This was a question that I specifically needed an answer for. 2. In the past Mr Craddock has walked out of school, this showing his current method of managing his stresses is not working. This has a massive impact on staff and students”.[149]Ms Gilbert states that these questions followed further consultation with the NAHT helpline. There is no record of this further consultation.[150]The providers of the OH Report stated that they would revert. A conversation between Ms Gilbert and the providers of the OH Report took place on 3 July 2023. Ms Gilbert reported that she was told there were no safeguarding issues.[151]The Claimant attended a further return to work meeting with the Respondent on 3 July 2023. The Claimant referred to his feeling “ambushed” at the previous meeting on 20 June 2023. This was because he believed that it was a return to work meeting and it ended up being about his anxiety. This was particularly as the Claimant was sent away afterwards.[152]Mr Murphy justified the detail that they went into at the 20 June 2023 meeting, saying “If anything ever happens here, it doesn’t matter what, I’m not saying you’re going to go out and hurt child on purpose, but if you are distracted and you are walking around with the…chainsaw and something happens, then someone will go, he was off for a month and you had a two minute tick box return to work meeting, I’ll be up in court”.[153]Mr Murphy told the Claimant that it was up to the Respondent, and not a GP or occupational health, to decide if it was safe for the Claimant to return to the school. Mr Murphy referred to the Claimant being off sick for over a month and having left the school site on a previous occasion. The Respondent told the Claimant to return to work the following day, 4 July 2023. The Respondent says that upon receipt of a satisfactory report, the Claimant was welcome to resume his duties.[154]At the time, the Claimant did not appear to object to having to coming back to work the following day.[155]On 4 July 2023, the Claimant returned to work. He believes that he was excluded from various activities from that point.[156]The Claimant states that no-one employed by the Respondent with a physical injury was asked to prove their fitness to work. He was not aware of anyone else who had a comparable mental health issue to his.[157]On 10 July 2023, Mr Murphy informed the Claimant that the Claimant’s job was at risk of redundancy. The Claimant was advised not to come back to site whilst a two week consultation process took place. Mr Murphy suggested that the Claimant and the Respondent have “without prejudice” discussions. The Claimant declined.[158]On 22 July 2023, the Claimant had a knee operation.[159]The Claimant submitted a grievance on 1 August 2023. The grievance meeting was held on 21 August 2023. On 24 August 2023, Mr Nicholls wrote to the Claimant stating that the grievance was not upheld.[160]The Respondent says the decision that the Claimant’s role was redundant was taken on 6 September 2023. The Claimant was given the option to appeal, but did not do so.[161]The Claimant was dismissed on 12 September 2023 for reasons of redundancy.[162]The Claimant states that the Respondent deducted two weeks’ holiday pay in relation to holiday he had booked to recover from his knee surgery on 22 July 2023. This had been booked before the Claimant was told to go home and await the outcome of the redundancy process. The Respondent states that it was not asked to cancel the request for holiday or to record it as sick leave. As such, it remained as annual leave. Discussions and conclusions Protected disclosure[163]The Tribunal agrees that the Claimant said the following to the Respondent on 17 May 2023:163.1.1 that it is not safe to work at the height required to clean out the gutters around the school building and, as a result, to carry out the gutter cleaning job;163.1.2 that the Claimant tried to do the job of cleaning out the gutters around the school building, the ladder slipped and, as a consequence, the Claimant was not prepared to go up and do the job again without someone footing (i.e., holding) the ladder;163.1.3 that, if the Claimant falls off the ladder, he will potentially never work again and may get a £5,000 payout.[164]The Tribunal further agrees that those statements disclosed information.[165]However, the Tribunal does not find that the disclosures of information were believed by the Claimant to be made in the public interest.[166]In coming to this conclusion, the Tribunal has used the criteria in Chesterton as a guide. The Claimant stated in evidence that his disclosures were health and safety issues and that they were in the public interest. However, the Claimant did not expand on this further.[167]In the Tribunal’s view, the disclosures only served the Claimant. There may have been others (including Mr Murphy) who could have been impacted, but there was little, if any, evidence of this. The nature of the alleged wrongdoing, the Claimant cleaning school guttering, although important to the Claimant, does not appear to be of wider public interest. Further, there was no evidence that the wrongdoing on the part of the Respondent (if there was any) was deliberate. The alleged wrongdoer is a special school. It is not large or prominent, and so it is less likely that the public interest is engaged.[168]Accordingly, on the basis of the totality of the evidence before it, it is the Tribunal’s view that the disclosures (individually and together) were believed by the Claimant to be about the Claimant and his position, rather than the public interest. Even if the Claimant did have a genuine belief that the disclosures were in the public interest, the Claimant did not – for the reasons stated above – have reasonable grounds for so believing.[169]In light of this, the rest of the issues regarding this head of complaint fall away and the complaint fails.[170]After it appearing to be the case that the Respondent accepted the Claimant’s anxiety as a disability at the hearing before Employment Judge Young, this point is now disputed by the Respondent.[171]The Respondent says that the Claimant was not, at the relevant time, disabled for the purposes of the Equality Act 2010 and this was admitted at the hearing before Employment Judge Young because the Respondent was unrepresented.[172]At the hearing before Employment Judge Laidler, the issue of disability was an open one, as Employment Judge Laidler made Orders in this regard.[173]Further, the Respondent states that the Claimant did not provide a full response to the Orders of Employment Judge Laidler, including full medical records.[174]The Claimant believes that the Respondent did accept the Claimant’s anxiety as a disability. Further, the Claimant says that he provided all the explanation and medical records that he could. What he failed to do was to give a full and specific narrative response to Employment Laidler’s individual points as set out in her Orders. Nonetheless, the Claimant says all of those matters were covered in other documents he did provide.[175]The Claimant attempted to cure some of these deficiencies during the final hearing, including in his final submissions. The Tribunal has not taken this as witness evidence, but (as with all submissions of this nature) has taken it into consideration where it is supported by other evidence.[176]Whether or not the Respondent did, in fact, accept disability, the Tribunal finds that the Claimant was disabled for the purposes of the Equality Act 2010 for the following reasons.[177]As a general point, the OH Report of 26 June 2023 states that the Claimant has “a history and diagnosis of mental health problems and anxiety…” and says “It is likely the Equality Act (2010) would apply in [the Claimant’s] case...”. The Tribunal is not bound by the conclusions of the OH Report. Further, it may well be that the OH Report was informed (whether wholly or in part) by what the Claimant told the occupational health therapist. However, it does provide evidence of the Claimant’s disability.[178]Using the Sullivan analysis, first, the Tribunal finds that the impairment condition is met. Mental health conditions such as anxiety can clearly fall within the definition of an impairment. The Claimant’s medical records, including the Statements of Fitness for Work in May and June 2023, show a history of anxiety. The Claimant has said that he takes citalopram daily, and has also received other treatment such as CBT. There was a mental health impairment, not least following the Claimant going on sick leave from 18 May 2023.[179]Second, the Tribunal is of the view that the adverse effect condition is met. The Respondent states that the Claimant admitted that he had zero days off prior to his taking up his role with the Respondent. However, his medical records show (and he disclosed to the Respondent at the beginning of his employment and again in November 2022) that he was taking medication for his anxiety, namely citalopram. The medical records include the comment, “much better, tablets working”.[180]The Claimant described in depth the impact that his anxiety had on him and how he managed his anxiety. In light of the evidence heard from the Claimant and his treatment, the Tribunal finds that the impairment would likely have an adverse effect on the Claimant’s normal day-to-day activities but for the treatment.[181]The broader adverse effect of the impairment on the Claimant’s day-to-day activities were seen when the Claimant was absent as a result of his anxiety from 18 May 2023.[182]In totality, this demonstrates to the Tribunal that this condition is met.[183]Third, the adverse effects as outlined above are, in the Tribunal’s view, more than minor or trivial. The Respondent states that the Claimant’s condition involved short-lived and temporary flare-ups, and so did not have a substantial adverse effect on day-to-day activities. However, they required ongoing treatment. Further, from 18 May 2023, as well as medication, they required time off work. The Respondent refused to allow the Claimant back to work following this because of the nature of the Claimant’s condition. This would not have happened unless the Respondent thought that the adverse effects were more than minor or trivial.[184]Fourth, the long-term condition is met. The Respondent states that this was the first panic attack that the Claimant had had in ten years. The Respondent further says that the Claimant was only off for a short period of time and was able to return to work after that. The Respondent says that this demonstrates that the Claimant’s condition was not a long-term condition.[185]The Claimant has provided medical records that show that he suffered from anxiety in 2010. The next entries are in 2021. These entries reflect a review and in terms of history, they have the comment “much better, tablets working”. There are then further entries in November 2024 stating that the Claimant was suffering from “dark thoughts again as in 2012”. The Claimant states that he has been taking citalopram for the relevant period. It is difficult to tell whether the medical records are complete in this regard. However, given that the Claimant has been suffering from anxiety from 2010, there is a reference to “dark thoughts” from 2012, a further review in 2021 and then more entries in late 2024, the Tribunal is satisfied that this element of the test has been satisfied.[186]The Tribunal is further assisted by the OH Report in this regard. The OH Report states that the Claimant has a history and diagnosis of mental health problems and anxiety which has been managed by his GP for around 10 years.[187]The OH Report further says “It is likely the Equality Act (2010) would apply in [the Claimant’s] case given the length of time [the Claimant] has experienced problems and the need for long-term medical intervention and management” (the Tribunal’s emphasis).[188]The Respondent states that the Claimant failed to provide information required by Employment Judge Laidler in relation to disability and, as such, has not provided sufficient evidence of disability. For the reasons set out above, the Tribunal finds that there is sufficient evidence to demonstrate that the Claimant was disabled at the relevant time.[189]There remains a dispute as to when the Respondent became aware of the Claimant’s disability. The Claimant states that the Respondent knew about the Claimant’s disability from 2022, as the Claimant had referred to relevant matters in his Pre-Employment Health Questionnaire of February 2022 and the Confidential Medical History Form in November 2022. The Respondent states that it only got to know about the Claimant’s disability with the OH Report.[190]The Tribunal finds that the Respondent became aware (or ought to have become aware) of the Claimant’s disability, at the latest, at the meeting on 20 June 2023 and therefore prior to the times of the relevant complaints.[191]The Respondent was aware of the Pre-Employment Health Questionnaire and the Confidential Medical History Form, both from 2022. The Respondent has been very clear that the events of 18 May 2023 were significant. The Claimant’s Statement of Fitness for Work following the Claimant going on sick leave on 18 May 2023 was provided to the Respondent on 23 May 2023. This was followed by a further Statement of Fitness for Work dated 5 June 2023. All of these documents pointed to the Claimant’s anxiety.[192]At the meeting on 20 June 2023, the Claimant and the Respondent discussed the Claimant’s condition at length. This included discussions as to the length of time the Claimant had anxiety, how it manifested itself and the treatment that the Claimant had received.[193]All of these factors mean that the Respondent was aware (or ought to have been aware) of the Claimant’s disability at the meeting on 20 June 2023 at the latest. As such, for the purposes of the issues in this matter, the Tribunal finds that the Claimant was disabled at the relevant time and the Respondent knew (or ought to have known) that the Claimant was disabled at the relevant time. Direct disability discrimination[194]In terms of the alleged direct discrimination, the Claimant has the initial burden of proof. If he can show facts from which the Tribunal could decide that an unlawful act of discrimination has taken place, then the burden moves to the Respondent to show, for example, that the treatment was not for the proscribed reason. Comparator[195]The Claimant was not able to point to anyone who was in the same circumstances as the Claimant. The Tribunal has, following this, not identified anyone in the same circumstances as the Claimant. As such, the Tribunal has considered whether the Claimant was treated worse than someone else would have been treated and, if so, whether this is because of the disability.[196]As a hypothetical comparator, the Tribunal uses a gardener / maintenance site manager without anxiety.[197]The Respondent has stated that the issue of a comparator was not put to the Respondent in cross-examination and, as a result, there is procedural unfairness. The Tribunal is satisfied that the matter of possible comparators was dealt with in the evidence and during the hearing. Both parties had sufficient opportunity to put their views forward. As such, no unfairness has arisen. Less favourable treatment[198]The Tribunal finds that, on 20 June 2023, after the Respondent had knowledge (or ought to have had knowledge) of the Claimant’s disability, the Respondent told the Claimant to leave the site.[199]The Tribunal further finds that, on 3 July 2023, the Respondent told the Claimant that the Claimant could not return to work until 4 July 2023.[200]It is unclear whether the Respondent has disputed whether the Respondent’s action on 20 June 2023 and 3 July 2023 amounted to detriments. The Tribunal finds that they were detriments. Being told not to return to work was a disadvantage in the employment field. On each occasion, the Claimant reasonably understood that he had been disadvantaged and this resulted in more than an unjustified sense of grievance.[201]In relation to the events of 3 July 2023, it could be argued that sending the Claimant away for half a day was relatively minor. Further, it does not appear that the Claimant objected to this course of action. However, it was still a detriment to the Claimant, particularly as he had been asked to come in by the Respondent for a return to work meeting. Protected characteristic[202]The Tribunal finds that a hypothetical individual in the same position as the Claimant, but without the Claimant’s disability, would not have been treated in the same way. There was evidence of other current / former employees with physical issues who were not required to leave the school site until they could demonstrate their fitness to work. Further, the reasons given for the Claimant’s treatment by the Respondent, particularly at the meetings on 20 June 2023 and 3 July 2023, and the emphasis on the Claimant’s condition, point to differential treatment.[203]The return to work meetings on 20 June 2023 and 3 July 2023 were about the Claimant’s fitness to work in light of the Claimant’s anxiety and medication. On both occasions, the Claimant was sent away from the school site by the Respondent. On 20 June 2023, this was following the Claimant’s (understandable) inability to provide a note from the Claimant’s GP saying that the Claimant was able to return to his role. On 3 July 2023, this was following discussion at that meeting.[204]The return to work meetings, the discussion at those meetings, and the subsequent events were as a direct result of the Claimant’s disability. Those matters would not have occurred otherwise.[205]In light of the above points, the Tribunal could decide – in the absence of any other explanation – that discrimination took place. The burden then shifts to the Respondent to demonstrate that the treatment was not for the proscribed reason.[206]The Tribunal does not agree with the Respondent’s characterisation of events as the Respondent protecting the Claimant. The Respondent states that an employer has to satisfy itself that an employee is fit to return to work. That is correct. However, doing this, the employer cannot act in a discriminatory manner contrary to the legislation.[207]Ms Gilbert’s questions following the OH Report (“is Mr Craddock fit to work with [vulnerable] special needs children”) and the comments made at the Claimant’s meeting with the Respondent on 20 June 2023 point to the Respondent having concerns about the impact on the school children as a result of the Claimant’s mental health issues, not the Claimant’s welfare.[208]The Respondent has also suggested that there may have been health and safety concerns relating to the Claimant’s return to work.[209]In his witness statement, Mr Murphy said “The role of gardener/handyman has heightened risks associated with it as a lack of fitness to work can lead to more dangerous scenarios for children due to the tools being used in the role. The school has a duty to ensure all staff are in a fit stated to work in the school and the primary safety concern is for the children. Working in a school brings with it heightened concerns when fitness to work issues are being faced by staff as the children are more vulnerable than an adult colleague would be in a more general workplace. We sought more evidence that Mr Craddock’s health issues had abated to a point where working in a school would not be an issue”. This is reflected in comments made by Mr Murphy at the 20 June and 3 July 2023 meetings.[210]The Respondent has also said that the Claimant leaving the school site without warning was a particular concern. This was not least because at the relevant time the Claimant was responsible for a busy car park and, on occasion, for providing medication to certain of the school children.[211]The evidence does not bear the above explanations out. The Statements of Fitness for Work of 23 May 2023 and 5 June 2023 do not give any indication that the Claimant could be a danger to children, whether as a result of the use of his tools or otherwise.[212]The comments about tools are only referenced in the 20 June 2023 meeting in the most generalised of terms. The matter of the Claimant’s ability to use tools is not something that the OH Report deals. It is not something that Ms Gilbert specially followed up on in her subsequent email of 29 June 2023. Significantly, the Respondent has not pointed to any occasion where the Claimant has used tools inappropriately or left them in way that would be a danger to the children at the school.[213]In relation to the Claimant leaving the school site on 23 March 2023, there is a similar lack of specificity and detail. The 23 May 2023 incident did not prompt the Respondent to consider removing the Claimant from the school site. Further, even in combination with the later May / June 2023 absence, it did not justify effectively suspending the Claimant without a proper analysis first.[214]In light of the above, the Tribunal does not consider that the Respondent had genuine and fact based concerns regarding the Claimant’s potential conduct in respect of leaving the site or to his tools. Instead, the Respondent had a generalised concern about the danger that the Claimant could pose to the children at the school due to the Claimant’s mental health issues. As such, the Claimant was treated less favourably by the Respondent and it was the Claimant’s mental health disability that led to the Respondent treating the Claimant less favourably, not the Claimant’s actual or potential actions.[215]In any event, the Claimant’s disability need not be the only or the main reason for the less favourable treatment. The test is whether the relevant decision was significantly (i.e., more than trivially) influenced by the disability. The Tribunal finds that it was significantly influenced by the disability, even if other factors may have been at play.
Conclusion
[216]In light of the above, the Claimant’s claim in this regard succeeds. Reasonable adjustments[217]The PCP as agreed by the parties and not disputed at the final hearing is the requirement on the Claimant to prove his fitness to return to work and to be around children.[218]The Claimant set out steps that, in his view, the Respondent could have taken to avoid any disadvantage placed on the Claimant as a result of the PCP.[219]The Tribunal must consider whether a particular adjustment would or could have removed the disadvantage. The Tribunal finds that the adjustments sought would have no real prospect of removing the substantial disadvantage. Accordingly, the adjustments could not amount to reasonable adjustments.[220]Specifically, the Claimant being provided with a “skyvac” and tower scaffolding so the Claimant could work at height, or reducing the Claimant ‘s workload, would not have removed any disadvantage. They may, arguably, have had an impact on reducing the Claimant’s anxiety. However, this is insufficient to remove the disadvantage, particularly with respect to the part of the PCP relating to being around children.[221]The other two suggested steps, namely engaging in dialogue with the Claimant and carrying out a risk assessment, are too imprecise to be adjustments. Neither carries a result. They effectively are steps to consider what can be done about any disadvantage, rather than adjustments to avoid a disadvantage. As such, they would not – in themselves – have a real prospect of removing any disadvantage.[222]In light of the above, the Claimant’s claim in this regard fails without the Tribunal having to consider any other aspect. Harassment related to disability[223]The Claimant points to five instances of alleged harassment. These are dealt with in turn. 17 May 2023[224]The Tribunal finds that, on 17 May 2023, the Respondent required the Claimant to go up a ladder to carry out certain duties. However, the Tribunal has not heard sufficient evidence to link this action to the Claimant’s anxiety.[225]As such, the Tribunal finds that the Claimant has not been able to demonstrate that the Respondent’s conduct in this regard related to the Claimant’s disability.[226]As there are insufficient primary facts from which the Tribunal could decide, in the absence of any other explanation, that discrimination took place, this aspect of the complaint fails. 20 June 2023[227]The basic facts relating to the Claimant’s claim are broadly agreed between the parties. It is not denied that Mr Murphy told the Claimant to leave the school site following a meeting on 20 June 2023 and this related to the Claimant’s fitness to work.[228]For the reasons set out above, the Tribunal finds that the Respondent did tell the Claimant to leave the site. This was unwanted conduct and, again, for the reasons set out above, it related to disability.[229]The Tribunal does not consider that the purpose of the Respondent’s conduct was to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant.[230]However, the Claimant genuinely perceived the conduct as having that effect. The Tribunal is in no doubt that he was upset about what happened, even if he only expressed this after the 20 June 2023 meeting. Given the circumstances, particularly as the Respondent was suggesting that there were issues with the Claimant working with children, that perception was reasonable.[231]These constitute primary facts from which the Tribunal could decide – in the absence of any other explanation – that discrimination took place.[232]The Respondent states the actions of the Respondent were not to do with disability. The Respondent, through Ms Gilbert, contacted the NAHT and followed their advice to have the Claimant assessed by occupational health, and this was the reason for the Respondent’s actions. The Tribunal agrees that these were reasonable steps to take. However, they do not mean that the Respondent did not commit harassment. Being assessed by occupational health did not mean that the Claimant had to be sent from the site. This happened because of the Respondent’s concerns around the Claimant’s fitness to work, and this had a link to the Claimant’s disability. For harassment this is sufficient.[233]In light of this, and the other evidence, the Respondent has been unable to show on the balance of probabilities that the treatment was not for the proscribed reason.[234]As a result, this aspect of the Claimant’s claim succeeds. 3 July 2023[235]Again, the basic facts relating to the Claimant’s complaint in this regard are agreed between the parties. It is not denied that Mr Murphy told the Claimant to leave the school site and return the following day.[236]For the reasons set out above, the Tribunal finds that the Respondent did tell the Claimant he could not return until 4 July 2023. This was unwanted conduct and, again, for the reasons set out above, it related to the Claimant’s disability.[237]The Tribunal does not consider that the purpose of the Respondent’s conduct was to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant.[238]However, the Claimant genuinely perceived the conduct as having that effect. Again, the Tribunal considers that the Claimant was upset about what happened, even if he did not express that immediately. This was reasonable, not least as the Claimant believed that he was returning to work that day and was being prevented from doing so.[239]These constitute primary facts from which the Tribunal could decide – in the absence of any other explanation – that discrimination took place.[240]Again, the Respondent argues that the Respondent’s actions on 3 July 2023 did not relate to disability. For the same reasons as set out above in relation to the 20 June 2023 meeting, the Tribunal disagrees. The actions were related to the Claimant’s disability.[241]Accordingly, for this reason and the other evidence, the Respondent has been unable to show on the balance of probabilities that the treatment was not for the proscribed reason.[242]As a result, this aspect of the Claimant’s claim succeeds. 10 July 2023 – two instances[243]The Tribunal finds that, on 10 July 2023, the Respondent did tell the Claimant not to come back to site. The Tribunal also finds that Mr Murphy followed the Claimant to his car and kept asking the Claimant questions.[244]The Tribunal also finds that the Respondent did ask the Claimant to attend a “without prejudice” meeting.[245]In relation to both of the above matters, the Tribunal finds that the Respondent’s conduct did not relate to the Claimant’s disability. In a potential redundancy situation, it is common for the person who is at risk of redundancy to be treated in this way. There was no suggestion that Mr Murphy behaved improperly. Even if the Claimant did perceive that the Respondent’s conduct had the effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, in these instances, that perception was not a reasonable one.[246]Accordingly, there are insufficient primary facts from which the Tribunal could decide, in the absence of any other explanation, that discrimination took place. and this complaint fails. Holiday pay and unauthorised deductions[247]Employees are entitled to be paid in lieu of accrued but untaken holiday on termination of employment.[248]The issue of holiday was put to Ms Gilbert, who stated it was an HR matter.[249]The Claimant was effectively stopped by the Respondent from working from 10 July 2023. Any holiday booked after this date was untaken as a result of the actions of the Respondent. In the Tribunal’s view, this remained accrued but untaken by the Claimant.[250]Accordingly, on the termination of his employment, the Respondent failed, contrary to the WTR and the Employment Rights Act 1996, to pay the Claimant for accrued but untaken holiday of two weeks’ on termination and this was an unauthorised deduction of wages.
Remedy
[251]The amounts payable by the Respondent are to be assessed. Approved by: