K H Yung v Menzies Aviation (UK) Ltd: 3311142/2023
EMPLOYMENT TRIBUNALS
Case No 3311142/2023
Between
K H YungClaimantMenzies Aviation (UK) LtdRespondent
Before
Employment Judge Mr J S BurnsIn person for claimantMs K Barry (instructed by Counsel) for respondentDate 19 March 2025
JUDGMENT
The claims of disability discrimination and harassment are struck out
REASONS
[1]The judgment followed a Public Preliminary Hearing to determine whether the Claimant was disabled (by left patella dislocation) for purposes of the Equality Act 2010 at the material time (April to October 2023).[2]I was referred to documents in a bundle of 100 pages assembled by the Respondent. This included an impact statement in the form of further particulars provided by the Claimant about his knee injury. There were some (incomplete) medical and physiotherapy notes. The Claimant was cross-examined on this material. I then received oral final submissions.[3]At the beginning of the hearing the Claimant stated that he wished to adduce in evidence photos and videos taken by his flat-mate to show “the inconvenience ” caused by his knee. He was unable to say how many photos and videos there were or on what dates they had been taken. There was no witness statement from the photographer nor was he/she proposed to be called as a witness. The Claimant said that he needed time to find, download and sort out this material and he asked for an adjournment to some later hour or date so he could carry out this work with a view to presenting it later. The Respondent opposed the application.[4]The Claimant, who is able to read and understand written English, agreed that he had known for months that the purpose of today’s hearing was to deal with the disability issue. He also acknowledged that he had been ordered on 3/3/24 to disclose to the Respondent by 1/4/24 all relevant medical documents and also “any other evidence relevant to whether you had the disability at that time”.[5]The Respondent’s solicitors having received all the disclosure provided by the Claimant following this order, (none of which included or referred to any photos or videos) had, as directed, issued a letter dated 18/4/24 setting out its reasons for denying that the Claimant was disabled, and had thereafter prepared for today’s hearing on that basis. In the run-up to the hearing today, the Respondent’s solicitors had attempted to liaise with the Claimant but he had made no reference to this additional material. The Claimant gave me varying implausible explanations about why he had not already disclosed and prepared his proposed video evidence.[6]Had I allowed the adjournment/delay sought by the Claimant it would have made it impossible to complete the hearing today (which as it was ended at 4.40pm). I therefore refused his application and the hearing proceeded on the basis of the material in the bundle as supplemented by the Claimant’s oral evidence. A summary of the relevant law[7]Per section 6 Equality Act 2010 a person has a disability if they have a physical or mental impairment which has a substantial (which means “more than minor or trivial” limitation going beyond the normal differences which may exist between people) and long-term adverse effect on his ability to carry out normal day to day activities. In assessing whether there is or would be a substantial effect, one disregards measures such as medical measures which are being used to treat it. Sch 1 para 5(1) and (2). A claimant does not have to show why he has an impairment - but merely the fact that he does have one; The question is “Is there something wrong with Applicant?” The Applicant does not have to show underlying cause of impairment is physical (rather than mental). Normal day to day activities are activities such as walking, driving, typing and forming social relationships. The effect is long term if it has lasted or is likely to last 12 months or for the rest of the person’s life (Sch 1 para 2) Findings of fact and conclusions[8]The Claimant began employment with the Respondent on 06 March 2023. The Claimant was initially employed as a Flight Dispatcher. The Respondent provides airport services including ground handling, fuelling, cargo and transportation services at airports. The Claimant was based at Heathrow airport.[9]The Claimant dislocated his left knee on 2/6/22 in Hong Kong. The medical documentation available from Hong Kong is limited to a 2-page “ambulance journey record” dated 2/6/22 (which refers to knee dislocation but not to any further injury), and two pages of physiotherapy notes on 17/8/22 which state “left knee kinesphobia+improving.minimal swelling over the left knee” .[10]The Claimant on 26/10/22 registered with a UK GP who recorded ‘You dislocated you knee on the 2nd of June following a slip when out shopping. You went to hospital. and they completed an x ray and a CT scan. You do not have any reports from this visit but you suggested there may be an avulsion of the Lateral collateral ligament and a small osteochondral defect behind the patella”. (This latter suggestion is not supported by any of the Hong Kong documentation. Nor is it supported by any of the subsequent UK physiotherapy documentation).[11]The Claimant was referred for assessment by the UK GP’s in-house musculoskeletal specialist in November 2022. The Claimant has failed to disclose any notes or record of that assessment.[12]He was however seen by a physiotherapist on 29/12/22 who recorded that the Claimant’s “knee is stable and moves through a full range of movement”.[13]As he was complaining about “lack of confidence in using the knee, he was referred for 14 sessions of physiotherapy.[14]We have the notes of the 14 physio sessions which took place from 5/1/23 to 11/5/23. These notes, taken as a whole, suggest that when they took place the Claimant did not have much wrong with his knee but was given exercises and put through routines such as deadlifts and stepping up and down, to build his confidence.[15]On 23/2/23 the notes record ; “-Patient reports there has been good improvement in their knee pain and symptoms. Patient able to walk with walking (single)-Patient is feeling more confident in walking and mobilising up and down the stairs, however still struggles a little with going down the stairs.”[16]By 16/3/23 (shortly after starting employment with the Respondent) the Claimant had discarded his mobility aids (a crutch and then a walking pole).[17]In the notes of 11/5/23 there is a reference to the Claimant reporting “some nervousness when running and traversing the stairs on a double decker bus”.[18]The notes on 11/5/23 also recording the Claimant having completed the following exercises “safely and competently”; “PowerbagDeadlift 2x15@25kg...-Step Down from Box - 2x15 (supported by wail)…-Walking up/down (focus on the down) stairs - x6 - today's focus was maintaining a hip wide stance when walking up/down stairs, but also controlling the R leg and not being heavy footed when coming down the stairs…-Leg Press -1x10 @60kg, lx10 @70kg, 1x10 @80kg, 1x5 @90kg, 1x10 @100kgs”.[19]Despite this, when asked today what weight he could lift in the period when he was employed by the Respondent (ie including May 2023) he suggested he would be able to lift “only 3kgs for no longer than one second”.[20]The Claimant was then referred to Healthwise “for further exercises and support in recovery”. He had 7 further physio sessions between 16/8/23 and 6/3/2024. The Claimant has failed, without any explanation, to disclose any records of his treatment during that period - about ten months beginning on 12/5/23 and ending on 5/3/24, and including most of the period during which he complains about disability discrimination.[21]The Claimant presented his ET claim on 23/9/23 and on 3/3/24 EJ George issue directions and guidance to the Claimant as to the type of material he would need to adduce to support his claim to have been disabled.[22]The Claimant has disclosed the notes from one physiotherapy session on 6/3/24 which records the Claimant telling the physiotherapist that he “struggles to carry heavy shopping bags and to walk up the stairs on a bus”.[23]On 29/3/24 the Claimant produced, as he been directed to do, further particulars/an impact statement which contains allegations of mobility problems, for example “I was not able to carry daily necessities from supermarkets by myself such as groceries, toilet tissues, drinks and cleaning detergents….. When it was raining and I need to cross a pedestrians crossing, I was not usually able to manage to cross within given time …I struggled to get in and get out of trains with a big gap between trains and platforms. Moreover, I was not able to walk stairs without holding the handrails in the underground. I got knee pain when I was standing for 20 minutes and I had to find a seat to sit down to relieve my pain. I was unable to go upstairs and downstairs on double- decker buses. I was not able to run and walk the dog.”[24]The Claimant in his account given to the physiotherapist and in his impact statement in March 24 alleges immobility more serious than that which is recorded in his notes from 2022 and in the period up to May 23, after which, as already referred to, there is an unexplained gap in the record.[25]The Claimant was unable to give any satisfactory account for the fact that he had disclosed some but not all his medical and physiotherapy records.[26]Had the Claimant genuinely been experiencing in 2023 the more significant mobility problems which he has described in 2024, it is obvious that he would have mentioned them to the physiotherapists in 2023, but evidently he did not.[27]When the Claimant was asked about the discrepancies between his earlier notes and his current account, he provided implausible explanations such as that the notes were deficient, the earlier physio sessions were too short, the physiotherapist was incompetent and had been dismissed, and that Ms Barry’s (the Respondent’s Counsel’s) imagination was too fertile.[28]I find that the Claimant has tailored and exaggerated his account in response to EJ Georges direction and that he is not a reliable witness as to his impairment and its effects.[29]On a fair reading of the available medical and physiotherapy record, the Claimant suffered a left patella dislocation in June 2022 which did not require surgical intervention, which was treated conservatively and which had almost completed recovered within a couple of months. The Claimant however suffered nervousness about using the knee (first noted as “kinesphobia” in Hong Kong) which was the main driving force behind him seeking physiotherapy and worrying about his knee thereafter.[30]I considered whether this “nervousness” or functional overlay should itself be considered as a (mental) impairment having a substantial adverse effect, but this was not the Claimant’s case as identified in previous case management and in his impact statement, and when it was put to him several times during the hearing that his problems, such as they had been, had been mainly psychological rather than physical, he vehemently rejected such a suggestion.[31]In any event and whether or not there has been a psychological component, the evidence shows that by February 23 he was just “…struggling a little when going down stairs”, that by March 23 he had discarded his mobility aids and by May 23 he was able to run and negotiate the stairs on double decker buses. Any residual adverse effect was trivial.[32]I therefore find that while the Claimant has shown that during the relevant time he was suffering from an impairment (the aftermath of a minor knee injury) he has not shown on a balance of probabilities that this had had a substantial adverse effect on his ability to do day to day activities for at least 12 months or was likely to do so.[33]According he has not discharged the onus of proof to show he was disabled under the Equality Act 2010 and his claims for disability discrimination and harassment must be struck out.
Findings of fact
[34]On 6 July 2023, the claimant sent Mr Tse the following message: “Good morning Canno, I got a latest advice from my GP. The doctor pointed out that my performance of walking decreases in rainy days. She agreed with me that bringing a mountain stick and using on wet floor is the right approach. The job of dispatcher requiring me to walk outdoor including on rainy days. Therefore, I would suggest if you could reassign me to the check in team. I will let you know once ready for the job of dispatcher. ...”[35]Six minutes later, Mr Tse responded to ask whether the claimant was fit to start at check-in immediately; the reply was “yes from next Monday” - [R/135]. Mr Tse then investigated when the next induction course was to take place for a different, more suitable role (“CX in T3”, a customer service role). It transpired that there was a course starting on 31 July 2023: it was agreed that the claimant would undertake that induction course - [137].[36]As such, on 25 July 2023, the claimant received an offer of employment for a new role of Customer Service Agent T3, with a commencement date of 31 July 2023. This brought with it a change in the rate of pay to an hourly rate of £13.33.[37]The third telephone call that appears in the claimant’s jotted notes on [R/152] is dated 27 July 2023. Mr Tse’s statement references this conversation in paragraph 30.3 of his statement: he denies that he made any comment regarding the claimant receiving pay for August. There is a specific reference to it in the claimant’s statement at paragraph 5, which broadly repeats the content of his note at [R/152]. Mr Tse was not asked about this specific telephone call. It was put to the claimant that his account of the call was a falsehood.[38]I am not satisfied on the evidence before me that there was a conversation in July 2023 in which Mr Tse conveyed to the claimant that he would be paid for any period beyond his annual leave entitlement for which he was not at work.[39]The claimant attended his training course on 31 July 2023. August 2023[40]The claimant concluded his training and worked in the position of Customer Service Agent in August 2023.[41]The claimant first formally complained about his pay on 31 August 2023 by email to the Payroll Team – [R/92]. The response he received was the email from Ms Corby that I have set out at paragraph 11 above. September 2023[42]The claimant also raised issues with his pay slips several times in WhatsApp messages to Mr Tse in September 2023. The answer he received was to “speak to payroll” - [R/140]. On 2 September 2023, the claimant sent the following WhatsApp message to Mr Tse: “Morning Canno, many thanks for your help. To protect my right to get paid after work, I may have to stop working temporarily from now so as to prevent further loss. I have spoken to my DMs on 31 Aug when I noticed everyone in my team got paid except me. Unfortunately, their responses were not supportive”.[43]Mr Tse’s response was – [R/140]: “You do realise that if you do not go [tp] work you will [not] get paid?”[44]The claimant replied with – [R/140]: “Yes boss will resume after getting the August’s wage”.[45]On 3 September 2023, the claimant did not attend work due to the perceived ongoing dispute regarding his pay.[46]On 5 September 2023, the claimant sent an email complaint to various recipients regarding his pay issues – [R/95]. As a consequence he was invited to a meeting on 11 September 2023 to discuss his concerns – [R/96]. That meeting was held by Mr Lamb and Ms Corby.[47]Following his meeting with the claimant, Mr Lamb told me that he spoke to Ms Corby as a “conduit” between payroll and HR, as she deals with payment issues of this type. Mr Lamb explained that he “took [his] source of truth from her”.[48]Mr Lamb also spoke to Mr Tse, and checked the time-card for the claimant, which is at [R/153-173].[49]Mr Lamb sent the claimant an outcome letter dated 13 September 2023, following the meeting on 11 September 2023 – [R/99-101]. Mr Lamb found that Mr Tse had agreed with the claimant that he could take a period of annual leave followed by unpaid leave in order to recover from his knee injury. I note further that Mr Lamb recorded in the outcome letter that “the business would not typically pay an employee for a period of leave which is not holiday” - [R/100. I accept this evidence: it is consistent with the terms of the claimant’s contract of employment set out above at paragraph 9. Termination of employment[50]On 11 October 2023, the respondent convened a probation review meeting which the claimant refused to attend. The outcome letter following this meeting is at [C/329]. That letter conveyed to the claimant that his employment would be terminated as of 11 October 2023. The claimant’s time-card and annual leave entitlement[51]The respondent produces a time-card for each of its employees as its mechanism for recording sickness absences, annual leave and so on.[52]The claimant’s time-card for the relevant period is at [R/153-173]. The claimant does not agree to the accuracy of this document, but his disagreement relates to the fact that, at the point at which the time-card was created, the claimant did not have access to it: he only had sight of the timecard at the point of disclosure for this litigation. He did not stipulate any specific entries within the time-card with which he disagreed: the claimant’s point was that the time-card states what it states, but that he disagreed with the characterisation recorded therein.[53]The time-card records the following: 53.1. From 31 March through to 30 April inclusive, the claimant is recorded as being on annual leave; 53.2. From 1 May through to 30 July inclusive, the claimant is recorded as being on unpaid leave. This is with the exception of half a day on 20 June which is marked as annual leave.[54]I accept that this time-card is an accurate record of the manner in which the respondent logged the claimant’s absences in the period of March through to July.[55]The time-card records that the claimant had 22 days’ annual leave during this period. Pursuant to the claimant’s contract, he is entitled to 210 hours of holiday per year (28 days at 7.5 hours a day). Under the contract, in the first year, the amount of leave is pro-rated down to reflect the proportion of the year that an employee has worked for the respondent. The claimant started on 6 March 2023, and the leave year for 2023 ended on 31 December 2023. As such, the claimant’s pro-rated holiday entitlement was 22 days for the leave year 2023. Findings as to the arrangements between the parties[56]I accept that the respondent was accurate in the recording of annual leave on the claimant’s time-card. The amount of leave recorded (22 days) equates to his entire annual leave allowance for 2023 under his contract. In light of this evidence, and following the claimant’s message of 25 March 2023, I find that the respondent and the claimant agreed that he could use his annual leave to cover him for the initial period of time off, until his contractual annual leave was used up. This took the claimant up to 30 April 2023.[57]Beyond that initial agreement, I find that there is no good evidence to suggest that there was any agreement to pay the claimant for any absence once he had exhausted his annual leave. I have already rejected the claimant’s account of the telephone conversations upon which he relies. It is the claimant who asserts that there was such an agreement; it is he who bears the burden of proof to demonstrate that assertion on the evidence.[58]I therefore find that the only agreement to pay the claimant was to pay him for annual leave he used over his period of absence, that being a maximum of 22 days’ paid annual leave. I reject the claimant’s argument that Mr Tse agreed to pay him for leave that was not annual leave, but was effectively sickness absence.[59]I find this based on the following: 59.1. The claimant did not meet the contractual requirements to be paid CSP; 59.2. He did not provide the requisite documentary evidence to his employer to be able to claim SSP; 59.3. He had used up all his allocated annual leave; 59.4. The claimant’s contract makes it clear that the claimant would only be paid for hours he actually worked; 59.5. There is no documentary contemporaneous evidence to support the claimant’s suggestion that Mr Tse agreed to pay him for leave that was not taken as annual leave; 59.6. The claimant relies on the contents of telephone calls between him and Mr Tse. I have found against the claimant as to his account of those calls; 59.7. Further, I consider the claimant’s evidence to, at times, have been unreliable. For example, he at one point told me that, on 26 March: “[it was] agreed I would get paid for three weeks while I was on recovery. Three weeks later, [Mr Tse] asked how much longer I would need to be off and I spoke to the physio, and I told Mr Tse that I would probably need three more weeks ...”. That oral evidence is inconsistent with his contemporaneous message of 25 March 2023, which states the absence was anticipated to be for two months at that stage; 59.8. The concept of Mr Tse agreeing to pay the claimant for time off when no work was being done is inconsistent with Mr Tse’s text on 2 June 2023 at [R/127] in which he says “if you need more time [beyond 19 June] you will need to use the rest of your vacation hours”; 59.9. Payment when no work is being done is also inconsistent with the claimant’s contract of employment, and would not make commercial sense.[60]In any event, even if I am wrong and Mr Tse had agreed that the claimant could have paid leave, I accept the respondent’s unchallenged evidence that Mr Tse did not have authority to make such an agreement – see Mr Lamb’s witness statement paragraph 11 and Mr Tse’s statement paragraph 9. Therefore, I find that any such agreement would not be binding on the respondentin any event. Analysis of payslips[61]In May at [C/365], the claimant was paid his full salary, despite not working.[62]In June at [C/366], the claimant’s May pay was deducted. The claimant received net pay of £42.55, which reflects his net pay for the half day on 20 June 2023 marked (inaccurately) as annual leave. The respondent has not sought to recoup this, despite the claimant’s annual leave limit having already been used up by 20 June 2023.[63]The breakdown of the claimant’s pay slips can be seen in the respondent’s bundle. For June the relevant pay slip is at [R/145]. The breakdown demonstrates that: 63.1. £2,723.20 is being subtracted and that this pay was for the period “(01-31.05.2023)”; and, 63.2. £2,765.75 is being paid for the work scheduled to be done by the claimant for the period “(01-30.06.2023)”.[64]In July 2023 at [C/267], the claimant was paid net pay of £102.12. This is the pay for the one day worked by the claimant, on 31 July 2023.[65]The breakdown of the July payslip is at [R/146], and shows that: 65.1. £2,663.63 was deducted for the period “(01-30.06.23)”; and, 65.2. £2,765.75 was being paid for the period “(01-31.07.23)”.[66]In August 2023 at [C/368], the claimant received no net pay. The breakdown of the payslip is at [R/147] and shows: 66.1. £2,879.13 was deducted for the period “(01-31.07.23)”; and, 66.2. £2,164.50 was paid for the period “(01-31.08.23)”.[67]The claimant’s pay in his new role of Customer Service Agent was lower than his original salary: £13.33 compared to £17.01. This accounts for the lower pay figure for August, and thus why the claimant received no pay in August.[68]In summary, the claimant’s payslips demonstrate that: 68.1. He was paid his full salary in his May 2023 payslip; 68.2. He was paid for half a day in his June 2023 payslip (that being 20 June half day annual leave); 68.3. He was paid £102.12 in his July 2023 payslip (that being for the one day he worked in July, on 31 July 2023; 68.4. He was paid nothing in his August 2023 payslip. Summary of pay and work between May and August 2023[69]In the period 1 May to 31 August 2023, the claimant’s work pattern was as follows: 69.1. He had annual leave for half a day (20 June); 69.2. He worked for one day (31 July); 69.3. He worked for one month (August); 69.4. He did not work for the remaining balance of days in that fourmonth period.[70]In the period 1 May to 31 August 2023, the claimant received pay as follows: 70.1. Pay for half a day (£42.55 in June payslip); 70.2. Pay for one day (£102.12 in July payslip); 70.3. Pay for one month (in May payslip); 70.4. No pay for the remaining balance of days in that four-month period.[71]As such, I find that the claimant was paid the figures he was due for the work done in this period. Law[72]S27(1) Employment Rights Act 1996 (“ERA”) defines wages as: “any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise”.[73]The Claimant’s claim relates to his salary, which falls squarely within this section, and is not an excluded payment under s27(2) ERA.[74]S13(3) ERA provides as follows: “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”[75]The question of what is properly payable generally requires the Tribunal to determine what payment the worker is legally entitled to receive by way of wages – New Century Cleaning Co Ltd v Church 2000 IRLR 27, CA. This is an issue to be decided in line with the approach of the civil courts in contractual actions – Greg May (Carpet Fitters and Contractors) Ltd v Dring 1990 ICR 188, EAT. The question for the Tribunal is “on the basis of ordinary contractual and common law principles, what was the total amount of wages that was properly payable to the worker at the relevant time?”.[76]In determining the terms of the contract in question, it is necessary to take into account all the relevant terms of the contract, including implied terms – Camden Primary Care Trust v Atchoe 2007 EWCA Civ 714, CA.[77]The burden of proof is on the claimant to prove to the Tribunal, on the balance of probabilities, that he was paid an amount less than that which was properly payable to him.
Conclusions
[78]The burden of proof rests with the claimant to demonstrate that he was paid less than the wages properly payable to him for the months of June, July and August 2023.[79]I have accepted the respondent’s evidence as to the way in which it pays its employees (see paragraphs 10 to 12 above), namely: 79.1. Pay for a specific month was paid at the end of that month; 79.2. If any deductions needed to be made (for example, for absences), those deductions would be taken out of the following month’s payslip.[80]I have set out at paragraphs 69 and 70 above the work the claimant undertook in the relevant period, and the pay which he received in that same period. I have taken into account May 2023 (as opposed to limiting my findings to 1 June to 31 August 2023) due to the fact that deductions for May occur in the June payslip and are therefore relevant.[81]As such, I have found that the claimant was paid the figures he was due for the work done. I therefore conclude that he received the amount properly payable to him for the relevant period: as such, there was no unauthorised deduction of wages in the period 1 June 2023 to 31 August 2023.[82]The claimant’s claim therefore fails. Approved by